Vol. 83 Wednesday, No. 229 November 28, 2018

Pages 61109–61308

OFFICE OF THE FEDERAL REGISTER

VerDate Sep 11 2014 18:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4710 Sfmt 4710 E:\FR\FM\28NOWS.LOC 28NOWS II Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018

The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office PUBLIC of the Federal Register, National Archives and Records Administration, under the Federal Register Act (44 U.S.C. Ch. 15) Subscriptions: and the regulations of the Administrative Committee of the Federal Paper or fiche 202–512–1800 Register (1 CFR Ch. I). The Superintendent of Documents, U.S. Assistance with public subscriptions 202–512–1806 Government Publishing Office, is the exclusive distributor of the official edition. Periodicals postage is paid at Washington, DC. General online information 202–512–1530; 1–888–293–6498 Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making available to the public regulations and legal notices issued by Paper or fiche 202–512–1800 Federal agencies. These include Presidential proclamations and Assistance with public single copies 1–866–512–1800 Executive Orders, Federal agency documents having general (Toll-Free) applicability and legal effect, documents required to be published FEDERAL AGENCIES by act of Congress, and other Federal agency documents of public Subscriptions: interest. Assistance with Federal agency subscriptions: Documents are on file for public inspection in the Office of the Federal Register the day before they are published, unless the Email [email protected] issuing agency requests earlier filing. For a list of documents Phone 202–741–6000 currently on file for public inspection, see www.federalregister.gov. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge at www.govinfo.gov, a service of the U.S. Government Publishing Office. The online edition of the Federal Register is issued under the authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6:00 a.m. each day the Federal Register is published and includes both text and graphics from Volume 1, 1 (March 14, 1936) forward. For more information, contact the GPO Customer Contact Center, U.S. Government Publishing Office. Phone 202-512-1800 or 866-512- 1800 (toll free). E-mail, gpocusthelp.com. The annual subscription price for the Federal Register paper edition is $860 plus postage, or $929, for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $330, plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, is based on the number of pages: $11 for an issue containing less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues of the microfiche edition may be purchased for $3 per copy, including postage. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: U.S. Government Publishing Office—New Orders, P.O. Box 979050, St. Louis, MO 63197-9000; or call toll free 1-866-512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 83 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Publishing Office, Washington, DC 20402, along with the entire mailing label from the last issue received.

.

VerDate Sep 11 2014 18:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4710 Sfmt 4710 E:\FR\FM\28NOWS.LOC 28NOWS III

Contents Federal Register Vol. 83, No. 229

Wednesday, November 28, 2018

Children and Families Administration Federal Energy Regulatory Commission NOTICES NOTICES Agency Information Collection Activities; Proposals, Applications: Submissions, and Approvals, 61156–61157 Transcontinental Gas Pipe Line Co., LLC, 61154–61155 Combined Filings, 61153–61155 Civil Rights Commission Environmental Assessments; Availability, etc.: NOTICES Black Bear Hydro Partners, LLC, 61152 Meetings: Northern Natural Gas Co., Northern Lights 2019 Vermont Advisory Committee, 61144 Expansion Project and the Rochester Project, 61155– 61156 Commerce Department Initial Market-Based Rate Filings Including Requests for See National Oceanic and Atmospheric Administration Blanket Section 204 Authorizations: Power Holding, LLC, 61152 Consumer Product Safety Commission Preliminary Permit Applications: NOTICES Badger Mountain Hydro, LLC, 61152–61153 Provisional Acceptance of a Settlement Agreement and Order: EKO Development, Ltd. and EKO USA, LLC, 61146– Federal Housing Finance Agency 61149 RULES Affordable Housing Program Amendments, 61186–61247 Copyright Royalty Board RULES Fish and Wildlife Service Cost of Living Adjustment to Public Broadcasters PROPOSED RULES Compulsory License Royalty Rate, 61126 List of Migratory Birds; General Provisions, 61288–61307 Cost of Living Adjustment to Royalty Rates for Webcaster NOTICES Statutory License, 61125 Draft List of Bird Species to Which the Migratory Bird Cost of Living Adjustment to Satellite Carrier Compulsory Treaty Act Does Not Apply, 61161–61163 License Royalty Rates, 61126–61127 Endangered Species: Recovery Permit Application, 61163–61164 Defense Department Environmental Assessments; Availability, etc.: NOTICES Habitat Conservation Plan; North Allegheny Wind Agency Information Collection Activities; Proposals, Facility, Incidental Take Permit Application for Submissions, and Approvals, 61149–61152 Indiana Bat, Blair and Cambria Counties, Charter Renewals: Pennsylvania, 61160–61161 Vietnam War Commemoration Advisory Committee, 61149–61150 Health and Human Services Department Education Department See Children and Families Administration RULES NOTICES Waiver of Certain Consumer Information Requirements for Federal Financial Participation in State Assistance Foreign Institutions of Higher Education, 61121–61125 Expenditures: Federal Matching Shares for Medicaid, the Childrens Energy Department Health Insurance Program, and Aid to Needy Aged, See Federal Energy Regulatory Commission Blind, or Disabled Persons for October 1, 2019 through September 30, 2020, 61157–61160 Environmental Protection Agency RULES Indian Affairs Bureau Air Quality: RULES Revision to the Regulatory Definition of Volatile Organic Indian Electric Power Utilities, 61116–61121 Compounds—Exclusion of cis-1,1,1,4,4,4- NOTICES hexafluorobut-2-ene (HFO-1336mzz-Z), 61127–61134 HEARTH Act Approval of Quinault Indian Nation’s Business and Residential Leasing Regulations, 61164– Federal Communications Commission 61165 RULES Procedural Revisions to the Filing of Open Video System Certification Applications, 61134–61136 Interior Department See Fish and Wildlife Service Federal Deposit Insurance Corporation See Indian Affairs Bureau RULES See Land Management Bureau Rules of Practice and Procedure, 61111–61116 See National Park Service

VerDate Sep<11>2014 18:44 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4748 Sfmt 4748 E:\FR\FM\28NOCN.SGM 28NOCN IV Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Contents

International Trade Commission Notice of Change in Student’s Status, 61175 NOTICES Investigations; Determinations, Modifications, and Rulings, Presidential Documents etc.: PROCLAMATIONS Certain Earpiece Devices and Components Thereof, Special Observances: 61168–61169 Thanksgiving Day (Proc. 9827), 61109–61110

Land Management Bureau Securities and Exchange Commission NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Self-Regulatory Organizations; Proposed Rule Changes: Potential Amendment to the Approved Resource NYSE National, Inc., 61177–61182 Management Plan for the Buffalo Field Office, WY, 61165–61166 Treasury Department Potential Amendment to the Approved Resource Management Plan for the Miles City Field Office, NOTICES MT, 61167–61168 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Library of Congress Generic Clearance for Meaningful Access Information See Copyright Royalty Board Collections, 61183 Multiple Departmental Offices Information Collection National Oceanic and Atmospheric Administration Requests, 61182–61183 NOTICES Agency Information Collection Activities; Proposals, Veterans Affairs Department Submissions, and Approvals, 61144–61145 RULES Agency Information Collection Activities; Proposals, Per Diem Paid to States for Care of Eligible Veterans in Submissions, and Approvals: State Homes, 61250–61286 External Needs Assessment for NOAA Education PROPOSED RULES Products and Programs, 61145–61146 Prosthetic and Rehabilitative Items and Services, 61137– 61143 National Park Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals: National Park System Advisory Board, 61168 Department of Veterans Affairs Acquisition Regulation; Architect-Engineer Fee Proposal; Contractor Nuclear Regulatory Commission Production Report; Daily Log and Contract Progress NOTICES Report, 61183–61184 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Domestic Licensing of Source Material, 61170–61171 Operators’ Licenses, 61169–61170 Separate Parts In This Issue Request for Taxpayer Identification Number, 61171– 61172 Part II Environmental Assessments; Availability, etc.: Federal Housing Finance Agency, 61186–61247 Exelon Generation Co., LLC; Calvert Cliffs Nuclear Power Plant, Units 1 and 2; Calvert Cliffs Independent Part III Spent Fuel Storage Installation; James A. FitzPatrick Veterans Affairs Department, 61250–61286 Nuclear Power Plant; Nine Mile Point Nuclear Station, Units 1 and 2, 61172–61174 Part IV Interior Department, Fish and Wildlife Service, 61288– Personnel Management Office 61307 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reader Aids Application for 10-Point Veteran Preference, 61175– 61176 Consult the Reader Aids section at the end of this issue for Application for Death Benefits under the Federal phone numbers, online resources, finding aids, and notice Employees Retirement System; and Documentation of recently enacted public laws. and Elections in Support of Application for Death To subscribe to the Federal Register Table of Contents Benefits When Deceased was an Employee at the electronic mailing list, go to https://public.govdelivery.com/ Time of Death, 61176–61177 accounts/USGPOOFR/subscriber/new, enter your e-mail Certification of Qualifying District of Columbia Service, address, then follow the instructions to join, leave, or 61174–61175 manage your subscription.

VerDate Sep<11>2014 18:44 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4748 Sfmt 4748 E:\FR\FM\28NOCN.SGM 28NOCN Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Contents V

CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Proclamations: 9827...... 61109 12 CFR 308...... 61111 327...... 61111 1290...... 61186 1291...... 61186 25 CFR 175...... 61116 34 CFR 86...... 61121 668...... 61121 37 CFR 380...... 61125 381...... 61126 386...... 61126 38 CFR 17...... 61250 51...... 61250 52...... 61250 Proposed Rules: 17...... 61137 40 CFR 51...... 61127 47 CFR 76...... 61134 50 CFR Proposed Rules: 10...... 61288

VerDate Sep 11 2014 19:12 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4711 Sfmt 4711 E:\FR\FM\28NOLS.LOC 28NOLS 61109

Federal Register Presidential Documents Vol. 83, No. 229

Wednesday, November 28, 2018

Title 3— Proclamation 9827 of November 20, 2018

The President Thanksgiving Day, 2018

By the President of the United States of America

A Proclamation On Thanksgiving Day, we recall the courageous and inspiring journey of the Pilgrims who, nearly four centuries ago, ventured across the vast ocean to flee religious persecution and establish a home in the New World. They faced illness, harsh conditions, and uncertainty, as they trusted in God for a brighter future. The more than 100 Pilgrims who arrived at Plymouth, Massachusetts, on the Mayflower, instilled in our Nation a strong faith in God that continues to be a beacon of hope to all Americans. Thanksgiving Day is a time to pause and to reflect, with family and friends, on our heritage and the sacrifices of our forebearers who secured the blessings of liberty for an independent, free, and united country. After surviving a frigid winter and achieving their first successful harvest in 1621, the Pilgrims set aside 3 days to feast and give thanks for God’s abundant mercy and blessings. Members of the Wampanoag tribe—who had taught the Pilgrims how to farm in New England and helped them adjust and thrive in that new land—shared in the bounty and celebration. In recognition of that historic event, President George Washington, in 1789, issued a proclamation declaring the first national day of thanksgiving. He called upon the people of the United States to unite in rendering unto God our sincere and humble gratitude ‘‘for his kind care and protection of the People of this Country’’ and ‘‘the favorable interpositions of his Providence.’’ President Abraham Lincoln revived this tradition as our frac- tured Nation endured the horrors of the Civil War. Ever since, we have set aside this day to give special thanks to God for the many blessings, gifts, and love he has bestowed on us and our country. This Thanksgiving, as we gather in places of worship and around tables surrounded by loved ones, in humble gratitude for the bountiful gifts we have received, let us keep in close memory our fellow Americans who have faced hardship and tragedy this year. In the spirit of generosity and compassion, let us joyfully reach out in word and deed, and share our time and resources throughout our communities. Let us also find ways to give to the less fortunate—whether it be in the form of sharing a hearty meal, extending a helping hand, or providing words of encouragement. We are especially reminded on Thanksgiving of how the virtue of gratitude enables us to recognize, even in adverse situations, the love of God in every person, every creature, and throughout nature. Let us be mindful of the reasons we are grateful for our lives, for those around us, and for our communities. We also commit to treating all with charity and mutual respect, spreading the spirit of Thanksgiving throughout our country and across the world. Today, we particularly acknowledge the sacrifices of our service members, law enforcement personnel, and first responders who selflessly serve and protect our Nation. This Thanksgiving, more than 200,000 brave American patriots will spend the holiday overseas, away from their loved ones. Because of the men and women in uniform who volunteer to defend our liberty, we are able to enjoy the splendor of the American life. We pray for their safety, and for the families who await their return.

VerDate Sep<11>2014 21:29 Nov 26, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4705 Sfmt 4790 E:\FR\FM\28NOD0.SGM 28NOD0 61110 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Presidential Documents

NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim Thursday, November 22, 2018, as a National Day of Thanksgiving. I encourage all Americans to gather, in homes and places of worship, to offer a prayer of thanks to God for our many blessings. IN WITNESS WHEREOF, I have hereunto set my hand this twentieth day of November, in the year of our Lord two thousand eighteen, and of the Independence of the United States of America the two hundred and forty- third.

[FR Doc. 2018–25982 Filed 11–27–18; 8:45 am] Billing code 3295–F9–P

VerDate Sep<11>2014 21:29 Nov 26, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4705 Sfmt 4790 E:\FR\FM\28NOD0.SGM 28NOD0 Trump.EPS 61111

Rules and Regulations Federal Register Vol. 83, No. 229

Wednesday, November 28, 2018

This section of the FEDERAL REGISTER I. Policy Objectives for inflation.6 Under the 2015 contains regulatory documents having general Adjustment Act, the FDIC is required to applicability and legal effect, most of which The policy objective of the Rule is to make annual adjustments to its are keyed to and codified in the Code of simplify the presentation of maximum maximum CMP amounts to account for Federal Regulations, which is published under CMP amounts within 12 CFR part 308 inflation.7 These adjustments apply to 50 titles pursuant to 44 U.S.C. 1510. to support ease of reference and public all CMPs covered by the 2015 understanding. The Rule will amend the Adjustment Act.8 The 2015 Adjustment The Code of Federal Regulations is sold by presentation of maximum CMP limits to the Superintendent of Documents. Act requires annual adjustments be help ensure consistency with similar made by January 15 of each year.9 The statutes of other federal financial FDIC’s 2018 adjustments were 1 FEDERAL DEPOSIT INSURANCE regulators. Additionally, the Rule will published on January 12, 2018.10 CORPORATION implement recent Office of Management The 2015 Adjustment Act directs and Budget (OMB) guidance on federal agencies to follow guidance 12 CFR Parts 308 and 327 simplifying the publication of annual issued by the OMB by December 15 of inflation adjustments. each year when calculating new RIN 3064–AE75 II. Background maximum penalty amounts.11 The OMB issued guidance for the 2018 CMP Rules of Practice and Procedure The FDIC assesses CMPs under adjustments on December 15, 2017.12 section 8(i) of the Federal Deposit The OMB Guidance noted, ‘‘Some AGENCY: Federal Deposit Insurance Insurance Act (FDIA) (12 U.S.C. 1818) agencies have chosen to remove their Corporation. and a variety of other statutes.2 Congress specific penalty amounts from the CFR ACTION: Final rule. has established maximum penalties that and have instead codified the statutory can be assessed under these statutes. In formula for inflation adjustments. SUMMARY: The Federal Deposit many cases, these statutes contain Agencies must still calculate and Insurance Corporation (FDIC) is multiple penalty tiers, permitting the publish their penalty adjustments in the amending its rules of practice and assessment of penalties at various levels Federal Register.’’ 13 procedure to remove duplicative, depending on the severity of the misconduct at issue.3 III. Description and Expected Effects of descriptive regulatory language related the Rule to civil money penalty (CMP) amounts Since 1990, Congress has required that restates existing statutory language federal agencies with authority to The FDIC is amending its rules of regarding such CMPs; codify Congress’s impose CMPs to periodically adjust the practice and procedure to remove from recent change to CMP inflation- maximum CMP amounts these agencies adjustments in the FDIC’s regulations; are authorized to impose.4 These 6 See The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public and direct readers to an annually periodic updates have helped to Law 114–74, sec. 701, 129 Stat. 584 (2015 published notice in the Federal ‘‘maintain the deterrent effect of civil Adjustment Act). Although the 2015 Adjustment Register—rather than the Code of monetary penalties and promote Act increased the maximum penalty that may be Federal Regulations (CFR)—for compliance with the law.’’ 5 In 2015, assessed under each applicable statute, the FDIC still possesses discretion to impose CMP amounts information regarding the maximum Congress revised the process by which below the maximum level in accordance with the CMP amounts that can be assessed after federal agencies adjust applicable CMPs severity of the misconduct at issue. When making inflation adjustments. These revisions a determination as to the appropriate level of any are intended to simplify the CFR by 1 See 12 CFR 19.240 (2018) and 83 FR 1657 (Jan. given penalty, the FDIC is guided by statutory factors set forth in 12 U.S.C. 1818(i)(2)(G) and those removing unnecessary and redundant 12, 2018) (table containing the CMP adjustments published by the Office of the Comptroller of factors identified in the Interagency Policy text and to make it easier for readers to Currency); 12 CFR 263.65 (2018) (table containing Statement Regarding the Assessment of CMPs by locate the current, inflation-adjusted the CMP adjustments published by the Board of the Federal Financial Institutions Regulatory maximum CMP amounts by presenting Governors of the Federal Reserve System); 12 CFR Agencies. See 63 FR 30227 (June 3, 1998). Such factors include, but are not limited to, the gravity these amounts in an annually published 747.1001 (2018) (table containing the CMP adjustments published by the National Credit and duration of the misconduct and the intent chart. Additionally, the FDIC is Union Association). related to the misconduct. 7 correcting four errors and revising cross- 2 See, e.g., 12 U.S.C. 1972(2)(F) (authorizing the See 2015 Adjustment Act at sec. 701(b). references currently found in its rules of FDIC to impose CMPs for violations of the Bank 8 See Public Law 101–410, sec. 3(2), 104 Stat. 890 practice and procedure. Holding Company Act of 1970 related to prohibited (amended 2015) (codified as amended at 28 U.S.C. tying arrangements); 15 U.S.C. 78u–2 (authorizing 2461 note). DATES: This rule is effective on January the FDIC to impose CMPs for violations of certain 9 Public Law 114–74, sec. 701(b), 129 Stat. 584. 15, 2019. provisions of the Securities Exchange Act of 1934); 10 See 83 FR 1519, https://www.fdic.gov/news/ 42 U.S.C. 4012a(f) (authorizing the FDIC to impose board/2017/2017-12-19-notice-sum-b-fr.pdf. FOR FURTHER INFORMATION CONTACT: CMPs for pattern or practice violations of the Flood 11 See Public Law 114–74, sec. 701(b), 129 Stat. Graham N. Rehrig, Senior Attorney, Disaster Protection Act). 584. Legal Division, (202) 898–3829, 3 For example, 12 U.S.C. 1818(i)(2) provides for 12 OMB, Implementation of Penalty Inflation [email protected]; or Sydney Mayer, three tiers of CMPs, with the size of the CMP Adjustments for 2018, Pursuant to the Federal Civil increasing with the gravity of the misconduct. Penalties Inflation Adjustment Act Improvements Attorney, Legal Division, (202) 898– 4 See The Federal Civil Penalties Inflation Act of 2015, M–18–03 (OMB Guidance), https:// 3669; Federal Deposit Insurance Adjustment Act of 1990, Public Law 101–410. www.whitehouse.gov/wp-content/uploads/2017/11/ Corporation, 550 17th Street NW, 5 See section 2 of the Federal Civil Penalties M-18-03.pdf. Washington, DC 20429. Inflation Adjustment Act of 1990. Public Law 101– 13 OMB Guidance at 4 (citing 81 FR 41438 (June 410, 104 Stat. 890 (amended 2015) (codified as 27, 2016) (Social Security Administration) (codified SUPPLEMENTARY INFORMATION: amended at 28 U.S.C. 2461 note). at 29 CFR 498.103(g) (2018))).

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61112 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

the CFR descriptive regulatory language reference. Under the Rule, the FDIC will from current subsections 308.132(d)(1) related to maximum CMP amounts that calculate and publish a similar chart and (d)(3) into a new section 308.132(e), duplicates statutory language, codify the with inflation-adjusted figures in the since, aside from the differing penalty statutory formula for inflation Federal Register on or before January 15 amounts, these two current subsections adjustments to the maximum CMP of each calendar year, beginning with contain similar language. The new amounts, and direct readers to a table the January 15, 2019, annual inflation section 308.132(e) will direct readers to published annually in the Federal adjustments. the Federal Register to determine the Register, containing the inflation- The FDIC, however, will retain applicable inflation-adjusted penalty adjusted maximum CMP amounts. language in section 308.116(a), (c) and amounts. These changes will be consistent with (d) concerning violations of the Change the OMB Guidance and the practices of in Bank Control Act. These regulations, The FDIC is correcting four errors other Federal regulators. which the FDIC implemented in 1991, currently located at section Currently, 12 CFR 308.116(b) and address requests for a hearing, 308.132(d)(1) and (d)(3) concerning the 308.132(d) contain the maximum CMP mitigating factors, and the consequences maximum amount that generally will be amounts that may be assessed for of a respondent’s failure to answer.15 assessed for violations of 12 U.S.C. violations of various statutes, along with The language in current section 1464(v) and 1817(a) regarding the late lengthy descriptions of these statutes. 308.116(b)(1)–(3), however, repeats the filing of Call Reports by certain small Rather than providing any interpretation relevant statutory language of 12 U.S.C. institutions. The current text contains of these statutes or providing guidance 1817(j)(16)(A)–(D). Further, current the inadvertent overstatement of four regarding the assessment of CMPs for section 308.116(b)(4) merely contains fractions of an institution’s total assets violations of these statutes, the inflation adjustments. Therefore, the that are paired with correctly stated descriptive language contained in FDIC is removing current section basis-point figures. These corrections sections 308.116(b) and 308.132(d) 308.116(b) and instead directing readers will align the listed fractions of an merely restates the enabling statutory to section 308.132(d) to determine institution’s total assets with the listed language. The FDIC’s current format for current maximum CMP amounts. basis-point calculations, and these identifying inflation-adjusted CMP The FDIC is also keeping language corrections will be reflected in the figures differs significantly from the concerning the late filing of Call Reports annual Federal Register CMP notice.17 formats published by other prudential at current section 308.132(d)(1) and Lastly, the FDIC is revising cross- regulators 14 and makes it more difficult (d)(3). 12 U.S.C. 1817(a) provides the references found at 12 CFR for readers to locate applicable maximum CMP amounts for the late 308.502(a)(6), 12 CFR 308.502(b)(4), 12 maximum CMP amounts. Accordingly, filing of Call Reports. In 1991, however, CFR 308.530, and 12 CFR 327.3(c) to the FDIC is removing descriptive the FDIC issued regulations that further reflect the revisions to 12 CFR language found in sections 308.116(b) subdivided these amounts based upon 308.132(d). and 308.132(d). The FDIC believes that the size of the institution and the these changes will remove unnecessary lateness of the filing.16 These Since the Rule will amend the and redundant language from the CFR regulations accordingly differ from other presentation of maximum CMP levels in and improve readability. provisions found in section 308.132(d) the Federal Register, the FDIC believes A sample annual table containing the that simply restate relevant statutory the Rule will not pose any regulatory current maximum CMP amounts language regarding maximum CMP costs to IDIs or cost to the public in appears at the end of this section, for amounts. The Rule will merge language general. SAMPLE CIVIL MONEY PENALTY TABLE

Adjusted maximum CMP 18 U.S. code citation (beginning January 15, 2018)

12 U.S.C. 1464(v): Tier One CMP ...... $3,928. Tier Two CMP ...... $39,278. Tier Three CMP 19 ...... $1,963,870. 12 U.S.C. 1467(d) ...... $9,819. 12 U.S.C. 1817(a): Tier One CMP 20 ...... $3,928. Tier Two CMP ...... $39,278. Tier Three CMP 21 ...... $1,963,870. 12 U.S.C. 1817(c): Tier One CMP ...... $3,591. Tier Two CMP ...... $35,904. Tier Three CMP 22 ...... $1,795,216. 12 U.S.C. 1817(j)(16): Tier One CMP ...... $9,819. Tier Two CMP ...... $49,096. Tier Three CMP 23 ...... $1,963,870. 12 U.S.C. 1818(i)(2): 24 Tier One CMP ...... $9,819. Tier Two CMP ...... $49,096. Tier Three CMP 25 ...... $1,963,870. 12 U.S.C. 1820(e)(4) ...... $8,977. 12 U.S.C. 1820(k)(6) ...... $323,027. 12 U.S.C. 1828(a)(3) ...... $122. 12 U.S.C. 1828(h): 26

14 The OCC, the FRB, and the National Credit (table containing the FRB’s CMP adjustments); 12 shall be the greater of [an inflation-adjusted daily Union Association (NCUA) provide a simplified list CFR 747.1001 (2018) (table containing the NCUA’s penalty] or 1/1,000th of the institution’s total assets in a tabular format, identifying each enabling CMP adjustments). (1/10th of a basis point)’’ when it should read, ‘‘the statute and the associated maximum CMP amount, 15 See 56 FR 37968 (Aug. 9, 1991). amount assessed shall be the greater of [an adjusted for inflation. See 12 CFR 19.240 (2018) and 16 See 56 FR 37968, 37992–93 (Aug. 9, 1991). inflation-adjusted daily penalty] or 1/100,000th of 83 FR 1657 (Jan. 12, 2018) (table containing the 17 For example, current section the institution’s total assets (1/10th of a basis OCC’s CMP adjustments); 12 CFR 263.65 (2018) 308.132(d)(1)(i)(A) states, ‘‘the amount assessed point).’’ (Emphasis added.)

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61113

SAMPLE CIVIL MONEY PENALTY TABLE—Continued

Adjusted maximum CMP 18 U.S. code citation (beginning January 15, 2018)

For assessments <$10,000 ...... $122. 12 U.S.C. 1829b(j) ...... $20,521. 12 U.S.C. 1832(c) ...... $2,852. 12 U.S.C. 1884 ...... $285. 12 U.S.C. 1972(2)(F): Tier One CMP ...... $9,819. Tier Two CMP ...... $49,096. Tier Three CMP 27 ...... $1,963,870. 12 U.S.C. 3909(d) ...... $2,443. 15 U.S.C. 78u–2: Tier One CMP (individuals) ...... $9,239. Tier One CMP (others) ...... $92,383. Tier Two CMP (individuals) ...... $92,383. Tier Two CMP (others) ...... $461,916. Tier Three CMP (individuals) ...... $184,767. Tier Three penalty (others) ...... $923,831. 15 U.S.C. 1639e(k): First violation ...... $11,279. Subsequent violations ...... $22,556. 31 U.S.C. 3802 ...... $11,181. 42 U.S.C. 4012a(f) ...... $2,133.

CFR citation Adjusted presumptive CMP (beginning January 15, 2018)

12 CFR 308.132(e)(1)(i): Institutions with $25 million or more in assets: 1 to 15 days late ...... $538. 16 or more days late ...... $1,078. Institutions with less than 25 million in assets: 1 to 15 days late 28 ...... $180. 16 or more days late 29 ...... $359. 12 CFR 308.132(e)(1)(ii): Institutions with $25 million or more in assets: 1 to 15 days late ...... $897. 16 or more days late ...... $1,795. Institutions with less than $25 million in assets: 1 to 15 days late ...... 1/50,000th of the institution’s total assets. 16 or more days late ...... 1/25,000th of the institution’s total assets. 12 CFR 308.132(e)(2) ...... $39,278. 12 CFR 308.132(e)(3): Tier One CMP ...... $3,928. Tier Two CMP ...... $39,278. Tier Three CMP 30 ...... $1,963,870.

IV. Alternatives Considered During preliminary discussions public understanding more so than the regarding the Rule, the FDIC considered alternative. possible alternatives to issuing the Rule. V. Request for Comment 18 The maximum penalty amount is per day, The primary alternative the FDIC unless otherwise indicated. considered was to maintain the current The FDIC believes that these changes 19 The maximum penalty amount for an statutory language in the CFR and to Part 308 are ministerial and technical institution is the lesser of this amount or 1 percent Federal Register as well as the CMP and that, therefore, notice-and-comment of total assets. rulemaking is unnecessary. Nonetheless, 20 12 U.S.C. 1817(a) provides the maximum CMP presentation format. This alternative (1) amounts for the late filing of Call Reports. In 1991, keeps the redundant statutory language in the interest of transparency, the FDIC however, the FDIC issued regulations that further in the CFR and Federal Register, (2) invited comments on all aspects of the subdivided these amounts based upon the size of does not improve the clarity and Rule in a Notice of Proposed the institution and the lateness of the filing. See 56 Rulemaking, dated August 3, 2018.31 FR 37968, 37992–93 (Aug. 9, 1991), to be re- readability of the maximum CMPs, and codified at 12 CFR 308.132(e)(1). These adjusted (3) does not address the fact that the Commenters were specifically subdivided amounts are found at the end of this CMP presentation format is inconsistent encouraged to identify any technical chart. with the other prudential regulators. issues raised by the Rule. The FDIC 21 The maximum penalty amount for an provided a 60-day comment period for institution is the lesser of this amount or 1 percent Therefore, the FDIC believes the Rule of total assets. will support ease of reference and this Rule, but the agency did not receive 22 The maximum penalty amount for an any comments. institution is the lesser of this amount or 1 percent of total assets. assessment is $10,000 or more, the maximum CMP VI. Regulatory Analysis under section 1828(h) is 1 percent of the amount 23 The maximum penalty amount for an of the assessment for each day that the failure or Riegle Community Development and institution is the lesser of this amount or 1 percent of total assets. refusal continues. Regulatory Improvement Act 27 24 These amounts also apply to CMPs in statutes The maximum penalty amount for an Section 302 of the Riegle Community that cross-reference 12 U.S.C. 1818, such as 12 institution is the lesser of this amount or 1 percent U.S.C. 2601, 2804(b), 3108(b), 3349(b), 4009(a), of total assets. Development and Regulatory 32 4309(a), 4717(b); 15 U.S.C. 1607(a), 1681s(b), 28 The maximum penalty amount for an Improvement Act of 1994 requires 1691(b), 1691c(a), 1693o(a); 42 U.S.C. 3601. institution is the greater of this amount or 1/ that each Federal banking agency, in 25 The maximum penalty amount for an 100,000th of the institution’s total assets. determining the effective date and 29 institution is the lesser of this amount or 1 percent The maximum penalty amount for an administrative compliance requirements of total assets. institution is the greater of this amount or 1/ 26 The $122-per-day maximum CMP under 12 50,000th of the institution’s total assets. U.S.C. 1828(h), for failure or refusal to pay any 30 The maximum penalty amount for an 31 See 83 FR 38080, https://www.gpo.gov/fdsys/ assessment, applies only when the assessment is institution is the lesser of this amount or 1 percent pkg/FR-2018-08-03/pdf/2018-16548.pdf. less than $10,000. When the amount of the of total assets. 32 12 U.S.C. 4802.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61114 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

for new regulations that impose economic impact on a substantial 12 CFR Part 327 additional reporting, disclosure, or other number of small entities. Bank deposit insurance, Banks, requirements on insured depository The FDIC believes the amendments to banking, Savings associations. institutions, consider, consistent with 12 CFR parts 308 and 327 will have a principles of safety and soundness and negligible impact on small entities. For Authority and Issuance the public interest, any administrative a detailed description of the Rule and its For the reasons set forth in the burdens that such regulations would expected effects, please review Section preamble, the FDIC amends 12 CFR place on depository institutions, III above. The revisions are intended to parts 308 and 327 to read as follows: including small depository institutions, simplify the text of the CFR by removing and customers of depository unnecessary and redundant text in order PART 308—RULES OF PRACTICE AND institutions, as well as the benefits of to make it easier for readers to reference PROCEDURE such regulations. In addition, in order to and understand the current maximum ■ provide an adequate transition period, CMP amounts. 1. The authority citation for part 308 continues to read as follows: new regulations that impose additional Small Business Regulatory Enforcement reporting, disclosures, or other new Fairness Act Authority: 5 U.S.C. 504, 554–557; 12 requirements on IDIs generally must U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, The OMB has determined that the take effect on the first day of a calendar 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, Rule is not a ‘‘major rule’’ within the quarter that begins on or after the date 1829, 1829(b), 1831i, 1831m(g)(4), 1831o, meaning of the relevant sections of the 1831p–1, 1832(c), 1884(b), 1972, 3102, on which the regulations are published Small Business Regulatory Enforcement 3108(a), 3349, 3909, 4717, 5412(b)(2)(C), in final form. Act of 1996 (SBREFA).37 As required by 5414(b)(3); 15 U.S.C. 78(h) and (i), 78o(c)(4), The Rule will not impose any new or the SBREFA, the FDIC will submit the 78o–4(c), 78o–5, 78q–1, 78s, 78u, 78u–2, additional reporting, disclosures, or Rule and other appropriate reports to 78u–3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. other requirements on insured 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. Congress and the Government 4012a; Pub. L. 104–134, sec. 31001(s), 110 depository institutions. Therefore, the Accountability Office for review. Stat. 1321; Pub. L. 109–351, 120 Stat. 1966; Rule is not subject to the requirements Pub. L. 111–203, 124 Stat. 1376; Pub. L. 114– of this statute. The Omnibus Consolidated and Emergency Supplemental 74, sec. 701, 129 Stat. 584. Regulatory Flexibility Act Appropriations Act, 1999: Assessment ■ 2. Amend § 308.116 by revising of Federal Regulations and Policies on paragraph (b) to read as follows: The Regulatory Flexibility Act (RFA) Families generally requires that, in connection § 308.116 Assessment of penalties. with a rulemaking, an agency prepare The FDIC determined that the Rule * * * * * and make available for public comment will not affect family wellbeing within (b) Maximum penalty amounts. Under a final regulatory flexibility analysis the meaning of section 654 of the 12 U.S.C. 1817(j)(16), a civil money describing the impact of the rulemaking Omnibus Consolidated and Emergency penalty may be assessed for violations on small entities.33 A regulatory Supplemental Appropriations Act, of change in control of insured 38 flexibility analysis is not required, 1999. depository institution provisions in the however, if the agency certifies that the Paperwork Reduction Act maximum amounts calculated and rule will not have a significant published in accordance with The Rule does not create any new, or economic impact on a substantial § 308.132(d). revise any existing, collections of number of small entities. The Small information under section 3504(h) of the * * * * * Business Administration (SBA) has Paperwork Reduction Act of 1980.39 ■ 3. Amend § 308.132 by revising defined ‘‘small entities’’ to include Consequently, no information-collection paragraph (d) and adding paragraph (e) banking organizations with total assets to read as follows: 34 request will be submitted to the OMB less than or equal to $550 million. The for review. FDIC supervises 3,575 depository § 308.132 Assessment of penalties. institutions,35 of which 2,763 are Plain Language Act * * * * * defined as small banking entities by the Section 722 of the Gramm-Leach- (d) Maximum civil money penalty terms of the RFA.36 For the reasons Bliley Act requires the FDIC to use plain amounts. Under the Federal Civil described below and under section language in all proposed and final rules Penalties Inflation Adjustment Act 605(b) of the RFA, the FDIC certifies published after January 1, 2000.40 Improvements Act of 2015, the Board of that the Rule will not have a significant Accordingly, the FDIC has attempted to Directors or its designee may assess civil write the Rule in clear and money penalties in the maximum 33 5 U.S.C. 601 et seq. comprehensible language. amounts using the following framework: 34 The SBA defines a small banking organization (1) Statutory formula to calculate as having $550 million or less in assets, where ‘‘a List of Subjects inflation adjustments. The FDIC is financial institution’s assets are determined by averaging the assets reported on its four quarterly 12 CFR Part 308 required by statute to annually adjust for inflation the maximum amount of financial statements for the preceding year.’’ 13 CFR Administrative practice and 121.201 n.8 (2018). ‘‘SBA counts the receipts, each civil money penalty within its employees, or other measure of size of the concern procedure, Bank deposit insurance, jurisdiction to administer. The inflation whose size is at issue and all of its domestic and Banks, banking, Claims, Crime, Equal foreign affiliates. . . .’’ 13 CFR 121.103(a)(6) adjustment is calculated by multiplying access to justice, Fraud, Investigations, the maximum dollar amount of the civil (2018). Following these regulations, the FDIC uses Lawyers, Penalties. a covered entity’s affiliated and acquired assets, money penalty for the previous calendar averaged over the preceding four quarters, to year by the cost-of-living inflation determine whether the covered entity is ‘‘small’’ for 37 5 U.S.C. 801 et seq. the purposes of RFA. 38 Public Law 105–277, 112 Stat. 2681 (1998). adjustment multiplier provided 35 FDIC-supervised institutions are listed in 12 39 44 U.S.C. 3501 et seq. annually by the Office of Management U.S.C. 1813(q)(2). 40 Public Law 106–102, 113 Stat. 1338 (Nov. 12, and Budget and rounding the total to the 36 Call Report: June 30, 2018. 1999). nearest dollar.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61115

(2) Notice of inflation adjustments. By basis where the amount of time of the (4) Mitigating factors. The amounts set January 15 of each calendar year, the institution’s delinquency is lengthy or forth in paragraphs (e)(1) through (e)(3) FDIC will publish notice in the Federal the institution has been delinquent of this section may be reduced based Register of the maximum penalties that repeatedly in making or publishing its upon the factors set forth in paragraph may be assessed after each January 15, Call Reports. (b) of this section. based on the formula in paragraph (d)(1) (iv) Waiver. Absent extraordinary ■ 4. Amend § 308.502 by revising of this section, for conduct occurring on circumstances outside the control of the paragraphs (a)(6) and (b)(4) to read as or after November 2, 2015. institution, penalties assessed for late follows: (e) Civil money penalties for filing shall not be waived. violations of 12 U.S.C. 1464(v) and 12 (2) Late-filing—Tier Two penalties. § 308.502 Basis for civil penalties and U.S.C. 1817(a)—(1) Late filing—Tier Where an institution fails to make or assessments. One penalties. Where an institution fails publish its Call Report within the (a) * * * to make or publish its Report of appropriate time period, the Board of (6) The amount of any penalty Condition and Income (Call Report) Directors or its designee may assess a assessed under paragraph (a)(1) of this within the appropriate time periods, but Tier Two civil money penalty for each section will be adjusted for inflation in where the institution maintains day the failure continues. The amount accordance with § 308.132(d). procedures in place reasonably adapted of such a penalty will not exceed the * * * * * to avoid inadvertent error and the late maximum amount calculated and (b) * * * filing occurred unintentionally and as a published annually in the Federal (4) The amount of any penalty result of such error, or where the Register under paragraph (d)(2) of this assessed under paragraph (a)(1) of this institution inadvertently transmitted a section. section will be adjusted for inflation in Call Report that is minimally late, the (3) False or misleading reports or accordance with § 308.132(d). Board of Directors or its designee may information—(i) Tier One penalties. In * * * * * assess a Tier One civil money penalty. cases in which an institution submits or The amount of such a penalty shall not ■ 5. Amend § 308.530 by revising publishes any false or misleading Call paragraph (d) to read as follows: exceed the maximum amount calculated Report or information, the Board of and published annually in the Federal Directors or its designee may assess a § 308.530 Determining the amount of Register under paragraph (d)(2) of this Tier One civil money penalty for each penalties and assessments. section. Such a penalty may be assessed day the information is not corrected, for each day that the violation * * * * * where the institution maintains continues. (d) Civil money penalties that are (i) First offense. Generally, in such procedures in place reasonably adapted assessed under this subpart are subject cases, the amount assessed shall be an to avoid inadvertent error and the to annual adjustments to account for amount calculated and published violation occurred unintentionally and inflation as required by the Federal Civil annually in the Federal Register under as a result of such error, or where the Penalties Inflation Adjustment Act paragraph (d)(2) of this section. The institution inadvertently transmits a Improvements Act of 2015 (Pub. L. 114– Federal Register notice will contain a Call Report or information that is false 74, sec. 701, 129 Stat. 584) (see also presumptive penalty amount per day for or misleading. The amount of such a § 308.132(d)). each of the first 15 days for which the penalty will not exceed the maximum PART 327—ASSESSMENTS failure continues, and a presumptive amount calculated and published amount per day for each subsequent annually in the Federal Register under paragraph (d)(2) of this section. ■ 6. The authority citation for part 327 days the failure continues, beginning on continues to read as follows: the 16th day. The annual Federal (ii) Tier Two penalties. Where an Register notice will also provide penalty institution submits or publishes any Authority: 12 U.S.C. 1441, 1813, 1815, amounts that generally may be assessed false or misleading Call Report or other 1817–19, 1821. for institutions with less than information, the Board of Directors or its ■ 7. Amend § 327.3 by revising $25,000,000 in assets. designee may assess a Tier Two civil paragraph (c) to read as follows: (ii) Subsequent offense. The FDIC will money penalty for each day the calculate and publish in the Federal information is not corrected. The § 327.3 Payment of assessments. Register a presumptive daily Tier One amount of such a penalty will not * * * * * penalty to be imposed where an exceed the maximum amount calculated (c) Necessary action, sufficient institution has been delinquent in and published annually in the Federal funding by institution. Each insured making or publishing its Call Report Register under paragraph (d)(2) of this depository institution shall take all within the preceding five quarters. The section. actions necessary to allow the published penalty shall identify the (iii) Tier Three penalties. Where an Corporation to debit assessments from amount that will generally be imposed institution knowingly or with reckless the insured depository institution’s per day for each of the first 15 days for disregard for the accuracy of any Call designated deposit account. Each which the failure continues, and the Report or information submits or insured depository institution shall, amount that will generally be imposed publishes any false or misleading Call prior to each payment date indicated in per day for each subsequent day the Report or other information, the Board paragraph (b)(2) of this section, ensure failure continues, beginning on the 16th of Directors or its designee may assess that funds in an amount at least equal day. The annual Federal Register notice a Tier Three civil money penalty for to the amount on the quarterly certified will also provide penalty amounts that each day the information is not statement invoice are available in the generally may be assessed for corrected. The penalty shall not exceed designated account for direct debit by institutions with less than $25,000,000 the lesser of 1 percent of the the Corporation. Failure to take any in assets. institution’s total assets per day or the such action or to provide such funding (iii) Lengthy or repeated violations. amount calculated and published of the account shall be deemed to The amounts set forth in this paragraph annually in the Federal Register under constitute nonpayment of the (e)(1) will be assessed on a case-by-case paragraph (d)(2) of this section. assessment. Penalties for failure to

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61116 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

timely pay assessments will be DATES: This rule is effective December 1039–40; 49 Stat. 1822–23; 54 Stat. 422; calculated and published in accordance 28, 2018. 62 Stat. 269–73; 65 Stat. 254; 99 Stat. with 12 CFR 308.132(d). FOR FURTHER INFORMATION CONTACT: 319–20. Each of these power projects * * * * * David Fisher, Branch Chief Irrigation & provides energy, transmission, and Dated at Washington, DC, on November 20, Power, Division of Water & Power, distribution of electrical services to 2018. Bureau of Indian Affairs, telephone customers in their respective service By order of the Board of Directors. (303) 231–5225, [email protected]. areas. BIA (or the contracting/ compacting Indian Tribe) provides Federal Deposit Insurance Corporation. SUPPLEMENTARY INFORMATION: I. Background oversight and limited technical Robert E. Feldman, II. Description of Changes assistance for power projects and Executive Secretary. III. Procedural Requirements conducts operations and maintenance of [FR Doc. 2018–25660 Filed 11–27–18; 8:45 am] A. Regulatory Planning and Review (E.O.s the distribution systems. BILLING CODE 6714–01–P 12866 and 13563) and Reducing Regulation and Controlling Regulatory The regulations addressing BIA’s Costs (E.O. 13771) administration of the power utilities are B. Regulatory Flexibility Act at 25 CFR part 175, Indian Electric DEPARTMENT OF THE INTERIOR C. Small Business Regulatory Enforcement Power Utilities. This final rule updates Fairness Act Bureau of Indian Affairs the regulations for the first time since D. Unfunded Mandates Reform Act 1991. E. Takings (E.O. 12630) 25 CFR Part 175 F. Federalism (E.O. 13132) II. Description of Changes G. Civil Justice Reform (E.O. 12988) [190A2100DD/AAKC001030/ H. Consultation With Indian Tribes (E.O. A0A501010.999900 253G] The revisions being finalized today 13175) are intended to make the regulations RIN 1076–AF31 I. Paperwork Reduction Act more user-friendly through plain J. National Environmental Policy Act language. The final rule also updates Indian Electric Power Utilities K. Effects on the Energy Supply (E.O. 13211) definitions, lengthens the time by which AGENCY: Bureau of Indian Affairs, BIA must issue a decision on an appeal Interior. I. Background from 30 days to 60 days (by referring to ACTION: Final rule. Various statutes provide the Bureau of 25 CFR 2.19(a)), and requires Indian Affairs (BIA) with authority to publication of rate adjustments in the SUMMARY: This rule revises regulations issue this regulation and for Federal Register. These changes were addressing electric power utilities of the administering electric power utilities for proposed on December 27, 2017 at 82 Colorado River, Flathead, and San the Colorado River, Flathead (Mission FR 61193. BIA received no comments Carlos Indian irrigation projects to use Valley Power), and San Carlos Indian relevant to the proposed rule. The final plain language, update definitions, irrigation projects. For example, see 5 rule makes no changes to the proposed lengthen a regulatory deadline, and U.S.C. 301; 25 U.S.C. 13; 25 U.S.C. 385c; rule. The following tables summarize make other minor changes. 43 Stat. 475–76; 45 Stat. 210–13; 49 Stat. the final changes:

TABLE 1

Current 25 CFR section New 25 CFR section Summary of changes

175.1 Definitions ...... 175. 100 What terms should I Deletes the definitions of ‘‘appellant’’ and ‘‘officer-in-charge.’’ know for this part? Adds definitions for ‘‘bill,’’ ‘‘CFR,’’ ‘‘day(s),’’ ‘‘delinquent,’’ ‘‘due date,’’ ‘‘electric energy,’’ ‘‘energy,’’ ‘‘fee,’’ ‘‘I, me, my, you, and your,’’ ‘‘must,’’ ‘‘past due bill,’’ ‘‘power,’’ ‘‘public notice,’’ ‘‘purchased power,’’ ‘‘taxpayer identification number,’’ ‘‘utility(ies),’’ and ‘‘we, us, and our.’’ Replaces definition of ‘‘Area Director’’ with a definition of ‘‘BIA.’’ Revises the definition of ‘‘customer,’’ ‘‘electric power utility,’’ ‘‘electric service,’’ ‘‘operations manual,’’ ‘‘service,’’ ‘‘service fee.’’ Revises the definition of ‘‘power rate’’ and replaces it with the terms ‘‘rate’’ and ‘‘electric power rate.’’ Revises the definition of ‘‘service agreement’’ and replaces it with the term ‘‘agreement.’’ Revises the definition of ‘‘special contract’’ and replaces it with the term ‘‘special agreement.’’ 175.2 Purpose ...... 175.105 What is the purpose of Revises for plain language. this part? 175.3 Compliance ...... 175.110 Does this part apply to Revises for plain language. me? 175.4 Authority of area director ..... N/A ...... Deletes provisions containing delegations of authority to eliminate possible conflicts with the Departmental Delegations of Authority. 175.5 Operations manual...... 175.115 How does BIA admin- Revises for plain language, deletes specific means by which public ister its electric power utilities? notice of changes will be provided, and incorporates instead the 175.120 What are Operations definition of ‘‘public notice,’’ which provides for publishing informa- Manuals? tion consistent with the operations manual. 175.6 Information collection...... 175.600 How does the Paper- Revises for plain language. work Reduction Act affect this part?

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61117

TABLE 1—Continued

Current 25 CFR section New 25 CFR section Summary of changes

175.10 Revenues collected from 175.200 Why does BIA collect Revises for plain language and deletes amortization as an example power operations. revenue from you and the other for what BIA may use revenue. customers it serves, and how is that revenue used? 175.205 When are BIA rates and fees reviewed? 175.11 Procedures for setting serv- 175.210 What is BIA’s procedure Deletes provisions containing delegations of authority to eliminate ice fees. for setting service fees? possible conflicts with Departmental Delegations of Authority. 175.12 Procedures for adjusting 175.215 What is BIA’s procedure Adds a requirement for BIA to publish a proposed rate adjustment in electric power rates except for ad- for adjusting electric power the Federal Register. justments due to changes in the rates? cost of purchased power or en- 175.220 How long do rate and ergy. fee adjustments stay in effect? 175.13 Procedures for adjusting 175.235 How does BIA include Revises for plain language. electric power rates to reflect changes in purchased power changes in the cost of purchased costs to our electric power power or energy. rates? 175.20 Gratuities ...... N/A ...... This section is deleted because it is already addressed by other laws. 175.21 Discontinuance of service .. 175.315 What will happen if I do Revises for plain language. not pay my bill? 175.22 Requirements for receiving 175.125 How do I request and Revises for plain language. electrical service. receive service? 175.23 Customer responsibilities ... N/A ...... Deleted because this provision is for a project-specific authority ad- dressed at the local BIA level. 175.24 Utility responsibilities...... N/A ...... Incorporates the substance into sections 175.115 and 175.120, which refer to operations manual instead of setting out responsibil- ities. 175.30 Billing ...... 175.300 How does BIA calculate Revises for plain language. my electric bill? 175.31 Methods and terms of pay- 175.310 How do I pay my bill? Replaces provision stating that the utility may refuse, for cause, to ment. accept personal checks with a general statement that the electric utility that serves you may provide additional requirements. 175.32 Collections ...... 175.315 What will happen if I do Revises for plain language. not pay my bill? 175.320 What will happen if my service is disconnected and my account remains delinquent? 175.40 Financing of extensions 175.400 Will the utility extend or Revises to direct customers to contact the electric power utility for and upgrades. upgrade its electric system to more information. serve new or increased loads? 175.50 Obtaining rights-of-way ...... 175.500 How does BIA manage Revises to direct customers to contact the electric power utility for 175.51 Ownership. rights-of-way? more information. 175.60 Appeals to the area direc- 175.145 Can I appeal a BIA de- Combines current sections 175.60 and 175.61 into a paragraph that tor. cision? refers to 25 CFR part 2 rather than explicitly stating appeal proce- 175.61 Appeals to the Interior dures. Increases the time by which BIA must issue a decision on Board of Indian Appeals. an appeal from 30 days to 60 days (see 25 CFR 2.19(a)). 175.62 Utility actions pending the Adds a new paragraph (b) to clarify that a customer must pay the bill appeal process. to continue to receive service. Incorporates section 175.62 into new paragraphs (c) through (e).

NEW PROVISIONS

Current 25 CFR section New final 25 CFR section Summary of changes

N/A ...... 175.130 What information must I New section. provide when I request service? N/A ...... 175.135 Why is BIA collecting New section. this information? N/A ...... 175.140 What is BIA’s authority New section. to collect my taxpayer identifica- tion number? N/A ...... 175.225 What is the Federal New section. Register, and where can I get it? N/A ...... 175.230 Why are changes to New section. purchased power costs not in- cluded in the procedure for ad- justing electric power rates?

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61118 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

NEW PROVISIONS—Continued

Current 25 CFR section New final 25 CFR section Summary of changes

N/A ...... 175.320 What will happen if my New section. service is disconnected and my account remains delinquent? N/A ...... 175.305 When is my bill due? New section.

III. Procedural Requirements local government agencies, or sovereignty. We have evaluated this rule geographic regions; under the Department’s consultation A. Regulatory Planning and Review (c) Does not have significant adverse policy and under the criteria in E.O. (E.O. 12866 and 13563) and Reducing effects on competition, employment, 13175 for substantial direct effects on Regulation and Controlling Regulatory investment, productivity, innovation, or federally recognized Indian Tribes and Costs (E.O. 13771) the ability of U.S.-based enterprises to have consulted with those Tribes served Executive Order (E.O.) 12866 provides compete with foreign-based enterprises. by the electric power utilities subject to that the Office of Information and this rule. We hosted two in-person Regulatory Affairs in the Office of D. Unfunded Mandates Reform Act Tribal consultation sessions in the Management and Budget will review all This rule does not impose an vicinity of Tribes served by the electric significant rules. The Office of unfunded mandate on State, local, or power utilities: One on April 14, 2016, Information and Regulatory Affairs has tribal governments or the private sector in Pablo, Montana, and one on April 19, determined that this rule is not of more than $100 million per year. The 2016, in Phoenix, Arizona. One Tribe significant. rule does not have a significant or submitted comments on the draft E.O. 13563 reaffirms the principles of unique effect on State, local, or tribal regulation, to which we have responded E.O. 12866 while calling for governments or the private sector. A by letter because the comments are improvements in the nation’s regulatory statement containing the information primarily unique to the local utility. We system to promote predictability, to required by the Unfunded Mandates included an offer in the proposed rule reduce uncertainty, and to use the best, Reform Act (2 U.S.C. 1531 et seq.) is not for any Tribe that would like additional most innovative, and least burdensome required. consultation opportunities on the tools for achieving regulatory ends. The proposed regulatory changes to contact E. Takings (E.O. 12630) executive order directs agencies to BIA. No Tribe requested additional consider regulatory approaches that This rule does not effect a taking of consultation opportunities on the rule. reduce burdens and maintain flexibility private property or otherwise have I. Paperwork Reduction Act and freedom of choice for the public taking implications under E.O. 12630. A where these approaches are relevant, takings implication assessment is not The information collection feasible, and consistent with regulatory required. requirements contained in 25 CFR part 175 are authorized by OMB Control objectives. E.O. 13563 emphasizes F. Federalism (E.O. 13132) further that regulations must be based Number 1076–0021, with an expiration on the best available science and that Under the criteria in section 1 of E.O. date of June 30, 2019. A submission to the rulemaking process must allow for 13132, this rule does not have sufficient the Office of Management and Budget public participation and an open Federalism implications to warrant the under the Paperwork Reduction Act (44 exchange of ideas. We have developed preparation of a Federalism summary U.S.C. 3501 et seq.) is not required this rule in a manner consistent with impact statement. A Federalism because this rule would not affect the these requirements. summary impact statement is not information collection requirements This rule is not an E.O. 13771 required. contained in 25 CFR part 175. We may not conduct or sponsor, and you are not regulatory action because this rule is not G. Civil Justice Reform (E.O. 12988) significant under E.O. 12866. required to respond to, a collection of This rule complies with the information unless it displays a B. Regulatory Flexibility Act requirements of E.O. 12988. currently valid OMB control number. This document will not have a Specifically, this rule: J. National Environmental Policy Act significant economic effect on a (a) Meets the criteria of section 3(a) substantial number of small entities requiring that all regulations be This rule does not constitute a major under the Regulatory Flexibility Act (5 reviewed to eliminate errors and Federal action significantly affecting the U.S.C. 601 et seq.) because the rule does ambiguity and be written to minimize quality of the human environment. A not make any changes to electric power litigation; and detailed statement under the National rates or service fees. (b) Meets the criteria of section 3(b)(2) Environmental Policy Act of 1969 requiring that all regulations be written (NEPA) is not required because the rule C. Small Business Regulatory in clear language and contain clear legal is covered by a categorical exclusion. Enforcement Fairness Act standards. This rule is excluded from the This rule is not a major rule under 5 requirement to prepare a detailed H. Consultation With Indian Tribes U.S.C. 804(2), the Small Business statement because it is a regulation of an (E.O. 13175 and Departmental Policy) Regulatory Enforcement Fairness Act. administrative nature. (For further This rule: The Department of the Interior strives information, see 43 CFR 46.210(i).) We (a) Does not have an annual effect on to strengthen its government-to- have also determined that the rule does the economy of $100 million or more; government relationship with Indian not involve any of the extraordinary (b) Will not cause a major increase in Tribes through a commitment to consult circumstances listed in 43 CFR 46.215 costs or prices for consumers, with Indian Tribes and recognize their that would require further analysis individual industries, Federal, State, or right to self-governance and Tribal under NEPA.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61119

K. Effects on the Energy Supply (E.O. Subpart D—System Extensions and Electric service means the delivery of 13211) Upgrades, Rights-of-Way, and Paperwork electric power by our utility to our Reduction Act This rule is not a significant energy customers. action under the definition in E.O. 175.400 Will the utility extend or upgrade Energy means electric power. its electric system to serve new or Fee (see Service fee). 13211. A Statement of Energy Effects is increased loads? not required. 175.500 How does BIA manage rights-of- I, me, my, you, and your means all interested parties, especially persons or List of Subjects in 25 CFR Part 175 way? 175.600 How does the Paperwork entities to which we provide service and Administrative practice and Reduction Act affect this part? receive use of our electric power procedure, Electric power, Indians— Authority: 5 U.S.C. 301; 25 U.S.C. 13; 25 service. lands, Reporting and recordkeeping U.S.C. 385c; 43 Stat. 475–76; 45 Stat. 210–13; Must means an imperative or requirements. 49 Stat. 1039–40; 49 Stat. 1822–23; 54 Stat. mandatory act or requirement. ■ For the reasons given in the preamble, 422; 62 Stat. 269–73; 65 Stat. 254; 99 Stat. Operations Manual means the written the Department of the Interior amends 319–20. policies, practices, procedures and chapter 1 of title 25 Code of Federal requirements of the utility providing Subpart A—General Provisions Regulations by revising part 175 to read your service. The Operations Manual as follows. § 175.100 What terms I should know for supplements this Part and includes our this part? responsibilities to our customers and PART 175—ELECTRIC POWER our customers’ responsibilities to the UTILITIES Agreement means the executed written form between you and the utility. Subpart A—General Provisions utility providing your service, except for Past due bill means a bill that has not been paid by the due date. Sec. service provided under a Special 175.100 What terms should I know for this Agreement. Power (see Energy). part? BIA means the Bureau of Indian Public notice is the notice provided 175.105 What is the purpose of this part? Affairs within the United States by publishing information consistent 175.110 Does this part apply to me? Department of the Interior or the BIA’s with the utility’s Operations Manual. 175.115 How does BIA administer its authorized representative. Purchased power means the power we electric power utilities? Bill means our written statement must purchase from power marketing 175.120 What are Operations Manuals? providers for resale to our customers to 175.125 How do I request and receive notifying you of the charges and/or fees service? you owe the United States for the meet changing power demands. Each of 175.130 What information must I provide administration, operation, maintenance, our utilities establishes its own power when I request service? rehabilitation, and/or construction of purchasing agreement based on its 175.135 Why is BIA collecting this the electric power utility servicing you. power demands and firm power information? CFR means Code of Federal availability. 175.140 What is BIA’s authority to collect Regulations. Rate (see Electric power rate). my taxpayer identification number? Reserve Funds means funds held in 175.145 Can I appeal a BIA decision? Customer means any person or entity to whom we provide service. reserve for maintenance, repairs, or Subpart B—Service Fees, Electric Power Customer service is the assistance or unexpected expenses. Rates, and Revenues service provided to customers, except Revenue means the monies we collect 175.200 Why does BIA collect revenue from for the actual delivery of electric power from our customers through service fees you and the other customers it serves, or energy. Customer service may and electric power rates. and how is that revenue used? Service (see Electric service). 175.205 When are BIA rates and fees include: Line extension, system reviewed? upgrade, meter testing, connections or Service fee means our charge for 175.210 What is BIA’s procedure for disconnection, special meter reading, or providing or performing a specific adjusting service fees? other assistance or service as provided administrative or customer service. 175.215 What is BIA’s procedure for in the Operations Manual. Special Agreement means a written adjusting electric power rates? Day(s) means calendar day(s). agreement between you and us for 175.220 How long do rate and fee Delinquent means an account that has special conditions or circumstances adjustments stay in effect? not been paid and settled by the due 175.225 What is the Federal Register, and including unmetered services. where can I get it? date. Taxpayer identification number 175.230 Why are changes to purchased Due date means the date by which means either your Social Security power costs not included in the you must pay your bill. The due date is Number or your Employer Identification procedure for adjusting electric power printed on your bill. Number. rates? Electric energy (see Electric power). Utility(ies) see (Electric power utility). 175.235 How does BIA include changes in Electric power means the energy we Utility office(s) means our facility purchased power costs to our electric deliver to meet customers’ electrical power rates? used for conducting business with our needs. customers and the general public. Subpart C—Billing, Payments, and Electric power rate means the charges We, us, and our means the United Collections we establish for delivery of energy to States Government, the Secretary of the 175.300 How does BIA calculate my electric our customers, which includes Interior, the BIA, and all who are power bill? administration costs and operation and authorized to represent us in matters 175.305 When is my bill due? maintenance costs in addition to the covered under this Part. 175.310 How do I pay my bill? cost of purchased power. 175.315 What will happen if I do not pay § 175.105 What is the purpose of this part? my bill? Electric power utility means all 175.320 What will happen if my service is structures, equipment, components, and The purpose of this part is to establish disconnected and my account remains human resources necessary for the the regulations for administering BIA delinquent? delivery of electric service. electric power utilities.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61120 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

§ 175.110 Does this part apply to me? § 175.135 Why is BIA collecting this (ii) Defray emergency expenses; This part applies to you if we provide information? (iii) Ensure the continuous operation you service or if you request service We are collecting this information so of the power system; and from us. we can: (iv) Pay other allowable expenses and (a) Provide you with service; obligations to the extent required or § 175.115 How does BIA administer its (b) Bill you for the service we provide; permitted by law. electric power utilities? and We promote efficient administration, (c) Account for monies you pay us, § 175.205 When are BIA rates and fees operation, maintenance, and including any deposits as outlined in reviewed? construction of our utilities by following the Operations Manual. We review our rates and fees at least and enforcing: annually to: (a) Applicable statutes, regulations, § 175.140 What is BIA’s authority to collect (a) Determine if our financial my tax payer identification number? Executive Orders, Indian Affairs requirements are being met to ensure manuals, Operations Manuals; We are required to collect your the reliable operation of the utility (b) Applicable written policies, taxpayer identification number under serving you; and procedures, directives, safety codes; and the authority of, and as prescribed in, (b) Determine if revenues are (c) Utility industry standards. the Debt Collection Improvement Act of sufficient to meet the statutory 1996, Public Law 104–134 (110 Stat. requirements. § 175.120 What are Operations Manuals? 1321–364). (a) We maintain an Operations § 175.210 What is BIA’s procedure for Manual for each of our utilities. Each § 175.145 Can I appeal a BIA decision? adjusting service fees? utility’s Operations Manual is available (a) You may appeal a decision in If, based on our annual review, we at the utility. accordance with the procedures set out determine our service fees need to be (b) The Operations Manual sets forth in 25 CFR part 2, unless otherwise adjusted: the requirements for the administration, prohibited by law. (a) We will notify you at least 30 days (b) If the appeal involves the management, policies, and prior to the effective date of the discontinuation of service, the utility is responsibilities of that utility and its adjustment; and not required to resume the service customers. (b) We will publish a schedule of the during the appeal process unless the (c) We update our Operations Manual adjusted service fees in a local customer meets the utility’s for each utility to reflect changing newspaper(s) and post them in the local requirements. requirements to administer, operate, or utility office serving you. maintain that utility. (c) If you appeal your bill, you must (d) When we determine it necessary to pay your bill in accordance with this § 175.215 What is BIA’s procedure for revise an Operations Manual, we will: part to continue to receive service from adjusting electric power rates? (1) Provide public notice of the us. Except for purchased power costs, if proposed revision; (1) If the appeal involves the amount we determine electric power rates need (2) State the effective date of the of your bill, the bill will be considered to be adjusted, we will: proposed revision; paid under protest until the final (a) Hold public meetings and notify (3) State how and when to submit decision has been rendered on appeal. you of their respective time, date, and (2) If you appeal your bill but do not your comments on our proposed location by newspaper notice and a pay the bill in full, you may not revision; notice posted in the utility office serving continue to receive service from us. If (4) Provide 30 days from the date of you; the final decision rendered in the appeal the notice to submit your comments; (b) Provide you notice at least 15 days requires payment of the bill, the bill will and prior to the meeting; be handled as a delinquent account and (5) Consider your comments and (c) Provide you a description of the the amount of the bill may be subject to provide notice of our final decision. proposed rate adjustment; interest, penalties, and administrative (d) Provide you information on how, § 175.125 How do I request and receive costs pursuant to 31 U.S.C. 3717 and 31 where, and when to submit comments service? CFR 901.9. (a) If you need electrical service in an (3) If the appeal involves an electric on our proposed rate adjustment; area where we provide service, you power rate, the rate will be applied and (e) Make a final determination on the must contact our utility in that service remain in effect subject to the final proposed rate adjustment after all area. decision on the appeal. comments have been received, (b) To receive service, you must enter reviewed, and evaluated; and into an Agreement with that utility after Subpart B—Service Fees, Electric (f) Publish the proposed rate it has determined that you have met its Power Rates, and Revenues adjustment and the final rate in the requirements. Federal Register if we determine the § 175.200 Why does BIA collect revenue rate adjustment is necessary. § 175.130 What information must I provide from you and the other customers it serves, when I request service? and how is that revenue used? § 175.220 How long do rate and fee At a minimum, you must provide the (a) The revenue we collect from you adjustments stay in effect? utility with the following information and the other customers is authorized These adjustments remain in effect when you request service: by 25 U.S.C. 385c (60 Stat. 895, as until we conduct a review and (a) Your full legal name or the legal amended by 65 Stat. 254). determine adjustments are necessary. name of the entity needing service; (b) The revenue we collect may be (b) Your taxpayer identification used to: § 175.225 What is the Federal Register, number; (1) Pay for operation and maintenance and where can I get it? (c) Your billing address; of the utility; The Federal Register is the official (d) Your service address; and (2) Maintain Reserve Funds to: daily publication for rules, proposed (e) Any additional information (i) Make repairs and replacements to rules, and notices of official actions by required by the utility. the utility; Federal agencies and organizations, as

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61121

well as Executive Orders and other (c) If we are unable to calculate your § 175.600 How does the Paperwork Presidential Documents and is produced metered energy consumption, we must Reduction Act affect this part? by the Government Printing Office make a reasonable estimate based on The collection of information (GPO). You can get Federal Register one of the following reasons: contained in this part have been publications by: (1) Your meter has failed; approved by the Office of Management (a) Visiting www.federalregister.gov or (2) Your meter has been tampered and Budget under 44 U.S.C. 3501 et seq. www.gpo.gov/fdsys; with; or and assigned OMB Control Number (b) Writing to the GPO at (3) Our utility personnel are unable to 1076–0021. Response is required to Superintendent of Documents, P.O. Box read your meter. obtain a benefit. A Federal agency may 371954, Pittsburgh, PA 15250–7954; or (d) If you have an unmetered service, not conduct or sponsor, and you are not (c) Calling the GPO at (202) 512–1800. we calculate your bill in accordance required to respond to, a collection of with your Special Agreement. information unless the form or § 175.230 Why are changes to purchased power costs not included in the procedure § 175.305 When is my bill due? regulation requesting the information for adjusting electric power rates? The due date is provided on your bill. displays a currently valid OMB Control Number. Send comments regarding this Changes to purchased power costs are § 175.310 How do I pay my bill? collection of information, including not included in the procedure for You may pay your bill by any of the suggestions for reducing the burden, to adjusting electric power rates because following methods: the Information Collection Clearance unforeseen increases in the cost of (a) In person at our utility office; Officer—Indian Affairs, 1849 C Street purchased power are: (b) Mail your payment to the address NW, Washington, DC 20240. (a) Not under our control; stated on your bill; or (b) Determined by current market (c) As further provided by the electric Dated: October 31, 2018. rates; and utility that serves you. Tara Sweeney, (c) Subject to market fluctuations that Assistant Secretary—Indian Affairs. can occur at an undetermined time and § 175.315 What will happen if I do not pay [FR Doc. 2018–25943 Filed 11–27–18; 8:45 am] my bill? frequency. BILLING CODE 4337–15–P (a) If you do not pay your bill prior § 175.235 How does BIA include changes to the close of business on the due date, in purchased power costs in electric power your bill will be past due. rates? (b) If your bill is past due we may: DEPARTMENT OF EDUCATION When our cost of purchased power (1) Disconnect your service; and changes: (2) Not reconnect your service until 34 CFR Parts 86 and 668 (a) We determine the effect of the your bill, including any applicable fees, change; is paid in full. Waiver of Certain Consumer (b) We adjust the purchased power (c) Specific regulations regarding non- Information Requirements for Foreign component of your bill accordingly; payment can be found in 25 CFR Institutions of Higher Education (c) We add the purchased power 143.5(c). adjustment to the existing electric AGENCY: Office of Postsecondary power rate and put it into effect § 175.320 What will happen if my service is Education, Department of Education. disconnected and my account remains ACTION: immediately; delinquent? Waiver. (d) The purchased power adjustment remains in effect until we determine (a) If your service has been SUMMARY: The Secretary identifies disconnected and you still have an future adjustments are necessary; specific provisions governing the (e) We must publish in the local outstanding balance, we will assess you student loan programs authorized by interest, penalties, and administrative newspaper and post at our office a title IV of the Higher Education Act of costs in accordance with 31 CFR 901.9. notice of the purchase power 1965, as amended (HEA), that do not (b) We must forward your delinquent adjustment and the basis for the apply to foreign institutions. balance to the United States Treasury if adjustment; and DATES: November 28, 2018. it is not paid within 180 days after the (f) Our decision to make a purchased original due date in accordance with 31 FOR FURTHER INFORMATION CONTACT: power adjustment must be final. CFR 901.1. Ashley Higgins, U.S. Department of Education, 400 Maryland Avenue SW, Subpart C—Billing, Payments, and Subpart D—System Extensions and Room 294–20, Washington, DC 20202. Collections Upgrades, Rights-of-Way, and Telephone: (202) 453–6097. Email: § 175.300 How does BIA calculate my Paperwork Reduction Act [email protected]. electric power bill? SUPPLEMENTARY INFORMATION: The § 175.400 Will the utility extend or upgrade (a) We calculate your electric power its electric system to serve new or Department of Education’s (Department) bill based on the: increased loads? regulations governing the eligibility of (1) Current rate schedule for your type The utility may extend or upgrade its foreign institutions to participate in the service; and electric system to serve new or title IV, HEA student loan programs (2) Applicable service fees for your increased loads. Contact your electric provide that, ‘‘[a] foreign institution type service. power utility providing service in your must comply with all requirements for (b) If you have a metered service we area for further information on new or eligible and participating institutions must: increased loads. except when made inapplicable by the (1) Read your meter monthly; HEA or when the Secretary, through (2) Calculate your bill based on your § 175.500 How does BIA manage rights-of- publication in the Federal Register, metered energy consumption; and way? identifies specific provisions as (3) Issue your bill monthly, unless Contact your electric power utility inapplicable to foreign institutions.’’ 34 otherwise provided in a Special providing service in your area for CFR 600.51(c)(1). In this document, we Agreement. further information on rights-of-way. identify specific provisions that do not

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61122 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

apply to foreign institutions of higher country in which the institution is that occur on the institution’s campus or education. located. as part of the institution’s activities, and are reported to campus officials; I. Regulatory Consumer Information School and Program Accreditation, • Requirements Inapplicable to Foreign Approval, or Licensure (34 CFR Determine the number and type of Institutions of Higher Education 668.43(a)(6)) sanctions that are imposed by the institution; and Transfer of Credit Policies and Requirement: Each institution must • Ensure that sanctions are Articulation Agreements (34 CFR make available to prospective and consistently enforced. enrolled students— 668.43(a)(11)) Reason: U.S. drug laws do not apply • Names of associations, agencies, or in foreign countries and the rules and Requirement: Each institution must governmental bodies that accredit, disclose and make available to approve, or license the institution and penalties mentioned in this provision prospective and enrolled students a its programs; and would not apply to U.S. students while statement of the school’s transfer of • Procedures for obtaining or they are attending a foreign institution. credit policies that includes, at a reviewing documents describing Therefore, the Secretary believes that it minimum— accreditation, approval, or licensing. is unnecessary for foreign institutions to • Any established criteria the school Reason: Unlike domestic institutions, disclose rules and policies that are not uses regarding the transfer of credit foreign institutions do not need to be applicable to the institution and its earned at another school; and accredited by a body recognized by the students and that may be incompatible • A list of schools with which the Secretary to participate in the title IV, with the laws of the country in which school has established an articulation HEA programs. In addition, the the institution is located. agreement. requirements for licensing institutions Completion/Graduation and Transfer- Reason: The Secretary believes this vary by country. Although the foreign Out Rates for Students Receiving requirement is inapplicable to foreign institution must have approval of the Athletically Related Student Aid (34 institutions because American students government of the country in which the CFR 668.41(f) and 668.48) attending a foreign institution are institution is located to operate in order unlikely to need this information. to participate in the title IV, HEA Requirement: Each institution must Transfer of credit rules at foreign programs, the Secretary does not believe produce by July 1 each year a report that institutions generally apply to credits accreditation and licensure information, will be provided to a prospective earned at institutions in the institution’s as described for U.S. Institutions will be student athlete and the student’s home country and are of limited use to available at all foreign institutions. parents, high school guidance counselor, and coach at the time the American students seeking to transfer Drug and Alcohol Abuse Prevention credits earned at U.S. institutions. institution offers athletically related Program (34 CFR 86.100 and 86.103; 20 student aid. U.S.C. 1011i) Copyright Infringement Policies and Reason: The college athletics Sanctions, Including Computer Use and Requirement: Each institution must structure in the United States is unique. File Sharing (34 CFR 668.43(a)(10)) annually distribute in writing to each As a rule, foreign institutions do not Requirement: Institutions must student and employee— have competitive intercollegiate sports • readily make available to current and Standards of conduct that clearly programs for which they offer full or prospective students the institution’s prohibit the unlawful possession, use, partial athletic scholarships. In those policies and sanctions related to or distribution of illicit drugs and countries where athletic scholarships copyright infringement, including— alcohol by students and employees on are available, they exist on a far more • A statement that explicitly informs the institution’s property or as part of limited scale than is the case in the any of the institution’s activities; students that unauthorized distribution • United States. Because of this, the of copyrighted material, including A description of the applicable legal Secretary believes that it is unauthorized peer-to-peer file sharing, sanctions under local, State, or Federal unreasonable to hold foreign may subject them to civil and criminal law for the unlawful possession or institutions to the same standards as liabilities; distribution of illicit drugs and alcohol; American institutions given the • A description of the health risks • A summary of the penalties for differences between our systems. associated with the use of illicit drugs violation of Federal copyright laws; and and the abuse of alcohol; Intercollegiate Athletic Program • The institution’s policies with • A description of available Participation Rates and Financial respect to unauthorized peer-to-peer file counseling, treatment, rehabilitation, or Support (Equity in Athletics Disclosure sharing, including disciplinary actions re-entry programs; and Act) (34 CFR 668.41(g) and 668.47(c)) taken against students who engage in • A clear statement that the illegal downloading or unauthorized institution will impose disciplinary Requirement: The Equity in Athletics distribution of copyrighted materials sanctions for violation of the standards Disclosure Act (EADA) is intended to using the institution’s information of conduct and a description of those provide prospective students technology system. sanctions. information about an institution’s efforts Reason: U.S. copyright laws do not In addition, each institution must to provide equitable athletic apply in foreign countries and the rules make available, upon request, to the opportunities for its men and women and penalties mentioned in this Department and to the public, the students. Any coeducational institution provision would not apply to U.S. information distributed to students and of higher education that participates in students while attending a foreign employees and the results of a biennial a title IV, HEA program and has an institution. Therefore, the Secretary review of the institution’s program to— intercollegiate athletic program must believes that it is unnecessary for • Determine the effectiveness of the prepare an annual EADA report. The foreign institutions to disclose rules and program and implement needed report includes participation rates, policies that are not applicable to the changes; financial support, and other information institution and its students and that may • Determine the number of drug and on men’s and women’s intercollegiate be incompatible with the laws of the alcohol-related violations and fatalities athletic programs. Institutions must also

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61123

submit their EADA report to the whom eventually return to the United Retention Rate (34 CFR 668.41(d)(3)) Department. States, because it would be based on the Requirement: Institutions must make Reason: The college athletics placement of students from the available to current and prospective structure in the United States is unique. institution who work in the institution’s students the retention rate of certificate Foreign institutions do not generally host country where conditions for or degree seeking, first-time, have significant numbers of U.S. employment may be different. undergraduate students as reported to students participating in competitive the Integrated Postsecondary Education intercollegiate sports programs for Job Placement Rates (34 CFR whom this information would be 668.14(b)(10)) Data System (IPEDS). relevant. Moreover, we are not aware of Reason: This requirement specifically Requirement: An institution that other countries that require compilation refers to the retention rate reported to advertises job placement rates as a of this or similar information for IPEDS. Foreign institutions do not means of recruiting students to enroll disclosure to students. Because of this, submit information to IPEDS and are not must make available to prospective the Secretary believes that it is otherwise required to calculate or students, at or before the time the unreasonable to hold foreign disclose a retention rate. prospective student applies for institutions to the same standards as enrollment— Security Report—Missing Person American institutions given the Notification Policy (34 CFR • differences between our systems. The most recent available data 668.46(b)(14) and 668.46(h)) concerning employment statistics and Completion/Graduation and Transfer- graduation statistics; Requirement: An institution that Out Rates (Including Disaggregated • provides any on-campus student Completion/Graduation Rates) (34 CFR Any other information necessary to housing facility must include in its 668.41(d) and 668.45) substantiate the truthfulness of the annual security report a statement of advertisements; and policy regarding missing student Requirement: Each institution must • annually make available to prospective Relevant State licensing notification procedures for students and enrolled students the completion or requirements of the State in which the who reside in on-campus housing. graduation rate of certificate- or degree- institution is located for any job for Reason: This requirement is seeking, first-time, full-time, which the course of instruction is implemented and administered in undergraduate students. The data are to designed to prepare students. connection with the Clery Act, from be available by July 1 each year for the Reason: Because American students which Congress specifically exempted most recent cohort that has had 150 studying in foreign schools may foreign institutions. As a result, the percent of normal time for completion eventually return to the United States Secretary believes requiring foreign by August 31 of the prior year. and may not be permitted to work in a institutions to comply with this If the information is requested by a foreign country, this information is not requirement is inappropriate. prospective student, it must be made likely to be helpful to those students Fire Safety Report (34 CFR 668.41(e) available prior to the student’s enrolling since most of the students in the school and 668.49) or entering into any financial obligation are likely to work in the host country with the institution. The disaggregated where conditions for employment may Requirement: By October 1 of each rates have to be disclosed only if the be different. In addition, the Secretary year, an institution that maintains any number of students in each group is believes that it is unreasonable to on-campus student housing facility sufficient to yield statistically reliable require foreign institutions to track must distribute an annual fire safety information and not reveal personally international placements. Moreover, report, or provide a notice of the report, identifiable information about an foreign institutions of higher education to all enrolled students and current individual student. are not located in a State for which they employees. Reason: The Secretary is aware that could provide information on licensing Reason: This provision is the laws of other countries may not requirements. implemented and administered in allow for data to be disaggregated in the connection with the Clery Act, from way required by these regulations. This Types of Graduate and Professional which Congress specifically exempted situation could make the disclosure Education in Which the Institution’s foreign institutions. As a result, the both inconsistent with the laws of those Graduates Enroll (34 CFR 668.41(d)(6)) Secretary believes requiring foreign countries and unhelpful for American institutions to comply with this Requirement: Institutions must make requirement is inappropriate. students. available to current and prospective Placement in Employment (34 CFR students information regarding the types Fire Log (34 CFR 668.49(d)) 668.41(d)) of graduate and professional education Requirement: An institution that Requirement: Institutions must make in which graduates of the institution’s maintains on-campus student housing available to current and prospective four-year degree programs enroll. facilities must maintain a written, easily students information regarding the Institutions must identify the source of understood fire log that records, by the placement in employment of, and types the information, and any timeframes date that the fire was reported, any fire of employment obtained by, graduates and methodology associated with it. that occurred in an on-campus student of the institution’s degree or certificate Reason: This information is not likely housing facility. This log must include programs. Under this provision, to be helpful to American students the nature, date, time, and general institutions are not required to calculate studying in foreign institutions, most of location of each fire. placement rates, but an institution must whom eventually return to the United Reason: This requirement is disclose any placement rates it States, because most of the students implemented and administered in calculates for the school or any program. included in the institution’s report connection with the Clery Act, from Reason: This information is not likely would be likely to pursue graduate which Congress specifically exempted to be helpful to American students school in the institution’s host country foreign institutions. As a result, the studying in foreign institutions, most of where conditions may be different. Secretary believes requiring foreign

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61124 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

institutions to comply with this institution must comply with specific to the United States involving requirement is inappropriate. requirements for entry into the the price of textbooks. These concerns institution’s home country, including are less apparent at foreign institutions. State Grant Assistance (34 CFR those related to vaccinations. As a English language programs offered by 668.14(b)(11)) result, the Secretary believes that it is foreign institutions generally use the Requirement: Institutions must inform inappropriate to apply vaccination international editions of texts, which are all eligible borrowers enrolled in the requirements in the HEA to foreign usually available for purchase at prices institution about the availability of and institutions. far below those of American editions.1 their eligibility for grant assistance from Accordingly, the Secretary is exempting Student Body Diversity (20 U.S.C. the State in which the institution is foreign institutions from these 1092(a)(1)(Q)) located, and provide sources of requirements. information about grant assistance from Requirement: Institutions must make other States to borrowers from other available to current and prospective Accountability for Programs That States. students information about student Prepare Teachers (20 U.S.C. 1022d– Reason: This requirement is body diversity, including the percentage 1022g) inapplicable to foreign institutions of enrolled, full-time students in the Requirement: Each institution that because this requirement applied following categories: provides a teacher preparation program exclusively to student borrowers with • Male. and admits students receiving Federal Federal Family Education Loan (FFEL) • Female. student financial aid must provide a program loans. No new FFEL loans have • Self-identified members of a major report annually to the State and to the been made since July 1, 2010, and it is racial or ethnic group. general public. The States must submit • highly unlikely that current students at Federal Pell Grant recipients. to the Department, and make available foreign institutions have FFEL loans. Reason: Foreign institutions are not to the public, an annual report eligible to participate in the Pell Grant containing institutional and State-level II. Non-Regulatory Consumer Program. Further, the racial and ethnic information. The Department makes the Information Requirements Inapplicable groups used for this disclosure are State reports available to the public. to Foreign Institutions of Higher defined in IPEDS, a system that foreign Reason: Foreign institutions are not Education institutions do not use, and other located in a State and are not required Notice of Federal Student Financial Aid countries may have different definitions to prepare or submit this report. and reporting laws regarding gender, Penalties for Drug Law Violations (20 Voter Registration Forms (20 U.S.C. U.S.C. 1092(k)) racial, and ethnic groups. For these reasons, the Secretary believes it is 1094(a)(23)) Requirement: Each institution must impractical for foreign institutions to Requirement: Each institution must— provide to every student upon comply with this requirement. • Make a good faith effort to enrollment a separate, clear, and distribute a mail voter registration form conspicuous written notice with Textbook Information (20 U.S.C. 1015b) to each student enrolled in a degree or information on the penalties associated Requirement: To the maximum extent certificate program and physically in with drug-related offenses under section practicable, and in a manner of the attendance at the institution; 484(r) of the HEA. Institutions must also institution’s choosing, each institution • Make the voter registration form timely notify each student who has lost must disclose on its internet course widely available to students; and eligibility for any grant, loan, or work- schedule used for preregistration and • Request the forms from the State study assistance as a result of penalties registration purposes, the International 120 days prior to the deadline for under section 484(r)(1) of the HEA of Standard Book Number (ISBN) and registering to vote within the State. the loss of eligibility and the ways in retail price information of required and Reason: Because foreign institutions which to regain eligibility under section recommended textbooks and are not in a State, this requirement does 484(r)(2) of the HEA. supplemental materials for each course not apply. Reason: U.S. drug laws do not apply listed. If the ISBN is not available, the Constitution Day (36 U.S.C. 106) in foreign countries and the rules and institution must include in the internet penalties mentioned in this provision course schedule the author, title, Requirement: Constitution Day is would not apply to U.S. students while publisher, and copyright date for the September 17 of each year, they are attending a foreign institution. textbook or supplemental material. commemorating the September 17, 1787 Therefore, the Secretary believes that it If a college bookstore is operated by signing of the U.S. Constitution. is unnecessary for foreign institutions to or affiliated with the institution, the Institutions that receive Federal funds disclose rules and policies that are not institution must make available as soon are required to hold an appropriate applicable to the institution and its as practicable the most accurate educational program about the students and that may be incompatible information available regarding— Constitution for their students. with the laws of the country in which • The institution’s course schedule Reason: The Secretary believes that it the institution is located. for the subsequent academic period; is inappropriate to require institutions • The information provided for located outside the U.S. to conduct an Vaccinations Policy (20 U.S.C. students regarding the required and educational program on another nation’s 1092(a)(1)) recommended textbooks and Constitution. Requirement: Institutions must make supplemental materials for each course Accessible Format: Individuals with available to current and prospective or class; and disabilities can obtain this document in students information about institutional • The number of students enrolled in an accessible format (e.g., braille, large policies regarding vaccinations. each course or class and the maximum Reason: These requirements were student enrollment for each course or 1 Lewin, Tamar. (2003, October 21). Students Find $100 Textbooks Cost $50, Purchased Overseas. created to address specific public health class. The New York Times, Retrieved from https:// issues in the United States. Any U.S. Reason: The textbook requirements www.nytimes.com/2003/10/21/us/students-find- students seeking to study at a foreign were created to address concerns 100-textbooks-cost-50-purchased-overseas.html.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61125

print, audiotape or compact disc) on Applicability dates: These rates are $0.0018 per nonsubscription request to the program contact person applicable to the period January 1, 2019, performance. listed under FOR FURTHER INFORMATION through December 31, 2019. Application of the increase to rates for CONTACT. FOR FURTHER INFORMATION CONTACT: noncommercial webcasters results in a If you use a telecommunications Anita Blaine, CRB Program Assistant, by 2019 rate of $0.0019 per performance for device for the deaf or a text telephone, telephone at (202) 707–7658 or by email all digital audio transmissions in excess call the Federal Relay Service, toll free, at [email protected]. of 159,140 ATH in a month on a at 1–800–877–8339. SUPPLEMENTARY INFORMATION: Sections channel or station. Electronic Access to This Document: 112(e) and 114(f) of the Copyright Act, The official version of this document is title 17 of the United States Code, create As provided in 37 CFR 380.10(d), the the document published in the Federal statutory licenses for certain digital royalty fee for making ephemeral Register. You may access the official performances of sound recordings and recordings under section 112 of the edition of the Federal Register and the the making of ephemeral reproductions Copyright Act to facilitate digital Code of Federal Regulations via the to facilitate transmission of those sound transmission of sound recordings under Federal Digital System at: www.gpo.gov/ recordings. On May 2, 2016, the section 114 of the Copyright Act is fdsys. At this site you can view this Copyright Royalty Judges (Judges) included in the section 114 royalty fee document, as well as all other adopted final regulations governing the and comprises 5% of the total fee. documents of this Department rates and terms of copyright royalty published in the Federal Register, in payments under those licenses for the List of Subjects in 37 CFR Part 380 text or Portable Document Format license period 2016–2020 for Copyright, Sound recordings. (PDF). To use PDF you must have performances of sound recordings via Adobe Acrobat Reader, which is eligible transmissions by commercial Final Regulations available free at the site. and noncommercial noninteractive You may also access documents of the webcasters. See 81 FR 26316. In consideration of the foregoing, the Department published in the Federal Pursuant to those regulations, at least Judges amend part 380 of title 37 of the Register by using the article search 25 days before January 1 of each year Code of Federal Regulations as follows: feature at: www.federalregister.gov. from 2017 to 2020, the Judges shall Specifically, through the advanced publish in the Federal Register notice of PART 380—RATES AND TERMS FOR search feature at this site, you can limit a COLA applicable to the royalty fees for TRANSMISSIONS BY ELIGIBLE your search to documents published by performances of sound recordings via NONSUBSCRIPTION SERVICES AND the Department. eligible transmissions by commercial NEW SUBSCRIPTION SERVICES AND FOR THE MAKING OF EPHEMERAL Dated: November 23, 2018. and noncommercial noninteractive REPRODUCTIONS TO FACILITATE Betsy DeVos, webcasters. 37 CFR 380.10. The adjustment in the royalty fee THOSE TRANSMISSIONS Secretary of Education. shall be based on a calculation of the [FR Doc. 2018–25929 Filed 11–23–18; 4:15 pm] percentage increase in the CPI–U from ■ 1. The authority citation for part 380 BILLING CODE 4000–01–P the CPI–U published in November 2015 continues to read as follows: (237.838), according to the formula (1 + Authority: 17 U.S.C. 112(e), 114(f), (Cy¥237.838)/237.838) × R2016, where C is the CPI–U published by the 804(b)(3). LIBRARY OF CONGRESS y Secretary of Labor before December 1 of ■ 2. Section 380.10 is amended by Copyright Royalty Board the preceding year and R2016 is the revising paragraph (a) to read as follows: royalty rate for 2016; i.e., for § 380.10 Royalty fees for the public 37 CFR Part 380 commercial webcasters $0.0022 per subscription performance or $0.0017 per performance of sound recordings and the nonsubscription performance, or for making of ephemeral recordings. [Docket No. 14–CRB–0001–WR (2016–2020) noncommercial webcasters $0.0018 per COLA 2019] (a) Royalty fees. For the year 2019, performance for all digital audio Licensees must pay royalty fees for all Cost of Living Adjustment to Royalty transmissions in excess of 159,140 Eligible Transmissions of sound Rates for Webcaster Statutory License Aggregate Tuning Hours (ATH) in a recordings at the following rates: month on a channel or station. The AGENCY: Copyright Royalty Board (CRB), adjustment shall be rounded to the (1) Commercial webcasters: $0.0023 Library of Congress. nearest fourth decimal place. 37 CFR per performance for subscription services and $0.0018 per performance ACTION: Final rule; cost of living 380.10(c). The CPI–U published by the adjustment. Secretary of Labor from the most recent for nonsubscription services. index published before December 1, (2) Noncommercial webcasters. $500 SUMMARY: The Copyright Royalty Judges 2018, is 252.885.1 Applying the formula per year for each channel or station and announce a cost of living adjustment in 37 CFR 380.10(c) and rounding to the $0.0019 per performance for all digital (COLA) in the royalty rates that nearest fourth decimal place results in audio transmissions in excess of commercial and noncommercial an increase in the rates for 2019. 159,140 ATH in a month on a channel noninteractive webcasters pay for The 2019 rate for eligible transmission or station. eligible transmissions pursuant to the of sound recordings by commercial statutory licenses for the public webcasters is a rate of $0.0023 per * * * * * performance of and for the making of subscription performance and a rate of Suzanne M. Barnett, ephemeral reproductions of sound Chief Copyright Royalty Judge. recordings. 1 As announced on November 14, 2018, by the Bureau of Labor Statistics in its News Release— [FR Doc. 2018–25908 Filed 11–27–18; 8:45 am] DATES: Consumer Price Index October 2018, available at BILLING CODE 1410–72–P Effective date: January 1, 2019. http://www.bls.gov/news.release/pdf/cpi.pdf at 4.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00015 Fmt 4700 Sfmt 9990 E:\FR\FM\28NOR1.SGM 28NOR1 61126 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

LIBRARY OF CONGRESS change in the cost of living as (ii) 2019: $159 per station. determined by the Consumer Price * * * * * Copyright Royalty Board Index (all consumers, all items) (‘‘CPI– U’’) ‘‘during the period from the most Suzanne M. Barnett, 37 CFR Part 381 recent index published prior to the Chief Copyright Royalty Judge. [FR Doc. 2018–25906 Filed 11–27–18; 8:45 am] [Docket No. 16–CRB–0002–PBR (2018– previous notice to the most recent index 2022) COLA (2019)] published prior to December 1, of that BILLING CODE 1410–72–P year’’ or (2) 1.5%. 37 CFR 381.10. Cost of Living Adjustment to Public The change in the cost of living as Broadcasters Compulsory License determined by the CPI–U during the LIBRARY OF CONGRESS Royalty Rate period from the most recent index Copyright Royalty Board published prior to the previous notice, AGENCY: Copyright Royalty Board, i.e., before December 1, 2017,1 to the Library of Congress. 37 CFR Part 386 most recent index published before ACTION: Final rule; cost of living December 1, 2018, is 2.5%.2 In [Docket No. 18–CRB–0011–SA–COLA adjustment. accordance with 37 CFR 381.10(b), the (2019)] Judges announce that the COLA for SUMMARY: The Copyright Royalty Judges Cost of Living Adjustment to Satellite calendar year 2019 shall be 2.5%. announce a cost of living adjustment Carrier Compulsory License Royalty Application of the 2.5% COLA to the (COLA) to the royalty rate that Rates 2018 rate for the performance of noncommercial radio stations at certain published nondramatic musical AGENCY: colleges, universities, and other Copyright Royalty Board (CRB), compositions in the repertory of educational institutions that are not Library of Congress. SESAC—$155 per station 3—results in affiliated with National Public Radio ACTION: Final rule; cost of living an adjusted rate of $159 per station. must pay for the use in 2019 of adjustment. published nondramatic musical List of Subjects in 37 CFR Part 381 SUMMARY: The Copyright Royalty Judges compositions in the SESAC repertory announce a cost of living adjustment pursuant to the statutory license under Copyright, Music, Radio, Television, Rates. (COLA) of 2.5% in the royalty rates the Copyright Act for noncommercial satellite carriers pay for a compulsory broadcasting. Because the current rates Final Regulations license under the Copyright Act. The did not become final until January 2018, COLA is based on the change in the the revised regulation includes the In consideration of the foregoing, the Judges amend part 381 of title 37 of the Consumer Price Index from October revised rate for 2018 that reflects the 2017 to October 2018. cost of living adjustment announced in Code of Federal Regulations as follows: DATES: 2017. PART 381—USE OF CERTAIN Effective date: January 1, 2019. DATES: COPYRIGHTED WORKS IN Applicability dates: These rates are Effective date: December 28, 2018. CONNECTION WITH applicable to the period January 1, 2019, Applicability dates: These rates are NONCOMMERCIAL EDUCATIONAL through December 31, 2019. applicable to the period beginning BROADCASTING FOR FURTHER INFORMATION CONTACT: January 1, 2019, and ending December Anita Blaine, CRB Program Assistant, by 31, 2019. ■ 1. The authority citation for part 381 telephone at (202) 707–7658 or by email FOR FURTHER INFORMATION CONTACT: continues to read as follows: at [email protected]. Anita Blaine, CRB Program Assistant, by Authority: 17 U.S.C. 118, 801(b)(1), and SUPPLEMENTARY INFORMATION: The telephone at (202) 707–7658 or by email 803. satellite carrier compulsory license at [email protected]. ■ 2. Section 381.5 is amended by establishes a statutory copyright SUPPLEMENTARY INFORMATION: Section revising paragraphs (c)(3)(i) and (ii) to licensing scheme for the distant 118 of the Copyright Act, title 17 of the read as follows: retransmission of television United States Code, creates a statutory programming by satellite carriers. 17 license for the use of published § 381.5 Performance of musical U.S.C. 119. Congress created the license nondramatic musical works and compositions by public broadcasting in 1988 and has reauthorized the license published pictorial, graphic, and entities licensed to colleges and for additional five-year periods, most universities. sculptural works in connection with recently with the passage of the STELA noncommercial broadcasting. * * * * * Reauthorization Act of 2014, Public Law On January 19, 2018, the Copyright (c) * * * 113–200. Royalty Judges (Judges) adopted final (3) * * * On August 31, 2010, the Copyright regulations governing the rates and (i) 2018: $155 per station. Royalty Judges (Judges) adopted rates terms of copyright royalty payments for the section 119 compulsory license under section 118 of the Copyright Act 1 See Cost of Living Adjustment to Satellite for the 2010–2014 term. See 75 FR for the license period 2018–2022. See 83 Carrier Compulsory License Royalty Rates, 82 FR 53198. The rates were proposed by FR 2743. Pursuant to these regulations, 55946 (Nov. 27, 2017) (previous notice of the Copyright Owners and Satellite on or before December 1 of each year, change in cost of living). Carriers 1 and were unopposed. Id. 2 On November 14, 2018, the Bureau of Labor Section 119(c)(2) of the Copyright Act the Judges shall publish in the Federal Statistics announced that the CPI–U increased 2.5% Register notice of the change in the cost over the last 12 months. provides that, effective January 1 of each of living and a revised schedule of the 3 The 2018 rate is calculated by applying a 2% rates codified at § 381.5(c)(3) relating to COLA (based on the CPI–U published in November 1 Program Suppliers and Joint Sports Claimants 2017) to the rate for 2017 ($152). See https:// comprised the Copyright Owners while DIRECTV, compositions in the repertory of SESAC. www.bls.gov/news.release/archives/cpi_ Inc., DISH Network, LLC, and National The adjustment, fixed to the nearest 11152017.htm (last accessed on November 14, Programming Service, LLC, comprised the Satellite dollar, shall be the greater of (1) the 2018). Carriers.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61127

year, the Judges shall adjust the royalty (x) 2019: 59 cents per subscriber per and Environmental Impacts Division, fee payable under Section 119(b)(1)(B) month. Mail Code C539–07, Environmental ‘‘to reflect any changes occurring in the Protection Agency, Research Triangle Suzanne M. Barnett, cost of living as determined by the most Park, NC 27711; telephone: (919) 541– recent Consumer Price Index (for all Chief Copyright Royalty Judge. 4359; fax number: (919) 541–5315; consumers and for all items) [CPI–U] [FR Doc. 2018–25907 Filed 11–27–18; 8:45 am] email address: benromdhane.souad@ published by the Secretary of Labor BILLING CODE 1410–72–P epa.gov. before December 1 of the preceding SUPPLEMENTARY INFORMATION: year.’’ Section 119 also requires that ‘‘[n]otification of the adjusted fees shall ENVIRONMENTAL PROTECTION Table of Contents be published in the Federal Register at AGENCY I. Does this action apply to me? least 25 days before January 1.’’ 17 II. Background U.S.C. 119(c)(2). 40 CFR Part 51 A. The EPA’s VOC Exemption Policy The change in the cost of living as [EPA–HQ–OAR–2017–0175; FRL–9987–02– B. Petition To List HFO–1336mzz–Z as an OAR] Exempt Compound determined by the CPI–U during the III. The EPA’s Assessment of the Petition period from the most recent index RIN 2060–AT52 A. Contribution to Tropospheric Ozone published before December 1, 2017, to Formation the most recent index published before Air Quality: Revision to the Regulatory B. Potential Impacts on Other December 1, 2018, is 2.5%.2 Application Definition of Volatile Organic Environmental Endpoints of the 2.5% COLA to the current rate for Compounds—Exclusion of cis- 1. Contribution to Stratospheric Ozone the secondary transmission of broadcast 1,1,1,4,4,4-hexafluorobut-2-ene (HFO– Depletion stations by satellite carriers for private 1336mzz–Z) 2. The Significant New Alternatives Policy home viewing—28 cents per subscriber (SNAP) Program Acceptability Findings AGENCY: Environmental Protection 3. Toxicity per month—results in a rate of 29 cents Agency (EPA). 4. Contribution to Climate Change per subscriber per month (rounded to C. Response to Comments and Conclusion ACTION: Final rule. the nearest cent). See 37 CFR IV. Final Action 386.2(b)(1). Application of the 2.5% SUMMARY: On May 1, 2018, the U.S. V. Statutory and Executive Order Reviews COLA to the current rate for viewing in Environmental Protection Agency (EPA) A. Executive Order 12866: Regulatory Planning and Review and Executive commercial establishments—58 cents published a proposed rule seeking per subscriber per month—results in a Order 13563: Improving Regulation and comments in response to a petition Regulatory Review rate of 59 cents per subscriber per requesting the revision of the EPA’s month (rounded to the nearest cent). See B. Executive Order 13771: Reducing regulatory definition of volatile organic Regulations and Controlling Regulatory 37 CFR 386.2(b)(2). compounds (VOC) to exempt cis- Costs List of Subjects in 37 CFR Part 386 1,1,1,4,4,4-hexafluorobut-2-ene (also C. Paperwork Reduction Act (PRA) known as HFO–1336mzz–Z; CAS D. Regulatory Flexibility Act (RFA) Copyright, Satellite, Television. number 692–49–9). The EPA is now E. Unfunded Mandates Reform Act taking final action to revise the (UMRA) Final Regulations F. Executive Order 13132: Federalism regulatory definition of VOC under the G. Executive Order 13175: Consultation In consideration of the foregoing, the Clean Air Act (CAA). This final action and Coordination With Indian Tribal Judges amend part 386 of title 37 of the adds HFO–1336mzz–Z to the list of Governments Code of Federal Regulations as follows: compounds excluded from the H. Executive Order 13045: Protection of regulatory definition of VOC on the Children From Environmental Health PART 386—ADJUSTMENT OF basis that this compound makes a and Safety Risks ROYALTY FEES FOR SECONDARY negligible contribution to tropospheric I. Executive Order 13211: Actions Concerning Regulations That TRANSMISSIONS BY SATELLITE ozone (O3) formation. CARRIERS Significantly Affect Energy Supply, DATES: This final rule is effective on Distribution or Use January 28, 2019. J. National Technology Transfer and ■ 1. The authority citation for part 386 ADDRESSES: The EPA has established a Advancement Act (NTTAA) continues to read as follows: docket for this action under Docket ID K. Executive Order 12898: Federal Actions Authority: 17 U.S.C. 119(c), 801(b)(1). No. EPA–HQ–OAR–2017–0175. All To Address Environmental Justice in documents in the docket are listed on Minority Populations and Low-Income ■ 2. Section 386.2 is amended by adding the https://www.regulations.gov Populations paragraphs (b)(1)(x) and (b)(2)(x) to read L. Congressional Review Act (CRA) website. Although listed in the index, as follows: M. Judicial Review some information is not publicly § 386.2 Royalty fee for secondary available, e.g., Confidential Business I. Does this action apply to me? transmission by satellite carriers. Information or other information whose Entities potentially affected by this * * * * * disclosure is restricted by statute. final rule include, but are not Certain other material, such as (b) * * * necessarily limited to, the following: copyrighted materials, is not placed on State and local air pollution control (1) * * * the internet and will be publicly agencies that adopt and implement (x) 2019: 29 cents per subscriber per available only in hard copy form. regulations to control air emissions of month. Publicly available docket materials are VOC; and industries manufacturing available electronically through https:// (2) * * * and/or using HFO–1336mzz–Z for use www.regulations.gov. in polyurethane rigid insulating foams, FOR FURTHER INFORMATION CONTACT: 2 On November 14, 2018, the Bureau of Labor Dr. refrigeration, and air conditioning. Statistics announced that the CPI–U increased 2.5% Souad Benromdhane, Office of Air Potential entities that may be affected by over the last 12 months. Quality Planning and Standards, Health this action include:

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61128 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

TABLE 1—POTENTIALLY AFFECTED ENTITIES BY NORTH AMERICAN INDUSTRIAL CLASSIFICATION SYSTEM (NAICS) CODE

Category NAICS code Description of regulated entities

Industry ...... 326140 Polystyrene Foam Product Manufacturing. Industry ...... 326150 Urethane and Other Foam Product (except Polystyrene) Manufacturing. Industry ...... 333415 Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing. Industry ...... 3363 Motor Vehicle Parts Manufacturing. Industry ...... 336611 Ship Building and Repairing. Industry ...... 336612 Boat Building. Industry ...... 339999 All other Miscellaneous Manufacturing.

This table is not intended to be has the authority to define the meaning very fast rate. The kOH values have long exhaustive, but rather provides a guide of ‘‘VOC’’ and, hence, what compounds been used by the EPA as metrics of for readers regarding entities that might shall be treated as VOC for regulatory photochemical reactivity and O3- be affected by this deregulatory action. purposes. The policy of excluding forming activity, and they were the basis This table lists the types of entities that negligibly reactive compounds from the for most of the EPA’s early exemptions the EPA is now aware of that could regulatory definition of VOC was first of negligibly reactive compounds from potentially be affected to some extent by laid out in the ‘‘Recommended Policy the regulatory definition of VOC. The this action. Other types of entities not on Control of Volatile Organic kOH metric is inherently a molar-based listed in the table could also be affected Compounds’’ (42 FR 35314, July 8, comparison, i.e., it measures the rate at to some extent. To determine whether 1977) (from here forward referred to as which molecules react. your entity is directly or indirectly the 1977 Recommended Policy) and was The MIR, both by mole and by mass, affected by this action, you should supplemented subsequently with the is a more updated metric of consult your state or local air pollution ‘‘Interim Guidance on Control of photochemical reactivity derived from a control and/or air quality management Volatile Organic Compounds in Ozone computer-based photochemical model, agencies. State Implementation Plans’’ (70 FR and it has been used as a metric of reactivity since 1995. This metric II. Background 54046, September 13, 2005) (from here forward referred to as the 2005 Interim considers the complete O3-forming A. The EPA’s VOC Exemption Policy Guidance). The EPA uses the reactivity activity of a compound over multiple Tropospheric O3, commonly known of ethane as the threshold for hours and through multiple reaction as smog, is formed when VOC and determining whether a compound has pathways, not merely the first reaction nitrogen oxides (NOX) react in the negligible reactivity. Compounds that step with OH. Further explanation of atmosphere in the presence of sunlight. are less reactive than, or equally reactive the MIR metric can be found in Carter Because of the harmful health effects of to, ethane under certain assumed (1994). The EPA has considered the choice O3, the EPA and state governments limit conditions may be deemed negligibly the amount of VOC that can be released reactive and, therefore, suitable for between MIRs with a molar or mass into the atmosphere. VOC form O3 exemption from the regulatory basis for the comparison to ethane in through atmospheric photochemical definition of VOC. Compounds that are past rulemakings and guidance. In the reactions, and different VOC have more reactive than ethane continue to 2005 Interim Guidance, the EPA stated: different levels of reactivity. That is, be considered VOC for regulatory [A] comparison to ethane on a mass basis different VOC do not react to form O3 purposes and, therefore, are subject to strikes the right balance between a threshold at the same speed or do not form O3 to control requirements. The selection of that is low enough to capture compounds the same extent. Some VOC react slowly ethane as the threshold compound was that significantly affect ozone concentrations or form less O ; therefore, changes in based on a series of smog chamber and a threshold that is high enough to 3 exempt some compounds that may usefully their emissions have limited effects on experiments that underlay the 1977 substitute for more highly reactive local or regional O3 pollution episodes. Recommended Policy. compounds. It has been the EPA’s policy since 1971, The EPA has used three different When reviewing compounds that have that certain organic compounds with a metrics to compare the reactivity of a been suggested for VOC-exempt status, EPA negligible level of reactivity should be specific compound to that of ethane: (i) will continue to compare them to ethane excluded from the regulatory definition The rate constant for reaction with the using kOH expressed on a molar basis and MIR values expressed on a mass basis. of VOC in order to focus VOC control hydroxyl radical (OH) (known as kOH); efforts on compounds that significantly (ii) the maximum incremental reactivity The 2005 Interim Guidance notes that affect O3 concentrations. The EPA also (MIR) on a reactivity per unit mass the EPA will consider a compound to be believes that exempting such basis; and (iii) the MIR expressed on a negligibly reactive if it is equally as or compounds creates an incentive for reactivity per mole basis. Differences less reactive than ethane based on either industry to use negligibly reactive between these three metrics are kOH expressed on a molar basis or MIR compounds in place of more highly discussed below. values expressed on a mass basis. reactive compounds that are regulated The kOH is the rate constant of the The molar comparison of MIR is more as VOC. The EPA lists compounds that reaction of the compound with the OH consistent with the original smog it has determined to be negligibly radical in the air. This reaction is often, chamber experiments, which compared reactive in its regulations as being but not always, the first and rate- equal molar concentrations of excluded from the regulatory definition limiting step in a series of chemical individual VOCs, supporting the of VOC (40 CFR 51.100(s)). reactions by which a compound breaks selection of ethane as the threshold, The CAA requires the regulation of down in the air and contributes to O3 while the mass-based comparison of VOC for various purposes. Section formation. If this step is slow, the MIR is consistent with how MIR values 302(s) of the CAA specifies that the EPA compound will likely not form O3 at a and other reactivity metrics are applied

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61129

in reactivity-based emission limits. It is, that cis-1,1,1,4,4,4-hexafluorobut-2-ene To address the potential for however, important to note that the (HFO–1336mzz–Z; CAS number 692– stratospheric O3 impacts, the petitioner mass-based comparison is slightly less 49–9) be exempted from the regulatory contended that, because the restrictive than the molar-based definition of VOC. The petition was atmospheric lifetime of HFO–1336mzz– comparison in that a few more based on the argument that HFO– Z due to loss by OH reaction was compounds would qualify as negligibly 1336mzz–Z has low reactivity relative to estimated to be ∼20 days and it does not reactive. ethane. The petitioner indicated that contain chlorine or bromine, it is not Given the two goals of the exemption HFO–1336mzz–Z may be used in a expected to contribute to the depletion policy articulated in the 2005 Interim variety of applications as a replacement of the stratospheric O3 layer. Guidance, the EPA believes that ethane for foam expansion or blowing agents continues to be an appropriate threshold with higher global warming potential III. The EPA’s Assessment of the for defining negligible reactivity. And, (GWP) (≤700 GWP) for use in Petition to encourage the use of environmentally polyurethane rigid insulating foams, On May 1, 2018, the EPA published beneficial substitutions, the EPA among others. It is also a new believes that a comparison to ethane on developmental refrigerant as a potential a proposed rulemaking (83 FR 19026) a mass basis strikes the right balance working fluid for Organic Rankine seeking comments in response to the between a threshold that is low enough Cycles (ORC).1 petition to revise the EPA’s regulatory to capture compounds that significantly To support its petition, DuPont definition of VOC for exemption of HFO–1336mzz–Z. The EPA is taking affect O3 concentrations and a threshold referenced several documents, including that is high enough to exempt some one peer-reviewed journal article on final action to respond to the petition by compounds that may usefully substitute HFO–1336mzz–Z reaction rates exempting HFO–1336mzz–Z from the for more highly reactive compounds. (Baasandorj, M. et al., 2011). DuPont regulatory definition of VOC. This The 2005 Interim Guidance also noted also provided a supplemental technical action is based on consideration of the that concerns have sometimes been report on the MIR of HFO–1336mzz–Z compound’s low contribution to raised about the potential impact of a (Carter, 2011a). Per this report, the MIR tropospheric O3 and the low likelihood VOC exemption on environmental of HFO–1336mzz–Z is 0.04 gram (g) O3/ of risk to human health or the

endpoints other than O3 concentrations, g HFO–1336mzz–Z on the mass-based environment, including stratospheric O3 including fine particle formation, air MIR scale. This reactivity rate is 86 depletion, toxicity, and climate change. toxics exposures, stratospheric O3 percent lower than that of ethane (0.28 Additional information on these topics depletion, and climate change. The EPA g O3/g ethane). The reactivity rate kOH is provided in the following sections. for the gas-phase reaction of OH radicals has recognized, however, that there are A. Contribution to Tropospheric Ozone existing regulatory or non-regulatory with HFO–1336mzz–Z (kOH) has been × Formation programs that are specifically designed measured to be 4.91 10¥13 centimeter 3 ∼ to address these issues, and the EPA (cm) /molecule-seconds at 296 degrees As noted in studies cited by the continues to believe in general that the Kelvin (K) (Pitts et al., 1983, Baasandorj petitioner, HFO–1336mzz–Z has a MIR et al., 2011). This kOH rate is twice as impacts of VOC exemptions on value of 0.04 g O3/g VOC for ‘‘averaged high as that of ethane (kOH of ethane = environmental endpoints other than O3 conditions,’’ versus 0.28 g O /g VOC for × 3 ∼ 3 formation can be adequately addressed 2.4 10¥13 cm /molecule-sec at 298 K) ethane (Carter, 2011). Therefore, the by these programs. The VOC exemption and, therefore, suggests that HFO– EPA considers HFO–1336mzz–Z to be 1336mzz–Z is twice as reactive as policy is intended to facilitate negligibly reactive and eligible for VOC- ethane. In most cases, chemicals with attainment of the O3 National Ambient exempt status in accordance with the high k values also have high MIR Air Quality Standards (NAAQS) and OH Agency’s long-standing policy that values, but for HFO–1336mzz–Z, the VOC exemption decisions will continue compounds should so qualify where products that are formed in subsequent to be based primarily on consideration either reactivity metric (kOH expressed of a compound’s contribution to O reactions are expected to be poly 3 fluorinated compounds, which do not on a molar basis or MIR expressed on formation. However, if the EPA a mass basis) indicates that the determines that a particular VOC contribute to O3 formation (Baasandorj et al., 2011). Based on the current compound is less reactive than ethane. exemption is likely to result in a While the overall atmospheric reactivity significant increase in the use of a scientific understanding of tetrafluoroalkene reactions in the of HFO–1336mzz–Z was not studied in compound and that the increased use an experimental smog chamber, the would pose a significant risk to human atmosphere, it is unlikely that the actual O impact on a mass basis would equal chemical mechanism derived from other health or the environment that would 3 or exceed that of ethane in the scenarios chamber studies (Carter, 2011) was used not be addressed adequately by existing used to calculate VOC reactivity to model the complete formation of O3 programs or policies, then the EPA may (Baasandorj et al., 2011; Carter, 2011a). for an entire single day under realistic exercise its judgment accordingly in atmospheric conditions (Carter, 2011a). deciding whether to grant an exemption. 1 Konstantinos Kontomaris, 2014, HFO–1336mzz– Therefore, the EPA believes that the B. Petition To List HFO–1336mzz–Z as Z High Temperature Chemical Stability and Use as MIR value calculated in the Carter study a Working Fluid in Organic Rankine Cycles. submitted by the petitioner is reliable. an Exempt Compound International Refrigeration and Air Conditioning Conference. Purdue University: https:// Table 2 presents three reactivity DuPont Chemicals & Fluoroproducts _ www.chemours.com/Refrigerants/en US/products/ metrics for HFO–1336mzz–Z as they (DuPont) submitted a petition to the Opteon/Stationary_Refrigeration/assets/downloads/ EPA on February 14, 2014, requesting 2014_Purdue-Paper-Opteon-MZ.pdf. compare to ethane.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61130 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

TABLE 2—REACTIVITIES OF ETHANE AND HFO–1336MZZ–Z

Maximum in- Maximum in- kOH cremental re- 3 cremental re- Compound (cm /molecule- activity (MIR) activity (MIR) sec) (g O3/mole /g VOC) VOC) (g O3

Ethane ...... 2.4 × 10¥13 8.4 0.28 HFO–1336mzz–Z ...... 4.91 × 10¥13 6.6 0.04 Notes: 1. kOH value at 298 K for ethane is from Atkinson et al., 2006 (page 3626). 2. kOH value at 296 K for HFO–1336mzz–Z is from Baasandorj, 2011. 3. Mass-based MIR value (g O3/g VOC) of ethane is from Carter, 2011. 4. Mass-based MIR value (g O3/g VOC) of HFO–1336mzz–Z is from a supplemental report by Carter, 2011a. 5. Molar-based MIR (g O3/mole VOC) values were calculated from the mass-based MIR (g O3/g VOC) values using the number of moles per gram of the relevant organic compound.

The reaction rate of HFO–1336mzz–Z environment, with regard to 3. Toxicity with the OH radical (kOH) has been stratospheric O3 depletion, toxicity and measured to be 4.91 × 10¥13 cm3/ climate change. Additional information Based on screening assessments of the health and environmental risks of HFO– molecule-sec (Baasandorj et al., 2011); on these topics is provided in the 1336mzz–Z, the SNAP program other reactions with O3 and the nitrate following sections. radical were negligibly small. The anticipated that users will be able to use corresponding reaction rate of ethane 1. Contribution to Stratospheric Ozone the compound without significantly with OH is 2.4 × 10¥13cm3/molecule-sec Depletion greater health risks than presented by (Atkinson et al., 2006). The data in use of other available substitutes for the Table 2 show that HFO–1336mzz–Z has HFO–1336mzz–Z is unlikely to same uses (USEPA, 2014, 2016). contribute to the depletion of the a higher kOH value than ethane, meaning The EPA anticipates that HFO– that it initially reacts twice as fast in the stratospheric O3 layer. The O3 depletion 1336mzz–Z will be used consistent with atmosphere as ethane. However, the potential (ODP) of HFO–1336mzz–Z is the recommendations specified in the resulting unsaturated fluorinated expected to be negligible based on material safety data sheet (SDS) compounds in the atmosphere are short several lines of evidence: The absence of (DuPont, 2011). According to the SDS, lived and react more slowly to form O3 chlorine or bromine in the compound potential health effects from inhalation (Baasandorj et al., 2011). The mass and the atmospheric reactions described of HFO–1336mzz–Z include skin or eye based MIR is 0.04 g O3/g VOC and much in Carter (2008). Because HFO– irritation or frostbite. Exposure to high lower than that of ethane. 1336mzz–Z has a kOH value that is twice concentrations of HFO–1336mzz–Z A molecule of HFO–1336mzz–Z is as high as that of ethane (see section from misuse or intentional inhalation less reactive than a molecule of ethane III.A ‘‘Contribution to Tropospheric abuse may cause irregular heartbeat. In in terms of complete O3-forming activity Ozone Formation’’), it will decay before addition, HFO–1336mzz–Z could cause as shown by the molar-based MIR (g O3/ it has a chance to reach the stratosphere asphyxiation if air is displaced by mole VOC) values. One gram of HFO– and, thus, will not participate in O3 vapors in a confined space. The 1336mzz–Z has a lower capacity than destruction. Workplace Environmental Exposure one gram of ethane to form O3 in terms Limit (WEEL) committee of the of a mass-based MIR. Thus, following 2. The Significant New Alternatives Occupational Alliance for Risk Science the 2005 Interim Guidance in striking a Policy (SNAP) Program Acceptability (OARS) reviewed available animal balance between reactivity on a molar Findings toxicity data and recommends a WEEL basis as well as a gram basis, the EPA for the workplace of 500 parts per finds HFO–1336mzz–Z to be eligible for The SNAP program is the EPA’s million (ppm) (3350 mg/m3) time- exemption from the regulatory program to evaluate and regulate weighted average (TWA) for an 8-hour definition of VOC based on both the substitutes for end-uses historically workday as provided in the OARS molar- and mass-based MIR. using O3-depleting chemicals. Under (OARS, 2014).2 This WEEL was derived B. Potential Impacts on Other section 612(c) of the CAA, the EPA is based on reduced male body weight in Environmental Endpoints required to identify and publish lists of the 13-week rat inhalation toxicity study acceptable and unacceptable substitutes (Dupont, 2011). The WEEL is also The EPA’s decision to exempt HFO– for class I or class II O3-depleting protective against skeletal fluorosis, 1336mzz–Z from the regulatory substances. Per the SNAP program which may occur at higher exposures definition of VOC is based on our findings, the ODP of HFO–1336mzz–Z because of metabolism. The EPA findings above. However, as noted in is zero. The SNAP program has listed anticipates that users will be able to the 2005 Interim Guidance, the EPA meet the WEEL and address potential reserves the right to exercise its HFO–1336mzz–Z as an acceptable health risks by following requirements judgment in certain cases where an substitute for a number of foam blowing and recommendations in the SDS and exemption is likely to result in a end-uses provided in 79 FR 62863, other safety precautions common to the significant increase in the use of a October 21, 2014 (USEPA, 2014), and as refrigeration and air conditioning compound and a subsequent an acceptable substitute in the industry. significantly increased risk to human refrigeration and air conditioning sector health or the environment. In this case, in heat transfer, as well as in chillers and industrial process air conditioning 2 Occupational Alliance for Risk Science (OARS– the EPA does not find that exemption of WEELs)—HFO–1336mzz–Z, 2014: https:// HFO–1336mzz–Z would result in an provided in 81 FR 32241, May 23, 2016 www.tera.org/OARS/HFO-1336mzz- increase of risk to human health or the (USEPA, 2016). Z%20WEEL%20FINAL.pdf.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61131

HFO–1336mzz–Z is not regulated as a 100-year period, one ton of HFO– Response: The commenter appears to hazardous air pollutant (HAP) under 1336mzz–Z traps 9 times as much state that HFO–1336mzz–Z should not title I of the CAA. Also, it is not listed warming energy as one ton of carbon be exempted from the definition of VOC as a toxic chemical under section 313 of dioxide (CO2) (IPCC, 2013). HFO– simply because it is currently included the Emergency Planning and 1336mzz–Z’s GWP of 9 is lower than in the definition of VOC. This is a Community Right-to-Know Act those of some of the substitutes in a circular argument, and, if followed, the (EPCRA). variety of foam blowing end-uses and in EPA would never be able to exempt any The Toxic Substances Control Act centrifugal and positive displacement substances from the definition of VOC, (TSCA) gives the EPA authority to chillers, heat transfer, and industrial even where, as here, scientific data assess and prevent potential process air conditioning. HFO– supported such an exemption. The unreasonable risks to human health and 1336mzz–Z was developed to replace commenter does not provide any the environment before a new chemical other chemicals used for similar end- scientific evidence that rebuts the substance is introduced into commerce. uses with GWP ranging from 725 to petitioner’s data supporting the Section 5 of TSCA requires 5,750 such as CFC–11, CFC–113, HCFC– demonstration that HFO–1336mzz–Z is manufacturers and importers to notify 141b and HCFC–22. The petitioner eligible for this exemption. the EPA before manufacturing or claims that HFO–1336mzz–Z is a better The reason HFO–1336mzz–Z is importing a new chemical substance by alternative to other substitutes in foam currently regulated as a VOC is because submitting a Premanufacture Notice expansion or blowing agents for use in it meets the EPA’s definition of VOC in (PMN) prior to the manufacture polyurethane rigid insulating foams. 40 CFR 51.100(s) as ‘‘any compound of (including import) of the chemical. Thermal test data and energy efficiency carbon, excluding carbon monoxide, Under the TSCA New Chemicals trials indicate that HFO–1336mzz–Z carbon dioxide, carbonic acid . . . Program, the EPA then assesses whether will provide superior insulating value which participates in atmospheric an unreasonable risk may, or will, be and, thus, reduces climate change photochemical reactions.’’ [emphasis presented by the expected impacts both directly by its relatively added] The petitioner submitted data to manufacturing, processing, distribution low GWP and indirectly by decreasing the EPA that show HFO–1336mzz–Z in commerce, use, and disposal of the energy consumption throughout the negligibly participates in atmospheric new substance. The EPA has lifecycle of insulated foams in photochemical reactions, presenting a determined, however, that domestic appliances, buildings, refrigerated better environmental alternative for manufacturing, use in non-industrial storage and transportation. similar industrial applications, and products, or use other than as described therefore should be excluded from the in the PMN may cause serious chronic C. Response to Comments and definition of VOC. As explained above, health effects. To mitigate risks Conclusion our approval would allow states to identified during the PMN review of The EPA received five comments on encourage VOC substitutions with HFO–1336mzz–Z, the EPA issued a the May 1, 2018, notice of proposed negligibly reactive compounds that Significant New Use Rule (SNUR) under rulemaking. One commenter supported would reduce O formation. TSCA on June 5, 2015, to require the proposed action to exempt HFO– 3 persons to submit a Significant New Use 1336mzz–Z from the EPA’s definition of The EPA would like to clarify the Notice (SNUN) to the EPA at least 90 VOC in 40 CFR 51.100(s), one opposed statement in the proposal which days before they manufacture or process the proposed action, and three raised referred to ‘‘existing regulatory or non- HFO–1336mzz–Z for uses other than issues that were outside the scope of regulatory programs that are specifically those described in the PMN (80 FR this rulemaking including a discussion designed to address’’ other 32003, 32005, June 5, 2015). The about air and water quality in Asia and environmental issues besides required notification will provide the Mexico, and climate change. These tropospheric O3 formation, such as fine EPA with the opportunity to evaluate three anonymous comments failed to particle formation, air toxics exposures, the intended use and, if necessary, to identify any specific issue that is stratospheric O3 depletion, and climate prohibit or limit that activity before it germane to our proposal to exempt change. When referring to existing occurs. The EPA, therefore, believes that HFO–1336mzz–Z. Substantial regulatory or non-regulatory programs, existing programs address the risk of comments and the EPA’s responses are the EPA was not referring to ‘‘other toxicity associated with the use of HFO– provided below. regulatory groups outside of the EPA,’’ 1336mzz–Z. Comment: One commenter (ID: EPA– as the commenter suggested. Rather, HQ–OAR–2017–0175–0010) expressed Congress has granted the EPA with 4. Contribution to Climate Change concern that ‘‘the EPA should not other authorities under the CAA that The Intergovernmental Panel on exempt HFO–1336mzz–Z . . . [and that] allow the Agency to address these issues Climate Change (IPCC) Fifth Assessment . . . surely there is a reason it was . . . specifically (e.g., NAAQS program for Report (IPCC AR5) estimated the [regulated as a VOC] in the first place.’’ fine particle pollution; section 112 for lifetime of HFO–1336mzz–Z to be The commenter expressed skepticism air toxics). As stated in the 2005 Interim approximately 22 days (Baasandorj et that ‘‘other regulatory groups outside of Guidance, where an exemption is likely al., 2011), and the gas-phase the EPA’’ would prevent the compound to result in a significant increase in the degradation of HFO–1336–mzz–Z is not from being used, if there were other use of a compound and a subsequent expected to lead to a significant environmental impacts than O3, once significantly increased risk to human formation of atmospherically long-lived the EPA exempted this compound. This health or the environment, the EPA species. The radiative efficiency of commenter also expressed concern that reserves the right to exercise its HFO–1336–mzz–Z was calculated to be the petitioner’s data ‘‘could potentially judgment and choose not to grant a 0.38 watts per square meter at the be biased’’ and they ‘‘. . . would like to petition for an exemption from the earth’s surface per part per billion read a proposal that gets its information definition of VOC, even where the concentration of the material (W m¥2 from a more unbiased source and substance meets the reactivity metrics. ppb¥1) based on Baasandorj et al., 2011. considers how it will deal with possible However, as explained in section III.B. The report estimated the resulting 100- drawbacks of deregulating HFO– of this final rule, the EPA does not year GWP to be 9, meaning that, over a 1336mzz–Z.’’ believe an exemption of HFO–1336mzz–

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61132 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

Z will lead to significant environmental The EPA has concluded that non- A. Executive Order 12866: Regulatory impacts. tropospheric O3-related risks associated Planning and Review and Executive To the extent the commenter is raising with potential increased use of HFO– Order 13563: Improving Regulation and concerns that the EPA’s action will 1336mzz–Z are adequately managed by Regulatory Review result in non-EPA organizations treating SNAP. The EPA does not expect HFO–1336mzz–Z differently, we note significant use of HFO–1336mzz–Z in This action is not a significant that this action does not prohibit state applications not covered by the SNAP regulatory action and was, therefore, not and local air pollution regulatory program. To the extent that the submitted to the Office of Management agencies from regulating HFO– compound is used in other applications and Budget (OMB) for review. 1336mzz–Z. Some local agencies not already reviewed under SNAP or B. Executive Order 13771: Reducing continue restrictions on the use of under the New Chemicals Program certain compounds that have been under TSCA, the SNUR in place under Regulations and Controlling Regulatory excluded from the definition of VOC by TSCA requires that any significant new Costs the EPA. use of a chemical be reported to the EPA This action is considered an With respect to the comment that the using a SNUN. Any significant new use Executive Order 13771 deregulatory petitioner’s data could potentially be of HFO–1336mzz–Z would, thus, need action. This final rule provides biased, the EPA uses credible, peer- to be evaluated by the EPA, and the EPA reviewed information in its review of meaningful burden reduction by will continually review the availability exempting HFO–1336mzz–Z from the VOC exemption petitions. In this regard, of acceptable substitute chemicals under VOC regulatory definition and relieving and as discussed in our proposed rule the SNAP program. and in this action, we note that the manufacturers, distributers, and users journal article submitted by DuPont on IV. Final Action from recordkeeping or reporting HFO–1336mzz–Z reaction rates was The EPA is responding to the petition requirements. This action is voluntary performed by the National Oceanic and by revising its regulatory definition of in nature and has non-quantifiable cost Atmospheric Administration and VOC at 40 CFR 51.100(s) to add HFO– savings given the unpredictability in published in The Journal of Physical 1336mzz–Z to the list of compounds who or how much of it will be used. Chemistry, a peer-reviewed journal. The that are exempt from the regulatory C. Paperwork Reduction Act (PRA) other primary document relied on to definition of VOC because it is less support the exemption petition was reactive than ethane based on a This action does not impose an authored by the researcher who comparison of mass-based MIR and information collection burden under the developed the MIR scale (Carter, 2011a). molar-based MIR metrics and is, PRA. It does not contain any Staff in the EPA’s Office of Research and therefore, considered negligibly recordkeeping or reporting Development reviewed these documents reactive. As a result of this action, if an requirements. as part of the petition assessment entity which uses or produces this process and find that they are consistent compound and is subject to the EPA D. Regulatory Flexibility Act (RFA) with current understanding of regulations limiting the use of VOC in atmospheric chemistry. We are not a product, limiting the VOC emissions I certify that this action will not have aware of information that would from a facility, or otherwise controlling a significant economic impact on a indicate they are biased. the use of VOC for purposes related to substantial number of small entities Therefore, for reasons discussed attaining the O3 NAAQS, this under the RFA. This action will not above, the EPA is finalizing this rule compound will not be counted as a VOC impose any requirements on small with no changes. The EPA finds that in determining whether these regulatory entities. This action removes HFO– HFO–1336mzz–Z is negligibly reactive obligations have been met. This action 1336mzz–Z from the regulatory with respect to its contribution to would affect whether this compound is definition of VOC and, thereby, relieves tropospheric O3 formation and, thus, considered a VOC for state regulatory manufacturers, distributers, and users of may be exempted from the EPA’s purposes to reduce O3 formation, if a the compound from tropospheric O3 definition of VOC in 40 CFR 51.100(s). state relies on the EPA’s regulatory requirements to control emissions of the HFO–1336mzz–Z has been listed as definition of VOC. States are not compound. acceptable for use in several industrial obligated to exclude from control as a E. Unfunded Mandates Reform Act and commercial refrigeration and air VOC those compounds that the EPA has (UMRA) conditioning end-uses, as well as for use found to be negligibly reactive. as a blowing agent under the SNAP However, no state may take credit for This action does not contain any program (USEPA, 2014, 2016). The EPA controlling this compound in its O3 unfunded mandate as described in has also determined that exemption of control strategy. Consequently, UMRA, 2 U.S.C. 1531–1538, and does HFO–1336mzz–Z from the regulatory reductions in emissions for this not significantly or uniquely affect small definition of VOC will not result in an compound will not be considered or governments. This action imposes no increase of risk to human health and the counted in determining whether states enforceable duty on any state, local or environment, and, to the extent that use have met the rate of progress tribal governments, or the private sector. of this compound does have impacts on requirements for VOC in State other environmental endpoints, those Implementation Plans or in F. Executive Order 13132: Federalism impacts are adequately managed by demonstrating attainment of the O3 existing programs. For example, HFO– NAAQS. This action does not have federalism 1336mzz–Z has a similar or lower implications. It will not have substantial V. Statutory and Executive Order stratospheric O3 depletion potential direct effects on the states, on the than available substitutes in those end- Reviews relationship between the national uses, and the toxicity risk from using Additional information about these government and the states, or on the HFO–1336mzz–Z is not significantly statutes and Executive Orders can be distribution of power and greater than the risk from using other found at https://www2.epa.gov/laws- responsibilities among the various available alternatives for the same uses. regulations/laws-and-executive-orders. levels of government.

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61133

G. Executive Order 13175: Consultation L. Congressional Review Act (CRA) DuPont Haskell. FEA–1100: 90-day inhalation toxicity study in rats; and Coordination With Indian Tribal This action is subject to the CRA, and Governments Unpublished Report DuPont–17453– the EPA will submit a rule report to 785–1; Haskell Laboratory of Industrial This action does not have tribal each House of the Congress and to the Toxicology: Newark, DE, 2011. implications, as specified in Executive Comptroller General of the United IPCC, 2007: Climate Change 2007: The Order 13175. This final rule removes States. This action is not a ‘‘major rule’’ Physical Science Basis. Contribution of HFO–1336mzz–Z from the regulatory as defined by 5 U.S.C. 804(2). Working Group I to the Fourth definition of VOC and, thereby, relieves Assessment Report of the M. Judicial Review manufacturers, distributers and users Intergovernmental Panel on Climate Change [Solomon, S., D. Qin, M. from tropospheric O3 requirements to Under section 307(b)(1) of the CAA, control emissions of the compound. petitions for judicial review of this Manning, Z. Chen, M. Marquis, K.B. action must be filed in the United States Averyt, M. Tignor and H.L. Miller (eds.)]. Thus, Executive Order 13175 does not Cambridge University Press, Cambridge, apply to this action. Court of Appeals for the District of United Kingdom and New York, NY, Columbia Circuit Court within 60 days USA, 996 pp. H. Executive Order 13045: Protection of from the date the final action is Children From Environmental Health IPCC, 2013: Climate Change 2013: The published in the Federal Register. Physical Science Basis. Contribution of and Safety Risks Filing a petition for review by the Working Group I to the Fifth Assessment This action is not subject to Executive Administrator of this final action does Report of the Intergovernmental Panel on Order 13045, because it is not not affect the finality of this action for Climate Change [Stocker, T.F., D. Qin, economically significant as defined in the purposes of judicial review nor does G.-K. Plattner, M. Tignor, S.K. Allen, J. Executive Order 12866, and because the it extend the time within which a Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. Cambridge EPA does not believe the environmental petition for judicial review must be health or safety risks addressed by this University Press, Cambridge, United filed, and shall not postpone the Kingdom and New York, NY, USA, 1535 action present a disproportionate risk to effectiveness of such action. Thus, any pp. children. Since HFO–1336mzz–Z is petitions for review of this action Pitts, J.N. Jr., Winer, A.M., Aschmann, S.M., utilized in specific industrial related to the exemption of HFO– Carter, W.P.L., and Atkinson, K. (1983), applications where children are not 1336mzz–Z from the regulatory Experimental Protocol for Determining present and dissipates quickly (e.g., definition of VOC must be filed in the Hydroxyl Radical Reaction Rate lifetime of 22 days) with short-lived end Court of Appeals for the District of Constants Environmental Science products, there is no exposure or Columbia Circuit within 60 days from Research Laboratory, ORD, USEPA. disproportionate risk to children. This EPA600/3–82–038. the date the final action is published in USEPA, 2014. Significant New Alternatives action removes HFO–1336mzz–Z from the Federal Register. the regulatory definition of VOC and, Policy Program; Foam Blowing Sector; References Risk Screen on Substitutes in Rigid thereby, relieves manufacturers, Polyurethane Appliance Foam; Rigid distributers and users from tropospheric Polyurethane and Polyisocyanurate O requirements to control emissions of Atkinson, R., Baulch, D.L., Cox, R.A., 3 Crowley, J.N., Hampson, Jr., R.F., Hynes, Laminated Boardstock; Rigid the compound. R.G., Jenkin, M.E., Kerr, J.A., Rossi, M.J., Polyurethane Commercial Refrigeration and Troe, J. (2006) Evaluated kinetic and and Sandwich Panels; Rigid I. Executive Order 13211: Actions Polyurethane Slabstock and Other; Concerning Regulations That photochemical data for atmospheric chemistry: Volume II—gas phase Flexible Polyurethane; Integral Skin Significantly Affect Energy Supply, reactions of organic species. Atmos. Polyurethane; and Phenolic Insulation Distribution or Use Chem. Phys. 6: 3625–4055. Board and Bunstock. Substitute: HFO– ® This action is not subject to Executive Baasandorj, M., Ravishankara, A.R., 1336mzz(Z) (Formacel 1100); October Order 13211, because it is not a Burkholder, J.B. (2011) Atmospheric 10, 2014. Available online at: https:// Õ www.gpo.gov/fdsys/pkg/FR-2014-10-21/ significant regulatory action under chemistry of (Z)–CF3CH CHCF3: OH radical reaction rate coefficient and pdf/2014-24989.pdf. Executive Order 12866. global warming potential. J Phys Chem USEPA, 2016. Significant New Alternatives J. National Technology Transfer and A. 2011 Sep 29; 115(38):10539–49. doi: Policy Program; Refrigeration and Air Advancement Act (NTTAA) 10.1021/jp206195g. Conditioning Sector; Risk Screen on Carter, W.P.L. (1994) Development of ozone Substitutes for Use in Chillers and This rulemaking does not involve reactivity scales for volatile organic Industrial Process Air Conditioning technical standards. compounds. J. Air Waste Manage, 44: Substitute: HFO–1336mzz(Z) (Opteon® 881–899. MZ); May 23, 2016. Available online at: K. Executive Order 12898: Federal Carter, W.P.L. (2008) Reactivity Estimates for https://www.gpo.gov/fdsys/pkg/FR2016- Actions To Address Environmental Selected Consumer Product Compounds, 05-23/pdf/2016-12117.pdf. Justice in Minority Populations and Final Report to California Air Resources Low-Income Populations Board Contract No. 06–408, February 19, List of Subjects in 40 CFR Part 51 The EPA believes that this action does 2008. http://www.arb.ca.gov/research/ reactivity/consumer_products.pdf. Environmental protection, not have disproportionately high and Carter, W.P.L. (2011) SAPRC Atmospheric Administrative practice and procedure, adverse human health or environmental Chemical Mechanisms and VOC Air pollution control, Ozone, Reporting effects on minority populations, low- Reactivity Scales, at http:// and recordkeeping requirements, income populations and/or indigenous www.engr.ucr.edu/∼carter/SAPRC/. Last Volatile organic compounds. peoples, as specified in Executive Order updated in Sept. 14, 2013. Tables of Dated: November 16, 2018. 12898 (59 FR 7629 February 16, 1994). Maximum Incremental Reactivity (MIR) This action removes HFO–1336mzz–Z Values available at http:// Andrew R. Wheeler, from the regulatory definition of VOC www.arb.ca.gov/regact/2009/mir2009/ Acting Administrator. mir2009.htm. May 11, 2011. and, thereby, relieves manufacturers, Carter, W.P.L. (2011a) Estimation of the For reasons stated in the preamble, distributers, and users of the compound ground-level atmospheric ozone part 51 of chapter I of title 40 of the from tropospheric O3 requirements to formation potentials of Cis 1,1,1,4,4,4- Code of Federal Regulations is amended control emissions of the compound. HexaFluoro-2-Butene, August 8, 2011. as follows:

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61134 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

PART 51—REQUIREMENTS FOR 1,1,1,2,3,3,3-heptafluoropropane FOR FURTHER INFORMATION CONTACT: For PREPARATION, ADOPTION, AND ((CF3)2CFCF2OCH3); 1-ethoxy- additional information on this SUBMITTAL OF IMPLEMENTATION 1,1,2,2,3,3,4,4,4-nonafluorobutane proceeding, contact Sonia Greenaway PLANS (C4F9OC2H5 or HFE–7200); 2- Mickle, [email protected], of (ethoxydifluoromethyl)-1,1,1,2,3,3,3- the Policy Division, Media Bureau, (202) ■ 1. The authority citation for part 51 heptafluoropropane 418–1419. continues to read as follows: ((CF3)2CFCF2OC2H5); methyl acetate; SUPPLEMENTARY INFORMATION: This is a Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 1,1,1,2,2,3,3-heptafluoro-3-methoxy- summary of the Commission’s Order, 7671q. propane (n-C3F7OCH3, HFE–7000); 3- FCC 18–150, adopted and released on ethoxy- 1,1,1,2,3,4,4,5,5,6,6,6- October 25, 2018. The full text of this Subpart F—Procedural Requirements dodecafluoro-2-(trifluoromethyl) hexane document is available for public (HFE–7500); 1,1,1,2,3,3,3- ■ 2. Section 51.100 is amended by inspection and copying during regular heptafluoropropane (HFC 227ea); revising paragraph (s)(1) introductory business hours in the FCC Reference methyl formate (HCOOCH3); text to read as follows: Center, Federal Communications 1,1,1,2,2,3,4,5,5,5-decafluoro-3- Commission, 445 12th Street SW, Room § 51.100 Definitions. methoxy-4-trifluoromethyl-pentane CY–A257, Washington, DC 20554. This * * * * * (HFE–7300); propylene carbonate; document will also be available via (s) * * * dimethyl carbonate; trans-1,3,3,3- ECFS at http://fjallfoss.fcc.gov/ecfs/. (1) This includes any such organic tetrafluoropropene; HCF2OCF2H (HFE– Documents will be available compound other than the following, 134); HCF2OCF2OCF2H (HFE–236cal2); electronically in ASCII, Microsoft Word, which have been determined to have HCF2OCF2CF2OCF2H (HFE–338pcc13); and/or Adobe Acrobat. Copies of the negligible photochemical reactivity: HCF2OCF2OCF2CF2OCF2H (H-Galden materials can be obtained from the Methane; ethane; methylene chloride 1040x or H-Galden ZT 130 (or 150 or FCC’s Reference Information Center at (dichloromethane); 1,1,1-trichloroethane 180)); trans 1-chloro-3,3,3-trifluoroprop- (202) 418–0270. Alternative formats are (methyl chloroform); 1,1,2-trichloro- 1-ene; 2,3,3,3-tetrafluoropropene; 2- available for people with disabilities 1,2,2-trifluoroethane (CFC–113); amino-2-methyl-1-propanol; t-butyl (Braille, large print, electronic files, trichlorofluoromethane (CFC–11); acetate; 1,1,2,2- Tetrafluoro -1-(2,2,2- audio format), by sending an email to dichlorodifluoromethane (CFC–12); trifluoroethoxy) ethane; cis-1,1,1,4,4,4- [email protected] or calling the chlorodifluoromethane (HCFC–22); hexafluorobut-2-ene (HFO–1336mzz-Z); Commission’s Consumer and trifluoromethane (HFC–23); 1,2-dichloro and perfluorocarbon compounds which Governmental Affairs Bureau at (202) 1,1,2,2-tetrafluoroethane (CFC–114); fall into these classes: 418–0530 (voice), (202) 418–0432 chloropentafluoroethane (CFC–115); * * * * * (TTY). 1,1,1-trifluoro 2,2-dichloroethane [FR Doc. 2018–25891 Filed 11–27–18; 8:45 am] Synopsis (HCFC–123); 1,1,1,2-tetrafluoroethane BILLING CODE 6560–50–P (HFC–134a); 1,1-dichloro 1-fluoroethane 1. The Commission in this Order (HCFC–141b); 1-chloro 1,1- establishes electronic filing procedures difluoroethane (HCFC–142b); 2-chloro- FEDERAL COMMUNICATIONS for parties seeking to operate an Open 1,1,1,2-tetrafluoroethane (HCFC–124); COMMISSION Video System (OVS) to submit a pentafluoroethane (HFC–125); 1,1,2,2- certification application and notice of tetrafluoroethane (HFC–134); 1,1,1- 47 CFR Part 76 intent. By replacing our current paper trifluoroethane (HFC–143a); 1,1- [MB Docket No. 17–105; FCC 18–150] filing requirements for OVS applications difluoroethane (HFC–152a); and notices with an electronic filing parachlorobenzotrifluoride (PCBTF); Procedural Revisions to the Filing of system, this Order modernizes our cyclic, branched, or linear completely Open Video System Certification regulations, reduces burdens for OVS methylated siloxanes; acetone; Applications applicants, and increases the efficiency perchloroethylene (tetrachloroethylene); of the Commission’s processing of 3,3-dichloro-1,1,1,2,2- AGENCY: Federal Communications applications. pentafluoropropane (HCFC–225ca); 1,3- Commission. 2. The Telecommunications Act of dichloro-1,1,2,2,3-pentafluoropropane ACTION: Final rule. 1996 added section 653 to the (HCFC–225cb); 1,1,1,2,3,4,4,5,5,5- Communications Act of 1934, as decafluoropentane (HFC 43–10mee); SUMMARY: In this document, the Federal amended (the Act), establishing OVS as difluoromethane (HFC–32); Communications Commission (FCC or a new framework for entry into the ethylfluoride (HFC–161); 1,1,1,3,3,3- Commission) modernizes the Open multichannel video programming hexafluoropropane (HFC–236fa); Video System (OVS) filing procedures distribution marketplace.1 Any party 1,1,2,2,3-pentafluoropropane (HFC– by specifying that OVS applications be 245ca); 1,1,2,3,3-pentafluoropropane required to send certification 1 Telecommunications Act of 1996, Public Law (HFC–245ea); 1,1,1,2,3- applications, including FCC Form 1275 104–104, 110 Stat. 56, approved February 8, 1996. and all attachments, as well as notices An open video system is similar to a cable system pentafluoropropane (HFC–245eb); in that it is a facilities-based system for the delivery 1,1,1,3,3-pentafluoropropane (HFC– of intent, via electronic email (email) of video programming. Unlike cable systems, 245fa); 1,1,1,2,3,3-hexafluoropropane delivery to a designated Commission however, open video systems must set aside up to (HFC–236ea); 1,1,1,3,3- email address. The FCC also eliminates two thirds of their channel capacity for the delivery certain existing requirements associated of independent programming of third parties. The pentafluorobutane (HFC–365mfc); OVS framework was established to provide chlorofluoromethane (HCFC–31); 1 with the rule. Parties wishing to competition and lower barriers to entry in the chloro-1-fluoroethane (HCFC–151a); 1,2- respond to a FCC Form 1275 filing must provision of video programming to consumers. See dichloro-1,1,2-trifluoroethane (HCFC– submit comments or oppositions via Implementation of Section 302 of the electronic mail (email). Telecommunications Act of 1996, Open Video 123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4- Systems, 11 FCC Rcd 18223, 18227, para. 2–3 (1996) methoxy-butane (C4F9OCH3 or HFE– DATES: Effective date: November 28, (Second Report and Order). The approach 7100); 2-(difluoromethoxymethyl)- 2018. developed for the OVS model provides streamlined

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61135

seeking to operate an OVS must file an provide public notice of OVS notices of conclude that the most efficient process application to be certified as an OVS intent.8 is for OVS applicants to send operator on FCC Form 1275 2 as well as 3. Because electronic filing is a more certification applications, including a ‘‘notice of intent’’ to establish an modern and efficient way for parties to FCC Form 1275 and all attachments, as OVS.3 At present, parties cannot file file and for Commission staff to receive well as notices of intent, via electronic these documents electronically. Instead, applications, we conclude that the OVS mail (email) delivery to a designated 12 they must file paper copies of both paper filing requirements have outlived Commission email address. documents with the Office of the their usefulness. The Commission has Specifically, under the rule we adopt moved to electronic filing for other Secretary and the Office of the Chief of here, when filing a certification applications and filings.9 Moreover, the application or notice of intent, the Media Bureau 4 and file the nature of the OVS application process applicants will be required to send all certification application on a computer necessitates immediate receipt by documents to the following email disk. The documents are then delivered appropriate staff, which can better be address: [email protected]. Comments or to the Media Bureau staff who process assured via electronic means. On several oppositions also will be required to be and review them. After a Form 1275 recent occasions, tracking down OVS sent via email to this same designated certification application is processed by applications mailed to Commission email address.13 The rule changes in Media Bureau staff, a public notice is headquarters has been time consuming this Order do not affect the requirement published on the Commission’s website. for staff and has caused processing that the certification application must Comments or oppositions to delays. In addition, the requirement to be served on all local communities in certification applications must be filed file the certification application on a which the applicant intends to within five calendar days of the date the computer disk is an unnecessary, operate.14 We note that the rule changes application is received at the duplicative, and outdated mode of adopted herein involve a non- Commission.5 Pursuant to Section 653, information delivery. Given the very substantive change to an approved the Commission must act to approve or short deadline by which the information collection for which we disapprove any OVS certification Commission must act on OVS must obtain Office of Management and request within ten days of its receipt.6 certification applications, processing Budget (OMB) approval under the To implement this statutory delays and outdated requirements have Paperwork Reduction Act (PRA) before requirement, the Commission’s rules proven to be problematic for both the the rule changes can take effect. To provide that ‘‘[i]f the Commission does staff of the Media Bureau and OVS expedite the ability of parties and staff applicants.10 not disapprove the certification to utilize these new procedures, we 4. Therefore, we modify the make these rule revisions effective upon application within ten days after receipt procedural rules for the filing of OVS publication of the Order in the Federal of an applicant’s request, the certification applications and notices of Register. The requirement that certification application will be deemed intent to make the process less publication of a ‘‘substantive’’ rule be 7 approved.’’ Media Bureau staff also burdensome for applicants and to made at least 30 days before its effective ensure that these documents are timely date does not apply to the procedural regulations and reduced regulatory burdens. See 47 received by Commission staff.11 We rules adopted in this Order.15 U.S.C. 573(c). 2 47 U.S.C. 573(a)(1); 47 CFR 76.1502. The Form 8 47 CFR 76.1503(b)(1). 1275 includes facts and representations regarding Part 1 Rules of Practice and Procedure and Part 0 9 See, e.g., Amendment of Certain of the the OVS applicant and system information, Rules of Commission Organization, Report and Commission’s Part 1 Rules of Practice and Order, 76 FR 24383, May 2, 2011, 26 FCC Rcd 1594, including the anticipated communities or area to be Procedure Relating to the Filing of Formal 1598, para. 10 n.23; 1600, para. 15 n.44 (2011) served upon completion of the open video system. Complaints Under Section 208 of the (notice and comment is not required for procedural See https://transition.fcc.gov/Forms/Form1275/ Communications Act and Pole Attachment changes). 1275.pdf. Complaints Under Section 224 of the 12 Because the certification application will be 3 47 CFR 76.1503(b)(1). In order to commence the Communications Act, Order, 79 FR 73844, Dec. 12, electronically delivered to a designated OVS email channel allocation process, an OVS operator is 2014, 29 FCC Rcd 14078 (2014). box, a specific cover sheet identifying the filing as required to file a notice of intent with the 10 In at least one recent case, an OVS application an ‘‘OVS Certification Application’’ and ‘‘Attention: Commission. A notice of intent provides details was received by Media Bureau staff weeks after it Media Bureau’’ is no longer necessary. Therefore, regarding the operator’s projected channel capacity, was received at the Commission. The Media Bureau we are eliminating the requirement that a cover service area, and other technical information about failed to have an opportunity to place the sheet be filed with a certification application, the operator’s system. Second Report and Order, 11 application on Public Notice or to review and assess comments, or oppositions. See 47 CFR FCC Rcd at 18252, para. 45. the application within the ten-day timeframe 76.1502(d)(2), (e)(2). We also are eliminating the 4 See Second Report and Order, 11 FCC Rcd at specified by the Communications Act and the cover sheet requirements for notices of intent. See 18247, para. 34 (1996) (stating that ‘‘hard copies of Commission’s rules, and the application was 47 CFR 76.1503(b)(1). In addition, computer disks the [Form 1275] certification forms be filed with the deemed approved by operation of law. After are no longer required to be filed. Office of the Secretary, Federal Communications reviewing the OVS certification application, it was 13 See the Final Rules section. As under the Commission’’); see also id. at Appendix C (‘‘A hard deemed deficient, requiring the Media Bureau to current rule, comments or oppositions to a copy of FCC Form 1275 and all attachments must adopt a sua sponte Order on Reconsideration certification must be served on the party that filed be filed with the Office of the Secretary, Federal revoking the OVS certification. See Digital the certification. 47 CFR 76.1502(e)(1). Communications Commission . . . and with the Broadcasting Certification to Operate an Open 14 See 47 CFR 76.1502(d)(1); see also 47 CFR Office of the Bureau Chief, Cable Services Bureau’’). Video System, 32 FCC Rcd 3149 (MB 2017). 76.1502(f) (requiring that, if an application is The Cable Services Bureau was superseded by the 11 The rule revisions adopted in this Order and disapproved, a refiled application must be served Media Bureau in 2002. See Establishment of the set forth in the Final Rules section are procedural on any objecting party or parties and on all local Media Bureau and Other Organizational Changes, in nature. Because they modify existing agency communities in which the applicant intends to Order, 17 FCC Rcd 4510 (2002); see also 47 CFR procedural rules, notice and comment procedures operate); 47 CFR 76.1503(b)(1)(viii) (requiring that 76.1503(b)(1) (stating that Notices of Intent must be are not required under the Administrative a notice of intent be served on all local franchising filed with the Secretary of the Federal Procedure Act. See 5 U.S.C. 553(b) (stating that authorities). Communications Commission and directed to the notice and comment requirements do not apply to 15 See 5 U.S.C. 553(d)(3) (stating that publication Media Bureau). Some of the specific filing rules of agency procedure); Amendment of Certain of a ‘‘substantive’’ rule shall be made not less than requirements do not appear in the OVS rules, but of the Commission’s Part 1 Rules of Practice and 30 days before its effective date, except . . . as in other locations such as in the instructions for Procedure and Part 0 Rules of Commission otherwise provided by the agency for good cause FCC Form 1275. Organization, Notice of Proposed Rulemaking, 75 found and published with the rule). We anticipate 5 47 CFR 76.1502(e)(1). FR 14401, March 25, 2010, 25 FCC Rcd 2430, 2430, that these new procedures will significantly 6 47 U.S.C. 573(a)(1). para. 1 n.1; 2434, para. 11 n.15; 2436, para. 16 n.23 decrease the likelihood that a certification 7 47 CFR 76.1502(f). (2010); Amendment of Certain of the Commission’s Continued

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\28NOR1.SGM 28NOR1 61136 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

5. Paperwork Reduction Act. This Federal Communications Commission. mail (email) at the following address: document contains a non-substantive Katura Jackson, [email protected]. The subject line shall and non-material modification of Federal Register Liaison Officer, Office of the read ‘‘Open Video System Certification information collection requirements that Secretary. Application Comments.’’ Comments and were previously reviewed and approved Final Rules oppositions will not be considered by OMB pursuant to the Paperwork properly filed unless filed as described For the reasons discussed in the Reduction Act of 1995 (PRA), Public in this paragraph (e). preamble, the Federal Communications Law 104–13.16 Filing burdens are (f) If the Commission does not Commission amends 47 CFR part 76 as disapprove the certification application reduced with the use of email filings to follows: the Commission. within ten days after receipt of an applicant’s request, the certification 6. Congressional Review Act. The PART 76—MULTICHANNEL VIDEO AND CABLE TELEVISION SERVICE application will be deemed approved. If Commission will send a copy of this disapproved, the applicant may file a Order to Congress and the Government ■ 1. The authority citation for part 76 revised certification or refile its original Accountability Office pursuant to the continues to read as follows: submission with a statement addressing Congressional Review Act, see 5 U.S.C. the issues in dispute in accordance with 801(a)(1)(A). Authority: 47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, the procedures described in paragraph 7. Accordingly, it is ordered that part 315, 317, 325, 338, 339, 340, 341, 503, 521, (d) of this section. Such refilings must 76 of the Commission’s rules is 522, 531, 532, 534, 535, 536, 537, 543, 544, be served on any objecting party or amended, as set forth in the Final Rules 544a, 545, 548, 549, 552, 554, 556, 558, 560, parties and on all local communities in section, pursuant to the authority 561, 571, 572, 573. which the applicant intends to operate contained in sections 4(i), 303(r), and ■ 2. Amend § 76.1502 by revising pursuant to instructions in paragraph 653 of the Communications Act of 1934, paragraphs (d), (e)(2), and (f) to read as (d)(2) of this section. The Commission as amended, 47 U.S.C. 154(i), 303(r), follows: will consider any revised or refiled FCC and 573. Form 1275 to be a new proceeding and § 76.1502 Certification. any party who filed comments regarding 8. It is further ordered that this Order * * * * * the original FCC Form 1275 will have to and the rule changes adopted herein (d)(1) All open video system refile their original comments if they shall be effective upon publication in certification applications, including think such comments should be the Federal Register. FCC Form 1275 and all attachments, considered in the subsequent must be filed via electronic mail (email) proceeding. List of Subjects in 47 CFR Part 76 at the following address: [email protected]. ■ The subject line shall read ‘‘Open Video 3. Amend § 76.1503 by revising Administrative practice and paragraph (b)(1) introductory text to procedure, Cable television, Reporting System Certification Application.’’ Open video system certification read as follows: and recordkeeping requirements. applications will not be considered § 76.1503 Carriage of video programming properly filed unless filed as described providers on open video systems. in this paragraph (d). * * * * * (2) On or before the date an FCC Form (b) * * * application will fail to reach Media Bureau staff 1275 is filed with the Commission, the prior to the time that it is deemed approved. We applicant must serve a copy of its filing (1) Notification. An open video likewise expect that, since the new procedures will on all local communities identified system operator shall file a ‘‘Notice of decrease filing burdens on applicants and other pursuant to paragraph (c)(6) of this Intent’’ to establish an open video filers, no filing party or opponent of an OVS section and must include a statement system, which the Commission will application is likely to be prejudiced by the rules release in a Public Notice. The Notice of taking effect upon publication of the Order in the informing the local communities of the Commission’s requirements in Intent must be filed via electronic mail Federal Register. (email) at the following address: OVS@ 16 paragraph (e) of this section for filing See OMB, Notice of Office of Management and fcc.gov. The subject line shall read Budget Action, ICR Reference No. 201604–3060– oppositions and comments. Service by 006, OMB Control No. 3060–0700 (May 23, 2016), mail is complete upon mailing, but if ‘‘Open Video System Notice of Intent.’’ https://www.reginfo.gov/public/do/ mailed, the served documents must be An Open Video system notice of intent _ PRAViewICR?ref nbr=201604-3060-006# (select the postmarked at least 3 days prior to the will not be considered properly filed ‘‘Retrieve Notice of Action (NOA)’’ hyperlink); 5 filing of the FCC Form 1275 with the unless filed as described in this CFR 1320.5(g) (stating that an agency may not make Commission. paragraph (b). This Notice of Intent shall ‘‘a substantive or material modification to a include the following information: collection of information’’ after such collection of (e) * * * information has been approved by OMB, unless the (2) Parties wishing to respond to a * * * * * modification has been submitted to OMB for review FCC Form 1275 filing must submit [FR Doc. 2018–25913 Filed 11–27–18; 8:45 am] and approval under 5 U.S.C. part 1320). comments or oppositions via electronic BILLING CODE 6712–01–P

VerDate Sep<11>2014 15:57 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00026 Fmt 4700 Sfmt 9990 E:\FR\FM\28NOR1.SGM 28NOR1 61137

Proposed Rules Federal Register Vol. 83, No. 229

Wednesday, November 28, 2018

This section of the FEDERAL REGISTER comments may be viewed online from VA. In proposed § 17.3240, we are contains notices to the public of the proposed through the Federal Docket Management codifying our current practice of issuance of rules and regulations. The System (FDMS) at http:// providing all prosthetic and purpose of these notices is to give interested www.Regulations.gov. rehabilitative items and services under persons an opportunity to participate in the § 17.3230. With regard to the provision rule making prior to the adoption of the final FOR FURTHER INFORMATION CONTACT: rules. Penny Nechanicky, National Program of artificial limbs under the proposed Director for Prosthetic and Sensory Aids rule, we propose to revise VHA’s Service (10P4RK), Department of existing policies that allow veterans to DEPARTMENT OF VETERANS Veterans Affairs, 810 Vermont Avenue choose the provider of artificial limbs in AFFAIRS NW, Washington, DC 20420; (202) 461– limited circumstances. We also propose 0337. (This is not a toll-free number.) to align policies and practices to be 38 CFR Part 17 SUPPLEMENTARY INFORMATION: On consistent with the provision of all RIN 2900–AP46 October 16, 2017, VA published a other prosthetic and rehabilitative items proposal to amend VA regulations and services, with the community care Prosthetic and Rehabilitative Items and governing the provision of prosthetic authorities (e.g., Choice Act), and with Services and rehabilitative items and services to our current national preferred process eligible veterans. Federal Register (82 for the provision of artificial limbs AGENCY: Department of Veterans Affairs. FR 48018). That rulemaking proposed to (which we intend to continue as the ACTION: Supplemental notice of reorganize and update the regulations national standard pursuant to this proposed rulemaking. on prosthetic and rehabilitative items rulemaking). This current national and define the types of items and preferred process would be SUMMARY: On October 16, 2017, the implemented pursuant to this Department of Veterans Affairs services available to eligible veterans. That rulemaking also proposed to rulemaking as it will provide published a proposed rulemaking to consistency in how artificial limbs are amend its regulations on the provision eliminate the existing prosthetics regulations at section 17.150 of title 38, provided throughout VA. In the of prosthetic and rehabilitative items provision of artificial limbs across VHA, and services. This supplemental notice Code of Federal Regulations (CFR) and establish entirely new sections at medical facilities have not consistently of proposed rulemaking (SNPRM) applied certain provisions of its current provides clarification about provisions §§ 17.3200, et seq. VA asked for comments on the handbooks, specifically paragraph of that proposed rulemaking and seeks proposed rule on or before December 15, 6.c.(1)(b) of VHA Handbook 1173.2 and additional public comments on them. 2017, and we received 305 comments. A paragraphs 4.c. and 7.a. of VHA This SNPRM also provides notice number of those commenters raised Handbook 1173.3, as written, and these regarding certain communications concerns about proposed § 17.3240, policies have led to ambiguity and between VA and external parties ‘‘Furnishing Authorized Items and misinterpretation within VA and by the regarding the proposed rule, and a Services,’’ and whether the proposal public. Pursuant to this rulemaking, VA summary of these communications has would alter VA’s current practices proposes to revise these policies, as been added to the public docket of this regarding veterans’ choice, particularly following them as written in these two rulemaking. with regard to the provision of artificial handbooks could limit consideration of DATES: Comments must be received by limbs, as reflected, in part, in two important factors, such as the veteran’s VA on or before December 28, 2018. Veterans Health Administration (VHA) clinical needs. It was not our intent that ADDRESSES: Written comments may be Handbooks. Commenters also raised VA clinical providers would not be submitted by through http:// concerns about whether the proposal involved in this very important decision www.Regulations.gov; by mail or hand- conflicts with the Veterans Access, on how the veteran’s needs can be best delivery to Director, Regulations Choice, and Accountability Act of 2014 met. As prosthetists have varying levels Management (00REG), Department of (‘‘Choice Act’’), which established VA’s of expertise and familiarity with Veterans Affairs, 810 Vermont Avenue Veterans Choice Program. artificial limbs, if VA followed these NW, Room 1063B, Washington, DC With this SNPRM, we seek to clarify policies as written, VA would not be 20420; or by fax to (202) 273–9026. the intended effect of proposed able to confirm or validate that the Comments should indicate that they are § 17.3240, explain our current practices prosthetist chosen by the veteran would submitted in response to ‘‘RIN 2900– and processes relating to that provision, be the most appropriate prosthetist to AP46, Prosthetic and rehabilitative and request additional comments on it. provide the artificial limb and items and services; Supplemental notice We also propose edits to proposed associated services. of proposed rulemaking’’. Copies of § 17.3240 as explained in more detail Following these policies would also comments received will be available for below. We will address all of the not be consistent with our contracting public inspection in the Office of comments that VA received on the authorities, such as the Federal Regulation Policy and Management, proposed rule and any comments VA Acquisition Regulations (FAR) and VA Room 1063B, between the hours of 8:00 receives on this SNPRM in our final Acquisition Regulations (VAAR). These a.m. and 4:30 p.m. Monday through rulemaking. policies have been left to each medical Friday (except holidays). Please call We clarify that the proposed rule and facility to interpret and apply, which (202) 461–4902 for an appointment. this SNPRM would not result in a has resulted in inconsistent application (This is not a toll-free number.) In different experience for most veterans across the country. In a 2012 audit of addition, during the comment period, receiving prosthetics and related care the management and acquisition of

VerDate Sep<11>2014 16:02 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\28NOP1.SGM 28NOP1 61138 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

prosthetic limbs within VHA, VA’s veteran. While sections 1701 and 1710 service, or whether VA will use an Office of the Inspector General (OIG) of title 38, United States Code (U.S.C.), authorized vendor in the community to found varying procurement practices require VA to furnish medical services, provide the item or service. VA’s among different test regions in VHA including medically necessary procurement practices with respect to ‘‘[d]ue to the inconsistencies in the prosthetic and rehabilitative items and prosthetic and rehabilitative items and available guidance.’’ See, Veterans services to certain eligible veterans and services are aimed at ensuring that Health Administration, Audit of the authorize VA to provide them to other veterans’ needs are met with the most Management and Acquisition of eligible veterans, the decision as to how appropriate and highest quality items Prosthetic Limbs, Report No. 11–02254– VA provides such items and services is and services in a consistent manner 102, VA OIG, Office of Audits and discretionary. As explained at 82 FR throughout VA and that VA complies Evaluations, March 8, 2012, page 9. The 48025, if VA has the capacity or with Federal and VA acquisition OIG concluded that such variability led inventory to directly provide such item regulations as applicable. to ‘‘overlap and gaps in services’’ and or service, VA will do so. VA may use Current National Preferred Process for that ‘‘contracting staff may be authorized community vendors on a the Provision of Artificial Limbs performing unnecessary workload.’’ Id. case-by-case basis to provide greater The OIG further concluded that ‘‘[i]t is access, lower cost, and a wider range of As previously discussed, there is important that VHA monitors contract items and services. Pursuant to the FAR, some variation in the provision of workload and ensures the contracts it VA utilizes national and regional artificial limbs throughout VHA, awards and administers are necessary to agreements to provide prosthetic and specifically with regard to the role of the support veterans’ requirements.’’ Id. rehabilitative items and services and veteran and the clinician in the Through this rulemaking, we seek to also, on a case by case basis, enters into determination of how prescribed items create a uniform standard and process agreements with vendors in the and services are provided. The for the provision of artificial limbs to community who are not part of these following is a discussion on the current ensure all VA medical facilities are in national or regional agreements in the national preferred process for the alignment with the current process for instance that VA is unable to provide provision of such items and the provision of all other prosthetic and these items and services directly or encompasses the process VA intends to rehabilitative items and services, and pursuant to an existing agreement. continue pursuant to proposed with our current national preferred While VA has general authority to § 17.3240. Similar to the provision of other prosthetic and rehabilitative items process for the provision of artificial provide necessary health care services and services under proposed 38 CFR limbs, which we intend to continue to eligible veterans, VA’s authority to 17.3230 as explained above, in the pursuant to this rulemaking. In the provide such services through instance of the provision of an artificial following paragraphs, we will explain community sources is constrained by limb, VA first requires an evaluation of our processes for the provision of all statute and regulation. For example, a veteran’s clinical need for such item. prosthetic and rehabilitative items and except where authorized, VA complies This evaluation is typically done by the services, as well as artificial limbs, and with the FAR and the VAAR, which amputee clinic team. If a veteran has address certain public comments ensure that the prescribed items and been evaluated by an authorized regarding proposed § 17.3240. services meet the veteran’s clinical community provider, any prescription General Current Process for the needs and that VA obtains such items for an artificial limb and related Provision of Prosthetic and and services in a fiscally responsible components written by that authorized Rehabilitative Items and Services Other and legally sufficient manner. community provider is referred to the Than Artificial Limbs We note that the decision of what amputee clinic team, particularly The current decision making process prosthetic or rehabilitative item or because the authorized community for providing prosthetic and service is to be provided is a clinical provider may not specialize in artificial rehabilitative items and services starts decision and results in a prescription. limb evaluation. Oftentimes, the with a clinical evaluation of a veteran’s The decision of how that prescribed prescription does not contain sufficient needs by a VA health care provider or item or service is provided is a separate information for VA to provide directly authorized community (i.e., non- decision, and VA retains the authority or through a VA-authorized prosthetist Department) provider. The decision on to make this determination. As long as all the components, accessories, the prosthetic or rehabilitative item or the prescribed item or service (whether supplies, and related services necessary service to be provided to the veteran is prescribed by a VA or an authorized to fabricate an artificial limb. a clinical decision made by the veteran’s community provider) serves as a direct Furthermore, agreements with VA- health care provider, in consultation and active component of the veteran’s authorized prosthetists for the artificial with the veteran, and results in a medical treatment and rehabilitation, limb and related services must include prescription for a prosthetic or VA prosthetics representatives will Healthcare Common Procedure Coding rehabilitative item or service. This honor the prescription and procure the System (HCPCS) codes, which VA ensures that the veteran’s clinical needs prescribed item or service for the determines based on an evaluation of will be met by the item or service veteran. While the veteran’s clinical the patient by the amputee clinic team. prescribed, that the item or service needs are always considered in the The amputee clinic team conducts an prescribed is safe, that the veteran is determination of how the item or assessment to determine the veteran’s involved in this process because he or service is procured, administrative clinical needs, and along with the she is a necessary member of the health factors are also considered on a case by veteran, identifies the appropriate care delivery team, and that the item or case basis, as explained in more detail artificial limb and related components service will serve as a direct and active throughout this SNPRM. Under the needed and makes a determination on component of the eligible veteran’s proposed rulemaking and this SNPRM, how the item(s) will be provided. As medical treatment and rehabilitation. A we would continue to ensure that the discussed in the previous section, this VA prosthetics representative at a VA veteran’s clinical needs drive how the decision is in consultation with the medical facility then determines how agency determines whether VA can veteran and prioritizes veterans’ clinical best to provide the item or service to the directly provide the prescribed item or needs. Generally, if a VA medical

VerDate Sep<11>2014 16:02 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\28NOP1.SGM 28NOP1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61139

facility accessible to the veteran offers Public Comments About Proposed authorized VA vendor provides the the orthotic and prosthetic services that § 17.3240 artificial limb. We also note that how meet the veteran’s clinical needs, then Many commenters raised concerns geographic availability is considered in VA provides the limb and all associated about VA’s statement in the proposed this determination of whether VA or an services (e.g., fitting, minor repairs, rule at 82 FR 48025 that the decision as authorized VA vendor provides the routine servicing) directly to the to whether VA or a VA-authorized authorized item or service will vary. veteran. If VA’s decision is that the vendor (i.e., community/non- There would be no set distance or veteran should receive the item and Department vendor) will furnish the mileage that we would define when services from a community (i.e., non- prescribed item or service to the veteran considering geographic availability in Department) prosthetist, VA utilizes its is an administrative business decision; this determination, as this can be dependent on the health and mobility of established orthotic and prosthetic the commenters stated that this is the veteran and his or her clinical agreements in the region to authorize a instead a clinical issue that should also needs. For example, in considering community prosthetist to provide the be based on the veterans’ preferences. Some commenters were concerned that geographic availability, a veteran artificial limb and associated services to amputee who has no other medical the veteran. The veteran is able to select, making this an administrative business decision would restrict veterans’ choice conditions that would limit his or her in consultation with his or her VA mobility and may have regular access to clinician or amputee clinic team, from of providers and delay care. We agree and now clarify that our description of a vehicle will likely have substantially a list of vendors in the geographic area the proposed rule failed to state that different clinical needs in this regard that have an existing agreement with VA clinical decisions are necessary to issue than a veteran amputee with medical and are able to meet the veteran’s the clinically-appropriate prosthetic or conditions that impede his or her clinical needs. While most facilities rehabilitative item or service to a mobility and who may lack dependable have a number of established veteran. Furthermore, as mentioned in access to a vehicle. For veterans who agreements already in place for use, in the discussions above, the decision have mobility issues, geographic the instance that there is no prosthetist about what item or service VA will availability can vary significantly. In such situations, it would be appropriate under an established agreement that is provide to the veteran is a clinical for the provider to consider whether a able to meet the veteran’s clinical needs, decision made by the veteran’s health specific limb under consideration can VA and the veteran will work together care provider, in consultation with the be fabricated, serviced, and repaired by to identify the appropriate community veteran, which results in a medical a VA or non-VA prosthetist. We further prosthetist, and VA would seek to prescription. Additionally, there is a note that although cost is not a factor establish an agreement with that related decision about how VA will providers consider when determining prosthetist for the needed artificial limb provide the prescribed items and which item or service to prescribe, it services (whether by VA or by a VA- and related services. In purchasing such may be relevant in determining whether authorized vendor). The veteran’s items and services, VA complies with VA or an authorized VA vendor the FAR and VAAR as applicable. We clinical needs will drive this provides the prescribed item or service. note that some of the above process may determination. However, while the For example, if an authorized vendor vary if the veteran is eligible for the clinical needs are always part of this sells the authorized item at a lower cost Veterans Choice Program, operated determination, VA may consider than what it would cost VA to provide pursuant to § 17.1500 et seq. Under administrative factors when making this the item itself, then VA may decide to proposed § 17.3240, we would determination. Such administrative procure the item from the authorized standardize this process of determining factors considered may include, but VA vendor based on cost. whether to directly provide the artificial would not be limited to, VA capacity While the factors VA considers in limb and associated services or whether and availability, geographic availability, making the determination of how to and cost. We note that VA capacity and to use a VA-authorized vendor (i.e., a provide the authorized item or service availability can refer to whether a VA community/non-Department will vary, we would continue to ensure medical facility has the resources and that the veteran’s clinical needs drive prosthetist). This would result in several equipment to fabricate an authorized benefits. First, it would ensure VA how the agency determines whether VA item or service, and whether VA can directly provide the prescribed item provides such items and services in a providers are available and have the consistent and standardized manner or service, or whether VA will use an skills, abilities, and experience to authorized vendor in the community to throughout VA, which would also be provide an authorized item or service. provide the item or service, while also consistent with the provision of all For example, a VA prosthetist may have ensuring that VA is administering these other prosthetic and rehabilitative items the ability to fabricate an artificial limb, benefits in a fiscally responsible and and services. Second, it would be but may not be able to fabricate the limb consistent manner. consistent with the current national because of his or her workload. In that Other commenters expressed concern preferred practice, while also ensuring instance, VA may determine that an that administrative business decisions compliance with Federal acquisition authorized VA vendor will provide the would not be consistent with other requirements. Finally, and most authorized item or service. If the authorities, particularly the Choice Act. importantly, this would ensure veterans authorized item or service requires First, we note that since the publication receive the most appropriate and certain expertise or experience that a of the proposed rule in October 2017, highest quality item or service that VA provider does not have, VA may the President signed into law the VA meets their clinical needs. We note that determine that an authorized VA vendor MISSION Act of 2018 (Pub. L. 115–182). VA retains authority over this will provide that item or service instead. Section 143 of this Act provides that VA determination to ensure that there is Relatedly, some VA medical facilities may not use the Choice Act authority to consistency across VHA in the provision have laboratories in which artificial furnish care and services after June 6, of these prescribed items and services, limbs can be fabricated while others do 2019. While we address, in this SNPRM, and for quality control purposes. not, and this would be a consideration the concerns regarding the Choice Act in determining whether VA or an that were raised by commenters, we

VerDate Sep<11>2014 16:02 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\28NOP1.SGM 28NOP1 61140 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

realize that these concerns and our proposed rule is broader and less item or service, VA would then proceed responses will become moot once VA’s stringent than the eligibility to procure that item or service as long authority to furnish care and services requirements under the Veterans Choice as it is part of the original authorized pursuant to the Choice Act ends. As a Program. We note that the Choice Act care and serves as a direct and active result of the VA MISSION Act of 2018, requires VA approval prior to obtaining component of the veteran’s treatment or VA is developing new regulations for care from a community provider, and rehabilitation. VA would then use its the new Veterans Community Care there are specific criteria that veterans prosthetic procurement authorities (i.e., Program required by section 101 of that and community providers must meet for 38 U.S.C. 8123, FAR, and VAAR) to Act and will also be revising or care to be authorized and approved. See obtain the prescribed prosthetic and eliminating the regulations §§ 17.1500 et seq. If a veteran is eligible rehabilitative items and services. In this implementing the Choice Act; should and approved by VA to seek care context, the proposed rule as modified any further revisions to VA’s prosthetic outside VA under § 17.1510, that by this SNPRM is consistent with regulations be needed as a result of veteran may obtain care from eligible sections 1703 and 8153. Similar to the these efforts, VA will address those entities and providers under § 17.1530. Choice Act, these authorities have changes through a subsequent An agreement must be in place prior to separate eligibility criteria than what is rulemaking and further explain or the authorized care being furnished, and in proposed § 17.3220. See 38 U.S.C. modify these regulations as necessary. the agreement or authorization for care 1703, 8153, and 38 CFR 17.52. We note We note that eligibility for the must be specific as to the care to be that proposed § 17.3220 would be less Veterans Choice Program implemented provided to the veteran. If the restrictive than the eligibility criteria for pursuant to the Choice Act is dependent authorized entity or provider prescribes these community care programs, as on meeting certain criteria defined in a prosthetic or rehabilitative item or these community care authorities § 17.1510. In comparison, eligibility for service, VA would then proceed to require facilities to consider only certain prosthetics and rehabilitative items and procure that item or service as long as factors when determining whether a services is set forth in proposed it is part of the original authorized care veteran may obtain care outside VA. For § 17.3220, which would only require and serves as a direct and active example, pursuant to 38 CFR 17.52, in that the veteran be enrolled in VA component of the veteran’s treatment or instances when VA facilities are health care pursuant to § 17.36 or rehabilitation. In this context, the incapable of furnishing care due to exempt from enrollment under § 17.37, proposed rule as modified by this geographic inaccessibility or are not or that the veteran be otherwise SNPRM is consistent with the Choice capable of furnishing care or services receiving care or services under chapter Act, as the Choice Act requires VA to required, VA may contract with non-VA 17 of title 38 U.S.C. If the veteran meets authorize prosthetic and rehabilitative facilities for the care. As the regulations any of these criteria, he or she would be items and services from a VA- implementing these community care eligible to receive a prosthetic or authorized vendor in the community authorities are undergoing revision due rehabilitative item or service so long as prior to those items or services being to the enactment of the VA MISSION such item or service serves as a direct provided. See, e.g., Public Law 113–146, Act of 2018, should any further and active component of the veteran’s sec. 101(a)(1)(A), (c)(1)(B)(i), revisions to VA’s prosthetic regulations treatment or rehabilitation. Similar to (d)(4)(B)(iii), and (h). See also 38 CFR be needed as a result, VA will address the Choice Program, factors such as 17.1505 (the definition of appointment, those changes through a subsequent geographic availability are considered in in particular), 17.1510(d) (‘‘prior to rulemaking and further explain or making the determination. However, VA obtaining authorization for care’’), modify these regulations as necessary. always considers clinical factors in Additionally, we note that 38 U.S.C. 17.1515(a), and 17.1535(c). Thus, making the determination of who will 1703 distinguishes between veterans proposed § 17.3240 is consistent with, provide the prescribed item or service. with service connected and nonservice and less restrictive than, the Choice Act. While the eligibility criteria for when a connected disabilities when veteran is able to seek care from a In addition to the Choice Act, determining their eligibility to obtain community provider under the Veterans commenters raised concerns about care outside VA under that authority. Choice Program are generally whether the proposed rule would Section 101 of the VA MISSION Act of administrative, the determination of implicate other community care 2018 will revise section 1703 to remove who provides the prosthetic and authorities, such as 38 U.S.C. 8153 and this distinction, and to the extent rehabilitative item or service under 1703. Sections 8153 and 1703 are used necessary, such elimination would be § 17.3240 is both administrative and by VA to obtain medical care in the reflected under these prosthetics clinical. We note that this latter community; however, we note that regulations. We note that the proposed determination is broader and less section 1703 will be revised prosthetics regulations, as amended by stringent than the determination under significantly by 101 of the VA MISSION this SNPRM, do not distinguish between the Veterans Choice Program and Act of 2018. These changes will become veterans with service connected provides the veteran with input into effective when VA publishes regulations conditions and nonservice connected whether VA or an authorized VA vendor implementing section 101 of the VA conditions. provides him or her with the prescribed MISSION Act of 2018. The proposed Commenters also raised concerns item or service. rule, as amended by this SNPRM, would about the authority for proposed Relatedly, general concerns were not limit, impact, or be inconsistent § 17.3240, as VA did not cite to or raised that proposed § 17.3240 is with VA’s existing or future authorities reference the statutory authority for that inconsistent with the Choice Act. While under sections 8153 and 1703. These are section. As mentioned previously in this VA may not use the Choice Act to not authorities that we have used to discussion, 38 U.S.C. 1710, the furnish care and services after June 6, purchase prescribed prosthetic and authorizing statute, requires VA to 2019, as described above, we believe rehabilitative items or services. Similar furnish medical services to certain these authorities are consistent with one to the Choice Program, if the entity or eligible veterans and authorizes VA to another, or where they are potentially provider authorized under sections 1703 provide them to other eligible veterans. inconsistent, they are so in a way to the and 8153 to provide care to a veteran See also, 38 U.S.C. 1701(6), which benefit of the veteran in that this prescribes a prosthetic or rehabilitative defines the term ‘‘medical services’’ in

VerDate Sep<11>2014 16:02 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\28NOP1.SGM 28NOP1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61141

a manner that covers prosthetic and familiarity with artificial limbs, if VA this clinical decision and the veteran’s rehabilitative items and services. followed these policies as written, VA involvement in that decision, we Sections 1701 and 1710 do not, would not be able to confirm or validate explicitly note that the prescription is however, mandate how VA provides that the prosthetist chosen by the clinical and based on the veteran’s these items and services. In other words, veteran would be the most appropriate clinical needs. For similar reasons, we how VA provides them is discretionary, prosthetist to provide the artificial limb would also clarify that the prescription and VA proposes § 17.3240 pursuant to and associated services. It was not our is generated in consultation with the this authority. intent that VA clinical providers would veteran. This would be explained in VA also received many comments not be involved in this very important proposed 17.3240(a)(1). stating that the proposed rule decision on how the veteran’s needs can Additionally, as mentioned, we contradicted existing VHA policies and be best met. As previously mentioned, received comments that the decision on practices relating to the provision of the veteran and the VA provider would how to provide an authorized item or artificial limbs and the veteran’s choice work together to determine what item or service should not be administrative, of provider. We note that VHA service is needed to meet the veteran’s but rather clinical. Relatedly, at least Handbooks 1173.2 ‘‘Furnishing clinical needs, and who may be able to one commenter raised the concern that Prosthetic Appliances and Services’’ provide such item or service. The we did not identify or explain the and 1173.3 ‘‘Amputee Clinic Teams and veteran’s preferences will be part of that factors we would use in making this Artificial Limbs’’ indicate that a veteran decision with the VA provider. Through determination. In response to the is able to choose his or her prosthetist, this rulemaking, we seek to ensure a comments received, we would revise including community (i.e., non- standardized and consistent process proposed § 17.3240 to clarify that the Department) prosthetists, if the veteran across VA for the provision of artificial determination on how the item or has a preexisting relationship with that limbs that is consistent with the current service is provided is based on clinical prosthetist. VHA Handbook 1173.2 national preferred process and with the and administrative factors. In proposed paragraph 6.c.(1)(b) states that, ‘‘Eligible process for the provision of all other § 17.3240(a)(2), we would list factors veterans will select their provider for prosthetic and rehabilitative items and that would be considered when artificial limbs from the listing of services. procuring and providing the authorized contract vendors, including capable VA After this rulemaking is final, VA will item or service. This list of factors is Prosthetic and Orthotic Laboratories. rescind VHA Handbooks 1173.2 and non-exhaustive. Not all factors would be Service connected veterans who have 1173.3 and develop new policies to obtained their most recent limb from a update and clarify its procedures, considered in every instance, as the non-contract provider will be allowed to consistent with this regulation. provision of each authorized item or have their subsequent limb service will vary, and additional factors Corrections to Proposed § 17.3240 manufactured by the VA non-contract could be considered as needed. For provider as long as the prosthetist is Based on these comments received example, a specific wheelchair may be willing to accept the geographic VA and the discussion above, VA now prescribed as that may be the only preferred provider payment rate for the proposes to revise the language of wheelchair that would meet the State in which the prosthetist performs § 17.3240, as proposed in 82 FR 48018. veteran’s clinical needs, and there may this service.’’ Paragraph 4.c. of VHA In revised proposed § 17.3240(a)(1), we be only one manufacturer of that Handbook 1173.3 states, ‘‘Eligible would state that VA providers will wheelchair. In that instance, if the veterans, as identified in VHA prescribe items and services based on wheelchair meets the direct and active Handbook 1173.1, who have previously the veteran’s clinical needs and will do component standard, it will be received artificial limbs from so in consultation with the veteran. authorized and VA would proceed to commercial sources, will continue to Once the prescribed item or service is procure that wheelchair directly from have their choice of vendors on contract determined to be authorized under the manufacturer without consideration with VA or their non-contract § 17.3230, VA will determine whether of the other factors. Additionally, a prosthetist, providing the prosthetist VA or a VA-authorized vendor will provider may prescribe diabetic shoes to accepts the VA preferred provider rate furnish authorized items and services meet a veteran’s clinical needs, and if for the geographic area.’’ Paragraph 7.a. under § 17.3230 to veterans eligible for VA has those in its inventory, it will of that same Handbook further states, such items and services under provide those to the veteran. If there are ‘‘Eligible veterans will be permitted to § 17.3220. We would add paragraph none in inventory and VA needs to obtain authorized artificial limbs and/or (a)(2) to § 17.3240 to state that this procure the prescribed shoes, then we terminal devices from any commercial determination on whether VA or a VA- will look at our existing contracts to artificial limb dealer who is under a authorized vendor will furnish the purchase such items. Additional factors current local contract to the VA or the authorized item or service under such as cost may be considered in that veteran’s preferred prosthetist who § 17.3230 will be based on, but not instance to ensure that we are being agrees to accept the preferred provider limited to, such factors as the veteran’s fiscally responsible. As explained rate.’’ clinical needs, VA capacity and previously, VA capacity and availability As mentioned previously in this availability, geographic availability, and can refer to whether a VA medical document, these provisions in these two cost. facility has the resources and equipment handbooks have not been consistently Revising the language of § 17.3240, as to fabricate an authorized item or applied as written throughout VA’s proposed in 82 FR 48018, would codify service, or whether VA providers are medical facilities in the provision of our current practices and the current available or have the skills, abilities, artificial limbs. We propose to revise national preferred process for the and experience to provide an authorized these policies, because following them provision of artificial limbs; it also item or service. With regard to as written has resulted in inconsistent would clarify that the item or service geographic availability, we note that application, and ambiguity and that is authorized is prescribed based on how this factor may be considered misinterpretation within VA and by the the veteran’s clinical needs and is done would vary. There would be no set public. Additionally, as prosthetists in consultation with the veteran. In distance or mileage that we would have varying levels of expertise and response to many comments regarding define when considering geographic

VerDate Sep<11>2014 16:02 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\28NOP1.SGM 28NOP1 61142 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

availability in this determination, as this the public comments we received that believe the Act would affect the can be dependent on the health and led to the proposed clarification of that provision of prosthetic and mobility of the veteran and his or her section in this SNPRM. The VA rehabilitative items and services. A clinical needs. Although cost is not a Secretary at the time and VHA’s summary of this meeting has been made factor providers consider when Executive in Charge, respectively, publicly available in the supplemental determining which item or service to responded to these two inquiries in notice of proposed rulemaking. prescribe, it may be relevant in letters sent to Senator Dole and Mr. Lastly, the House Veterans’ Affairs determining whether VA or an Thomas. Committee, Health Subcommittee, held authorized VA vendor provides the The letters stated the intent and a roundtable regarding prosthetics prescribed item or service, as an purpose of the proposed rule to organize issues on July 25, 2018. VA was a authorized vendor may sell the and update the current prosthetic and participant at this roundtable. During authorized item at a lower cost than rehabilitative items and services this roundtable, concerns were raised what it would cost VA to provide the regulations and define the items and about the proposed rule, RIN 2900– item itself. services available. These letters also AP46, that were similar to those How the authorized item or service is explained that these rules were concerns raised during the public obtained and provided to the veteran proposed in order to ensure comment period. Within this SNPRM, will vary based on each individual case. standardization and consistency in the we have addressed these concerns, However, we note that the veteran’s provision of such items and services which were similar to those raised clinical needs are always prioritized throughout VA, while also ensuring that during the public comment period. when VA determines how to provide veterans receive the most appropriate Based on all of the comments received the authorized item or service. Proposed and highest quality items. The then- regarding proposed § 17.3240, we § 17.3240 would ensure that VA is Secretary’s letter to Senator Dole further propose to revise the text of proposed fiscally responsible. VA retains explained that VA was codifying its § 17.3240 as explained previously in authority over this determination of practice of determining whether VA has this SNPRM. how the authorized item or service is the capacity or capability to provide provided to ensure that there is items and services directly to veterans, Effect of Rulemaking consistency across VHA in the provision or whether a VA-authorized vendor may The Code of Federal Regulations, as of authorized prosthetic and be utilized, which is based on several proposed to be revised by the proposed rehabilitative items and services, and to factors including the veteran’s clinical rulemaking at 82 FR 48018 and this ensure quality control. needs, costs of items and services, or SNPRM, would represent the exclusive One commenter also noted that we wider selection of items and services. In legal authority on this subject. No incorrectly referenced proposed both letters, VA stated that these letters contrary guidance or procedures would § 17.3210 in proposed § 17.3240. would be treated as public comments be authorized. All VA guidance would Proposed § 17.3210 is the section on and that VA will consider and respond be read to conform with the proposed definitions whereas proposed § 17.3220 to their issues in the final rulemaking. rulemaking at 82 FR 48018 and this is the section on eligibility. In order to Additionally, the Department’s letters SNPRM if possible or, if not possible, correctly reference the eligibility containing our responses to the two such guidance would be superseded by section, we would update proposed letters have been made publicly this SNPRM and the proposed § 17.3240 to refer to § 17.3220 instead of available in the supplemental notice of rulemaking at 82 FR 48018. § 17.3210. proposed rulemaking docket. As previously mentioned, since the On June 14, 2018, VHA met with Paperwork Reduction Act publication of VA’s proposed rule in individuals from McGuire Woods This SNPRM contains no provisions October 2017, the President signed into Consulting, who represent American constituting a collection of information law the VA MISSION Act of 2018 Orthotic and Prosthetic Association under the Paperwork Reduction Act of (Pub. L. 115–182). VA is working to (AOPA), at their request, to discuss 1995 (44 U.S.C. 3501–3521). implement this new authority, and several prosthetic issues, including the should any further revisions to VA’s proposed rulemaking at 82 FR 48018 Regulatory Flexibility Act prosthetic regulations be needed as a (RIN 2900–AP46). During this The Secretary hereby certifies that result of this recently enacted discussion, VHA was asked the status of this SNPRM would not have a legislation, VA will address those RIN 2900–AP46 and where VHA significant economic impact on a changes through subsequent rulemaking thought the policy on veterans being substantial number of small entities as related specifically to the VA MISSION able to see outside providers was going. they are defined in the Regulatory Act of 2018. VHA explained that we will continue to Flexibility Act, 5 U.S.C. 601–612. provide the necessary care inside and Therefore, pursuant to 5 U.S.C. 605(b), Certain Communications Between VA outside VA and that reducing the these amendments would be exempt and External Parties amount of care in the community is not from the initial and final regulatory The Office of the VA Secretary also our intent. With regard to RIN 2900– flexibility analysis requirements of 5 received two inquiry letters during the AP46, VHA conveyed that it received U.S.C. 603 and 604. public comment period for the proposed comments, including those of AOPA; is rule. One from former Senator Bob Dole considering these comments; and is Executive Orders 12866, 13563, and and the other from Peter Thomas, drafting the final rule, which will have 13771 General Counsel for the National to be approved by the Administration, Executive Orders 12866 and 13563 Association for the Advancement of and VHA cannot say when it anticipates direct agencies to assess the costs and Orthotics and Prosthetics. Both of these the final rule to be published. VHA was benefits of available regulatory letters were treated as public comments also asked about the impact of the VA alternatives and, when regulation is and added to docket ID VA–2017–VHA– MISSION Act of 2018 on RIN 2900– necessary, to select regulatory 0023 in regulations.gov. Both of these AP46. VHA stated that this Act will approaches that maximize net benefits letters raised concerns regarding provide more flexibility to provide care (including potential economic, proposed § 17.3240 and were similar to in the community and that VHA did not environmental, public health and safety

VerDate Sep<11>2014 16:02 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\28NOP1.SGM 28NOP1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61143

effects, and other advantages; the link for ‘‘VA Regulations PART 17—MEDICAL distributive impacts; and equity). Published.’’ Executive Order 13563 (Improving ■ Unfunded Mandates 1. The authority citation for part 17 Regulation and Regulatory Review) continues to read as follows: emphasizes the importance of The Unfunded Mandates Reform Act quantifying both costs and benefits, of 1995 requires, at 2 U.S.C. 1532, that Authority: 38 U.S.C. 501, and as noted in reducing costs, harmonizing rules, and agencies prepare an assessment of specific sections. anticipated costs and benefits before promoting flexibility. Executive Order ■ 2. Add § 17.3240, to read as follows: 12866 (Regulatory Planning and issuing any rule that may result in the Review) defines a ‘‘significant expenditure by State, local, and tribal § 17.3240 Furnishing authorized items and regulatory action,’’ requiring review by governments, in the aggregate, or by the services. the Office of Management and Budget private sector, of $100 million or more (a)(1) VA providers will prescribe (OMB) as ‘‘any regulatory action that is (adjusted annually for inflation) in any items and services based on the likely to result in a rule that may: (1) one year. This SNPRM would have no Have an annual effect on the economy such effect on State, local, and tribal veteran’s clinical needs and will do so of $100 million or more or adversely governments, or on the private sector. in consultation with the veteran. Once the prescribed item or service is affect in a material way the economy, a Catalog of Federal Domestic Assistance sector of the economy, productivity, determined to be authorized under The Catalog of Federal Domestic competition, jobs, the environment, § 17.3230, VA will determine whether Assistance numbers and titles for the public health or safety, or State, local, VA or a VA-authorized vendor will programs affected by this document are or tribal governments or communities; furnish authorized items and services 64.009, Veterans Medical Care Benefits; under § 17.3230 to veterans eligible for (2) Create a serious inconsistency or 64.013, Veterans Prosthetic Appliances. otherwise interfere with an action taken such items and services under or planned by another agency; (3) List of Subjects in 38 CFR Part 17 § 17.3220. Materially alter the budgetary impact of Administrative practice and (2) This determination on whether VA entitlements, grants, user fees, or loan procedure, Government contracts, or a VA-authorized vendor will furnish programs or the rights and obligations of Health care, Health facilities, Health the authorized item or service under recipients thereof; or (4) Raise novel professions, Medical devices, Veterans. § 17.3230 will be based on, but not legal or policy issues arising out of legal Signing Authority limited to, such factors as the veteran’s mandates, the President’s priorities, or clinical needs, VA capacity and the principles set forth in this Executive The Secretary of Veterans Affairs availability, geographic availability, and Order.’’ The economic, interagency, approved this document and authorized cost. budgetary, legal, and policy the undersigned to sign and submit the implications of this regulatory action document to the Office of the Federal (b) Except for emergency care have been examined, and it has been Register for publication electronically as reimbursable under 38 CFR 17.120 determined not to be a significant an official document of the Department through 17.132 or 38 CFR 17.1000 regulatory action under Executive Order of Veterans Affairs. Robert L. Wilkie, through 17.1008, prior authorization of 12866. Secretary, Department of Veterans items and services under § 17.3230 is This rule is not an Executive Order Affairs, approved this document on required for VA to reimburse VA- 13771 regulatory action because this October 23, 2018, for publication. authorized vendors for furnishing such rule is not significant under Executive Dated: November 5, 2018. items or services to veterans. Prior Order 12866. VA’s impact analysis can Consuela Benjamin, authorization must be obtained from VA be found as a supporting document at Regulations Development Coordinator, Office by contacting any VA medical facility. http://www.regulations.gov, usually of Regulation Policy & Management, Office [FR Doc. 2018–24474 Filed 11–27–18; 8:45 am] of the Secretary, Department of Veterans within 48 hours after the rulemaking BILLING CODE 8320–01–P document is published. Additionally, a Affairs. copy of the rulemaking and its impact For the reasons set forth in the analysis are available on VA’s website at preamble, we propose to amend 38 CFR http://www.va.gov/orpm/, by following part 17 as follows:

VerDate Sep<11>2014 16:02 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4702 Sfmt 9990 E:\FR\FM\28NOP1.SGM 28NOP1 61144

Notices Federal Register Vol. 83, No. 229

Wednesday, November 28, 2018

This section of the FEDERAL REGISTER operator with the toll-free conference DEPARTMENT OF COMMERCE contains documents other than rules or call-in number: 1–877–260–1479 and proposed rules that are applicable to the conference call 2568802. National Oceanic and Atmospheric public. Notices of hearings and investigations, Administration committee meetings, agency decisions and Members of the public are invited to rulings, delegations of authority, filing of make statements during the open Submission for OMB Review; petitions and applications and agency comment period of the meeting or Comment Request statements of organization and functions are submit written comments. The examples of documents appearing in this comments must be received in the The Department of Commerce will section. regional office approximately 30 days submit to the Office of Management and after each scheduled meeting. Written Budget (OMB) for clearance the following proposal for collection of COMMISSION ON CIVIL RIGHTS comments may be mailed to the Eastern Regional Office, U.S. Commission on information under the provisions of the Paperwork Reduction Act (44 U.S.C. Agenda and Notice of Public Meeting Civil Rights, 1331 Pennsylvania Chapter 35). of the Vermont Advisory Committee Avenue, Suite 1150, Washington, DC Agency: National Oceanic and 20425, faxed to (202) 376–7548, or AGENCY: Commission on Civil Rights. Atmospheric Administration (NOAA). emailed to Evelyn Bohor at ero@ ACTION: Announcement of meeting. Title: North Pacific Observer Program. usccr.gov. Persons who desire OMB Control Number: 0648–0318. SUMMARY: Notice is hereby given, additional information may contact the Form Number(s): None. pursuant to the provisions of the rules Eastern Regional Office at (202) 376– Type of Request: Regular (extension of and regulations of the U.S. Commission 7533. a currently approved information on Civil Rights (Commission), and the Records and documents discussed collection). Federal Advisory Committee Act during the meeting will be available for Number of Respondents: 875. (FACA) that a planning meeting of the public viewing as they become available Average Hours per Response: 5 Vermont Advisory Committee to the at https://www.facadatabase.gov/FACA/ minutes to request full observer Commission will be convened by coverage, placement in or removed from FACAPublicViewCommitteeDetails?id= teleconference call at 11:00 a.m. (EST) the Electronic Monitoring (EM) a10t0000001gzmXAAQ, click the on Friday, December 7, 2018. The selection pool, close an EM trip in ‘‘Meeting Details’’ and ‘‘Documents’’ purpose of the meeting is for discussing ODDS, pre-cruise meeting notification, the proposal on school to prison links. Records generated from this physical examination verification, pipeline issues in Vermont. meeting may also be inspected and update to provider information; 15 DATES: Friday, December 7, 2018, at reproduced at the Eastern Regional minutes to log a fishing trip in ODDS; 11:00 a.m. EST. Office, as they become available, both 48 hours for a Vessel Monitoring Plan; Public Call-In Information: before and after the meetings. Persons 1 hour to submit EM data, and observer Conference call-in number: 1–877–260– interested in the work of this advisory training registration; 30 minutes for 1479 and conference call 2568802. committee are advised to go to the request small catcher/processor FOR FURTHER INFORMATION CONTACT: Commission’s website, www.usccr.gov, placement in partial coverage category; Evelyn Bohor at [email protected] or by or to contact the Eastern Regional Office 4 hours for appeals; 2 minutes to notify phone at 202–376–7533. at the above phone numbers, email or observer before handling the vessel’s SUPPLEMENTARY INFORMATION: Interested street address. Bering Sea pollock catch; 8 hours for members of the public may listen to the candidates’ college transcripts and Agenda discussion by calling the following toll- statements; 7 minutes for observer free conference call-in number: 1–877– Friday, December 7, 2018 at 11 a.m. briefing registration, projected observer 260–1479 and conference call 2568802. (EST) assignments, and observer deployment Please be advised that before placing and logistics reports; 30 minutes for them into the conference call, the • Rollcall observer debriefing registration, conference call operator will ask callers • Project Planning observer provider contracts, invoice to provide their names, their copies, and industry request for • Other Business organizational affiliations (if any), and assistance; 12 minutes for certificates of email addresses (so that callers may be • Open Comment insurance; 2 hours for other reports; 60 notified of future meetings). Callers can • Adjourn. hours for observer provider permit expect to incur charges for calls they application. initiate over wireless lines, and the Dated: November 21, 2018. Burden Hours: 15,871. Commission will not refund any David Mussatt, Needs and Uses: This request is for an incurred charges. Callers will incur no Supervisory Chief, Regional Programs Unit. extension of a currently approved charge for calls they initiate over land- [FR Doc. 2018–25905 Filed 11–27–18; 8:45 am] information collection. line connections to the toll-free BILLING CODE 6335–01–P The North Pacific Observer Program conference call-in number. (Observer Program) is implemented Persons with hearing impairments under the authority of section 313 of the may also follow the discussion by first Magnuson-Stevens Fishery calling the Federal Relay Service at 1– Conservation and Management Act and 800–977–8339 and providing the regulations at 50 CFR 679. Through the

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61145

Observer Program, the National Marine Dated: November 23, 2018. United States. To achieve this goal, it Fisheries Service (NMFS) collects the Sarah Brabson, will be necessary to conduct surveys data necessary to conserve and manage NOAA PRA Clearance Officer. identifying the types of educational the groundfish and halibut fisheries off [FR Doc. 2018–25917 Filed 11–27–18; 8:45 am] programs and products of the highest Alaska. Observers collect biological BILLING CODE 3510–22–P interest and greatest need by formal and samples and fishery-dependent informal educators. By surveying information used to estimate total catch external educators to gather this and interactions with protected species. DEPARTMENT OF COMMERCE information, budget expenditures will Managers use data collected by be used optimally to develop observers to manage groundfish and National Oceanic and Atmospheric appropriate products and programs prohibited species catch within Administration most desired by educators to support established limits and to document and and enhance Ocean, Earth science, and reduce fishery interactions with Proposed Information Collection; related STEM education subjects protected resources. Scientists use Comment Request; External Needs throughout our nation. observer data to assess fish stocks, to Assessment for NOAA Education II. Method of Collection provide scientific information for Products and Programs fisheries and ecosystem research and AGENCY: National Oceanic and The voluntary needs assessment fishing fleet behavior, to assess marine Atmospheric Administration (NOAA), mechanism will be distributed via email mammal interactions with fishing gear, Commerce. with a link to a Google form to external educators subscribed to NOAA and to assess fishing interactions with ACTION: Notice. habitat. education programs as well as their All vessels and processors that SUMMARY: The Department of partners email distribution lists. The participate in federally managed or Commerce, as part of its continuing voluntary needs assessment mechanism parallel groundfish and halibut fisheries effort to reduce paperwork and will also be distributed in person (paper off Alaska are assigned to one of two respondent burden, invites the general and electronically) at education categories: (1) The full observer public and other Federal agencies to conferences, workshops, and other coverage category, where vessels and take this opportunity to comment on venues hosting educators. processors obtain observer coverage by proposed and/or continuing information III. Data contracting directly with observer collections, as required by the providers; or (2) the partial coverage Paperwork Reduction Act of 1995. OMB Control Number: 0648–xxxx. Form Number(s): None. category, where NMFS, in consultation DATES: Written comments must be Type of Review: New information with the North Pacific Fishery submitted on or before January 28, 2019. Management Council determines when collection. ADDRESSES: Direct all written comments Affected Public: Individuals or and where observer coverage is needed. to Jennifer Jessup, Departmental households; Business or other for-profit Some vessels and processors may be in Paperwork Clearance Officer, organizations; Not-for-profit full coverage for part of the year and Department of Commerce, Room 6616, institutions. partial coverage at other times of the 14th and Constitution Avenue NW, Estimated Number of Respondents: year depending on the observer Washington, DC 20230 (or via the 1,000 annually. coverage requirements for specific internet at [email protected]). Estimated Time per Response: Five fisheries. Funds for deploying observers FOR FURTHER INFORMATION CONTACT: minutes per survey. on vessels in the partial coverage Requests for additional information or Estimated Total Annual Burden category are provided through a system copies of the information collection Hours: 83 hours. of fees based on the gross ex-vessel instrument and instructions should be Estimated Total Annual Cost to value of retained groundfish and directed to Bruce Moravchik, National Public: $0.00 in recordkeeping/reporting halibut. This observer fee is assessed on Ocean Service (NOS), 1305 East-West costs. all landings by vessels that are not Hwy., Bldg. SSMC4, Silver Springs, MD IV. Request for Comments otherwise in full coverage. Information 20910–3278, (240) 533–0874, collected for the observer fee is [email protected] or Shannon Comments are invited on: (a) Whether approved under OMB Control No. 0648– Ricles, NOS, Monitor National Marine the proposed collection of information 0711. Sanctuary, 100 Museum Dr., Newport is necessary for the proper performance Affected Public: Business or other for- News, VA 23602, (757) 591–7328, of the functions of the agency, including profit organizations; individuals or [email protected]. whether the information shall have households. SUPPLEMENTARY INFORMATION: practical utility; (b) the accuracy of the Frequency: On occasion, weekly and agency’s estimate of the burden annually. I. Abstract (including hours and cost) of the Respondent’s Obligation: Required to This request is for a new voluntary proposed collection of information; (c) obtain or retain benefits. information collection. ways to enhance the quality, utility, and This information collection request NOAA Office of Education is clarity of the information to be may be viewed at reginfo.gov. Follow sponsoring a voluntary multi-question collected; and (d) ways to minimize the the instructions to view Department of survey to assess the needs of educators burden of the collection of information Commerce collections currently under pertaining to future NOAA multimedia on respondents, including through the review by OMB. products and programs. In developing use of automated collection techniques Written comments and multimedia materials that convey or other forms of information recommendations for the proposed NOAA’s science, service and technology. information collection should be sent stewardship, the Agency must insure Comments submitted in response to within 30 days of publication of this that these resources are of the highest this notice will be summarized and/or notice to OIRA_Submission@ quality and meet the needs of formal included in the request for OMB omb.eop.gov or fax to (202) 395–5806. and informal educators across the approval of this information collection;

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61146 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

they also will become a matter of public SUPPLEMENTARY INFORMATION: The text of in section 3(a)(11) of the CPSA, 15 record. the Agreement and Order appears U.S.C. § 2052(a)(11). Dated: November 23, 2018. below. 7. The Trash Cans contain a defect which could create a substantial Sarah Brabson, Dated: November 23, 2018. product hazard or create an Alberta E. Mills, NOAA PRA Clearance Officer. unreasonable risk of serious injury Secretary. [FR Doc. 2018–25918 Filed 11–27–18; 8:45 am] because the black plastic protective BILLING CODE 3510–12–P UNITED STATES OF AMERICA collar in the opening on the back of the CONSUMER PRODUCT SAFETY Trash Can can detach from the sharp COMMISSION metal handle, posing a laceration hazard CONSUMER PRODUCT SAFETY In the Matter of: EKO DEVELOPMENT, to consumers. COMMISSION LTD. and EKO USA, LLC 8. Beginning in April 2014, EKO CPSC Docket No.: 19–C0002 received complaints from consumers [CPSC Docket No. 19–C0002] who received laceration injuries, SETTLEMENT AGREEMENT including some serious injuries as EKO Development, Ltd. and EKO USA, defined in 16 C.F.R. § 1115.6(c), from LLC, Provisional Acceptance of a 1. In accordance with the Consumer the sharp metal handle of the Trash Settlement Agreement and Order Product Safety Act, 15 U.S.C. §§ 2051- 2089 (‘‘CPSA’’) and 16 C.F.R. § 1118.20, Cans. AGENCY: Consumer Product Safety EKO Development, Ltd. and EKO USA, 9. In August 2014, EKO approved a Commission. LLC (collectively, ‘‘EKO’’) and the design change to the Trash Cans to add ACTION: Notice. United States Consumer Product Safety a two-piece plastic handle cover to Commission (‘‘Commission’’), through address the laceration hazard. The SUMMARY: It is the policy of the its staff, hereby enter into this design change was implemented on the Commission to publish settlements Settlement Agreement (‘‘Agreement’’). Trash Cans that were produced in which it provisionally accepts under the The Agreement and the incorporated August 2014 and shipped to Costco in Consumer Product Safety Act in the attached Order resolve staff’s charges set September 2014. Federal Register in accordance with the forth below. 10. Despite having information that reasonably supported the conclusion terms of the Consumer Product Safety THE PARTIES Commission’s regulations. Published that the Trash Cans contained a defect below is a provisionally-accepted 2. The Commission is an independent or created an unreasonable risk of Settlement Agreement with EKO federal regulatory agency, established serious injury or death, EKO did not Development, Ltd. and EKO USA, LLC, pursuant to, and responsible for, the notify the Commission immediately of containing a civil penalty in the amount enforcement of the CPSA, 15 U.S.C. such defect or risk, as required by of one million dollars ($1,000,000), §§ 2051–2089. By executing the sections 15(b)(3) and (4) of the CPSA, 15 subject to the terms and conditions of Agreement, staff is acting on behalf of U.S.C. §§ 2064(b)(3) and (4). the Settlement Agreement.1 the Commission, pursuant to 16 C.F.R. 11. EKO and the CPSC jointly § 1118.20(b). The Commission issues the announced a recall of 367,000 Trash DATES: Any interested person may ask Cans on July 17, 2015, because the the Commission not to accept this Order under the provisions of the CPSA. 3. EKO Development, Ltd. (‘‘EKO Trash Cans posed a laceration risk to agreement or otherwise comment on its Development’’) is a corporation, consumers. contents by filing a written request with organized and existing under the laws of 12. In failing to immediately inform the Office of the Secretary by December China, with its principal place of the Commission about the defect or 13, 2018. business in China. EKO USA, LLC unreasonable risk associated with the ADDRESSES: Persons wishing to (‘‘EKO USA’’) is a corporation, Trash Cans, EKO knowingly violated comment on this Settlement Agreement organized and existing under the laws of section 19(a)(4) of the CPSA, 15 U.S.C. should send written comments to the state of Nevada, with its principal § 2068(a)(4), as the term ‘‘knowingly’’ is Comment 19–C0002, Office of the place of business in Stuart, Florida. defined in section 20(d) of the CPSA, 15 Secretary, Consumer Product Safety U.S.C. § 2069(d). Commission, 4330 East West Highway, STAFF CHARGES 13. Pursuant to Section 20 of the Room 820, Bethesda, Maryland 20814– 4. Between November 2013 and May CPSA, 15 U.S.C. § 2069, EKO is subject 4408. 2015, EKO manufactured approximately to civil penalties for its knowing FOR FURTHER INFORMATION CONTACT: 367,000 EKO Sensible Eco Living Trash violation of section 19(a)(4) of the Michele Melnick, Trial Attorney, Cans (‘‘Subject Products’’ or ‘‘Trash CPSA, 15 U.S.C. § 2068(a)(4). Cans’’). The Trash Cans are 80 liter Division of Compliance, Office of the RESPONSE OF EKO General Counsel, Consumer Product stainless steel, metal-cylinder Trash Safety Commission, 4330 East West Cans with a black plastic protective 14. EKO’s settlement of this matter Highway, Bethesda, Maryland 20814– collar in the opening on the back of the does not constitute an admission of 4408; telephone (301) 504–7592. Trash Can. staff’s charges as set forth in paragraphs 5. The Trash Cans were sold 4 through 13 above. 1 The Commission voted 3–2 to provisionally exclusively at Costco Wholesale 15. EKO Development, Ltd. is a small accept the proposed Settlement Agreement and Corporation at its warehouse stores Chinese company based in Guangzhou, Order regarding EKO Development, Ltd. and EKO throughout the United States from China. EKO was completely unaware of USA, LLC. Acting Chairman Buerkle, Commissioner the CPSC reporting requirements. EKO Baiocco and Commissioner Feldman voted to December 2013 through May 2015. provisionally accept the Settlement Agreement and 6. The Trash Cans are a ‘‘consumer relied upon its third party insurance Order. Commissioner Adler and Commissioner product,’’ ‘‘distribut[ed] in commerce,’’ administrator to handle the claims Kaye voted to take other action. Commissioner as those terms are defined or used in received from consumers and was never Adler and Commissioner Kaye submitted a joint advised of the potential obligation to dissenting opinion regarding the matter. The sections 3(a)(5) and (8) of the CPSA, 15 dissenting opinion is available on the CPSC U.S.C. § 2052(a)(5) and (8). EKO is a report under sections 15(b)(3) and (4) of website, www.cpsc.gov. ‘‘manufacturer’’ as such term is defined the CPSA, 15 U.S.C. § 2064(b)(3) and (4).

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61147

Upon learning about the claims from the payment obligations of EKO under this forth at 28 U.S.C. § 1961(a) and (b) from sharp edge, EKO immediately re- Agreement. the date of Default, until all amounts designed the Trash Can so that all new 21. This Agreement has been due have been paid in full (hereinafter products would have a two-piece black compromised by the Commission ‘‘Default Payment Amount’’ and plastic collar, permanently covering the pursuant to its statutory authority under ‘‘Default Interest Balance’’). EKO shall sharp edge. Upon learning of the Section 20(c), which requires the consent to a Consent Judgment in the potential obligation to report from its Commission to consider, among other amount of the Default Payment Amount retailer customer in May 2015, EKO things, the appropriateness of the and Default Interest Balance, and the immediately hired legal counsel in the penalty to the size of the business of the United States, at its sole option, may U.S., reported the issue and conducted person charged, including how to collect the entire Default Payment a recall of the Trash Can. mitigate undue adverse economic Amount and Default Interest Balance, or impacts on small businesses. EKO exercise any other rights granted by law AGREEMENT OF THE PARTIES represents and warrants that the or in equity, including, but not limited 16. Under the CPSA, the Commission financial statements of the Firm to, referring such matters for private has jurisdiction over the matter provided to the Commission and written collection; and EKO agrees not to involving the Trash Cans and over EKO. representations in connection with the contest, and hereby waives and 17. The parties enter into the matters addressed in this Agreement are discharges any defenses, to any Agreement for settlement purposes only. complete, accurate, and current, have collection action undertaken by the The Agreement does not constitute an been prepared on a consistent basis United States, or its agents or admission by EKO or a determination by throughout the periods indicated and contractors, pursuant to this paragraph. the Commission that EKO violated the fairly present the financial condition EKO shall pay the United States all CPSA’s reporting requirements. and results of operations and cash flow reasonable costs of collection and 18. In settlement of staff’s charges, of the Firm as of the dates, and for the enforcement under this paragraph, and to avoid the cost, distraction, delay, periods, indicated therein. EKO shall respectively, including reasonable uncertainty, and inconvenience of notify the Commission in writing if any attorney’s fees and expenses. protracted litigation, EKO shall pay a information supplied in connection 24. After staff receives this Agreement civil penalty in the amount of one with this Agreement is discovered to be executed on behalf of EKO, staff shall million dollars (US $1,000,000). EKO inaccurate or untrue, and shall provide promptly submit the Agreement to the shall pay the one million dollar (US the Commission with documents or Commission for provisional acceptance. $1,000,000) civil penalty in information that contain information Promptly following provisional acceptance of the Agreement by the installments, with $250,000 to be paid that accurately conveys such financial Commission, the Agreement shall be within thirty (30) calendar days after the information. 22. The parties agree that immediately placed on the public record and Firm receives service of the upon the occurrence of an ‘‘Event of published in the Federal Register, in Commission’s final Order accepting the Default,’’ the entire penalty amount accordance with the procedures set Agreement (‘‘Final Acceptance’’); ($1,000,000), plus any accrued and forth in 16 C.F.R. § 1118.20(e). If the $250,000 to be paid ninety (90) days unpaid interest, minus any payments by Commission does not receive any after Final Acceptance; $250,000 to be EKO, shall be come due and payable, written request not to accept the paid one hundred eighty (180) days after and the Commission may take further Agreement within fifteen (15) calendar Final Acceptance; and $250,000 to be action as warranted without notice or days, the Agreement shall be deemed paid one (1) year after Final Acceptance. further action by any party. An ‘‘Event finally accepted on the 16th calendar EKO shall also provide a written of Default’’ means: day after the date the Agreement is affirmation to CPSC’s Office of the a. a failure of the Firm to pay the published in the Federal Register, in General Counsel within sixty (60) days $1,000,000 (or any portion thereof) accordance with 16 C.F.R. § 1118.20(f). after Final Acceptance declaring that when due and payable, as set forth in 25. This Agreement is conditioned EKO has implemented and will enforce paragraph 18 above; upon, and subject to, the Commission’s a written comprehensive compliance b. a breach of any representation or final acceptance, as set forth above, and program pursuant to paragraph 27, warranty of the Firm made in this it is subject to the provisions of 16 below. Agreement or in connection with this C.F.R. § 1118.20(h). Upon the later of: (i) 19. EKO, through its Principal or Agreement as it pertains to the Firm’s the Commission’s final acceptance of Chief Executive Officer, shall notify financial status; this Agreement and service of the CPSC’s General Counsel in writing at c. a failure by the Firm to observe or accepted Agreement upon EKO, and (ii) least ten (10) calendar days after any perform any of its obligations or the date of the issuance of the final reorganization, consolidation, merger, agreements as set forth in the Order, this Agreement shall be in full acquisition, dissolution, assignment, Agreement, including the agreement to force and effect and shall be binding sale, transfer, or similar transaction or implement and enforce a compliance upon the parties. series of transactions resulting in a program designed to ensure compliance 26. Effective upon the later of: (i) the successor entity to EKO, the transfer or with the CPSA, including section 19(a), Commission’s final acceptance of this disposition of substantially all of the as set forth in paragraph 27 below; or Agreement and service of the accepted assets of EKO, or any other changes in d. a failure by the Firm to comply Agreement upon EKO, and (ii) the date corporate structure that may affect with CPSA sections 15(b) and 19(a) for of the issuance of the final Order, for EKO’s obligations arising out of this three years after the effective date of this good and valuable consideration, EKO Agreement. Agreement. hereby expressly and irrevocably waives 20. All payments to be made under 23. All unpaid amounts, if any, due and agrees not to assert any past, the Agreement shall constitute debts and owing under the Agreement shall present or future rights to the following, owing to the United States and shall be constitute a debt due and immediately in connection with the matter described made by electronic wire transfer to the owing by EKO to the United States, and in this Agreement: (i) an administrative United States via: http://www.pay.gov interest shall accrue and be paid by EKO or judicial hearing; (ii) judicial review for allocation to, and credit against, the at the federal legal rate of interest set or other challenge or contest of the

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61148 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

Commission’s actions; (iii) a compliance with the terms of the in writing that severing the provision determination by the Commission of Agreement. materially affects the purpose of the whether EKO failed to comply with the 29. The parties acknowledge and Agreement and the Order. CPSA and the underlying regulations; agree that the Commission may (iv) a statement of findings of fact and publicize the terms of the Agreement EKO DEVELOPMENT LTD. conclusions of law; and (v) any claims and Order including disclosing the Dated: October 31, 2018 under the Equal Access to Justice Act. name of the Subject Products in this or By: lllllllllllllllllll 27. EKO shall create, maintain and other public announcements. James Chen enforce a compliance program designed 30. EKO represents that the Principal, EKO Development Ltd. to ensure compliance with the CPSA, Agreement: (i) is entered into freely and Flat 1013–1015, R & F Profit Plaza, No. 76 including section 19(a), of the CPSA voluntarily, without any degree of Guangzhou Avenue West, Guangzhou, China with respect to any consumer product duress or compulsion whatsoever; (ii) EKO USA, LLC imported, manufactured, distributed or has been duly authorized; and (iii) Dated: October 31, 2018 constitutes the valid and binding sold by EKO, and which shall contain By: lllllllllllllllllll the following elements: (i) written obligation of EKO, enforceable against James Chen standards, policies and procedures, EKO in accordance with its terms. EKO Principal, EKO USA LLC including those designed to ensure that will not directly or indirectly receive 2672 SE Willoughby Blvd. information that may relate to or impact any reimbursement, indemnification, Stuart, Florida 34994 CPSA compliance (including insurance-related payment or other Dated: October 31, 2018 information obtained by quality control payment in connection with the civil By: lllllllllllllllllll personnel) is conveyed effectively to penalty to be paid by EKO pursuant to David H. Baker personnel responsible for CPSA the Agreement and Order. 1701 Pennsylvania Avenue, N.W., compliance, whether or not an injury is 31. The signatories represent that they Suite 200 referenced; (ii) a mechanism for are duly authorized to execute this Washington, D.C. 20006 confidential employee reporting of Agreement. Counsel to EKO Development Ltd. compliance-related questions or 32. The Agreement is governed by the U.S. CONSUMER PRODUCT SAFETY concerns to either a compliance officer law of the United States. COMMISSION or to another senior manager with 33. The Agreement and Order shall 4330 East West Highway authority to act as necessary; (iii) apply to, and be binding upon, EKO and Bethesda, Maryland 20814 effective communication of company each of its parents, successors, Patricia M. Hanz compliance-related policies and subsidiaries, divisions, agents, foreign General Counsel procedures regarding the CPSA to all or domestic corporate affiliates, Mary B. Murphy applicable employees through training transferees, and assigns, and a violation Assistant General Counsel programs or otherwise; (iv) EKO’s senior of the Agreement or Order may subject Dated: November 1, 2018 management participation in a EKO, and each of its parents, successors, By: lllllllllllllllllll compliance committee responsible for subsidiaries, divisions, agents, foreign Michele Melnick the review and oversight of compliance or domestic corporate affiliates, Trial Attorney matters related to the CPSA; (v) transferees, and assigns, to appropriate Division of Compliance retention of all CPSA compliance- legal action. Office of the General Counsel related records, and availability of such 34. The Agreement and the Order United States of America Consumer records to staff upon request; and (vi) constitute the complete agreement Product Safety Commission procedures designed to ensure that: between the parties on the subject information required to be disclosed by matter contained therein. The In the Matter of: EKO Development, Ltd. EKO to the Commission is recorded, Agreement may be used in interpreting and EKO USA, LLC processed and reported in accordance the Order. Understandings, agreements, CPSC Docket No.: 19–C0002 representations, or interpretations apart with applicable law; that all reporting ORDER made to the Commission is timely, from those contained in the Agreement truthful, complete, accurate and in and the Order may not be used to vary Upon consideration of the Settlement accordance with applicable law; and or contradict their terms. For purposes Agreement entered into between EKO that prompt disclosure is made to EKO’s of construction, the Agreement shall be Development, Ltd. and EKO USA, LLC management of any significant deemed to have been drafted by both of (collectively, ‘‘EKO’’) and the U.S. deficiencies or material weaknesses in the parties and shall not, therefore, be Consumer Product Safety Commission the design or operation of such internal construed against any party, for that (‘‘Commission’’), and the Commission controls that are reasonably likely to reason, in any subsequent dispute. having jurisdiction over the subject affect adversely, in any material respect, 35. The Agreement may not be matter and over EKO, and it appearing EKO’s ability to record, process and waived, amended, modified or that the Settlement Agreement and the report to the Commission in accordance otherwise altered, except as in Order are in the public interest, it is: with applicable law. accordance with the provisions of 16 Ordered that the Settlement 28. Upon reasonable request of staff, C.F.R. § 1118.20(h). The Agreement may Agreement be, and is, hereby, accepted; EKO shall provide written be executed in counterparts. and it is documentation of its internal controls 36. If any provision of the Agreement Further Ordered that EKO shall and procedures, including, but not or the Order is held to be illegal, comply with the terms of the Settlement limited to, the effective dates of the invalid, or unenforceable under present Agreement and shall pay a civil penalty procedures and improvements thereto. or future laws effective during the terms in the amount of one million dollars EKO shall cooperate fully and truthfully of the Agreement and Order, such ($1,000,000), subject to the terms and with staff and shall make available all provision shall be fully severable. The conditions of the Settlement Agreement. non-privileged information and balance of the Agreement and the Order Upon the occurrence of an Event of materials, and personnel deemed shall remain in full force and effect, Default, as defined in the Settlement necessary by staff to evaluate EKO’s unless the Commission and EKO agree Agreement, the entire penalty amount of

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61149

$1,000,000, plus any accrued and Register document. The general policy Annual Responses: 32,110. unpaid interest, minus any penalty for comments and other submissions Average Burden per Response: 70 amounts paid by EKO, shall from members of the public is to make minutes. immediately become due and payable these submissions available for public Frequency: On Occasion. and the Commission may take further viewing on the internet at http:// The DD Form 254 is used to identify action as warranted. www.regulations.gov as they are the classified areas of information Provisionally accepted and received without change, including any involved in a contract and to identify provisional Order issued on the 20th personal identifiers or contact the specific items of information that day of November, 2018. information. require protection. DoD Components, By Order of the Commission: FOR FURTHER INFORMATION CONTACT: To non-DoD agencies with formal lllllllllllllllllllll request more information on this agreements with DoD for industrial Alberta Mills, proposed information collection or to security services, or U.S. contractors Secretary, U.S. Consumer Product Safety obtain a copy of the proposal and under DoD security cognizance in the Commission. associated collection instruments, NISP, provide guidance in the body of [FR Doc. 2018–25928 Filed 11–27–18; 8:45 am] please write to the Defense Security the DD Form 254 or its attachments for BILLING CODE 6355–01–P Service, Program Integration Office, contracts or other agreements requiring Project Integration Office Process and access to classified information. Governance Manager, ATTN: Chris The respondent is a cleared contractor DEPARTMENT OF DEFENSE Kubricky, Quantico, VA 22134 or call facility in the NISP under the security the Program Integration Office at (571)– cognizance of the Defense Security Office of the Secretary 305–6243. Service (DSS). Pursuant to security [Docket ID: DOD–2018–OS–0096] SUPPLEMENTARY INFORMATION: classification guidance of the NISPOM, Title; Associated Form; and OMB DoD 5220.22–M, the NISP contractors Proposed Collection; Comment Number: Department of Defense must provide contract security Request National Industrial Security Program classification specifications with any (NISP) Contractor Classification System; contract or agreement that they propose AGENCY: Office of the Under Secretary of DD Form 254; OMB Control Number or award. DD Form 254 is the official Defense for Intelligence, DoD. 0704–0567. vehicle for providing this information. ACTION: Information collection notice. Needs and Uses: This collection is a A respondent submits completed DD revision to the collection under OMB SUMMARY: In compliance with the Forms 254 with any attachments to the Control Number 0704–0567 (DD254) Paperwork Reduction Act of 1995, the applicable subcontractor and to the DoD approved in November 2017. Pursuant Office of the Under Secretary of Defense NISP Cognizant Security Office (i.e., to 48 CFR, part 27, in conjunction with for Intelligence announces a proposed DSS) for evaluation. In the event that subpart 4.4 of the Federal Acquisition public information collection and seeks the Government Contracting Activity Regulation, contracting officers shall public comment on the provisions (GCAs) is a foreign government or an determine whether access to classified thereof. Comments are invited on activity of the North Atlantic Treaty information may be required by a whether the proposed collection of Organization, a security aspects letter contractor during contract performance. information is necessary for the proper serves as the equivalent of a DD Form When access to classified information is performance of the functions of the 254 to provide security classification required, DoD Components shall use the agency, including whether the guidance. Both U.S. Government and ‘‘Contract Security Classification information shall have practical utility, contractor respondents will be required Specification,’’ DD Form 254, as an the accuracy of the agency’s estimate of to electronically complete and submit attachment to contracts or agreements the burden of the proposed information the DD Form 254 with attachments requiring access to classified collection, ways to enhance the quality, through the NISP Contracts information by U.S. contractors. The utility, and clarity of the information to Classification System (NCCS). Those NISP Contract Classification System be collected, and ways to minimize the USG respondents that have a legacy (NCCS) will be the new electronic burden of the information collection on electronic 254 system and will have to repository for the DD254. It will respondents, including through the use interface their data into NCCS, in expedite the processing and distribution of automated collection techniques or coordination with DoD. of contract classification specifications other forms of information technology. Dated: November 23, 2018. for contracts requiring access to DATES: Consideration will be given to all classified information. NCCS will also Shelly E. Finke, comments received by January 28, 2019. provide for workflow processes to share Alternate OSD Federal Register, Liaison ADDRESSES: You may submit comments, data for: the Facility Clearance Request Officer, Department of Defense. identified by docket number and title, (FCL), the Request for Approval to [FR Doc. 2018–25941 Filed 11–27–18; 8:45 am] by any of the following methods: Subcontract, and National Interest BILLING CODE 5001–06–P Federal eRulemaking Portal: http:// Determination (NID) which are already www.regulations.gov. Follow the approved by the Office of Management instructions for submitting comments. and Budget (OMB) control number DEPARTMENT OF DEFENSE Mail: Department of Defense, Office of 0704–0571 for the National Industrial Office of the Secretary the Chief Management Officer, Security System (NISS). Respondents Directorate for Oversight and can register for and request access to Charter Renewal of Department of Compliance, 4800 Mark Center Drive, NCCS at: https://wawf.eb.mil/. Defense Federal Advisory Committees Mailbox #24 Suite 08D09, Alexandria, Affected Public: Business or other for VA 22350–1700. profit. AGENCY: Department of Defense. Instructions: All submissions received Annual Burden Hours: 37,461.67. ACTION: Renewal of Federal Advisory must include the agency name, docket Number of Respondents: 3,211. Committee. number and title for this Federal Responses per Respondent: 10.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61150 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

SUMMARY: The Department of Defense is members of the Committee are ADDRESSES: You may submit comments, publishing this notice to announce that appointed to provide advice on the basis identified by docket number and title, it is renewing the charter for the of their best judgment and without by any of the following methods: Vietnam War commemoration Advisory representing any particular point of Federal eRulemaking Portal: http:// Committee (‘‘the Committee’’). view and in a manner that is free from www.regulations.gov. Follow the FOR FURTHER INFORMATION CONTACT: Jim conflict of interest. Except for instructions for submitting comments. Freeman, Advisory Committee reimbursement of official Committee- Mail: Department of Defense, Office of Management Officer for the Department related travel and per diem, Committee the Chief Management Officer, of Defense, 703–692–5952. members serve without compensation. Directorate for Oversight and SUPPLEMENTARY INFORMATION: The The public or interested organizations Compliance, 4800 Mark Center Drive, Committee’s charter is being renewed in may submit written statements to the Mailbox #24 Suite 08D09, Alexandria, accordance with the Federal Advisory Committee membership about the VA 22350–1700. Committee Act (FACA) of 1972 (5 Committee’s mission and functions. Instructions: All submissions received U.S.C., App) and 41 CFR 102–3.50(d). Written statements may be submitted at must include the agency name, docket The Committee’s charter and contact any time or in response to the stated number and title for this Federal information for the Committee’s agenda of planned meeting of the Register document. The general policy Designated Federal Officer (DFO) can be Committee. All written statements shall for comments and other submissions found at https://www.facadatabase.gov/ be submitted to the DFO for the from members of the public is to make FACA/apex/ Committee, and this individual will these submissions available for public FACAPublicAgencyNavigation. ensure that the written statements are viewing on the internet at http:// The Committee provides the Secretary provided to the membership for their www.regulations.gov as they are of Defense and the Deputy Secretary of consideration. received without change, including any Defense, through the Chief Management Dated: November 19, 2018. personal identifiers or contact Officer (CMO) independent advice and Shelly Finke, information. recommendations on the Department of Alternate OSD Federal Register, Liaison FOR FURTHER INFORMATION CONTACT: To Defense (DoD) program on how to best Officer, Department of Defense. achieve the following objectives in request more information on this [FR Doc. 2018–25933 Filed 11–27–18; 8:45 am] proposed information collection or to commemorating the 50th Anniversary of BILLING CODE 5001–06–P the Vietnam War, as referenced in obtain a copy of the proposal and section 598(c) of Public Law 110–181: associated collection instruments, (a) Thank and honor veterans of the DEPARTMENT OF DEFENSE please write to the Military Community Vietnam War, including personnel who Support Program, 4800 Mark Center were held as prisoners of war or listed Office of the Secretary Drive, Alexandria, VA 22350, ATTN: as missing in action, for their service Spouse Education and Career Opportunities, or call 1–888–363–6431. and sacrifice on behalf of the United [Docket ID: DOD–2018–OS–0097] States and to thank and honor the SUPPLEMENTARY INFORMATION: families of these veterans; (b) highlight Proposed Collection; Comment Title; Associated Form; and OMB the service of the Armed Forces during Request Number: My Career Advanced Account the Vietnam War and the contributions (MyCAA) Scholarship Program; OMB AGENCY: Office of the Under Secretary of of Federal agencies and governmental Control Number 0704–XXXX. and non-governmental organizations Defense for Personnel and Readiness, DoD. Needs and Uses: This information that served with, or in support of, the collection is necessary to support the ACTION: Armed Forces; (c) Pay tribute to the Information collection notice. MyCAA scholarship program, a career contributions made on the home front SUMMARY: In compliance with the development and employment by the people of the United States assistance program intended to assist during the Vietnam War; (d) Highlight Paperwork Reduction Act of 1995, the Office of the Under Secretary of Defense military spouses pursue licenses, the advances in technology, science, certificates, certifications or associate’s and medicine related to military for Personnel and Readiness announces a proposed public information degrees necessary for gainful research conducted during the Vietnam employment in high demand, high War; and (e) Recognize the collection and seeks public comment on the provisions thereof. Comments are growth portable career fields and contributions and sacrifices made by the occupations. allies of the United States during the invited on: Whether the proposed Affected Public: Individuals or Vietnam War. collection of information is necessary The Committee will be composed of for the proper performance of the households. no more than 20 members that will functions of the agency, including Annual Burden Hours: 5,412.25. represent Vietnam Veterans, their whether the information shall have Number of Respondents: 10,148. families, and the American public. practical utility; the accuracy of the Responses per Respondent: 3.4. Candidates for the Committee will be agency’s estimate of the burden of the Annual Responses: 34,503. proposed information collection; ways selected from the Military Services (both Average Burden per Response: 9.4118 to enhance the quality, utility, and retired veterans and active members minutes. clarity of the information to be who served during the Vietnam era), the Frequency: On occasion. DoD, the Department of State, the collected; and ways to minimize the Department of Veterans Affairs, and the burden of the information collection on Dated: November 23, 2018. Intelligence Community. In addition, respondents, including through the use Shelly E. Finke, candidates from nongovernmental of automated collection techniques or Alternate OSD Federal Register, Liaison organizations that support veterans or other forms of information technology. Officer, Department of Defense. contribute to the public’s understanding DATES: Consideration will be given to all [FR Doc. 2018–25938 Filed 11–27–18; 8:45 am] of the Vietnam War will be selected. All comments received by January 28, 2019. BILLING CODE 5001–06–P

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4703 Sfmt 9990 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61151

DEPARTMENT OF DEFENSE Feedback on Agency Service Delivery; purposes and is not intended for release OMB Control Number 0704–0553. outside of the agency; Office of the Secretary Needs and Uses: The proposed • Information gathered will not be [Docket ID: DOD–2018–OS–0095] information collection activity provides used for the purpose of substantially a means to garner qualitative customer informing influential policy decisions; Proposed Collection; Comment and stakeholder feedback in an efficient, and • Request timely manner, in accordance with the Information gathered will yield Administration’s commitment to qualitative information; the collections AGENCY: Office of the Secretary of improving service delivery. By will not be designed or expected to Defense, DOD. qualitative feedback, we mean yield statistically reliable results or used ACTION: Information collection notice. information that provides useful as though the results are generalizable to insights on perceptions and opinions, the population of study. SUMMARY: As part of a Federal but are not statistical surveys that yield Feedback collected under this generic Government-wide effort to streamline quantitative results that can be clearance provides useful information, the process to seek feedback from the generalized to the population of study. but it does not yield data that can be public on service delivery, we are This feedback will provide insights into generalized to the overall population. seeking comment on the development of customer or stakeholder perceptions, This type of generic clearance for the following proposed Generic experiences and expectations, provide qualitative information will not be used Information Collection Request (Generic an early warning of issues with service, for quantitative information collections ICR): ‘‘Fast Track Generic Clearance for or focus attention on areas where that are designed to yield reliably the Collection of Qualitative Feedback communication, training or changes in actionable results, such as monitoring on Agency Service Delivery’’ for operations might improve delivery of trends over time or documenting approval under the Paperwork products or services. These collections program performance. Such data uses Reduction Act (PRA). This notice will allow for ongoing, collaborative and require more rigorous designs that announces our intent to submit this actionable communications between the address: The target population to which collection to OMB for approval and Agency and its customers and generalizations will be made, the solicits comments on specific aspects stakeholders. It will also allow feedback sampling frame, the sample design for the proposed information collection. to contribute directly to the (including stratification and clustering), DATES: Consideration will be given to all improvement of program management. the precision requirements or power comments received by January 28, 2019. The solicitation of feedback will target calculations that justify the proposed ADDRESSES: You may submit comments, areas such as: Timeliness, sample size, the expected response rate, identified by docket number and title, appropriateness, accuracy of methods for assessing potential by any of the following methods: information, courtesy, efficiency of nonresponse bias, the protocols for data Federal eRulemaking Portal: http:// service delivery, and resolution of collection, and any testing procedures www.regulations.gov. Follow the issues with service delivery. Responses that were or will be undertaken prior to instructions for submitting comments. will be assessed to plan and inform fielding the study. Depending on the Mail: Department of Defense, Office of efforts to improve or maintain the degree of influence the results are likely the Chief Management Officer, quality of service offered to the public. to have, such collections may still be Directorate for Oversight and If this information is not collected, vital eligible for submission for other generic Compliance, 4800 Mark Center Drive, feedback from customers and mechanisms that are designed to yield Mailbox #24 Suite 08D09, Alexandria, stakeholders on the Agency’s services quantitative results. VA 22350–1700. will be unavailable. As a general matter, information Instructions: All submissions received The Agency will only submit a collections will not result in any new must include the agency name, docket collection for approval under this system of records containing privacy number and title for this Federal generic clearance if it meets the information and will not ask questions Register document. The general policy following conditions: of a sensitive nature, such as sexual for comments and other submissions • The collections are voluntary; behavior and attitudes, religious beliefs, from members of the public is to make • The collections are low-burden for and other matters that are commonly these submissions available for public respondents (based on considerations of considered private. viewing on the internet at http:// total burden hours, total number of Affected Public: Individuals or www.regulations.gov as they are respondents, or burden-hours per Households; Business or Other For- received without change, including any respondent) and are low-cost for both Profit; Not-For-Profit Institutions; personal identifiers or contact the respondents and the Federal Farms; Federal Government; State, information. Government; Local, or Tribal Government. Estimated Annual Number of FOR FURTHER INFORMATION CONTACT: To • The collections are Respondents: 100,000. request more information on this noncontroversial and do not raise issues Below we provide projected average proposed information collection or to of concern to other Federal agencies; burden estimates for the next three obtain a copy of the proposal and • Any collection is targeted to the years. associated collection instruments, solicitation of opinions from Average Expected Annual Number of please write to Information Collections respondents who have experience with Activites: 100. Branch, Directives Division, Attn: Mr. the program or may have experience Average Number of Respondents per Frederick Licari, 4800 Mark Center with the program in the near future; Activity: 1,000. Drive, Suite 02G09, Alexandria, VA • Personally identifiable information Responses per Respondent: 1. 22350–3100, Phone: 571–372–0493. (PII) is collected only to the extent Annual Burden Hours: 16,667. SUPPLEMENTARY INFORMATION: necessary and is not retained; Number of Respondents: 1,000. Title; Associated Form; and OMB • Information gathered will be used Annual Responses: 100,000. Number: Fast Track Generic Clearance only internally for general service Average Burden per Response: 10 for the Collection of Qualitative improvement and program management minutes.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61152 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

Frequency: On Occasion. clicking on the appropriate link in the For assistance, contact FERC Online Dated: November 23, 2018. above list. They are also available for Support. Shelly E. Finke, electronic review in the Commission’s Any comments should be filed within Public Reference Room in Washington, 60 days from the date of this notice. Alternate OSD Federal Register, Liaison Officer, Department of Defense. DC. There is an eSubscription link on The Commission strongly encourages the website that enables subscribers to electronic filing. Please file comments [FR Doc. 2018–25939 Filed 11–27–18; 8:45 am] receive email notification when a using the Commission’s eFiling system BILLING CODE 5001–06–P document is added to a subscribed at http://www.ferc.gov/docs-filing/ docket(s). For assistance with any FERC efiling.asp. Commenters can submit Online service, please email brief comments up to 6,000 characters, DEPARTMENT OF ENERGY [email protected] or call without prior registration, using the (866) 208–3676 (toll free). For TTY, call eComment system at http:// Federal Energy Regulatory (202) 502–8659. www.ferc.gov/docs-filing/ Commission Dated: November 21, 2018. ecomment.asp. You must include your [Docket No. ER19–381–000] Nathaniel J. Davis, Sr., name and contact information at the end of your comments. For assistance, Deputy Secretary. Power Holding LLC; Supplemental please contact FERC Online Support. In Notice That Initial Market-Based Rate [FR Doc. 2018–25926 Filed 11–27–18; 8:45 am] lieu of electronic filing, please send a Filing Includes Request for Blanket BILLING CODE 6717–01–P paper copy to: Secretary, Federal Energy Section 204 Authorization Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first This is a supplemental notice in the DEPARTMENT OF ENERGY above-referenced proceeding of Power page of any filing should include docket Holding LLC’s application for market- Federal Energy Regulatory number P–2727–092. based rate authority, with an Commission For further information, contact Dr. accompanying rate tariff, noting that Nicholas Palso at (202) 502–8854, or at [email protected]. such application includes a request for [Project No. 2727–092] blanket authorization, under 18 CFR Dated: November 21, 2018. part 34, of future issuances of securities Notice of Availability of Draft Nathaniel J. Davis, Sr., and assumptions of liability. Environmental Assessment: Black Deputy Secretary. Any person desiring to intervene or to Bear Hydro Partners, LLC [FR Doc. 2018–25920 Filed 11–27–18; 8:45 am] protest should file with the Federal BILLING CODE 6717–01–P Energy Regulatory Commission, 888 In accordance with the National First Street NE, Washington, DC 20426, Environmental Policy Act of 1969 and the Federal Energy Regulatory in accordance with Rules 211 and 214 DEPARTMENT OF ENERGY of the Commission’s Rules of Practice Commission’s (Commission) and Procedure (18 CFR 385.211 and regulations, 18 CFR part 380, the Office Federal Energy Regulatory 385.214). Anyone filing a motion to of Energy Projects has reviewed the Commission intervene or protest must serve a copy application for the relicensing of the [Project No. 14892–000] of that document on the Applicant. Ellsworth Hydroelectric Project, located on the Union River, in Hancock County, Notice is hereby given that the Notice of Preliminary Permit Maine, and has prepared a Draft deadline for filing protests with regard Application Accepted for Filing and Environmental Assessment (DEA) for to the applicant’s request for blanket Soliciting Comments, Motions To the project. authorization, under 18 CFR part 34, of Intervene, and Competing The DEA contains staff’s analysis of future issuances of securities and Applications: Badger Mountain Hydro, the potential environmental impacts of assumptions of liability, is December 11, LLC 2018. the project and concludes that licensing The Commission encourages the project, with appropriate On October 2, 2018, Badger Mountain electronic submission of protests and environmental protective measures, Hydro, LLC filed an application for a interventions in lieu of paper, using the would not constitute a major federal preliminary permit, pursuant to section FERC Online links at http:// action that would significantly affect the 4(f) of the Federal Power Act, proposing www.ferc.gov. To facilitate electronic quality of the human environment. to study the feasibility of the Badger service, persons with internet access A copy of the DEA is available for Mountain Pumped Storage Project who will eFile a document and/or be review at the Commission in the Public (project) to be located near East listed as a contact for an intervenor Reference Room or may be viewed on Wenatchee in Douglas County, must create and validate an the Commission’s website at http:// Washington. The sole purpose of a eRegistration account using the www.ferc.gov using the eLibrary link. preliminary permit, if issued, is to grant eRegistration link. Select the eFiling Enter the docket number excluding the the permit holder priority to file a link to log on and submit the last three digits in the docket number license application during the permit intervention or protests. field to access the document. For term. A preliminary permit does not Persons unable to file electronically assistance, contact FERC Online authorize the permit holder to perform should submit an original and 5 copies Support at FERCOnlineSupport@ any land-disturbing activities or of the intervention or protest to the ferc.gov, (866) 208–3676 (toll free), or otherwise enter upon lands or waters Federal Energy Regulatory Commission, (202) 502–8659 (TTY). owned by others without the owners’ 888 First Street NE, Washington, DC You may also register online at http:// express permission. 20426. www.ferc.gov/docs-filing/ The proposed project will be a closed- The filings in the above-referenced esubscription.asp to be notified via loop pumped storage project with initial proceeding are accessible in the email of new filings and issuances fill and make up water coming from Commission’s eLibrary system by related to this or other pending projects. local water rights holders, tentatively

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61153

identified as the Greater Wenatchee 208–3676 (toll free), or (202) 502–8659 Docket Numbers: ER19–381–000. Irrigation District. Water would be (TTY). In lieu of electronic filing, please Applicants: Power Holding LLC. delivered from the District’s Veedol send a paper copy to: Secretary, Federal Description: Baseline eTariff Filing: Tank via an approximately 0.7-mile- Energy Regulatory Commission, 888 Application for Market Based Rate to be long, 12-inch-diameter buried steel pipe First Street NE, Washington, DC 20426. effective 11/21/2018. to a new lower reservoir. The proposed The first page of any filing should Filed Date: 11/20/18. project would consist of: An upper 5- to include docket number P–14892–000. Accession Number: 20181120–5175. 40-foot-high, 7,500-foot-long zoned More information about this project, Comments Due: 5 p.m. ET 12/11/18. earth/rockfill ring dam enclosing the 70- including a copy of the application, can Docket Numbers: ER19–382–000. acre upper reservoir with storage be viewed or printed on the eLibrary Applicants: Duke Energy Carolinas, capacity of 2,000 acre-feet; a lower 35- link of Commission’s website at http:// LLC. foot-high, 540-foot-long zoned earth/ www.ferc.gov/docs-filing/elibrary.asp. Description: § 205(d) Rate Filing: DEC- rockfill primary dam and 10-foot-high, Enter the docket number (P–14892) in City of Concord NITSA (SA–150) 830-foot-long earthen supplemental dam the docket number field to access the Amendment to be effective 1/1/2019. enclosing the 80-acre lower reservoir document. For assistance, contact FERC Filed Date: 11/20/18. with storage capacity of 2,600 acre-feet; Online Support. Accession Number: 20181120–5176. a 600-foot-long, 14-foot-diameter Comments Due: 5 p.m. ET 12/11/18. Dated: November 21, 2018. unlined or concrete-lined low pressure Docket Numbers: ER19–383–000. tunnel; a 30-foot-diameter, 50-foot-high Nathaniel J. Davis, Sr., Applicants: PJM Interconnection, concrete surge tank; two 5,200-foot-long, Deputy Secretary. L.L.C. 10-foot-diameter steel penstocks; a [FR Doc. 2018–25923 Filed 11–27–18; 8:45 am] Description: § 205(d) Rate Filing: powerhouse with a 220-foot-high, 65- BILLING CODE 6717–01–P Revisions to OATT and OA re foot-diameter steel and concrete shaft, Regulation Market Clearing Price to be and two 150-megawatt (MW) reversible effective 1/21/2019. pump-turbines/motor-generators for a DEPARTMENT OF ENERGY Filed Date: 11/20/18. total installed capacity of 300 MW; a Accession Number: 20181120–5182. Federal Energy Regulatory 1,200-foot-long, 17-foot-diameter Comments Due: 5 p.m. ET 12/11/18. Commission concrete-lined tailrace tunnel; a 230- Docket Numbers: ER19–384–000. Applicants: Pacific Gas and Electric kilovolt (kV), 3.7-mile-long transmission Combined Notice of Filings #1 line interconnecting with the existing Company. Puget Sound Energy Rocky Reach- Take notice that the Commission Description: Request for One-time Cascade transmission line, and a received the following electric rate Limited Tariff Waiver, et al. of Pacific possible second transmission line filings: Gas and Electric Company under ER19– interconnecting with the existing 230- Docket Numbers: ER13–1667–004. 384. kV Bonneville Power Administration Applicants: Battery Utility of Ohio, Filed Date: 11/20/18. Accession Number: 20181120–5218. Rocky Reach-Columbia transmission LLC. Comments Due: 5 p.m. ET 11/30/18. line 500 feet from the powerhouse. Description: Notice of Change in The estimated average annual Status of Battery Utility of Ohio, LLC. Docket Numbers: ER19–385–000. generation of the project would be Filed Date: 11/20/18. Applicants: NRG Power Marketing 473,040 megawatt-hours. Accession Number: 20181120–5221. LLC. Applicant Contact: Matthew Shapiro, Comments Due: 5 p.m. ET 12/11/18. Description: Application to Recover CEO, Gridflex Energy, LLC, 1210 W. Fuel Procurement Costs of NRG Power Docket Numbers: ER17–1609–002. Franklin St. #2, Boise, ID 837021, phone Marketing, LLC. Applicants: Carroll County Energy (208) 246–9925. Filed Date: 11/20/18. FERC Contact: Peter McBride, (202) LLC. Accession Number: 20181120–5223. 502–8132, [email protected]. Description: Notice of Non-Material Comments Due: 5 p.m. ET 12/11/18. Change in Status of Carroll County Deadline for filing comments, motions Docket Numbers: ER19–386–000. to intervene, competing applications Energy LLC. Applicants: PJM Interconnection, (without notices of intent), or notices of Filed Date: 11/20/18. L.L.C. intent to file competing applications: 60 Accession Number: 20181120–5254. Description: § 205(d) Rate Filing: days from the issuance of this notice. Comments Due: 5 p.m. ET 12/11/18. Amendment to ISA, SA No. 2278, Competing applications and notices of Docket Numbers: ER18–2516–000. Queue# None (Consent) to be effective intent must meet the requirements of 18 Applicants: Willow Springs Solar, 4/1/2010. CFR 4.36. LLC. Filed Date: 11/21/18. The Commission strongly encourages Description: Amendment to Accession Number: 20181121–5054. electronic filing. Please file comments, September 28, 2018 Willow Springs Comments Due: 5 p.m. ET 12/12/18. motions to intervene, notices of intent, Solar, LLC tariff filing. Docket Numbers: ER19–387–000. and competing applications using the Filed Date: 11/20/18. Applicants: PJM Interconnection, Commission’s eFiling system at http:// Accession Number: 20181120–5219. L.L.C. www.ferc.gov/docs-filing/efiling.asp. Comments Due: 5 p.m. ET 11/27/18. Description: § 205(d) Rate Filing: Commenters can submit brief comments Docket Numbers: ER19–104–001. Original ISA and CSA, SA Nos. 5231 up to 6,000 characters, without prior Applicants: El Paso Electric Company. and 5232; Queue No. AC1–048/AC2– registration, using the eComment system Description: Tariff Amendment: 053 to be effective 10/23/2018. at http://www.ferc.gov/docs-filing/ Concurrence of EPE to APS Service Filed Date: 11/21/18. ecomment.asp. You must include your Agreement No. 367 to be effective Accession Number: 20181121–5061. name and contact information at the end 9/7/2018. Comments Due: 5 p.m. ET 12/12/18. of your comments. For assistance, Filed Date: 11/20/18. Take notice that the Commission please contact FERC Online Support at Accession Number: 20181120–5167. received the following qualifying [email protected], (866) Comments Due: 5 p.m. ET 12/11/18. facility filings:

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61154 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

Docket Numbers: QF18–452–000. that the total horsepower utilized at must mail a copy to the applicant and Applicants: North American Natural Compressor Station 610 will not exceed to every other party. Only parties to the Resources, Inc. the station’s total certificated proceeding can ask for court review of Description: Refund Report of North horsepower of 40,000 horsepower, all as Commission orders in the proceeding. American Natural Resources, Inc. more fully set forth in the application However, a person does not have to Filed Date: 11/20/18. which is on file with the Commission intervene in order to have comments Accession Number: 20181120–5217. and open to public inspection. The considered. The second way to Comments Due: 5 p.m. ET 12/11/18. filing may also be viewed on the web at participate is by filing with the The filings are accessible in the http://www.ferc.gov using the eLibrary Secretary of the Commission, as soon as Commission’s eLibrary system by link. Enter the docket number excluding possible, an original and two copies of clicking on the links or querying the the last three digits in the docket comments in support of or in opposition docket number. number field to access the document. to this project. The Commission will Any person desiring to intervene or For assistance, contact FERC at consider these comments in protest in any of the above proceedings [email protected] or call determining the appropriate action to be must file in accordance with Rules 211 toll-free, (866) 208–3676 or TTY, (202) taken, but the filing of a comment alone and 214 of the Commission’s 502–8659. will not serve to make the filer a party Regulations (18 CFR 385.211 and Any questions regarding the to the proceeding. The Commission’s 385.214) on or before 5:00 p.m. Eastern application should be directed to Bill rules require that persons filing time on the specified comment date. Hammons at Transcontinental Gas Pipe comments in opposition to the project Protests may be considered, but Line Company, LLC, Post Office Box provide copies of their protests only to intervention is necessary to become a 1396, Houston, TX 77251 or at (713) the party or parties directly involved in party to the proceeding. 215–2130. the protest. eFiling is encouraged. More detailed Pursuant to section 157.9 of the Persons who wish to comment only information relating to filing Commission’s rules (18 CFR 157.9), on the environmental review of this requirements, interventions, protests, within 90 days of this Notice, the project should submit an original and service, and qualifying facilities filings Commission staff will either: Complete two copies of their comments to the can be found at: http://www.ferc.gov/ its environmental assessment (EA) and Secretary of the Commission. place it into the Commission’s public docs-filing/efiling/filing-req.pdf. For Environmental commentors will be record (eLibrary) for this proceeding; or other information, call (866) 208–3676 placed on the Commission’s issue a Notice of Schedule for (toll free). For TTY, call (202) 502–8659. environmental mailing list and will be Environmental Review. If a Notice of notified of any meetings associated with Dated: November 21, 2018. Schedule for Environmental Review is the Commission’s environmental review Nathaniel J. Davis, Sr., issued, it will indicate, among other process. Environmental commentors Deputy Secretary. milestones, the anticipated date for the will not be required to serve copies of [FR Doc. 2018–25925 Filed 11–27–18; 8:45 am] Commission staff’s issuance of the final filed documents on all other parties. BILLING CODE 6717–01–P environmental impact statement (FEIS) However, the non-party commentors or EA for this proposal. The filing of the will not receive copies of all documents EA in the Commission’s public record filed by other parties or issued by the DEPARTMENT OF ENERGY for this proceeding or the issuance of a Commission and will not have the right Notice of Schedule for Environmental to seek court review of the Federal Energy Regulatory Review will serve to notify federal and Commission’s final order. Commission state agencies of the timing for the As of the February 27, 2018 date of [Docket No. CP15–138–005] completion of all necessary reviews, and the Commission’s order in Docket No. the subsequent need to complete all CP16–4–001, the Commission will Notice of Application: Transcontinental federal authorizations within 90 days of apply its revised practice concerning Gas Pipe Line Company, LLC the date of issuance of the Commission out-of-time motions to intervene in any staff’s FEIS or EA. new Natural Gas Act section 3 or section Take notice that on November 14, There are two ways to become 7 proceeding.1 Persons desiring to 2018, Transcontinental Gas Pipe Line involved in the Commission’s review of become a party to a certificate Company, LLC (Transco), P.O. Box this project. First, any person wishing to proceeding are to intervene in a timely 1396, Houston, TX 77251–1396, filed an obtain legal status by becoming a party manner. If seeking to intervene out-of- application under section 7(c) of the to the proceedings for this project time, the movant is required to show Natural Gas Act (NGA) requesting should, on or before the comment date good cause why the time limitation authorization to amend its certificate of stated below file with the Federal should be waived, and should provide public convenience and necessity, Energy Regulatory Commission, 888 justification by reference to factors set granted by the Commission on February First Street NE, Washington, DC 20426, forth in Rule 214(d)(1) of the 3, 2017 in Docket No. CP15–138, which a motion to intervene in accordance Commission’s Rules and Regulations.2 authorized the Atlantic Sunrise Project. with the requirements of the The Commission strongly encourages Herein, Transco requests authorization Commission’s Rules of Practice and electronic filings of comments, protests to amend its Atlantic Sunrise Project Procedure (18 CFR 385.214 or 385.211) and interventions in lieu of paper using certificate to allow any of the existing and the Regulations under the NGA (18 the eFiling link at http://www.ferc.gov. compressor units at Compressor Station CFR 157.10). A person obtaining party Persons unable to file electronically 605 and Compressor Station 610 to be status will be placed on the service list should submit an original and 3 copies operated above their currently maintained by the Secretary of the of the protest or intervention to the certificated horsepower. Transco states Commission and will receive copies of Federal Energy Regulatory Commission, that the total horsepower utilized at all documents filed by the applicant and Compressor Station 605 will not exceed by all other parties. A party must submit 1 Tennessee Gas Pipeline Company, L.L.C., 162 the station’s total certificated 3 copies of filings made in the FERC 61,167 at 50 (2018). horsepower of 30,000 horsepower and proceeding with the Commission and 2 18 CFR 385.214(d)(1).

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61155

888 First Street NE, Washington, DC Dated: November 21, 2018. Rochester Project 20426. Nathaniel J. Davis, Sr., • Approximately 12.6 miles of new Comment Date: December 12, 2018. Deputy Secretary. 16-inch-diameter pipeline in Olmsted Dated: November 21, 2018. [FR Doc. 2018–25924 Filed 11–27–18; 8:45 am] County; • Nathaniel J. Davis, Sr., BILLING CODE 6717–01–P Increase of MAOP on an existing 8- Deputy Secretary. mile-long segment of 16-inch-diameter pipeline in Freeborn and Mower [FR Doc. 2018–25919 Filed 11–27–18; 8:45 am] DEPARTMENT OF ENERGY Counties; BILLING CODE 6717–01–P • A new town border station with Federal Energy Regulatory receiver in Olmsted County; • DEPARTMENT OF ENERGY Commission Relocation of a regulator from Freeborn to Mower County; and • Federal Energy Regulatory [Docket No. CP18–534–000] Appurtenant facilities including Commission two valves and a pig launcher at Notice of Availability of the milepost 0.0 of the Rochester Greenfield Combined Notice of Filings Environmental Assessment for the Lateral. Take notice that the Commission has Proposed Northern Natural Gas Northern Lights 2019 Project Company Northern Lights 2019 received the following Natural Gas • Expansion and Rochester Projects Approximately 10.0 miles of new Pipeline Rate and Refund Report filings: 24-inch-diameter pipeline in Hennepin Filings Instituting Proceedings The staff of the Federal Energy and Wright Counties; • Regulatory Commission (FERC or Approximately 4.3 miles of new 8- Docket Numbers: RP19–304–000. inch-diameter pipeline loop extension Applicants: Alliance Pipeline L.P. Commission) has prepared an environmental assessment (EA) for the in Morrison County; Description: § 4(d) Rate Filing: APL • Northern Lights 2019 Expansion Project Approximately 1.6 miles of new 6- Waiver and Future Default Filing to be inch-diameter pipeline looping in Le effective 12/20/2018. and the Rochester Project, proposed by Northern Natural Gas Company Sueur County; Filed Date: 11/20/18. • Approximately 3.1 miles of new 24- Accession Number: 20181120–5083. (Northern) in the above-referenced docket. Considering both projects, inch-diameter pipeline extension in Comments Due: 5 p.m. ET 12/3/18. Carver County; Northern requests authorization to Docket Numbers: RP19–305–000. • Aa new 11,153-horsepower (hp) construct, operate, and maintain new Applicants: Rockies Express Pipeline compressor station in Carver County; natural gas facilities in Carver, Freeborn, LLC. • Aan additional 15,900 hp of Hennepin, Le Sueur, Morrison, Mower, Description: § 4(d) Rate Filing: Neg compression at the existing Faribault Olmsted, Rice, Steele, and Wright Rate 2018–11–20 BP 553076 to be Compressor Station in Rice County; effective 11/21/2018. Counties, Minnesota, and to uprate the • An additional 15,900 hp of Filed Date: 11/20/18. maximum allowable operating pressure compression at the existing Owatonna Accession Number: 20181120–5092. (MAOP) of a line segment. The projects Compressor Station in Steele County; Comments Due: 5 p.m. ET 12/3/18. would allow Northern to provide and Docket Numbers: RP19–306–000. 138,504 dekatherms per day of new firm • Appurtenant facilities including Applicants: Greylock Pipeline, LLC. natural gas transportation service to valves, pig launchers, and pig receivers. Description: eTariff filing per 1430: serve increased markets for industrial, The Commission mailed a copy of the 501 G filing. commercial, and residential uses. Notice of Availability to federal, state, Filed Date: 11/20/18. The EA assesses the potential and local government representatives Accession Number: 20181120–5102. environmental effects of the and agencies; elected officials; Comments Due: 5 p.m. ET 11/26/18. construction and operation of the environmental and public interest The filings are accessible in the Northern Lights 2019 Expansion Project groups; Native American tribes; Commission’s eLibrary system by and the Rochester Project in accordance potentially affected landowners and clicking on the links or querying the with the requirements of the National other interested individuals and groups; docket number. Environmental Policy Act (NEPA). The and newspapers and libraries in the Any person desiring to intervene or FERC staff concludes that approval of project areas. The EA is only available protest in any of the above proceedings the proposed projects, with appropriate in electronic format. It may be viewed must file in accordance with Rules 211 mitigating measures, would not and downloaded from the FERC’s and 214 of the Commission’s constitute a major federal action website (www.ferc.gov), on the Regulations (18 CFR 385.211 and significantly affecting the quality of the Environmental Documents page (https:// 385.214) on or before 5:00 p.m. Eastern human environment. www.ferc.gov/industries/gas/enviro/ time on the specified comment date. eis.asp). In addition, the EA may be Protests may be considered, but The Minnesota Pollution Control accessed by using the eLibrary link on intervention is necessary to become a Agency participated as a cooperating the FERC’s website. Click on the party to the proceeding. agency in the preparation of the EA. A eLibrary link (https://www.ferc.gov/ eFiling is encouraged. More detailed cooperating agency has jurisdiction by docs-filing/elibrary.asp), click on information relating to filing law or special expertise regarding General Search, and enter the docket requirements, interventions, protests, environmental impacts involved with number in the Docket Number field, service, and qualifying facilities filings the proposal, and is involved in the excluding the last three digits (i.e. can be found at: http://www.ferc.gov/ NEPA analysis. CP18–534). Be sure you have selected docs-filing/efiling/filing-req.pdf. For The proposed projects includes the an appropriate date range. For other information, call (866) 208–3676 following facilities (all located in assistance, please contact FERC Online (toll free). For TTY, call (202) 502–8659. Minnesota): Support at [email protected]

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61156 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

or toll free at (866) 208–3676, or for environmental concerns intervenor decision concerning the collection of TTY, contact (202) 502–8659. status upon showing good cause by information between 30 and 60 days Any person wishing to comment on stating that they have a clear and direct after publication of this document in the the EA may do so. Your comments interest in this proceeding which no Federal Register. Therefore, a comment should focus on EA’s disclosure and other party can adequately represent. is best assured of having its full effect discussion of potential environmental Simply filing environmental comments if OMB receives it within 30 days of effects, reasonable alternatives, and will not give you intervenor status, but publication. measures to avoid or lessen you do not need intervenor status to ADDRESSES: Written comments and environmental impacts. The more have your comments considered. recommendations for the proposed specific your comments, the more useful Additional information about the information collection should be sent they will be. To ensure that the projects is available from the directly to the following: Office of Commission has the opportunity to Commission’s Office of External Affairs, Management and Budget, Paperwork consider your comments prior to at (866) 208–FERC, or on the FERC Reduction Project, Email: OIRA_ making its decision on these projects, it website (www.ferc.gov) using the [email protected], Attn: is important that we receive your eLibrary link. The eLibrary link also Desk Officer for the Administration for comments in Washington, DC on or provides access to the texts of all formal Children and Families. before 5:00 p.m. Eastern Time on documents issued by the Commission, Copies of the proposed collection may December 21, 2018. such as orders, notices, and be obtained by writing to the For your convenience, there are three rulemakings. Administration for Children and methods you can use to file your In addition, the Commission offers a Families, Office of Planning, Research comments to the Commission. The free service called eSubscription which and Evaluation, 330 C Street SW, Commission encourages electronic filing allows you to keep track of all formal Washington, DC 20201, Attn: OPRE of comments and has staff available to issuances and submittals in specific Reports Clearance Officer. All requests assist you at (866) 208–3676 or dockets. This can reduce the amount of should be identified by the title of the [email protected]. Please time you spend researching proceedings information collection. Email address: carefully follow these instructions so by automatically providing you with that your comments are properly [email protected]. notification of these filings, document SUPPLEMENTARY INFORMATION: This study recorded. summaries, and direct links to the (1) You can file your comments will provide an opportunity to learn documents. Go to www.ferc.gov/docs- electronically using the eComment more about the potential of coaching to filing/esubscription.asp. feature on the Commission’s website help clients achieve self-sufficiency and (www.ferc.gov) under the link to Dated: November 21, 2018. other desired employment-related Documents and Filings. This is an easy Nathaniel J. Davis, Sr., outcomes. It will take place over five method for submitting brief, text-only Deputy Secretary. years in the following employment comments on a project; [FR Doc. 2018–25922 Filed 11–27–18; 8:45 am] programs: MyGoals for Employment Success in Baltimore, MyGoals for (2) You can also file your comments BILLING CODE 6717–01–P electronically using the eFiling feature Employment Success in Houston, on the Commission’s website Family Development and Self- (www.ferc.gov) under the link to Sufficiency program in Iowa, LIFT in DEPARTMENT OF HEALTH AND Documents and Filings. With eFiling, New York City, Chicago, and Los HUMAN SERVICES you can provide comments in a variety Angeles; Work Success in Utah; and of formats by attaching them as a file Administration for Children and Goal4 It! in Jefferson County, Colorado. with your submission. New eFiling Families Together, these programs will include users must first create an account by Temporary Assistance for Needy clicking on eRegister. You must select Submission for OMB Review Families (TANF) agencies and other the type of filing you are making. If you public or private employment programs are filing a comment on a particular AGENCY: Office of Planning, Research, that serve low-income individuals. Each project, please select Comment on a and Evaluation, Administration for site will have a robust coaching Filing; or Children and Families, HHS. component and the capacity to conduct (3) You can file a paper copy of your ACTION: Request for public comment. a rigorous impact evaluation. This study comments by mailing them to the will provide information on whether following address. Be sure to reference Title: Evaluation of Employment coaching helps people obtain and retain the project docket number (CP18534– Coaching for TANF and Related jobs, advance in their careers, move 000) with your submission: Kimberly D. Populations—Second Follow-Up Survey toward self-sufficiency, and improve Bose, Secretary, Federal Energy (OMB #0970–0506) their overall well-being. To meet these Regulatory Commission, 888 First Street SUMMARY: The Administration for objectives, this study includes an NE, Room 1A, Washington, DC 20426. Children and Families (ACF) is impact and implementation study, as Any person seeking to become a party proposing an additional data collection approved by OMB. to the proceeding must file a motion to activity as part of the Evaluation of This submission builds on the intervene pursuant to Rule 214 of the Employment Coaching for TANF and existing impact study, which randomly Commission’s Rules of Practice and Related Populations. The Office of assigned participants to either a Procedures (18 CFR 385.214). Motions Management and Budget (OMB) Office ‘‘program group,’’ who were paired with to intervene are more fully described at of Information and Regulatory Affairs a coach, or to a ‘‘control group,’’ who http://www.ferc.gov/resources/guides/ approved this information collection in were not paired with a coach. The how-to/intervene.asp. Only intervenors March 2018 (0970–0506). ACF is effectiveness of the coaching will be have the right to seek rehearing or proposing a second follow-up survey determined by differences between judicial review of the Commission’s conducted as part of the evaluation. members of the program and control decision. The Commission may grant DATES: Comments due within 30 days of groups in outcomes such as obtaining affected landowners and others with publication. OMB is required to make a and retaining employment, earnings,

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61157

measures of self-sufficiency, and survey will provide rigorous evidence participants will be able to opt out of measures of self-regulation. on whether the coaching interventions participating in the data collection The proposed information collection are effective, for whom, and under what activities. activity is a second follow-up survey, circumstances. Annual Burden Estimates: which will be available to participants Respondents: Individuals enrolled in approximately 21 months after random the Evaluation of Employment Coaching assignment. The second follow-up for TANF and Related Populations. All

Annual Number of Average Instrument Total number number of responses per burden hours Annual burden of respondents respondents respondent per response hours

Second follow-up survey ...... 4,800 1,600 1 1 1,600

Estimated Total Annual Burden Temporary Assistance for Needy of Columbia). The percentages must fall Hours: 1,600. Families (TANF) Contingency Funds, within the upper and lower limits Authority: Section 413 of the Social Child Support Enforcement collections, specified in section 1905(b) of the Act. Security Act, as amended by the FY 2017 Child Care Mandatory and Matching The percentages for the District of Consolidated Appropriations Act, 2017 (Pub. Funds of the Child Care and Columbia, Puerto Rico, the Virgin L. 115–31). Development Fund, Title IV–E Foster Islands, Guam, American Samoa, and Care Maintenance payments, Adoption the Northern Mariana Islands are Mary B. Jones, Assistance payments and Kinship specified in statute, and thus are not ACF/OPRE Certifying Officer. Guardianship Assistance payments, and based on the statutory formula that [FR Doc. 2018–25512 Filed 11–27–18; 8:45 am] the eFMAP rates for the Children’s determines the percentages for the 50 BILLING CODE 4184–09–P Health Insurance Program (CHIP) states. expenditures. Table 1 gives figures for Federal Medical Assistance Percentage each of the 50 states, the District of DEPARTMENT OF HEALTH AND (FMAP) Columbia, Puerto Rico, the Virgin HUMAN SERVICES Islands, Guam, American Samoa, and Section 1905(b) of the Act specifies the formula for calculating FMAPs as Federal Financial Participation in State the Commonwealth of the Northern follows: Assistance Expenditures; Federal Mariana Islands. This notice reminds Matching Shares for Medicaid, the states of adjustments available for states ‘‘Federal medical assistance percentage’’ Children’s Health Insurance Program, meeting requirements for for any state shall be 100 per centum less the and Aid to Needy Aged, Blind, or disproportionate employer pension or state percentage; and the state percentage insurance fund contributions and shall be that percentage which bears the same Disabled Persons for October 1, 2019 ratio to 45 per centum as the square of the Through September 30, 2020 adjustments for disaster recovery. At per capita income of such state bears to the this time, no state qualifies for such square of the per capita income of the AGENCY: Office of the Secretary, DHHS. adjustments, and territories are not continental United States (including Alaska) ACTION: Notice. eligible. and Hawaii; except that (1) the Federal This notice also contains the medical assistance percentage shall in no DATES: The percentages listed in Table increased eFMAPs for CHIP as case be less than 50 per centum or more than 1 will be effective for each of the four authorized under section 2705(b) of the 83 per centum .... quarter-year periods beginning October Act, as amended by the HEALTHY KIDS Section 1905(b) further specifies that 1, 2019 and ending September 30, 2020. Act of 2017, for fiscal year 2020 the FMAP for Puerto Rico, the Virgin FOR FURTHER INFORMATION CONTACT: Rose (October 1, 2019 through September 30, Islands, Guam, the Northern Mariana Chu, Office of Health Policy, Office of 2020). Islands, and American Samoa shall be the Assistant Secretary for Planning and Programs under title XIX of the Act 55 percent. Section 4725(b) of the Evaluation, Room 447D—Hubert H. exist in each jurisdiction. Programs Balanced Budget Act of 1997 amended Humphrey Building, 200 Independence under titles I, X, and XIV operate only section 1905(b) to provide that the Avenue SW, Washington, DC 20201, in Guam and the Virgin Islands. The FMAP for the District of Columbia, for (202) 690–6870. percentages in this notice apply to state purposes of titles XIX and XXI, shall be SUPPLEMENTARY INFORMATION: The expenditures for most medical 70 percent. For the District of Columbia, Federal Medical Assistance Percentages assistance and child health assistance, we note under Table 1 that other rates (FMAP), Enhanced Federal Medical and assistance payments for certain may apply in certain other programs. In Assistance Percentages (eFMAP), and social services. The Act provides addition, we note the rate that applies disaster-recovery FMAP adjustments for separately for federal matching of for Puerto Rico, the Virgin Islands, Fiscal Year 2020 have been calculated administrative costs. Guam, American Samoa, and the pursuant to the Social Security Act (the Sections 1905(b) and 1101(a)(8)(B) of Commonwealth of the Northern Mariana Act). These percentages will be effective the Social Security Act (the Act) require Islands in certain other programs from October 1, 2019 through the Secretary of HHS to publish the pursuant to section 1118 of the Act. The September 30, 2020. This notice FMAP rates each year. The Secretary rates for the States, District of Columbia announces the calculated FMAP rates, calculates the percentages, using and the territories are displayed in in accordance with sections 1101(a)(8) formulas in sections 1905(b) and Table 1, Column 1. and 1905(b) of the Act, that the U.S. 1101(a)(8), and calculations by the Section 1905(y) of the Act, as added Department of Health and Human Department of Commerce of average by section 2001 of the Patient Protection Services (HHS) will use in determining income per person in each state and for and Affordable Care Act of 2010 the amount of federal matching for state the United States (meaning, for this (‘‘Affordable Care Act’’), provides for a medical assistance (Medicaid), purpose, the fifty states and the District significant increase in the FMAP for

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61158 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

medical assistance expenditures for state (but not in computing the per [T]he ‘‘enhanced FMAP’’, for a state for a newly eligible individuals described in capita income for the United States). fiscal year, is equal to the Federal medical section 1902(a)(10)(A)(i)(VIII) of the Act, Employer pension and insurance fund assistance percentage (as defined in the first as added by the Affordable Care Act (the contributions are significantly sentence of section 1905(b)) for the state new adult group); ‘‘newly eligible’’ is disproportionate if the increase in increased by a number of percentage points defined in section 1905(y)(2)(A) of the contributions exceeds 25 percent of the equal to 30 percent of the number of Act. The FMAP for the new adult group total increase in personal income in that percentage points by which (1) such Federal is 100 percent for Calendar Years 2014, state. A Federal Register Notice with medical assistance percentage for the state, is 2015, and 2016, gradually declining to comment period was published on June less than (2) 100 percent; but in no case shall 90 percent in 2020, where it remains 7, 2010 (75 FR 32182) announcing the the enhanced FMAP for a state exceed 85 indefinitely. In addition, section 1905(z) methodology for calculating this percent. of the Act, as added by section 10201 of adjustment; a final notice was published Section 2105(b) of the Social Security the Affordable Care Act, provides that on October 15, 2010 (75 FR 63480). Act, as amended by Section 2101 of the The second situation arises if a state states that offered substantial health Affordable Care Act, specifies a experiences negative growth in total coverage to certain low-income parents modified eFMAP for FY2016–FY2019, personal income. Beginning with Fiscal and nonpregnant, childless adults on providing that the FMAP under section Year 2006, section 614(b)(3) of CHIPRA the date of enactment of the Affordable 1905(b) for the state for the fiscal year specifies that, for the purposes of Care Act, referred to as ‘‘expansion shall be increased by 23 percentage calculating the FMAP for a calendar states,’’ shall receive an enhanced points, but in no case shall exceed 100 FMAP beginning in 2014 for medical year in which a state’s total personal percent. Section 3005 of the HEALTHY assistance expenditures for nonpregnant income has declined, the portion of an KIDS Act further amended Section childless adults who may be required to employer pension or insurance fund 2105(b) to specify a modified eFMAP for enroll in benchmark coverage under contribution that exceeds 125 percent of FY2020, providing that the FMAP under section 1937 of the Act. These the amount of such contribution in the section 1905(b) for the state for the fiscal provisions are discussed in more detail previous calendar year shall be year shall be increased by 11.5 in the Medicaid Program: Eligibility disregarded in computing the per capita percentage points, with the sum not to Changes Under the Affordable Care Act income for the state (but not in exceed 100 percent, during the period of 2010 proposed rule published on computing the per capita income for the that begins on October 1, 2019, and ends August 17, 2011 (76 FR 51148, 51172) United States). and the final rule published on March No Federal source of reliable and on September 30, 2020. 23, 2012 (77 FR 17144, 17194). This timely data on pension and insurance The eFMAP rates are used in the notice is not intended to set forth the contributions by individual employers Children’s Health Insurance Program matching rates for the new adult group and states is currently available. We under Title XXI, and in the Medicaid as specified in section 1905(y) of the Act request that states report employer program for expenditures for medical or the matching rates for nonpregnant, pension or insurance fund contributions assistance provided to certain children childless adults in expansion states as to help determine potential FMAP as described in sections 1905(u)(2) and specified in section 1905(z) of the Act. adjustments for states experiencing 1905(u)(3) of the Act. There is no significantly disproportionate pension specific requirement to publish the Other Adjustments to the FMAP or insurance contributions and states eFMAP rates. We include them in this For purposes of Title XIX (Medicaid) experiencing a negative growth in total notice for the convenience of the states, of the Social Security Act, the Federal personal income. See also the and display both the eFMAP rates that Medical Assistance Percentage (FMAP), information described in the January 21, would apply if section 2105(b) had not defined in section 1905(b) of the Social 2014 Federal Register notice (79 FR been amended by the HEALTHY KIDS Security Act, for each state beginning 3385). Act (Table 1, Column 2) and the with fiscal year 2006, can be subject to Section 2006 of the Affordable Care increased eFMAP rates as calculated an adjustment pursuant to section 614 Act provides a special adjustment to the pursuant to the amendments made by of the Children’s Health Insurance FMAP for certain states recovering from the HEALTHY KIDS Act (Table 1, Program Reauthorization Act of 2009 a major disaster. This notice does not Column 3), for comparison. (CHIPRA), Public Law 111–3. Section contain an FY 2020 adjustment for a 614 of CHIPRA stipulates that a state’s major statewide disaster for any state (Catalog of Federal Domestic Assistance FMAP under Title XIX (Medicaid) must (territories are not eligible for FMAP Program Nos. 93.558: TANF Contingency be adjusted in two situations. adjustments) because no state had a Funds; 93.563: Child Support Enforcement; 93.596: Child Care Mandatory and Matching In the first situation, if a state recent major statewide disaster and had Funds of the Child Care and Development experiences no growth or positive its FMAP decreased by at least three growth in total personal income and an Fund; 93.658: Foster Care Title IV–E; 93.659: percentage points from FY 2019 to FY Adoption Assistance; 93.769: Ticket-to-Work employer in that state has made a 2020. See information described in the and Work Incentives Improvement Act significantly disproportionate December 22, 2010 Federal Register (TWWIIA) Demonstrations to Maintain contribution to an employer pension or notice (75 FR 80501). Independence and Employment; 93.778: insurance fund, the state’s FMAP must Enhanced Federal Medical Assistance Medical Assistance Program; 93.767: be adjusted. The adjustment involves Children’s Health Insurance Program) disregarding the significantly Percentage (eFMAP) for CHIP disproportionate employer pension or Section 2105(b) of the Act specifies Alex M. Azar II, insurance fund contribution in the formula for calculating the eFMAP Secretary, Department of Health and Human computing the per capita income for the rates as follows: Services.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61159

TABLE 1—FEDERAL MEDICAL ASSISTANCE PERCENTAGES AND ENHANCED FEDERAL MEDICAL ASSISTANCE PERCENTAGES, EFFECTIVE OCTOBER 1, 2019–SEPTEMBER 30, 2020 [Fiscal year 2020]

Enhanced Federal Enhanced Federal Federal Medical Medical Medical Assistance State Assistance Assistance Percentages with 11.5 Percentages Percentages Pt inc ***

Alabama ...... 71.97 80.38 91.88 Alaska ...... 50.00 65.00 76.50 American Samoa * ...... 55.00 68.50 80.00 Arizona ...... 70.02 79.01 90.51 Arkansas ...... 71.42 79.99 91.49 California ...... 50.00 65.00 76.50 Colorado ...... 50.00 65.00 76.50 Connecticut ...... 50.00 65.00 76.50 Delaware ...... 57.86 70.50 82.00 District of Columbia ** ...... 70.00 79.00 90.50 Florida ...... 61.47 73.03 84.53 Georgia ...... 67.30 77.11 88.61 Guam * ...... 55.00 68.50 80.00 Hawaii ...... 53.47 67.43 78.93 Idaho ...... 70.34 79.24 90.74 Illinois ...... 50.14 65.10 76.60 Indiana ...... 65.84 76.09 87.59 Iowa ...... 61.20 72.84 84.34 Kansas ...... 59.16 71.41 82.91 Kentucky ...... 71.82 80.27 91.77 Louisiana ...... 66.86 76.80 88.30 Maine ...... 63.80 74.66 86.16 Maryland ...... 50.00 65.00 76.50 Massachusetts ...... 50.00 65.00 76.50 Michigan ...... 64.06 74.84 86.34 Minnesota ...... 50.00 65.00 76.50 Mississippi ...... 76.98 83.89 95.39 Missouri ...... 65.65 75.96 87.46 Montana ...... 64.78 75.35 86.85 Nebraska ...... 54.72 68.30 79.80 Nevada ...... 63.93 74.75 86.25 New Hampshire ...... 50.00 65.00 76.50 New Jersey ...... 50.00 65.00 76.50 New Mexico ...... 72.71 80.90 92.40 New York ...... 50.00 65.00 76.50 North Carolina ...... 67.03 76.92 88.42 North Dakota ...... 50.05 65.04 76.54 Northern Mariana Islands * ...... 55.00 68.50 80.00 Ohio ...... 63.02 74.11 85.61 Oklahoma ...... 66.02 76.21 87.71 Oregon ...... 61.23 72.86 84.36 Pennsylvania ...... 52.25 66.58 78.08 Puerto Rico * ...... 55.00 68.50 80.00 Rhode Island ...... 52.95 67.07 78.57 South Carolina ...... 70.70 79.49 90.99 South Dakota ...... 57.62 70.33 81.83 Tennessee ...... 65.21 75.65 87.15 Texas ...... 60.89 72.62 84.12 Utah ...... 68.19 77.73 89.23 Vermont ...... 53.86 67.70 79.20 Virgin Islands * ...... 55.00 68.50 80.00 Virginia ...... 50.00 65.00 76.50 Washington ...... 50.00 65.00 76.50 West Virginia ...... 74.94 82.46 93.96 Wisconsin ...... 59.36 71.55 83.05 Wyoming ...... 50.00 65.00 76.50 * For purposes of section 1118 of the Social Security Act, the percentage used under titles I, X, XIV, and XVI will be 75 per centum. ** The values for the District of Columbia in the table were set for the state plan under titles XIX and XXI and for capitation payments and dis- proportionate share hospital (DSH) allotments under those titles. For other purposes, the percentage for DC is 50.00, unless otherwise specified by law. *** Section 3005 of the HEALTHY KIDS Act amended Section 2105(b) of the Social Security Act specifying that the enhanced FMAP for states will be calculated by adding 11.5 percentage points to the state’s FMAP as provided under section 1905(b) of the Social Security Act, with the sum not to exceed 100 percent, for the period that begins on October 1, 2019 and ends on September 30, 2020 (fiscal year 2020).

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61160 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

[FR Doc. 2018–25944 Filed 11–27–18; 8:45 am] Field Office, 110 Radnor Road, Suite of the federally endangered Indiana bat BILLING CODE P 101, State College, PA 16801. Please (Myotis sodalis) for a term of 25 years. note that your request is in reference to Incidental take of this species may occur the NAW HCP. due to operation of 35 wind turbines. DEPARTMENT OF THE INTERIOR • In-person: Copies of the draft The proposed conservation strategy in documents are available for public the applicant’s proposed HCP is Fish and Wildlife Service review during regular business hours at designed to avoid, minimize, and [FWS–R5–ES–2014–0047; the Pennsylvania Field Office, 110 mitigate the impacts of the covered FXES11160500000–189–FF05E00000] Radnor Road, Suite 101, State College, activity on the covered species. The PA 16801. Call 814–234–4090 to make biological goals and objectives are to Habitat Conservation Plan and Draft an appointment. minimize potential take of Indiana bats Environmental Assessment, North Submitting Comments: You may through on-site minimization measures Allegheny Wind Facility, Incidental submit comments by one of the and to provide habitat conservation Take Permit Application for Indiana following methods: measures for Indiana bats to offset any Bat, Blair and Cambria Counties, • Online: http://www.regulations.gov. unavoidable impacts during operation Pennsylvania Follow the instructions for submitting of the project. comments on Docket No. FWS–R5–ES– The HCP provides on-site avoidance AGENCY: Fish and Wildlife Service, 2018–0047. and minimization measures, which Interior. • U.S. mail or hand-delivery: Public include turbine operational ACTION: Notice of availability; notice of Comments Processing, Attn: Docket No. adjustments. The estimated level of receipt of permit application; request for FWS–R5–ES–2018–0047; U.S. Fish and Indiana bat take from the project is four public comments. Wildlife Service; MS: BPHC; 5275 Indiana bats and an estimated Leesburg Pike, Falls Church, VA 22041– reproductive potential of 3.2 bats over SUMMARY: We, the U.S. Fish and 3803. the 25-year project duration. To provide Wildlife Service (Service), announce the We will post all comments on http:// a conservation benefit to the Indiana availability of several documents related www.regulations.gov. This generally to an incidental take permit (ITP) means that we will post any personal bat, NAW will fund and implement one application under the Endangered information you provide online (see or more of the following types of Species Act (ESA). We have received an Public Availability of Comments under mitigation projects to meet the mitigation needs of the Indiana bat: application from North Allegheny SUPPLEMENTARY INFORMATION). Wind, LLC (NAW) for a 25-year ITP for We request that you send comments Protection of a hibernaculum, as well as take of the federally endangered Indiana by only the methods described above. surrounding buffer land necessary to bat incidental to otherwise lawful ensure that the protection of the FOR FURTHER INFORMATION CONTACT: activities associated with operation of hibernaculum is successful; Protection its North Allegheny Wind Facility, an Robert Anderson, by phone at 814–234– of land that functions as summer habitat existing 35-turbine wind farm in Blair 4090, x7447, or by mail at Pennsylvania for one or more maternity colonies; and and Cambria Counties, Pennsylvania. Field Office, U.S. Fish and Wildlife protection of summer and/or swarming NAW has proposed a conservation Service, 110 Radnor Road, Suite 101, habitat near a hibernaculum. program to minimize and mitigate for State College, PA 16801. National Environmental Policy Act the impacts of the incidental take as SUPPLEMENTARY INFORMATION: described in its Draft North Allegheny Background The issuance of an ITP is a Federal Wind Indiana Bat Habitat Conservation Section 9 of the Endangered Species action that triggers the need for Plan (HCP). Pursuant to the ESA and the compliance with NEPA (42 U.S.C. 4321 National Environmental Policy Act, we Act of 1973, as amended (ESA; 16 U.S.C. 1531 et seq.), and its et seq.). We have prepared a draft EA announce the availability of NAW’s ITP that analyzes the environmental impacts application, including its HCP, and the implementing regulations prohibit the ‘‘take’’ of animal species listed as on the human environment resulting Service’s draft environmental from three alternatives: A no-action assessment, for public review and endangered or threatened. Take is defined under the ESA as to ‘‘harass, alternative, the proposed action, and an comment. We provide this notice to alternative consisting of feathering seek comments from the public and harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect listed animal below the manufacturer’s cut-in wind Federal, Tribal, State, and local speed. governments. species, or to attempt to engage in such conduct’’ (16 U.S.C. 1538). However, Next Steps DATES: We will accept comments under section 10(a) of the ESA, we may received or postmarked on or before issue permits to authorize incidental We will evaluate the plan and December 28, 2018. Comments take of listed species. ‘‘Incidental take’’ comments we receive to determine submitted electronically using is defined by the ESA as take that is whether the permit application meets regulations.gov (see ADDRESSES) must be incidental to, and not the purpose of, the requirements of section 10(a) of the received by 11:59 p.m. Eastern Standard carrying out an otherwise lawful ESA (16 U.S.C. 1531 et seq.). We will Time on the closing date. activity. Regulations governing also evaluate whether issuance of a ADDRESSES: Obtaining documents: incidental take permits for endangered section 10(a)(1)(B) permit would comply • Internet: You may obtain copies of and threatened species, respectively, are with section 7 of the ESA by conducting the draft HCP and draft environmental found in the Code of Federal an intra-Service section 7 consultation. assessment (EA) online in Docket No. Regulations at 50 CFR 17.22 and 50 CFR We will use the results of this FWS–R5–ES–2014–0047 at http:// 17.32. consultation, in combination with the www.regulations.gov. above findings, in our final analysis to • U.S. Mail: Copies of the draft Applicant’s Proposed Project determine whether to issue a permit. If documents are available from the U.S. North Allegheny Wind, LLC (NAW) is the requirements are met, we will issue Fish and Wildlife Service, Pennsylvania seeking a permit for the incidental take the permit to the applicant.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61161

Public Comments SUMMARY: We, the U.S. Fish and We will post all comments on http:// The Service invites the public to Wildlife Service, are publishing a draft www.regulations.gov. This generally comment on the proposed HCP and list of the nonnative bird species that means that we will post any personal draft EA during a 30-day public have been introduced by humans into information you provide us (see Public the United States or U.S. territories and Comments, below, for more comment period (see DATES). You may submit comments by one of the methods to which the Migratory Bird Treaty Act information). (MBTA) does not apply. The Migratory shown under ADDRESSES. Document availability: The complete Bird Treaty Reform Act (MBTRA) of file for this notice is available for Public Availability of Comments 2004 amends the MBTA by stating that inspection, by appointment. Contact We will post on http://regulations.gov the MBTA applies only to migratory Eric L. Kershner, Chief of the Branch of all public comments and information bird species that are native to the United Conservation, Permits, and Regulations; received electronically or via hardcopy. States or U.S. territories, and that a Division of Migratory Bird Management; All comments received, including native migratory bird species is one that U.S. Fish and Wildlife Service; MS:MB; names and addresses, will become part is present as a result of natural 5275 Leesburg Pike, Falls Church, VA of the administrative record associated biological or ecological processes. The 22041–3803; (703) 358–2376. MBTRA requires that we publish a list with this action. Before including your FOR FURTHER INFORMATION CONTACT: address, phone number, email address, of all nonnative, human-introduced bird or other personal identifying species to which the MBTA does not Eric L. Kershner, (703) 358–2376. information in your comment, you apply. We published that list in 2005, SUPPLEMENTARY INFORMATION: should be aware that your entire and are starting the process to update it What is the purpose of this notice? comment—including your personal with this notice. This notice identifies identifying information—may be made those species that are not protected by the MBTA, even though they belong to The purpose of this notice is to publicly available at any time. While provide the public with an opportunity you can request in your comment that biological families referred to in treaties that the MBTA implements, as their to review and comment on a draft we withhold your personal identifying updated list of ‘‘all nonnative, human- information from public review, we presence in the United States or U.S. territories is solely the result of introduced bird species to which the cannot guarantee that we will be able to Migratory Bird Treaty Act (16 U.S.C. do so. All submissions from intentional or unintentional human- assisted introductions. This notice 703 et seq.) does not apply,’’ as organizations or businesses, and from described in the MBTRA of 2004. The individuals identifying themselves as presents a draft list of species that are not protected by the MBTA to reflect MBTRA states that ‘‘[a]s necessary, the representatives or officials of Secretary may update and publish the organizations or businesses, will be current taxonomy, to remove one species that no longer occurs in a list of species exempted from protection made available for public disclosure in of the Migratory Bird Treaty Act.’’ their entirety. protected family, and to remove one species as a result of new distributional This notice is strictly informational. It Authority records documenting its natural merely updates our list of the bird species to which the MBTA does not This notice is provided pursuant to occurrence in the United States. apply. The presence or absence of a section 10(c) of the ESA (16 U.S.C. 1531 DATES: We will accept comments species on this list has no legal effect. et seq.) and NEPA regulations (40 CFR received or postmarked on or before This list does not change the protections 1506.6). January 28, 2019. Comments submitted electronically using the Federal that any of these species might receive Dated: June 28, 2018. eRulemaking Portal (see ADDRESSES, under such agreements as the Spencer Simon, below) must be received by 11:59 p.m. Convention on International Trade in Acting Assistant Regional Director, Ecological Eastern Time on the closing date. Endangered Species of Wild Fauna and Services, Northeast Region. Flora (CITES; T.I.A.S. 8249), the ADDRESSES: Endangered Species Act of 1973 (16 Editorial note: THIS DOCUMENT WAS Written comments: You may submit U.S.C. 1531 et seq.), or the Wild Bird RECEIVED AT THE OFFICE OF THE comments by one of the following Conservation Act of 1992 (16 U.S.C. FEDERAL REGISTER ON NOVEMBER 23, methods: 4901 et seq.). Regulations implementing 2018. (1) Electronically: Go to the Federal the MBTA are found in parts 10, 20, and [FR Doc. 2018–25916 Filed 11–27–18; 8:45 am] eRulemaking Portal: http:// 21 of title 50 of the Code of Federal BILLING CODE 4333–15–P www.regulations.gov. In the Search box, Regulations (CFR). The list of migratory enter FWS–HQ–MB–2018–0048, which birds covered by the MBTA is located at is the docket number for this notice. 50 CFR 10.13. Elsewhere in today’s DEPARTMENT OF THE INTERIOR Then, click on the Search button. On the Federal Register, we propose to revise resulting page, in the Search panel on the list of migratory bird species that are Fish and Wildlife Service the left side of the screen, under the protected under the MBTA at 50 CFR Document Type heading, click on the 10.13. [Docket No. FWS–HQ–MB–2018–0048; Notice box to locate this document. You FXMB 12320900000//189//FF09M29000] may submit a comment by clicking on For more information, refer to our ‘‘Comment Now!’’ notice published in the Federal Register Draft List of Bird Species to Which the (2) By hard copy: Submit by U.S. mail on January 4, 2005, at 70 FR 372. Migratory Bird Treaty Act Does Not or hand-delivery to: Public Comments Apply What criteria did we use to identify Processing, Attn: FWS–HQ–MB–2018– bird species not protected by the AGENCY: Fish and Wildlife Service, 0048, U.S. Fish and Wildlife Service, MBTA? Interior. MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041–3803. The criteria remain the same as stated ACTION: Notice of availability; request We request that you send comments in our notice published on March 15, for comments. only by the methods described above. 2010, at 70 FR 12710.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61162 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

Summary of Updates to the 2010 List of occurring differently in the AOS 2017 Family Rallidae Bird Species Not Protected by the supplement are in parentheses. Gray-cowled Wood-Rail, Aramides MBTA Family Anatidae cajaneus This notice presents a draft list of Mandarin Duck, Aix galericulata Family Gruiidae species that are not protected by the Egyptian Goose, Alopochen aegyptiaca Demoiselle Crane, Anthropoides virgo MBTA to reflect current taxonomy, to Philippine Duck, Anas luzonica remove one species that no longer Graylag Goose, Anser anser Sarus Crane, Antigone antigone occurs in a protected family, and to Domestic Goose, Anser anser Black Crowned-Crane, Balearica remove one species as a result of new ‘domesticus’ pavonina distributional records documenting its Swan Goose, Anser cygnoides Gray Crowned-Crane, Balearica natural occurrence in the United States. Bar-headed Goose, Anser indicus regulorum The taxonomical updates are presented Red-breasted Goose, Branta ruficollis Family Charadriidae in the draft list below. Japanese Bush- Ringed Teal, Callonetta leucophrys Warbler (Cettia diphone) and Red- Maned Duck, Chenonetta jubata Southern Lapwing, Vanellus chilensis Legged Honeycreeper (Cyanerpes Coscoroba Swan, Coscoroba coscoroba Spur-winged Lapwing, Vanellus cyaneus) appeared on the March 15, Black Swan, Cygnus atratus spinosus 2010, list (70 FR 12710), but are not on Black-necked Swan, Cygnus Family Laridae this draft list because Japanese Bush- melancoryphus Silver Gull, Chroicocephalus Warbler (Cettia diphone) no longer Mute Swan, Cygnus olor novaehollandiae occurs in a protected family due to White-faced Whistling-Duck, changes in taxonomy, and new Dendrocygna viduata Family Ciconiidae Rosy-billed Pochard, Netta peposaca distributional records document the Abdim’s Stork, Ciconia abdimii natural occurrence of Red-Legged Red-crested Pochard, Netta rufina Cotton Pygmy-Goose, Nettapus White Stork, Ciconia ciconia Honeycreeper (Cyanerpes cyaneus) in Woolly-necked Stork, Ciconia episcopus the United States. coromandelianus Orinoco Goose, Oressochen jubatus Black-necked Stork, Ephippiorhynchus The Draft List (Neochen jubata) asiaticus Hottentot Teal, Spatula hottentota Family Phalacrocoracidae What are the nonnative, human- Ruddy Shelduck, Tadorna ferruginea introduced bird species to which the Common Shelduck, Tadorna tadorna Red-legged Cormorant, Phalacrocorax MBTA does not apply that belong to gaimardi biological families of migratory birds Family Phoenicopteridae Family Anhingidae covered under any of the migratory bird Lesser Flamingo, Phoeniconaias minor conventions with Great Britain (for Chilean Flamingo, Phoenicopterus Oriental Darter, Anhinga melanogaster Canada), Mexico, Russia, or Japan? chilensis Family Pelecanidae We made this draft list as Family Columbidae comprehensive as possible by including Great White Pelican, Pelecanus all nonnative, human-assisted species Nicobar Pigeon, Caloenas nicobarica onocrotalus that belong to any of the families Asian Emerald Dove, Chalcophaps Pink-backed Pelican, Pelecanus referred to in the treaties and whose indica rufescens occurrence(s) in the United States or Rock Pigeon, Columba livia Family Threskiornithidae U.S. territories have been documented Common Wood-Pigeon, Columba in the scientific literature. It is not, palumbus Eurasian Spoonbill, Platalea leucorodia however, an exhaustive list of all the Luzon Bleeding-heart, Gallicolumba Sacred Ibis, Threskiornis aethiopicus nonnative species that could potentially luzonica Family Cathartidae appear in the United States or U.S. Diamond Dove, Geopelia cuneata King Vulture, Sarcoramphus papa territories as a result of human Bar-shouldered Dove, Geopelia assistance. New species of nonnative humeralis Family Accipitridae Zebra Dove, Geopelia striata birds are being reported annually in the Great Black Hawk, Buteogallus United States, and it is impossible to Spinifex Pigeon, Geophaps plumifera Partridge Pigeon, Geophaps smithii urubitinga predict which species might appear in Variable Hawk, Geranoaetus polyosoma the near future. Wonga Pigeon, Leucosarcia melanoleuca Griffon-type Old World vulture, Gyps The appearance of a species on this Crested Pigeon, Ocyphaps lophotes sp. list does not preclude its addition to the Common Bronzewing, Phaps Bateleur, Terathopius ecaudatus list of migratory birds protected by the chalcoptera Family Strigidae MBTA (50 CFR 10.13) at some later date Blue-headed Quail-Dove, Starnoenas should substantial evidence come to cyanocephala Spectacled Owl, Pulsatrix perspicillata light confirming natural occurrence in Island Collared-Dove, Streptopelia Family Corvidae the United States or U.S. territories. The bitorquata 123 species on this list are arranged by Spotted Dove, Streptopelia chinensis Black-throated Magpie-Jay, Calocitta family according to the American Eurasian Collared-Dove, Streptopelia colliei Ornithological Society (AOS) (1998, as decaocto White-necked Raven, Corvus albicollis amended and following taxonomy in the African Collared-Dove, Streptopelia Carrion Crow, Corvus corone AOS 2017 supplement). Within roseogrisea Cuban Crow, Corvus nasicus families, species are arranged House Crow, Corvus splendens alphabetically by scientific name. Family Trochilidae Azure Jay, Cyanocorax caeruleus Common and scientific names follow Black-throated Mango, Anthracothorax San Blas Jay, Cyanocorax sanblasianus Clements et al. (2017); any names nigricollis Rufous Treepie, Dendrocitta vagabunda

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61163

Eurasian Jay, Garrulus glandarius Red-hooded Tanager, Piranga rubriceps American Ornithologists’ Union. 1998. Red-billed Chough, Pyrrhocorax Check-list of North American birds: the pyrrhocorax Family Thraupidae species of birds of North America from Red-billed Blue-Magpie, Urocissa Yellow Cardinal, Gubernatrix cristata the Arctic through Panama, including the West Indies and Hawaiian Islands. erythroryncha Greater Antillean Bullfinch, Loxigilla 7th edition. Washington, DC. violacea Family Alaudidae Clements, J.F., T.S. Schulenberg, M.J. Iliff, D. Cuban Bullfinch, Melopyrrha nigra Roberson, T.A. Fredericks, B.L. Sullivan, Japanese Skylark, Alauda japonica Yellow-billed Cardinal, Paroaria and C.L. Wood. 2017. The eBird/ Wood Lark, Lullula arborea capitata Clements checklist of birds of the world: Calandra Lark, Melanocorypha calandra Red-crested Cardinal, Paroaria coronata v2017. Downloaded from http:// Mongolian Lark, Melanocorypha Red-cowled Cardinal, Paroaria www.birds.cornell.edu/ mongolica dominicana clementschecklist/download/. Family Paridae Red-capped Cardinal, Paroaria gularis Authority Saffron Finch, Sicalis flaveola Eurasian Blue Tit, Cyanistes caeruleus The authority for this notice is the Blue-gray Tanager, Thraupis episcopus Migratory Bird Treaty Reform Act of Great Tit, Parus major Cuban Grassquit, Tiaris canorus Varied Tit, Sittiparus varius 2004 (Division E, Title I, Sec. 143 of the Public Comments Consolidated Appropriations Act, 2005; Family Cinclidae Pub. L. 108–447), and the Migratory We request comments or information White-throated Dipper, Cinclus cinclus Bird Treaty Act (16 U.S.C. 703–712). on this draft list from other concerned Family Sylviidae governmental agencies, the scientific Dated: November 5, 2018. James W. Kurth, Eurasian Blackcap, Sylvia atricapilla community, industry, or any other interested parties. Deputy Director, U.S. Fish and Wildlife Family Muscicapidae Please include sufficient information Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service. Indian Robin, Copsychus fulicatus with your submission (such as White-rumped Shama, Copsychus electronic copies of scientific journal [FR Doc. 2018–25631 Filed 11–27–18; 8:45 am] malabaricus articles or other publications, preferably BILLING CODE 4333–15–P Oriental Magpie-Robin, Copsychus in English) to allow us to verify any saularis scientific or commercial information European Robin, Erithacus rubecula you include. DEPARTMENT OF THE INTERIOR Japanese Robin, Larvivora akahige You may submit your comments and Fish and Wildlife Service Ryukyu Robin, Larvivora komadori materials concerning this draft list by Common Nightingale, Luscinia one of the methods listed in ADDRESSES. [FWS–R1–ES–2018–N136; megarhynchos We request that you send comments FXES11130600000–190–FF01E00000] only by the methods described in Family Turdidae Endangered Species; Receipt of ADDRESSES. Recovery Permit Application Song Thrush, Turdus philomelos If you submit information via http:// Red-throated Thrush, Turdus ruficollis www.regulations.gov, your entire AGENCY: Fish and Wildlife Service, Family Prunellidae submission—including any personal Interior. identifying information—will be posted Dunnock, Prunella modularis ACTION: Notice of receipt of a permit on the website. If your submission is application; request for comments. Family Fringillidae made via a hardcopy that includes SUMMARY: We, the U.S. Fish and European Goldfinch, Carduelis personal identifying information, you Wildlife Service, have received an carduelis may request at the top of your document application for a permit to conduct European Greenfinch, Chloris chloris that we withhold this information from White-rumped Seedeater, Crithagra public review. However, we cannot activities intended to enhance the leucopygia guarantee that we will be able to do so. propagation and survival of endangered Yellow-fronted Canary, Crithagra We will post all hardcopy submissions plant species under the Endangered mozambica on http://www.regulations.gov. Species Act of 1973, as amended. We Eurasian Linnet, Linaria cannabina Comments and materials we receive invite the public and local, State, Tribal, Parrot Crossbill, Loxia pytyopsittacus will be available for public inspection and Federal agencies to comment on Island Canary, Serinus canaria on http://www.regulations.gov, or by this application. Before issuing the Red Siskin, Spinus cucullatus appointment, during normal business requested permit, we will take into Hooded Siskin, Spinus magellanicus hours, at the U.S. Fish and Wildlife consideration any information that we Service, Division of Migratory Bird receive during the public comment Family Emberizidae Management (see ADDRESSES). period. Yellowhammer, Emberiza citrinella Author DATES: We must receive your written Family Icteridae comments on or before December 28, The author of this notice is Jo Anna 2018. Venezuelan Troupial, Icterus icterus Lutmerding, U.S. Fish and Wildlife Spot-breasted Oriole, Icterus pectoralis Service, Division of Migratory Bird ADDRESSES: Document availability and Montezuma Oropendola, Psarocolius Management, 5275 Leesburg Pike, Falls comment submission: Submit requests montezuma Church, VA 22041. for a copy of the application and related Red-breasted Meadowlark, Sturnella documents and submit any comments militaris References Cited by one of the following methods. All requests and comments should specify Family Cardinalidae American Ornithological Society. 2017. Fifty- eighth to the American Ornithological the applicant name and application Orange-breasted Bunting, Passerina Society’s Check-list of North American number (i.e., Colorado State University leclancherii Birds. Auk 134:751–773. TE–07859D–0):

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61164 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

• Email: [email protected]. that are listed as endangered under the Federal Regulations at 50 CFR 17.22 for • U.S. Mail: Marilet Zablan, Program ESA. endangered wildlife species, 50 CFR Manager, Restoration and Endangered Background 17.32 for threatened wildlife species, 50 Species Classification, Ecological CFR 17.62 for endangered plant species, Services, U.S. Fish and Wildlife Service, With some exceptions, the ESA and 50 CFR 17.72 for threatened plant Pacific Regional Office, 911 NE 11th prohibits activities that constitute take species. Avenue, Portland, OR 97232–4181. of listed species unless a Federal permit is issued that allows such activity. The Permit Application Available for FOR FURTHER INFORMATION CONTACT: ESA’s definition of ‘‘take’’ includes such Review and Comment Colleen Henson, Recovery Permit activities as pursuing, harassing, Coordinator, Ecological Services, (503) trapping, capturing, or collecting in Proposed activities in the following 231–6131 (phone); permitsR1ES@ addition to hunting, shooting, harming, permit request are for the recovery and fws.gov (email). Individuals who are wounding, or killing. enhancement of propagation or survival hearing or speech impaired may call the A recovery permit issued by us under of the species in the wild. The ESA Federal Relay Service at 1–800–877– section 10(a)(1)(A) of the ESA requires that we invite public comment 8339 for TTY assistance. authorizes the permittee to conduct before issuing this permit. Accordingly, SUPPLEMENTARY INFORMATION: We, the activities with endangered or threatened we invite local, State, Tribal, and U.S. Fish and Wildlife Service, invite species for scientific purposes that Federal agencies and the public to the public to comment on an promote recovery or for enhancement of submit written data, views, or application for a permit under section propagation or survival of the species. arguments with respect to this 10(a)(1)(A) of the Endangered Species These activities often include such application. The comments and Act, as amended (ESA; 16 U.S.C. 1531 prohibited actions as capture and recommendations that will be most et seq.). The requested permit would collection. Our regulations useful and likely to influence agency allow the applicant to conduct activities implementing section 10(a)(1)(A) for decisions are those supported by intended to promote recovery of species these permits are found in the Code of quantitative information or studies.

Permit Application No. Applicant, city, state Species Location Take activity action

TE–07859D–0 ... Colorado State University, Eugenia bryanii (no common name), Guam ...... Remove and reduce to New. Fort Collins, CO. Heritiera longipetiolata (ufa-halom possession including col- tanu), Serianthes nelsonii (hayun lagu). lection, propagation, and salvage.

Public Availability of Comments 1973, as amended (16 U.S.C. 1531 et FOR FURTHER INFORMATION CONTACT: Ms. seq.). Sharlene Round Face, Bureau of Indian Written comments we receive become Affairs, Division of Real Estate Services, Sarah B. Hall, part of the administrative record 1849 C Street NW, MS–4642–MIB, associated with this action. Before Acting Assistant Regional Director— Washington, DC 20240, at (202) 208– Ecological Services, Pacific Region. including your address, phone number, 3615. email address, or other personal [FR Doc. 2018–25915 Filed 11–27–18; 8:45 am] SUPPLEMENTARY INFORMATION: identifying information in your BILLING CODE 4333–15–P comment, you should be aware that I. Summary of the HEARTH Act your entire comment—including your DEPARTMENT OF THE INTERIOR The HEARTH Act makes a voluntary, personal identifying information—may alternative land leasing process be made publicly available at any time. Bureau of Indian Affairs available to Tribes, by amending the While you can request in your comment Indian Long-Term Leasing Act of 1955, that we withhold your personal [190A2100DD/AAKC001030/ 25 U.S.C. 415. The HEARTH Act identifying information from public A0A501010.999900] authorizes Tribes to negotiate and enter review, we cannot guarantee that we into agricultural and business leases of will be able to do so. All submissions HEARTH Act Approval of Quinault Tribal trust lands with a primary term from organizations or businesses, and Indian Nation’s Business and of 25 years, and up to two renewal terms from individuals identifying themselves Residential Leasing Regulations of 25 years each, without the approval as representatives or officials of of the Secretary of the Interior AGENCY: organizations or businesses, will be Bureau of Indian Affairs, (Secretary). The HEARTH Act also Interior. made available for public disclosure in authorizes Tribes to enter into leases for their entirety. ACTION: Notice. residential, recreational, religious, or educational purposes for a primary term Next Steps SUMMARY: On October 31, 2018, the of up to 75 years without the approval Bureau of Indian Affairs (BIA) approved of the Secretary. Participating Tribes If we decide to issue a permit to the the Quinault Indian Nation’s (Tribe) develop Tribal leasing regulations, applicant listed in this notice, we will leasing regulations under the Helping including an environmental review publish a notice in the Federal Register. Expedite and Advance Responsible process, and then must obtain the Authority Tribal Homeownership Act of 2012 Secretary’s approval of those regulations (HEARTH Act). With this approval, the prior to entering into leases. The We publish this notice under section Tribe is authorized to enter into HEARTH Act requires the Secretary to 10(c) of the Endangered Species Act of residential and business leases without approve Tribal regulations if the Tribal further BIA approval. regulations are consistent with the

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61165

Department of the Interior’s analysis from the preamble to the retains authority to take any necessary (Department) leasing regulations at 25 surface leasing regulations, 77 FR at actions to remedy violations of a lease CFR part 162 and provide for an 72,447–48, as supplemented by the or of the Tribal regulations, including environmental review process that analysis below. terminating the lease or rescinding meets requirements set forth in the The strong Federal and Tribal approval of the Tribal regulations and HEARTH Act. This notice announces interests against State and local taxation reassuming lease approval that the Secretary, through the Assistant of improvements, leaseholds, and responsibilities. Moreover, the Secretary Secretary—Indian Affairs, has approved activities on land leased under the continues to review, approve, and the Tribal regulations for the Quinault Department’s leasing regulations apply monitor individual Indian land leases Indian Nation. equally to improvements, leaseholds, and other types of leases not covered and activities on land leased pursuant to under the Tribal regulations according II. Federal Preemption of State and Tribal leasing regulations approved Local Taxes to the Part 162 regulations. under the HEARTH Act. Congress’s Accordingly, the Federal and Tribal The Department’s regulations overarching intent was to ‘‘allow Tribes interests weigh heavily in favor of governing the surface leasing of trust to exercise greater control over their preemption of State and local taxes on and restricted Indian lands specify that, own land, support self-determination, lease-related activities and interests, subject to applicable Federal law, and eliminate bureaucratic delays that regardless of whether the lease is permanent improvements on leased stand in the way of homeownership and governed by Tribal leasing regulations land, leasehold or possessory interests, economic development in Tribal or Part 162. Improvements, activities, and activities under the lease are not communities.’’ 158 Cong. Rec. H. 2682 and leasehold or possessory interests subject to State and local taxation and (May 15, 2012). The HEARTH Act was may be subject to taxation by the may be subject to taxation by the Indian intended to afford Tribes ‘‘flexibility to Quinault Indian Nation. Tribe with jurisdiction. See 25 CFR adapt lease terms to suit [their] business 162.017. As explained further in the and cultural needs’’ and to ‘‘enable Dated: October 31, 2018. preamble to the final regulations, the [Tribes] to approve leases quickly and Tara Sweeney, Federal government has a strong interest efficiently.’’ Id. at 5–6. Assistant Secretary—Indian Affairs. in promoting economic development, Assessment of State and local taxes [FR Doc. 2018–25942 Filed 11–27–18; 8:45 am] self-determination, and Tribal would obstruct these express Federal BILLING CODE 4337–15–P sovereignty. 77 FR 72,440, 72,447–48 policies supporting Tribal economic (December 5, 2012). The principles development and self-determination, supporting the Federal preemption of and also threaten substantial Tribal DEPARTMENT OF THE INTERIOR State law in the field of Indian leasing interests in effective Tribal government, and the taxation of lease-related economic self-sufficiency, and territorial Bureau of Land Management interests and activities applies with autonomy. See Michigan v. Bay Mills [L11100000 DS0000 LXSS036E0000 equal force to leases entered into under Indian Community, 134 S. Ct. 2024, LLWY1610000] Tribal leasing regulations approved by 2043 (2014) (Sotomayor, J., concurring) the Federal government pursuant to the (determining that ‘‘[a] key goal of the Notice of Intent for the Potential HEARTH Act. Federal Government is to render Tribes Amendment to the Approved Resource Section 5 of the Indian Reorganization more self-sufficient, and better Management Plan for the Buffalo Field Act, 25 U.S.C. 5108, preempts State and positioned to fund their own sovereign Office, Wyoming, and To Prepare an local taxation of permanent functions, rather than relying on Federal Associated Supplemental improvements on trust land. funding’’). The additional costs of State Environmental Impact Statement Confederated Tribes of the Chehalis and local taxation have a chilling effect Reservation v. Thurston County, 724 on potential lessees, as well as on a AGENCY: Bureau of Land Management, F.3d 1153, 1157 (9th Cir. 2013) (citing Tribe that, as a result, might refrain from Interior. Mescalero Apache Tribe v. Jones, 411 exercising its own sovereign right to ACTION: Notice of intent. U.S. 145 (1973)). Similarly, section 5108 impose a Tribal tax to support its preempts State taxation of rent infrastructure needs. See id. at 2043–44 SUMMARY: In accordance with the payments by a lessee for leased trust (finding that State and local taxes National Environmental Policy Act of lands, because ‘‘tax on the payment of greatly discourage Tribes from raising 1969, as amended (NEPA), and the rent is indistinguishable from an tax revenue from the same sources Federal Land Policy and Management impermissible tax on the land.’’ See because the imposition of double Act of 1976, as amended (FLPMA), the Seminole Tribe of Florida v. Stranburg, taxation would impede Tribal economic Bureau of Land Management (BLM) No. 14–14524, *13–*17, n.8 (11th Cir. growth). Wyoming Buffalo Field Office intends to 2015). In addition, as explained in the Similar to BIA’s surface leasing prepare a Supplemental Environmental preamble to the revised leasing regulations, Tribal regulations under the Impact Statement (EIS) and potential regulations at 25 CFR part 162, Federal HEARTH Act pervasively cover all amendment for the 2015 Buffalo Field courts have applied a balancing test to aspects of leasing. See 25 U.S.C. Office Approved Resource Management determine whether State and local 415(h)(3)(B)(i) (requiring Tribal Plan (RMP). The Supplemental EIS is in taxation of non-Indians on the regulations be consistent with BIA response to a United States District reservation is preempted. White surface leasing regulations). Court, District of Montana, opinion and Mountain Apache Tribe v. Bracker, 448 Furthermore, the Federal government order (Western Organization of Resource U.S. 136, 143 (1980). The Bracker remains involved in the Tribal land Councils, et al vs BLM). This notice balancing test, which is conducted leasing process by approving the Tribal announces the beginning of the scoping against a backdrop of ‘‘traditional leasing regulations in the first instance process to solicit public comments and notions of Indian self-government,’’ and providing technical assistance, identify issues presented in the opinion requires a particularized examination of upon request by a Tribe, for the and order. the relevant State, Federal, and Tribal development of an environmental DATES: To ensure that we can interests. We hereby adopt the Bracker review process. The Secretary also adequately consider all comments, the

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61166 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

BLM must receive written comments by would decrease the amount of coal will analyze the downstream impacts of December 28, 2018. The BLM will potentially available for leasing, which developing federal minerals. announce a public scoping meeting requires updated coal screening that during this period through local news considers climate change impacts to Call for Coal and Other Resource media, newsletters, our ePlanning assess the amount of recoverable coal Information website, and the BLM website (http:// available in the Approved RMP; (2) the The BLM requests that industry, state BLM must supplement the Buffalo Final www.blm.gov/wyoming) at least 15 days and local governments, and the public prior to the meeting. The BLM will EIS with an analysis of the provide relevant coal resource data that provide additional opportunities for environmental consequences of can help inform this planning effort. public participation upon publication of downstream combustion of federal coal, Specifically, the BLM requests the Draft Supplemental EIS. oil, and gas open to development under information on the development ADDRESSES: You may submit comments the RMP; and (3) The BLM must provide potential (e.g., location, quality, and on issues, planning criteria, and additional justification and analysis of quantity) of BLM-administered coal resource information by any of the global warming potential over an following methods: appropriate planning period consistent mineral estate, and on surface resource • Website: http://go.usa.gov/x9PT8. with evolving science. The purpose of values related to multiple use conflicts. • Mail: Buffalo RMP SEIS, Attn: this public scoping process is to solicit The purpose of this request is to Thomas Bills, Project Manager, BLM public input that will influence the ensure BLM Wyoming has sufficient Buffalo Field Office, 1425 Fort Street, scope of the Buffalo Supplemental EIS information and data to consider a Buffalo, WY 82834. with respect to the U.S. District Court’s reasonable range of resource uses, FOR FURTHER INFORMATION CONTACT: determinations. management options, and alternatives Thomas (Tom) Bills, RMP Supplemental There are currently 13 operating coal mines in the planning area. All are in for managing BLM-administered coal EIS Project Manager; Telephone 307– Campbell County (part of the Antelope mineral estate. The BLM will use this 684–1133; or at the above mailing Mine is in Converse County). There are information to complete the address or website. Persons who use a presently two proposed mining Supplemental EIS and formulate telecommunications device for the deaf operations on existing Federal coal alternatives that identify areas (TDD) may call the Federal Relay leases or on privately owned coal in the acceptable for further leasing Service (FRS) at 1–800–877–8339 to planning area. One of these proposed consideration. contact the above individual during mining operations is located in normal business hours. The FRS is Proprietary data marked as Sheridan County. All of the existing or available 24 hours a day, seven days a confidential may be submitted in proposed mining operations are surface response to this call for coal and other week, to leave a message or question coal mines, using truck/shovel or with the above individual. You will resource information. Please submit all dragline mining methods. proprietary information to the Buffalo receive a reply during normal business The 2015 Buffalo RMP relied on coal Field Manager at the address listed hours. screening completed during a 2001 RMP SUPPLEMENTARY INFORMATION: The BLM update. The 2001 screening reviewed above. The BLM will treat submissions is preparing this Supplemental EIS in 567,200 acres in two areas identified as marked as ‘‘Confidential’’ in accordance response to a United States District acceptable for potential coal leasing in with the laws and regulations governing Court of Montana opinion and order the Buffalo Field Office (494,000 acres the confidentiality of such information. (Western Organization of Resource in Campbell County and 73,200 acres in Before including your address, phone Councils, et al. v. BLM; CV 16–21–GF– Sheridan County), containing an number, email address, or other BMM; 3/26/2018 and 7/31/2018). estimated 50.25 billion tons of coal. personal identifying information in your In September 2015, the BLM Based on the update, the BLM comment, you should be aware that approved the Record of Decision for determined that 63,600 acres containing your entire comment—including your Approved RMPs and Amendments in more than 6.2 billion tons of coal are personal identifying information—may the Rocky Mountain Region, which unsuitable for surface coal mining be made publicly available at any time. included Wyoming’s Buffalo Field operations, while the remainder of the While you can ask us in your comment Office. The 2015 Buffalo Approved RMP coal lands in these areas remains to withhold your personal identifying provides a single, comprehensive land available for further consideration for information from public review, the use plan that guides management of coal leasing. The BLM completed and BLM-administered lands and minerals documented surface owner BLM cannot guarantee that it will be in the Buffalo Field Office. The plan consultation. The BLM estimates about able to do so. provides goals, objectives, land use 26 billion tons of coal would be Authority: 43 CFR 1610.2(c) and 3420.1–2. allocations, and management direction developed under the Approved RMP in Dated: November 16, 2018. for the BLM-administered surface and the areas made available for coal leasing mineral estate based on the BLM’s under the 2001 coal screening. Since Mary Jo Rugwell, multiple use and sustained yield 1985, about 10.8 billion tons of coal State Director. mission, unless otherwise specified by within the planning area either were [FR Doc. 2018–25845 Filed 11–27–18; 8:45 am] law (FLPMA Sec. 102(c), 43 U.S.C. 1701 leased or are under consideration for BILLING CODE 4310–22–P et seq.). The Buffalo Field Office leasing. The BLM has projected that the manages approximately 800,000 acres of areas it screened and deemed acceptable surface land and 4.7 million acres of for leasing will meet the anticipated mineral estate in Campbell, Johnson, demand for coal reserves. The BLM and Sheridan counties in north-central determined a new coal screening is not Wyoming. necessary in the Buffalo Field Office On March 26, 2018, the U.S. District because no new lands have been Court concluded: (1) NEPA requires the nominated for analysis since the BLM to consider an alternative that previous screenings, but BLM Wyoming

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00023 Fmt 4703 Sfmt 9990 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61167

DEPARTMENT OF THE INTERIOR (TDD) may call the Federal Relay and one mine (Absaloka) that operates Service (FRS) at 1–800–877–8339 to entirely on two Indian coal leases. In Bureau of Land Management contact the above individuals during addition, two additional mines are [LLMT930000 L16100000 DS0000 normal business hours. The FRS is proposed, the Big Metal Mine (Indian LXSS036E0000 19X] available 24 hours a day, 7 days a week, reserves) and Otter Creek Mine to leave a message or question with the (currently private reserves). The Miles Notice of Intent for the Potential above individuals. You will receive a City Field Office also authorizes a Amendment to the Approved Resource reply during normal business hours. domestic coal license to a private Management Plan for the Miles City SUPPLEMENTARY INFORMATION: The individual in Fallon County for home Field Office, Montana, and To Prepare Supplemental EIS is in response to a heating. an Associated Supplemental United States Montana District court The 2015 Approved RMP relied upon Environmental Impact Statement opinion and order (Western coal screening completed during two Organization of Resource Councils, et previous RMP revisions: Big Dry (1996) AGENCY: Bureau of Land Management, and Powder River (1985). These Interior. al. vs BLM; CV 16–21–GF–BMM; 3/26/ 2018 and 7/31/2018). planning efforts identified ACTION: Notice of intent. In September 2015, the BLM approximately 68.38 billion tons of coal that are available for further SUMMARY: In accordance with the approved the Record of Decision for the Approved RMPs and Amendments in consideration for coal leasing across the National Environmental Policy Act of Miles City Field Office (62.20 billion the Rocky Mountain Region, which 1969, as amended (NEPA), and the tons in the Power River RMP and 6.18 included the Montana Miles City Field Federal Land Policy and Management billion tons of coal in the Big Dry RMP). Office. The 2015 Miles City Approved act of 1976, as amended (FLPMA), the A reasonable foreseeable development RMP provides a single, comprehensive Bureau of Land Management (BLM), scenario (RFD) was developed for the land use plan that guides management Miles City Field Office, Miles City, Final EIS based upon the U.S. Energy of BLM-administered surface and Montana, intends to prepare a Information Administration projections mineral estate in the Miles City Field Supplemental Environmental Impact in order for specialists to analyze the Office. The plan provides goals, Statement (EIS) and potential potential effects related to Federal coal objectives, land use allocations, and amendment for the 2015 Miles City leasing. The RFD was based upon Field Office Approved Resource management direction for the BLM- continued operations of the five existing Management Plan (RMP). The administered surface and mineral estate mines, with no new mines being Supplemental EIS is in response to a based on multiple use and sustained developed over the 20-year planning United States District Court, District of yield, unless otherwise specified by law timeframe. The RFD did not consider Montana, opinion and order (Western (FLPMA Sec. 102(c), 43 U.S.C. 1701 et leasing of the entire 68.38 billion tons Organization of Resource Councils, et al seq.). The Miles City Field Office of coal that may be available. The air vs BLM). This notice announces the manages approximately 2.7 million quality analysis estimated annual beginning of the scoping process to surface acres and 10.6 million acres of emissions from the RFD estimate of 56.2 solicit public comments and identify Federal mineral estate across 17 million tons of Federal and 26.8 million issues presented in the opinion and counties in eastern Montana. tons of non-Federal coal produced per order. On March 26, 2018, the U.S. District year, based upon coal production limits Court concluded: (1) NEPA requires the prescribed in each associated Montana DATES: To ensure that comments will be BLM to consider an alternative that considered, the BLM must receive Air Quality Permit issued by the would decrease the amount of coal Montana Department of Environmental written comments by December 28, potentially available for leasing, which 2018. The BLM will announce a public Quality for the five operating mines. requires conducting new coal screening As defined in 43 CFR 3420.1–4, the scoping meeting through local news that considers climate change impacts to media, newsletters, e-Planning, and the four principal factors the BLM must assess the amount of recoverable coal consider for coal resource development BLM website https://www.blm.gov/ available in the Approved RMP, (2) The montana-dakotas at least 15 days prior during land use planning include: BLM must supplement the Miles City 1. Estimate coal development to the meeting. The BLM will provide Final EIS with an analysis of the additional opportunities for public potential, and consider only those areas environmental consequences of that have development potential for participation upon publication of the downstream combustion of coal, oil, Draft Supplemental EIS. further consideration for leasing. and gas open to development under the 2. Apply the unsuitability criteria set ADDRESSES: You may submit comments Approved RMP; and (3) The BLM must out in 43 CFR subpart 3461 to the BLM- on issues, planning criteria, and provide additional justification and administered coal mineral estate to resource information by any of the analysis of global warming potential identify areas unsuitable for all, or following methods: over an appropriate planning period certain stipulated methods of mining. • Website: https://go.usa.gov/xPv49. consistent with evolving science. 3. Consider multiple land use • Mail: Miles City RMP Draft The purpose of this public scoping management conflicts which may Supplemental EIS; Amy Waring, process is to solicit public input that eliminate coal deposits from further Supplemental EIS Project Manager; will influence the scope of the consideration for leasing to protect other Montana/Dakotas State Office, 5001 environmental analysis with respect to resource values and land uses that are Southgate Dr., Billings, MT 59101. the three conclusions by the U.S. locally, regionally or nationally FOR FURTHER INFORMATION CONTACT: District Court. important or unique, that are not Amy Waring, Supplemental EIS Project There are currently five active coal included in the unsuitability criteria. Manager; telephone (406) 896–5095; mining operations in or adjacent to the 4. Consult with qualified surface email [email protected]; or at the planning area, four of which operate on owners, as defined in 43 CFR 3400.0–5, mailing address or website listed earlier Federal coal leases, and are whose lands overlie BLM-administered (see ADDRESSES). Persons who use a administered by the BLM (Decker, coal mineral estate to determine telecommunications device for the deaf Rosebud, Savage, and Spring Creek), preference for or against mining by

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61168 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

other than underground mining DEPARTMENT OF THE INTERIOR Public Disclosure of Information: techniques. Before including your address, phone National Park Service number, email address, or other Call for Coal and Other Resource personal identifying information in your Information [NPS–WASO–D–COS–POL–26833; PPWODIREP0][PPMPSAS1Y.YP0000] comment, you should be aware that The BLM requests that industry, State your entire comment—including your and local governments, and the public Notice of the December 5, 2018, personal identifying information—may Meeting of the National Park System be made publicly available at any time. interested in coal management in the Advisory Board While you can ask us in your comment planning area provide the BLM relevant to withhold your personal identifying coal resource data that can help inform AGENCY: National Park Service, Interior. information from public review, we this project. Specifically, the BLM ACTION: Notice. cannot guarantee that we will be able to requests information on the do so. development potential (e.g., location, SUMMARY: In accordance with the quality, and quantity) of BLM- Federal Advisory Committee Act of Authority: 5 U.S.C. Appendix 2. administered coal mineral estate, and on 1972, the National Park Service is Alma Ripps, surface resource values related to hereby giving notice that the National Chief, Office of Policy. Park System Advisory Board (Board) multiple use conflicts. [FR Doc. 2018–25934 Filed 11–27–18; 8:45 am] will meet as noted below. This notice is The purpose of this request is to being published less than 15 days prior BILLING CODE 4312–52–P assure that the planning effort has to the meeting date due to unexpected sufficient information and data to administrative delays. consider a reasonable range of resource INTERNATIONAL TRADE DATES: The meeting will be held on COMMISSION uses, management options, and Wednesday, December 5, 2018, from alternatives for management of the 9:30 a.m. to 5:00 p.m. (EASTERN). [Investigation No. 337–TA–1121] BLM-administered Federal coal mineral ADDRESSES: The meeting will be estate. The BLM will use this conducted in the Jefferson Room of the Certain Earpiece Devices and information to complete the Courtyard Marriott Washington, DC/ Components Thereof: Notice of a Supplemental EIS and formulate Foggy Bottom, 515 20th Street NW, Commission Determination Not To alternatives that identify areas Washington, DC 20006, telephone (202) Review an Initial Determination acceptable for further consideration for 263–7435. Granting a Motion for Leave To Amend leasing. the Complaint and Notice of FOR FURTHER INFORMATION CONTACT: Investigation Proprietary data marked as Shirley Sears, Office of Policy, National ‘‘Confidential’’ may be submitted in Park Service, 1849 C Street NW, Mail AGENCY: U.S. International Trade response to this request for coal and Stop 2659, Washington, DC 20240, Commission. other resource information. Please telephone (202) 354–3955, or email ACTION: Notice. submit all proprietary information [email protected]. submissions to the Montana/Dakotas SUPPLEMENTARY INFORMATION: The Board SUMMARY: Notice is hereby given that State Director at the address listed has been established by authority of the the U.S. International Trade above. The BLM will treat submissions Secretary of the Interior (Secretary) Commission has determined not to marked as ‘‘Confidential’’ in accordance under 54 U.S.C. 100906, and is review an initial determination (‘‘ID’’) with the laws and regulations governing regulated by the Federal Advisory (Order No. 10) of the presiding the confidentiality of such information. Committee Act. administrative law judge (‘‘ALJ’’), granting complainant’s motion for leave Before including your address, phone The Board will convene at 9:30 a.m. and adjourn at 5:00 p.m. The board will to amend the complaint and Notice of number, email address, or other have briefings on the priorities and Investigation to correct the name and/or personal identifying information in your programs of the National Park Service, address of two existing respondents. comment, you should be aware that including the National Historic FOR FURTHER INFORMATION CONTACT: your entire comment—including your Landmarks and National Natural Cathy Chen, Esq., Office of the General personal identifying information—may Landmarks programs. The meeting will Counsel, U.S. International Trade be made publicly available at any time. be open to the public. There will also Commission, 500 E Street SW, While you can request us to withhold be a public comment period. The final Washington, DC 20436, telephone (202) your personal identifying information agenda will be posted to the Board’s 205–2392. Copies of non-confidential from public review, BLM cannot website prior to the meeting at https:// documents filed in connection with this guarantee that it will be able to do so. www.nps.gov/advisoryboard.htm. The investigation are or will be available for (Authority: 43 CFR 1610.2(c) and 3420.1–2) order of the agenda may be changed, if inspection during official business necessary. hours (8:45 a.m. to 5:15 p.m.) in the Jon K. Raby, The Board also will permit attendees Office of the Secretary, U.S. Acting State Director. to address the Board, but may restrict International Trade Commission, 500 E [FR Doc. 2018–25847 Filed 11–27–18; 8:45 am] the length of the presentations, as Street SW, Washington, DC 20436, BILLING CODE 4310–DN–P necessary, to allow the Board to telephone (202) 205–2000. General complete its agenda within the allotted information concerning the Commission time. may also be obtained by accessing its Anyone may file with the Board a internet server at https://www.usitc.gov. written statement concerning matters to The public record for this investigation be discussed. may be viewed on the Commission’s Statements should be sent to shirley_ electronic docket (EDIS) at https:// [email protected]. edis.usitc.gov. Hearing-impaired

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61169

persons are advised that information on Practice and Procedure (19 CFR part I. Obtaining Information and this matter can be obtained by 210). Submitting Comments contacting the Commission’s TDD By order of the Commission. A. Obtaining Information terminal on (202) 205–1810. Issued: November 23, 2018. Please refer to Docket ID NRC–2018– SUPPLEMENTARY INFORMATION: The Katherine Hiner, 0228 when contacting the NRC about Commission instituted this investigation Supervisory Attorney. on June 29, 2018, based on a complaint the availability of information for this [FR Doc. 2018–25940 Filed 11–27–18; 8:45 am] action. You may obtain publicly- filed on behalf of Bose Corporation of BILLING CODE 7020–02–P Framingham, Massachusetts (‘‘Bose’’). available information related to this 83 FR 30,776 (Jun. 29, 2018). The action by any of the following methods: • Federal Rulemaking Website: Go to complaint alleges violations of Section http://www.regulations.gov and search 337 of the Tariff Act of 1930, as NUCLEAR REGULATORY for Docket ID NRC–2018–0228. amended, 19 U.S.C. 1337 (‘‘section COMMISSION • NRC’s Agencywide Documents 337’’), based upon the importation into Access and Management System the United States, the sale for [NRC–2018–0228] (ADAMS): You may obtain publicly- importation, and the sale within the Information Collection: Operators’ available documents online in the United States after importation of Licenses ADAMS Public Documents collection at certain earpiece devices and http://www.nrc.gov/reading-rm/ components thereof by reason of AGENCY : Nuclear Regulatory adams.html. To begin the search, select infringement of one or more of U.S. Commission. ‘‘Begin Web-based ADAMS Search.’’ For Patent Nos.: 9,036,852; 9,036,853; ACTION: Renewal of existing information problems with ADAMS, please contact 9,042,590; 8,311,253; 8,249,287; and collection; request for comment. the NRC’s Public Document Room (PDR) 9,398,364. The complaint further alleges reference staff at 1–800–397–4209, 301– that an industry in the United States SUMMARY: The U.S. Nuclear Regulatory 415–4737, or by email to pdr.resource@ exists as required by section 337. The Commission (NRC) invites public nrc.gov. The supporting statement is Notice of Investigation named numerous comment on the renewal of Office of available in ADAMS under Accession respondents, including iHip of Edison, Management and Budget (OMB) No. ML18218A114. New Jersey; and SMARTOMI Products, approval for an existing collection of • NRC’s PDR: You may examine and Inc. (‘‘Smartomi’’) of Ontario, Canada. information. The information collection purchase copies of public documents at The Office of Unfair Import is entitled, Operators’ Licenses. the NRC’s PDR, Room O1–F21, One Investigations (‘‘OUII’’) was named as a DATES: Submit comments by January 28, White Flint North, 11555 Rockville party in this investigation. 2019. Comments received after this date Pike, Rockville, Maryland 20852. On October 4, 2018, Bose filed a will be considered if it is practical to do • NRC’s Clearance Officer: A copy of motion to amend the notice of so, but the Commission is able to ensure the collection of information and related investigation and for leave to file an consideration only for comments instructions may be obtained without amended complaint in order to correct received on or before this date. charge by contacting NRC’s Clearance the name and/or address of two existing ADDRESSES: You may submit comments Officer, David Cullison, Office of the respondents. Order No. 10 at 1 (Oct. 29, by any of the following methods: Chief Information Officer, U.S. Nuclear 2018). Specifically, Bose sought to • Federal Rulemaking Website: Go to Regulatory Commission, Washington, correct the name of respondent iHip to http://www.regulations.gov and search DC 20555–0001; telephone: 301–415– Zeikos, Inc., and to correct the name of for Docket ID NRC–2018–0228. Address 2084; email: Infocollects.Resource@ respondent Smartomi to V4ink, Inc. questions about Docket IDs in nrc.gov. (‘‘V4ink’’). Id. Bose also sought to Regulations.gov to Jennifer Borges; B. Submitting Comments correct the address of the latter telephone: 301–287–9127; email: respondent because the Smartomi [email protected]. For technical Please include Docket ID NRC–2018– address cited in the original complaint, questions, contact the individual listed 0228 in the subject line of your 2760 E Philadelphia Street, Ontario, in the FOR FURTHER INFORMATION comment submission, in order to ensure Canada 91761, is the registered agent for CONTACT section of this document. that the NRC is able to make your V4ink. Id. Bose since learned that • Mail comments to: David Cullison, comment submission available to the V4ink’s principal place of business is Office of the Chief Information Officer, public in this docket. 1251 S Rockfeller Ave Unit B, Ontario, Mail Stop: O1–F21, U.S. Nuclear The NRC cautions you not to include Canada 91761–2238. Id. No response Regulatory Commission, Washington, identifying or contact information in was filed. Id. DC 20555–0001. comment submissions that you do not On October 29, 2018, the ALJ issued For additional direction on obtaining want to be publicly disclosed in your the subject ID granting the motion. Id. information and submitting comments, comment submission. The NRC will at 2. The ALJ found that good cause see ‘‘Obtaining Information and post all comment submissions at http:// exists to amend the complaint and Submitting Comments’’ in the www.regulations.gov as well as enter the notice of investigation, and that there is SUPPLEMENTARY INFORMATION section of comment submissions into ADAMS, no evidence of any prejudice to the this document. and the NRC does not routinely edit parties in the investigation. Id. No comment submissions to remove FOR FURTHER INFORMATION CONTACT: petitions for review were filed. identifying or contact information. The Commission has determined not David Cullison, Office of the Chief If you are requesting or aggregating to review the ID. Information Officer, U.S. Nuclear comments from other persons for The authority for the Commission’s Regulatory Commission, Washington, submission to the NRC, then you should determination is contained in section DC 20555–0001; telephone: 301–415– inform those persons not to include 337 of the Tariff Act of 1930, as 2084; email: Infocollects.Resource@ identifying or contact information that amended (19 U.S.C. 1337), and in Part nrc.gov. they do not want to be publicly 210 of the Commission’s Rules of SUPPLEMENTARY INFORMATION: disclosed in their comment submission.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61170 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

Your request should state that the NRC 4. How can the burden of the (ADAMS): You may obtain publicly- does not routinely edit comment information collection on respondents available documents online in the submissions to remove such information be minimized, including the use of ADAMS Public Documents collection at before making the comment automated collection techniques or http://www.nrc.gov/reading-rm/ submissions available to the public or other forms of information technology? adams.html. To begin the search, select entering the comment into ADAMS. Dated at Rockville, Maryland, this 23rd day ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact II. Background of November, 2018. For the Nuclear Regulatory Commission. the NRC’s Public Document Room (PDR) In accordance with the Paperwork reference staff at 1–800–397–4209, 301– David C. Cullison, Reduction Act of 1995 (44 U.S.C. 415–4737, or by email to pdr.resource@ Chapter 35), the NRC is requesting NRC Clearance Officer, Office of the Chief nrc.gov. The supporting statement and Information Officer. public comment on its intention to burden spreadsheet are available in request the OMB’s approval for the [FR Doc. 2018–25936 Filed 11–27–18; 8:45 am] ADAMS under Accession Nos. information collection summarized BILLING CODE 7590–01–P ML18289A608 and ML18289A625. below. • NRC’s PDR: You may examine and 1. The title of the information purchase copies of public documents at collection: Operators’ Licenses. NUCLEAR REGULATORY the NRC’s PDR, Room O1–F21, One 2. OMB approval number: 3150–0018. COMMISSION White Flint North, 11555 Rockville 3. Type of submission: Extension. [NRC–2018–0047] Pike, Rockville, Maryland 20852. 4. The form number, if applicable: • NRC’s Clearance Officer: A copy of Not applicable. Information Collection: Domestic the collection of information and related 5. How often the collection is required Licensing of Source Material instructions may be obtained without or requested: As necessary for the NRC charge by contacting the NRC’s AGENCY: to meet its responsibilities to determine Nuclear Regulatory Clearance Officer, David Cullison, the eligibility for applicants and Commission. Office of the Chief Information Officer, operators. ACTION: Notice of submission to the U.S. Nuclear Regulatory Commission, 6. Who will be required or asked to Office of Management and Budget; Washington, DC 20555–0001; telephone: respond: Holders of, and applicants for, request for comment. 301–415–2084; email: facility (i.e., nuclear power and non- [email protected]. power research and test reactor) SUMMARY: The U.S. Nuclear Regulatory operating licenses and individual Commission (NRC) has recently B. Submitting Comments operator licensees. submitted a request for renewal of an The NRC cautions you not to include 7. The estimated number of annual existing collection of information to the identifying or contact information in responses: 449 (353 reporting responses Office of Management and Budget comment submissions that you do not + 96 recordkeepers). (OMB) for review. The information 8. The estimated number of annual want to be publicly disclosed in your collection is entitled, Domestic comment submission. All comment respondents: 96. Licensing of Source Material. 9. The estimated number of hours submissions are posted at http:// DATES: Submit comments by December needed annually to comply with the www.regulations.gov and entered into 28, 2018. information collection requirement or ADAMS. Comment submissions are not request: 172,915 hours (150,869 hours ADDRESSES: Submit comments directly routinely edited to remove identifying reporting + 22,046 hours to the OMB reviewer at: OMB Office of or contact information. recordkeeping). Information and Regulatory Affairs If you are requesting or aggregating 10. Abstract: Part 55 of title 10 of the (3150–0020), Attn: Desk Officer for the comments from other persons for Code of Federal Regulations (10 CFR), Nuclear Regulatory Commission, 725 submission to the OMB, then you ‘‘Operators’ Licenses,’’ specifies 17th Street NW, Washington, DC 20503; should inform those persons not to information and data to be provided by email: [email protected]. include identifying or contact applicants and facility licensees so that FOR FURTHER INFORMATION CONTACT: information that they do not want to be the NRC may make determinations David Cullison, NRC Clearance Officer, publicly disclosed in their comment concerning the licensing and U.S. Nuclear Regulatory Commission, submission. Your request should state requalification of operators for nuclear Washington, DC 20555–0001; telephone: that comment submissions are not reactors, as necessary to promote public 301–415–2084; email: routinely edited to remove such health and safety. The reporting and [email protected]. information before making the comment submissions available to the public or recordkeeping requirements contained SUPPLEMENTARY INFORMATION: in 10 CFR part 55 are mandatory for the entering the comment into ADAMS. I. Obtaining Information and affected facility licensees and II. Background applicants. Submitting Comments Under the provisions of the III. Specific Requests for Comments A. Obtaining Information Paperwork Reduction Act of 1995 (44 The NRC is seeking comments that Please refer to Docket ID NRC–2018– U.S.C. Chapter 35), the NRC recently address the following questions: 0047 when contacting the NRC about submitted a request for renewal of an 1. Is the proposed collection of the availability of information for this existing collection of information to information necessary for the NRC to action. You may obtain publicly- OMB for review entitled, Domestic properly perform its functions? Does the available information related to this Licensing of Source Material. The NRC information have practical utility? action by any of the following methods: hereby informs potential respondents 2. Is the estimate of the burden of the • Federal Rulemaking Website: Go to that an agency may not conduct or information collection accurate? http://www.regulations.gov and search sponsor, and that a person is not 3. Is there a way to enhance the for Docket ID NRC–2018–0047. required to respond to, a collection of quality, utility, and clarity of the • NRC’s Agencywide Documents information unless it displays a information to be collected? Access and Management System currently valid OMB control number.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61171

The NRC published a Federal NUCLEAR REGULATORY reference staff at 1–800–397–4209, 301– Register notice with a 60-day comment COMMISSION 415–4737, or by email to pdr.resource@ period on this information collection on nrc.gov. A copy of the collection of [NRC 2018–0151] August 1, 2018 (83 FR 37537). information and related instructions 1. The title of the information Information Collection: NRC Form 531, may be obtained without charge by collection: Domestic Licensing of Source ‘‘Request for Taxpayer Identification accessing ADAMS Accession No. Material. Number’’ M18291B056. The supporting statement and Request for Taxpayer Identification 2. OMB approval number: 3150–0020. AGENCY: Nuclear Regulatory Number is available in ADAMS under 3. Type of submission: Revision. Commission. Accession No. ML18114A258. 4. The form number, if applicable: ACTION: Notice of submission to the • NRC’s PDR: You may examine and Not applicable. Office of Management and Budget; purchase copies of public documents at request for comment. the NRC’s PDR, Room O1–F21, One 5. How often the collection is required White Flint North, 11555 Rockville or requested: Reports required under SUMMARY: The U.S. Nuclear Regulatory Pike, Rockville, Maryland 20852. part 40 of title 10 of the Code of Federal Commission (NRC) has recently • NRC’s Clearance Officer: A copy of Regulations (10 CFR) are collected and submitted a request for revision of an the collection of information and related evaluated on a continuing basis as existing collection of information to the instructions may be obtained without events occur. There is a one-time Office of Management and Budget charge by contacting the NRC’s submittal of information to receive a (OMB) for review. The information Clearance Officer, David Cullison, license. Renewal applications need to be collection is entitled, NRC Form 531, Office of Information Services, U.S. submitted every 15 to 40 years. ‘‘Request for Taxpayer Identification Nuclear Regulatory Commission, Information in previous applications Number.’’ Washington, DC 20555–0001; telephone: may be referenced without being 301–415–2084; email: resubmitted. In addition, recordkeeping DATES: Submit comments by December [email protected]. must be performed on an on-going basis. 28, 2018. ADDRESSES: Submit comments directly 6. Who will be required or asked to B. Submitting Comments to the OMB reviewer at: OMB Office of respond: Applicants for and holders of Information and Regulatory Affairs The NRC cautions you not to include NRC licenses authorizing the receipt, (3150–0188), Attn: Desk Officer for the identifying or contact information in possession, use, or transfer of Nuclear Regulatory Commission, 725 comment submissions that you do not radioactive source material. 17th Street NW, Washington, DC 20503; want to be publicly disclosed in your 7. The estimated number of annual email: [email protected]. comment submission. All comment submissions are posted at http:// responses: 1,390 (750 reporting FOR FURTHER INFORMATION CONTACT: www.regulations.gov and entered into responses + 6 third party disclosure David Cullison, Office of the Chief ADAMS. Comment submissions are not responses + 634 recordkeepers). Information Officer, U.S. Nuclear routinely edited to remove identifying 8. The estimated number of annual Regulatory Commission, Washington, or contact information. respondents: 634. DC 20555–0001; telephone: 301–415– If you are requesting or aggregating 9. The estimated number of hours 2084; email: INFOCOLLECTS.Resource@ nrc.gov. comments from other persons for needed annually to comply with the submission to the OMB, then you information collection requirement or SUPPLEMENTARY INFORMATION: should inform those persons not to request: 16,928 (11,366 reporting + I. Obtaining Information and include identifying or contact 5,544 recordkeeping + 18 third party Submitting Comments information that they do not want to be disclosure). publicly disclosed in their comment 10. Abstract: The NRC regulations in A. Obtaining Information submission. Your request should state 10 CFR part 40 establish procedures and Please refer to Docket ID NRC–2018– that comment submissions are not criteria for the issuance of licenses to 0151 when contacting the NRC about routinely edited to remove such receive title to, receive, possess, use, the availability of information for this information before making the comment transfer, or deliver source and action. You may obtain publicly- submissions available to the public or byproduct material. The application, available information related to this entering the comment into ADAMS. reporting, recordkeeping, and third action by any of the following methods: II. Background party notification requirements are • Federal Rulemaking Website: Go to necessary to permit the NRC to make a http://www.regulations.gov and search Under the provisions of the determination as to whether the for Docket ID NRC–2018–0151. A copy Paperwork Reduction Act of 1995 (44 possession, use, and transfer of source of the collection of information and U.S.C. Chapter 35), the NRC recently and byproduct material is in related instructions may be obtained submitted a request for renewal of an conformance with the Commission’s without charge by accessing Docket ID existing collection of information to regulations for protection of public NRC–2018–0151 on this website. OMB for review entitled, NRC Form health and safety. • NRC’s Agencywide Documents 531, ‘‘Request for Taxpayer Identification Number.’’ The NRC Dated at Rockville, Maryland, this 23rd day Access and Management System of November 2018. (ADAMS): You may obtain publicly- hereby informs potential respondents available documents online in the that an agency may not conduct or For the Nuclear Regulatory Commission. ADAMS Public Documents collection at sponsor, and that a person is not David C. Cullison, http://www.nrc.gov/reading-rm/ required to respond to, a collection of NRC Clearance Officer, Office of the Chief adams.html. To begin the search, select information unless it displays a Information Officer. ‘‘Begin Web-based ADAMS Search.’’ For currently valid OMB control number. [FR Doc. 2018–25935 Filed 11–27–18; 8:45 am] problems with ADAMS, please contact The NRC published a Federal BILLING CODE 7590–01–P the NRC’s Public Document Room (PDR) Register notice with a 60-day comment

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61172 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

period on this information collection on NUCLEAR REGULATORY adams.html. To begin the search, select August 1, 2018 (83 FR 37528). COMMISSION ‘‘Begin Web-based ADAMS Search.’’ For problems with ADAMS, please contact 1. The title of the information [Docket Nos. 50–317, 50–318, 72–8, 50–333, collection: NRC Form 531, ‘‘Request for the NRC’s Public Document Room (PDR) 72–12, 50–220, 50–410, 72–1036; NRC– reference staff at 1–800–397–4209, 301– Taxpayer Identification Number.’’ 2018–0262] 415–4737, or by email to pdr.resource@ 2. OMB approval number: 3150–0188. Exelon Generation Company, LLC; nrc.gov. The ADAMS accession number 3. Type of submission: Extension. Calvert Cliffs Nuclear Power Plant, for each document referenced (if it is 4. The form number if applicable: Units 1 and 2; Calvert Cliffs available in ADAMS) is provided the NRC Form 531. Independent Spent Fuel Storage first time that it is mentioned in this Installation; James A. FitzPatrick document. In addition, for the 5. How often the collection is required Nuclear Power Plant; Nine Mile Point convenience of the reader, the ADAMS or requested: Licensees are only Nuclear Station, Units 1 and 2 accession numbers are provided in a required to submit once, however, a table in the ‘‘Availability of Documents’’ continuous monthly request is sent until AGENCY: Nuclear Regulatory section of this document. the licensee submits the Taxpayer Commission. • NRC’s PDR: You may examine and Identification Number. ACTION: Environmental assessment and purchase copies of public documents at 6. Who will be required or asked to finding of no significant impact; the NRC’s PDR, Room O1–F21, One respond: NRC Form 531 is used to issuance. White Flint North, 11555 Rockville collect TINs and information sufficient Pike, Rockville, Maryland 20852. SUMMARY: The U.S. Nuclear Regulatory to identify the licensee or applicant for FOR FURTHER INFORMATION CONTACT: Commission (NRC) is considering a Blake A. Purnell, Office of Nuclear licenses, certificates, approvals and request to amend licenses held by registrations. Reactor Regulation, U.S. Nuclear Exelon Generation Company, LLC Regulatory Commission, Washington, 7. The estimated number of annual (Exelon, the licensee) for the operation DC 20555–0001; telephone: 301–415– responses: 300 responses. of Calvert Cliffs Nuclear Power Plant 1380; email: [email protected]. 8. The estimated number of annual (Calvert Cliffs), Units 1 and 2; James A. SUPPLEMENTARY INFORMATION: respondents: 300 respondents. FitzPatrick Nuclear Power Plant (FitzPatrick); and Nine Mile Point I. Introduction 9. An estimate of the total number of Nuclear Station (Nine Mile Point), Units The NRC is considering a request by hours needed annually to comply with 1 and 2 (the facilities). Amending these Exelon to amend the following the information collection requirement operating licenses would also affect the operating licenses: (1) Renewed Facility or request: 75 hours. independent spent fuel storage Operating License Nos. DPR–53 and 10. Abstract: The Debt Collection installations (ISFSIs) at each facility. DPR–69 for Calvert Cliffs, Units 1 and Improvement Act of 1996 requires that The proposed license amendments 2, respectively, located in Calvert agencies collect taxpayer identification would revise the emergency response County, Maryland; (2) Renewed Facility numbers (TINs) from individuals who organization (ERO) positions identified Operating License No. DPR–59 for do business with the Government, in the emergency plan for each facility. FitzPatrick located in Oswego County, including contractors and recipients of The NRC is issuing an environmental New York; and (3) Renewed Facility credit, licenses, permits, and benefits. assessment (EA) and finding of no Operating License Nos. DPR–63 and significant impact (FONSI) associated The TIN will be used to process all NPF–69 for Nine Mile Point, Units 1 with the proposed license amendments. electronic payments (refunds) made to and 2, respectively, located in Oswego licensees by electronic funds transfer by DATES: The EA and FONSI referenced in County, New York. Amending these the Department of the Treasury. The this document are available on operating licenses would also affect the Department of the Treasury will use the November 28, 2018. Calvert Cliffs ISFSI (Renewed License No. SNM–2505) and the generally TIN to determine whether the refund ADDRESSES: Please refer to Docket ID licensed FitzPatrick and Nine Mile can be used to administratively offset NRC–2018–0262 when contacting the Point ISFSIs, which are co-located with any delinquent debts reported to the NRC about the availability of information regarding this document. the reactor facilities. Treasury by other government agencies. In accordance with section 51.21 of In addition, the TIN will be used to You may obtain publicly-available information related to this document title 10 of the Code of Federal collect and report to the Department of using any of the following methods: Regulations (10 CFR), the NRC prepared the Treasury any delinquent • Federal Rulemaking Website: Go to the following EA that analyzes the indebtedness arising out of the http://www.regulations.gov and search environmental impacts of the proposed licensee’s or applicant’s relationship for Docket ID NRC–2018–0262. Address licensing action. Based on the results of with the NRC. any questions about Docket IDs in this EA, and in accordance with 10 CFR Dated at Rockville, Maryland, this 23rd of Regulations.gov to Jennifer Borges; 51.31(a), the NRC has determined not to November, 2018. telephone: 301–287–9127; email: prepare an environmental impact statement for the proposed licensing For the Nuclear Regulatory Commission. [email protected]. For technical action, and is issuing a FONSI. David C. Cullison, questions, contact the individual listed in the FOR FURTHER INFORMATION NRC Clearance Officer, Office of the Chief II. Environmental Assessment CONTACT section of this document. Information Officer. • NRC’s Agencywide Documents Description of the Proposed Action [FR Doc. 2018–25937 Filed 11–27–18; 8:45 am] Access and Management System The proposed action would revise the BILLING CODE 7590–01–P (ADAMS): You may obtain publicly- ERO positions identified in the available documents online in the emergency plan for each facility, ADAMS Public Documents collection at including the on-shift, minimum, and http://www.nrc.gov/reading-rm/ full-augmentation ERO staffing

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61173

requirements. The proposed revisions Accession No. ML18022A352). This will not increase staffing levels and will include eliminating ERO positions; alternative guidance is also included in not involve ground disturbing activities, adding ERO positions; changing draft Revision 2 to NUREG–0654/ modification of plant operation systems, position descriptions, duties, and duty FEMA–REP–1, ‘‘Criteria for Preparation or new construction, there would be no locations; and relocating certain and Evaluation of Radiological noticeable effect on socioeconomic position descriptions to other parts of Emergency Response Plans and conditions in the region, no the emergency plan or to implementing Preparedness in Support of Nuclear environment justice impacts, and no procedures. Power Plants’’ (ADAMS Accession Nos. impacts to historic and cultural The proposed action is in accordance ML14163A605 and ML17083A815). resources from the proposed changes. with the licensee’s application dated This change would provide Exelon with Therefore, there would be no significant August 31, 2018 (ADAMS Package greater flexibility in staffing ERO nonradiological environmental impacts Accession No. ML18249A096). positions. Additionally, this change associated with the proposed action. Need for the Proposed Action reflects changes in NRC regulations and With regard to potential radiological guidance, as well as advances in environmental impacts, if the NRC Nuclear power plant owners, Federal technologies and best practices, that staff’s safety review of the proposed agencies, and State and local officials have occurred since NUREG–0654/ changes to the licensee’s emergency work together to create a system for FEMA–REP–1, Revision 1, was plans determines that the emergency emergency preparedness and response published in 1980. The application plans would continue to meet the that will serve the public in the unlikely indicates that Exelon provided the State standards of 10 CFR 50.47(b) and the event of an emergency. An effective of New York a draft of the license requirements in appendix E to 10 CFR emergency preparedness program amendment request for FitzPatrick and part 50, then the proposed action would decreases the likelihood of an initiating Nine Mile Point, and that the State of not increase the probability or event at a nuclear power reactor New York had no concerns. The consequences of radiological accidents. proceeding to a severe accident. application also indicates that Exelon Emergency preparedness cannot affect provided the State of Maryland a draft Additionally, the NRC staff has the probability of the initiating event, of the license amendment request for concluded that the proposed changes but a high level of emergency Calvert Cliffs, and that the State of would have no radiological preparedness increases the probability Maryland found the proposed changes environmental impacts. There would be of accident mitigation if the initiating acceptable. no change to the types or amounts of event proceeds beyond the need for radioactive effluents that may be initial operator actions. Environmental Impacts of the Proposed released and, therefore, no change in Each licensee is required to establish Action occupational or public radiation an emergency plan to be implemented The proposed action consists of exposure from the proposed changes. in the event of an accident, in changes related to staffing positions, Moreover, no changes would be made to accordance with 10 CFR 50.47 and position descriptions, duties, and duty plant buildings or the site property from appendix E to 10 CFR part 50. The locations specified in the emergency the proposed changes. Therefore, there emergency plan covers preparation for plans for Calvert Cliffs, FitzPatrick, and would be no significant radiological evacuation, sheltering, and other actions Nine Mile Point. The on-shift, environmental impacts associated with to protect individuals near plants in the minimum, and full-augmentation ERO the proposed action. event of an accident. staffing requirements listed in the Environmental Impacts of the The NRC, as well as other Federal and emergency plan would be revised. The Alternatives to the Proposed Action State regulatory agencies, reviews revisions include eliminating ERO emergency plans to ensure that they positions; adding ERO positions; As an alternative to the proposed provide reasonable assurance that changing position descriptions, duties, action, the NRC staff considered denial adequate protective measures can and and duty locations; and relocating of the license amendment request (i.e., will be taken in the event of a certain position descriptions to other the ‘‘no-action’’ alternative). Denial of radiological emergency. parts of the emergency plan or to the license amendment request would In addition to this EA, the NRC is implementing procedures. result in no change in current conducting a safety assessment of With regard to potential environmental impacts. Accordingly, Exelon’s proposed changes to the nonradiological environmental impacts, the environmental impacts of the emergency plan for each facility. This the proposed changes would have no proposed action and the no-action safety review will be documented in a impacts on land use or water resources, alternative would be similar. separate safety evaluation. The safety including terrestrial and aquatic biota, evaluation of the proposed changes to as they involve no new construction, Alternative Use of Resources the emergency plans will determine ground disturbing activities, or whether there continues to be modification of plant operational There are no unresolved conflicts reasonable assurance that adequate systems. There would be no changes to concerning alternative uses of available protective measures can and will be the quality or quantity of resources under the proposed action. taken in the event of a radiological nonradiological effluents and no Agencies and Persons Consulted emergency at Calvert Cliffs, FitzPatrick, changes to the plants’ National Pollutant or Nine Mile Point, in accordance with Discharge Elimination System permits. No additional agencies or persons the standards of 10 CFR 50.47(b) and the The overall staffing levels are not were consulted regarding the requirements in appendix E to 10 CFR expected to increase; therefore, worker environmental impact of the proposed part 50. vehicle air emissions are not expected to action. However, in accordance with 10 The proposed action would align the increase and established threshold CFR 50.91, the licensee provided copies emergency plans for the facilities with emissions set forth in 40 CFR 93.153(b) of its application to the States of New the NRC’s alternative guidance for EROs for designated nonattainment or York and Maryland, and the NRC staff provided in a June 12, 2018, letter to the maintenance areas would not be will consult with these states prior to Nuclear Energy Institute (ADAMS exceeded. Since the proposed changes issuance of the amendments.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61174 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

III. Finding of No Significant Impact affected is because the proposed This FONSI and other related The licensee has requested license changes are not expected to increase the environmental documents may be amendments pursuant to 10 CFR overall staffing levels and do not examined, and/or copied for a fee, at the 50.54(q) to revise the ERO positions involve any construction or NRC’s PDR, located at One White Flint identified in the emergency plans for modification of the specified facilities. North, 11555 Rockville Pike, Rockville, Calvert Cliffs, FitzPatrick, and Nine This FONSI incorporates by reference Maryland 20852. Publicly-available Mile Point by eliminating ERO the EA in Section II of this notice. records are also accessible online in the positions; adding ERO positions; Therefore, the NRC concludes that the ADAMS Public Documents collection at changing position descriptions, duties, proposed action would not have a http://www.nrc.gov/reading-rm/ and duty locations; and relocating significant effect on the quality of the adams.html. Persons who do not have certain position descriptions to other human environment. Accordingly, the access to ADAMS or who encounter parts of the emergency plan or to NRC has determined there is no need to problems in accessing the documents implementing procedures. The NRC is prepare an environmental impact located in ADAMS should contact the considering issuing the requested statement for the proposed action. NRC’s PDR reference staff by telephone amendments. The proposed action Previous considerations regarding the at 1–800–397–4209 or 301–415–4737, or would not significantly affect plant environmental impacts of operating by email to [email protected]. safety, would not have a significant Calvert Cliffs, Units 1 and 2; Calvert IV. Availability of Documents adverse effect on the probability of an Cliffs ISFSI; FitzPatrick; and Nine Mile accident occurring, and would not have Point, Units 1 and 2, in accordance with The documents identified in the any significant radiological or their renewed operating licenses, are following table are available to nonradiological impacts. The reason the described in the documents listed in the interested persons through one or more environment would not be significantly table in Section IV. of the following methods, as indicated.

Document ADAMS Accession No.

Exelon, License Amendment Request for Approval of Changes to Emergency Plan Staffing Requirements, dated Au- ML18249A096 gust 31, 2018. NRC letter to the Nuclear Energy Institute, Alternative Guidance for Licensee Emergency Response Organizations, ML18022A352 dated June 12, 2018. NUREG-0654/FEMA-REP-1, draft Revision 2, ‘‘Criteria for Preparation and Evaluation of Radiological Emergency Re- ML14163A605 and sponse Plans and Preparedness in Support of Nuclear Power Plants’’. ML17083A815 NUREG-1437, Supplement 1, ‘‘Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Re- ML063400277 garding the Calvert Cliffs Nuclear Power Plant,’’ Final Report, dated October 1999. NRC, ‘‘Environmental Assessment for the Proposed Renewal of U.S. Nuclear Regulatory Commission License No. ML14282A278 SNM–2505 for Exelon Generation Corporation [sic], LLC’s Calvert Cliffs Independent Spent Fuel Storage Installa- tion,’’ dated October 2014. NUREG-1437, Supplement 31, ‘‘Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Re- ML080170183 garding James A. FitzPatrick Nuclear Power Plant,’’ Final Report, dated January 2008. NUREG-1437, Supplement 24, ‘‘Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Re- ML061290310 garding James A. FitzPatrick Nuclear Power Plant,’’ Final Report, dated May 2006.

Dated at Rockville, Maryland, on comment on the revision of a currently opm.gov or faxed to (202) 606–0910 or November 23, 2018. approved information collection, RI 20– via telephone at (202) 606–4808. For the Nuclear Regulatory Commission. 126—Certification of Qualifying District SUPPLEMENTARY INFORMATION: As Blake A. Purnell, of Columbia Service under Section 1905 required by the Paperwork Reduction Project Manager, Plant Licensing Branch III, of Public Law 111–84. Act of 1995 (Pub. L. 104–13, 44 U.S.C. Division of Operating Reactor Licensing, DATES: Comments are encouraged and chapter 35) OPM is soliciting comments Office of Nuclear Reactor Regulation. will be accepted until January 28, 2019. for this collection (OMB No. 3206– [FR Doc. 2018–25930 Filed 11–27–18; 8:45 am] 0268). We are particularly interested in BILLING CODE 7590–01–P ADDRESSES: Interested persons are comments that: invited to submit written comments on 1. Evaluate whether the proposed the proposed information collection to collection of information is necessary Retirement Services, Office of Personnel OFFICE OF PERSONNEL for the proper performance of functions Management, 1900 E Street NW, MANAGEMENT of the agency, including whether the Washington, DC 20415, Attention: information will have practical utility; Alberta Butler, Room 2347–E, or sent Information Collection: RI 20–126— 2. Evaluate the accuracy of the via electronic mail to Alberta.Butler@ Certification of Qualifying District of agency’s estimate of the burden of the opm.gov. Columbia Service Under Section 1905 proposed collection of information, of Public Law 111–84 FOR FURTHER INFORMATION CONTACT: A including the validity of the AGENCY: Office of Personnel copy of this information collection methodology and assumptions used; Management. instrument with applicable supporting 3. Enhance the quality, utility, and ACTION: 60-Day notice and request for documentation, may be obtained by clarity of the information to be comments. contacting the Retirement Services collected; and Publications Team, Office of Personnel 4. Minimize the burden of the SUMMARY: The Retirement Services, Management, 1900 E Street NW, Room collection of information on those who Office of Personnel Management (OPM) 3316–L, Washington, DC 20415, are to respond, including through the offers the general public and other Attention: Cyrus S. Benson, or sent via use of appropriate automated, federal agencies the opportunity to electronic mail to Cyrus.Benson@ electronic, mechanical, or other

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61175

technological collection techniques or Services Publications Team, Office of OFFICE OF PERSONNEL other forms of information technology, Personnel Management, 1900 E Street MANAGEMENT e.g., permitting electronic submissions NW, Room 3316–L, Washington, DC of responses. 20415, Attention: Cyrus S. Benson, or Submission for Review: Reinstatement RI 20–126 is used to certify that an sent by email to [email protected] of a Previously Approved Information employee performed certain service or faxed to (202) 606–0910 or via Collection With Revision, Office of with the District of Columbia (DC) that telephone at (202) 606–4808. Personnel Management (OPM) Standard Form (SF) 15, Application for qualifies under section 1905 of Public SUPPLEMENTARY INFORMATION: As Law 111–84 for determining retirement 10-Point Veteran Preference, OMB No. required by the Paperwork Reduction 3206–0001 eligibility. However, this service cannot Act of 1995 (Pub. L. 104–13, 44 U.S.C. be used in the computation of a chapter 35) as amended by the Clinger- AGENCY: Office of Personnel retirement benefit. Cohen Act (Pub. L. 104–106), OPM is Management. Analysis soliciting comments for this collection ACTION: 30-Day notice and request for (OMB No. 3206–0042). The Office of Agency: Retirement Operations, comments. Management and Budget is particularly Retirement Services, Office of Personnel interested in comments that: SUMMARY: The Office of Personnel Management. Management (OPM)’s Talent 1. Evaluate whether the proposed Title: Certification of Qualifying Acquisition and Workforce Shaping collection of information is necessary District of Columbia Service under Center offers the general public and for the proper performance of functions Section 1905 of Public Law 111–84 (RI other Federal agencies the opportunity of the agency, including whether the 20–126). to comment on a request for OMB Number: 3206–0268. information will have practical utility; reinstatement of a revised information Frequency: On occasion. 2. Evaluate the accuracy of the collection for the Standard Form (SF) Affected Public: Individuals or agency’s estimate of the burden of the 15, Application for 10-Point Veteran households. proposed collection of information, Preference. As required by the Number of Respondents: 1,000. including the validity of the Paperwork Reduction Act of 1995, as Estimated Time per Respondent: 30 methodology and assumptions used; amended by the Clinger-Cohen Act, minutes. 3. Enhance the quality, utility, and OPM is soliciting comments for this Total Burden Hours: 500 hours. clarity of the information to be collection. The information collection Office of Personnel Management. collected; and was previously published in the Federal Alexys Stanley, 4. Minimize the burden of the Register on November 21, 2017, Regulatory Affairs Analyst. collection of information on those who allowing for a 60-day public comment period. Two comments were received [FR Doc. 2018–25902 Filed 11–27–18; 8:45 am] are to respond, including through the use of appropriate automated, for this information collection. The BILLING CODE 6325–38–P electronic, mechanical, or other purpose of this notice is to allow an technological collection techniques or additional 30 days for public comments. OFFICE OF PERSONNEL other forms of information technology, DATES: Comments are encouraged and MANAGEMENT e.g., permitting electronic submissions will be accepted until December 28, of responses. 2018. This process is conducted in Submission for Review: Notice of RI 25–15, Notice of Change in accordance with 5 CFR 1320.1. Change in Student’s Status, RI 25–15 Student’s Status, is used to collect ADDRESSES: Interested persons are sufficient information from adult invited to submit written comments on AGENCY: U.S. Office of Personnel children of deceased Federal employees the revised information collection to Management. or annuitants to assure that the child Kimberly A. Holden, Deputy Associate ACTION: 60-Day notice and request for continues to be eligible for payments Director for Talent Acquisition and comments. from OPM. Workforce Shaping, Employee Services, U.S. Office of Personnel Management, SUMMARY: The Retirement Services, Analysis Room 6351D, 1900 E Street NW, Office of Personnel Management (OPM) Washington, DC 20415–9700; email offers the general public and other Agency: Retirement Operations, [email protected]; or fax (202) 606– Federal agencies the opportunity to Retirement Services, Office of Personnel 2329; and to OMB Designee, OPM Desk comment on a revised information Management. Officer, Office of Management and collection request (ICR), Notice of Title: Notice of Change in Student’s Budget, Office of Information and Change in Student’s Status, RI 25–15. Status. Regulatory Affairs, New Executive OMB: 3206–0042. DATES: Comments are encouraged and Office Building NW, Room 10235, will be accepted until January 28, 2019. Frequency: On occasion. Washington, DC 20503; email oira_ ADDRESSES: Interested persons are Affected Public: Individuals or [email protected]; or fax (202) invited to submit written comments on Households. 395–6974. the proposed information collection to, Number of Respondents: 2,500. FOR FURTHER INFORMATION CONTACT: Retirement Services, U.S. Office of Estimated Time per Respondent: 20 A copy of this information collection Personnel Management, 1900 E Street, minutes. request, with applicable supporting NW, Washington, DC 20415, Attention: Total Burden Hours: 835. documentation, may be obtained by Alberta Butler, Room 2347E, or sent by contacting the Office of Information and email to [email protected]. U.S. Office of Personnel Management. Regulatory Affairs, Office of FOR FURTHER INFORMATION CONTACT: A Alexys Stanley, Management Budget, 725 17th Street copy of this ICR with applicable Regulatory Affairs Analyst. NW, Washington, DC 20503, Attention: supporting documentation, may be [FR Doc. 2018–25904 Filed 11–27–18; 8:45 am] Desk Officer for the Office of Personnel obtained by contacting the Retirement BILLING CODE 6325–38–P Management or sent via email to

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61176 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

[email protected] or faxed utility and is needed to properly Analysis to (202) 395–6974. adjudicate veterans’ preference in case Agency: Talent Acquisition and SUPPLEMENTARY INFORMATION: The Office exam announcements. The same agency Workforce Shaping, Office of Personnel of Management and Budget is agreed with OPM’s analysis and Management. particularly interested in comments commented that the changes in the form Title: SF 15, Application for 10-Point that: are likely to provide small increases in Veteran Preference. 1. Evaluate whether the proposed the quality, utility and clarity of the OMB Number: 3206–0001. collection of information is necessary information to be collected. This agency Affected Public: Disabled Veterans. for the proper performance of the made three suggestions on the content Number of Respondents: 18,418. functions of the agency, including of the form. First, on Page 2, Item F, the Estimated Time per Respondent: 33.5 whether the information will have agency suggested changing ‘‘physician’’ minutes. practical utility; to ‘‘health care provider’’ to be more in Total Burden Hours: 10,283 hours. 2. Evaluate the accuracy of the line with current regulations and to agency’s estimate of the burden of the recognize that patients may be treated Office of Personnel Management. proposed collection of information, by someone other than a physician. Alexys Stanley, including the validity of the OPM agrees and is changing Regulatory Affairs Analyst. methodology and assumptions used; ‘‘physician’’ to ‘‘licensed medical [FR Doc. 2018–25903 Filed 11–27–18; 8:45 am] 3. Enhance the quality, utility, and professional.’’ BILLING CODE 6325–39–P clarity of the information to be Second, the agency asked to have the collected; and veteran’s signature block added back on 4. Minimize the burden of the the form to certify that the applicant has OFFICE OF PERSONNEL collection of information on those who read, understood, and is providing MANAGEMENT are to respond, including through the accurate information. OPM is not use of appropriate automated, adopting this suggestion. Many veterans Information Collection: Application for electronic, mechanical, or other and other applicants claiming 10-point Death Benefits Under the Federal technological collection techniques or veterans’ preference complete an Employees Retirement System (SF other forms of information technology, electronic version of the SF 15 which 3104); and Documentation & Elections e.g., permitting electronic submissions can make signing the form difficult. in Support of Application for Death of responses. After an offer of employment is made Benefits When Deceased Was an The SF 15, Application for 10-Point and/or at the time of appointment, an Employee at the Time of Death (SF Veteran Preference, is used by veterans applicant signs the Optional Form (OF) 3104B) as both a request for preference and a 306, Declaration for Federal AGENCY: guide to determine the appropriate Employment, certifying that all Office of Personnel documentation to submit to support application material submitted is true, Management. their claims of 10-point veterans’ correct, complete, and made in good ACTION: 60-Day notice and request for preference when applying for Federal faith. This covers the SF 15 submitted comments. employment. The SF 15, and the at the time of application and, therefore, SUMMARY: The Retirement Services, accompanying documentation, is used it is unnecessary for the applicant to Office of Personnel Management (OPM) by agencies, OPM examining offices, sign the SF 15 separately. offers the general public and other and agency appointing officials to Third, the agency suggested adding federal agencies the opportunity to adjudicate individuals’ claims for web links to the general veteran comment on the revision of a currently veterans’ preference in accordance with information from OPM to assist approved information collection, the Veterans’ Preference Act of 1944, as applicants. OPM is adopting this Application for Death Benefits under amended. The proposed revisions to the suggestion and adding the OPM web the Federal Employees Retirement SF 15 are necessary to update language address in the instructions section on System (SF 3104); and Documentation & as a result of the enactment of the Gold the form. Elections in Support of Application for Star Fathers Act of 2015 (Pub. L. 114– To minimize the burden of collection Death Benefits When Deceased Was an 62), derived veterans’ preference for of information on veterans, another Employee at the Time of Death (SF parents, and to make additional agency suggested adding a statement on 3104B). corrections on the form, as follows: page 2 to indicate that questions 1–7 • Page 1, Item 9 is revised to reflect only need to be answered if the person DATES: Comments are encouraged and derived veterans’ preference for parents. claiming preference is not the veteran. will be accepted until January 28, 2019. • OPM is adopting this suggestion. This Page 2, Item A, 4th bullet is ADDRESSES: Interested persons are same agency suggested adding clarity to corrected to read that certification is of invited to submit written comments on item C on page 2 to state that ‘‘all of the an expected discharge or release from the proposed information collection to following’’ must be included in the active duty service in the armed forces Retirement Services, Office of Personnel documentation provided by spouses and under honorable conditions not later Management, 1900 E Street NW, parents. OPM is adopting this than 120 days after the date the Washington, DC 20415, Attention: suggestion. certification is submitted. Alberta Butler, Room 2347–E, or sent • Page 2, Items C and F are corrected The SF 15 will continue to be available as a PDF fillable form for via electronic mail to Alberta.Butler@ to reflect derived veterans’ preference opm.gov. for parents. applicant use. The only acceptable • Several punctuation errors are version of this form will be as stated FOR FURTHER INFORMATION CONTACT: A corrected. above, but consistent with current copy of this information collection practice, the form may be submitted instrument with applicable supporting Comments electronically or in hard copy. The SF documentation, may be obtained by OPM received comments from two 15 will be obtainable on the OPM contacting the Retirement Services Federal agencies. One agency website at https://www.opm.gov/forms/ Publications Team, Office of Personnel commented that the form has practical standard-forms/. Management, 1900 E Street NW, Room

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61177

3316–L, Washington, DC 20415, Office of Personnel Management. set forth in sections A, B, and C below, Attention: Cyrus S. Benson, or sent via Alexys Stanley, of the most significant parts of such electronic mail to Cyrus.Benson@ Regulatory Affairs Analyst. statements. opm.gov or faxed to (202) 606–0910 or [FR Doc. 2018–25901 Filed 11–27–18; 8:45 am] via telephone at (202) 606–4808. A. Self-Regulatory Organization’s BILLING CODE 6325–38–P Statement of the Purpose of, and the SUPPLEMENTARY INFORMATION: Statutory Basis for, the Proposed Rule As required by the Paperwork Change Reduction Act of 1995 (Pub. L. 104–13, SECURITIES AND EXCHANGE 44 U.S.C. chapter 35) OPM is soliciting COMMISSION 1. Purpose comments for this collection (OMB No. [Release No. 34–84644; File No. SR– (1) Generally [sic] 3206–0172). We are particularly NYSENAT–2018–24] interested in comments that: The Exchange proposes to the amend 1. Evaluate whether the proposed Self-Regulatory Organizations; NYSE the Amended and Restated Certificate of collection of information is necessary National, Inc.; Notice of Filing and Incorporation of the Exchange for the proper performance of functions Immediate Effectiveness of Proposed (‘‘Exchange Certificate’’) and the Fifth of the agency, including whether the Rule Change To Amend Its Certificate Amended and Restated Bylaws of the information will have practical utility; of Incorporation and Bylaws Exchange (‘‘Exchange Bylaws’’) to (1) 2. Evaluate the accuracy of the harmonize certain provisions agency’s estimate of the burden of the November 21, 2018. 1 thereunder with similar provisions in proposed collection of information, Pursuant to Section 19(b)(1) of the the governing documents of the including the validity of the Securities Exchange Act of 1934 2 3 Exchange’s national securities exchange methodology and assumptions used; (‘‘Act’’) and Rule 19b–4 thereunder, affiliates 4 and parent companies; and 3. Enhance the quality, utility, and notice is hereby given that on November (2) make clarifying and updating clarity of the information to be 20, 2018, NYSE National, Inc. changes. collected; and (‘‘Exchange’’ or ‘‘NYSE National’’) filed with the Securities and Exchange The Exchange is owned by NYSE 4. Minimize the burden of the Group, Inc. (‘‘NYSE Group’’), which in collection of information on those who Commission (‘‘Commission’’) the proposed rule change as described in turn is indirectly wholly owned by are to respond, including through the NYSE Holdings LLC (‘‘NYSE use of appropriate automated, Items I, II, and III below, which Items have been prepared by the Exchange. Holdings’’). NYSE Holdings is a wholly electronic, mechanical, or other owned subsidiary of Intercontinental technological collection techniques or The Commission is publishing this notice to solicit comments on the Holdings, Inc. (‘‘ICE Holdings’’), which other forms of information technology, is in turn wholly owned by the e.g., permitting electronic submissions proposed rule change from interested persons. Intercontinental Exchange, Inc. of responses. (‘‘ICE’’).5 SF 3104, Application for Death I. Self-Regulatory Organization’s Benefits under the Federal Employees Statement of the Terms of Substance of The Exchange operates as a separate Retirement System, is needed to collect the Proposed Rule Change self-regulatory organization and has rules and membership rosters distinct information so that OPM can pay death The Exchange proposes to amend its benefits to the survivor of Federal from the rules and membership rosters certificate of incorporation and bylaws of the other NYSE Group Exchanges. At employees and annuitants. SF 3104B, to (1) harmonize certain provisions Documentation in Support of the same time, however, the Exchange thereunder with similar provisions in believes it is important for each of the Application for Death Benefits When the governing documents of the Deceased Was an Employee at the Time NYSE Group Exchanges to have a Exchange’s national securities exchange consistent approach to corporate of Death, is needed for deaths in service affiliates and parent companies; and (2) so that survivors can make the needed governance in certain matters, to make clarifying and updating changes. simplify complexity and create greater elections regarding health benefits, The proposed rule change is available military service and payment of the on the Exchange’s website at death benefit. 4 The Exchange has four registered national www.nyse.com, at the principal office of securities exchange affiliates: NYSE Arca, Inc. Analysis the Exchange, and at the Commission’s (‘‘NYSE Arca’’), New York Stock Exchange LLC Public Reference Room. (‘‘NYSE’’), NYSE American LLC (‘‘NYSE Agency: Retirement Operations, American’’), and Chicago Stock Exchange, Inc. Retirement Services, Office of Personnel II. Self-Regulatory Organization’s (‘‘CHX’’ and together with the Exchange, NYSE Management. Statement of the Purpose of, and Arca, NYSE American, and NYSE, the ‘‘NYSE Group Exchanges’’). CHX has filed to change its Title: Application for Death Benefits Statutory Basis for, the Proposed Rule name to NYSE Chicago, Inc. See Exchange Act under the Federal Employees Change Release No. 84494 (October 26, 2018) (SR–CHX– Retirement System and Documentation In its filing with the Commission, the 2018–05) (‘‘NYSE Chicago Release’’) (notice of filing & Elections in Support of Application and immediate effectiveness of proposal to reflect self-regulatory organization included name changes of the Exchange and its direct parent for Death Benefits When Deceased Was statements concerning the purpose of, company and to amend certain corporate an Employee at the Time of Death. and basis for, the proposed rule change governance provisions). The rule changes set forth OMB Number: 3206–0172. and discussed any comments it received in the NYSE Chicago Release will become operative Frequency: On occasion. upon the Second Amended and Restated Certificate on the proposed rule change. The text of Incorporation of Chicago Stock Exchange, Inc. Affected Public: Individuals or of those statements may be examined at (‘‘NYSE Chicago Certificate’’) becoming effective households. the places specified in Item IV below. pursuant to its filing with the Secretary of State of Number of Respondents: SF 3104 = The Exchange has prepared summaries, the State of Delaware. 12,734 and SF 3104B = 4,017. 5 See Exchange Act Release No. 79902 (January 30, 2017), 82 FR 9258 (February 3, 2017) (SR–NSX– Estimated Time per Respondent: 60 1 15 U.S.C. 78s(b)(1). 2016–16) (order approving proposed rule change in minutes. 2 15 U.S.C. 78a. connection with proposed acquisition of the Total Burden Hours: 16,751 hours. 3 17 CFR 240.19b–4. Exchange by NYSE Group, Inc.).

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61178 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

consistency among the NYSE Group reflect that the legal name of the ‘‘Delaware’’ with ‘‘the State of Exchanges.6 Exchange is not entirely in capital Delaware.’’ Because the Exchange is a Delaware letters. corporation, most of the proposed Date Article SECOND and Certificate of changes are based on the governing The Exchange proposes to update the Change of Registered Agent and/or documents of CHX, which is also a date in the final paragraph. Delaware corporation, and NYSE Arca, Registered Office Proposed Amendments to the Exchange which is a Delaware non-stock In a non-substantive change, the Bylaws corporation, as the most comparable Exchange proposes to update the NYSE Group Exchanges.7 The proposed address of the registered office and The Exchange proposes to amend the Exchange Certificate and Exchange name of the registered agent, as Exchange Bylaws as follows. Bylaws reflect the expectation that the previously filed, and, because such Conforming Changes Exchange will continue to be operated address and office are no longer the with a governance structure initial address and office, delete the In non-substantive changes, the substantially similar to that of other word ‘‘initial’’ from the provision. The Exchange proposes to delete the cover NYSE Group Exchanges, primarily CHX Exchange also proposes to delete the page and table of contents of the and NYSE Arca. ‘‘Certificate of Change of Registered Exchange Bylaws, and amend the title to The other changes described herein Agent and/or Registered Office.’’ 9 reflect that the proposed Exchange would become operative upon the Bylaws are the ‘‘Sixth Amended and Article FIFTH Exchange Certificate becoming effective Restated Bylaws of NYSE National, pursuant to its filing with the Secretary Current paragraph (b) of Article Inc.’’ of State of the State of Delaware. FIFTH (Removal of Directors) provides The proposed amendments described that any director may be removed from Article III (Board of Directors) below are primarily based on the office by a vote of the stockholders at Section 3.6 (Vacancies): Section Second Amended and Restated any time with or without cause, except 3.6(a)(i) provides that any vacancy on Certificate of Incorporation of Chicago that Non-Affiliated Directors, as defined the Board may be filled by the Chairman Stock Exchange, Inc. (‘‘NYSE Chicago in the Exchange Bylaws, may only be of the Board, subject to the approval by Certificate’’), the Second Amended and removed for cause. The Exchange a majority of the directors then in office, Restated By-Laws of NYSE Chicago, Inc. proposes to amend the definition of and that any vacancy will be filled with 8 (‘‘NYSE Chicago Bylaws’’), and the ‘‘cause’’ to provide that the list set forth a person who satisfies the classification Amended and Restated Bylaws of NYSE in the provision is inclusive. The associated with the vacant seat. Arca, Inc. (‘‘NYSE Arca Bylaws’’). In Exchange notes that the revised In an administrative change, the addition, the amendments to the provision would be consistent with Exchange proposes to add that that the indemnification provisions are based on Article FIFTH(b) of the NYSE Chicago stockholders may also fill any vacancy, the Eighth Amended and Restated Certificate.10 and those vacancies resulting from Bylaws of Intercontinental Exchange, Article EIGHTH removal from office by a vote of the Inc. (‘‘ICE Bylaws’’) and the Sixth stockholders for cause may be filled by Amended and Restated Bylaws of In a non-substantive change, the a vote of the stockholders at the same Intercontinental Exchange Holdings, Exchange proposes to correct a meeting at which such removal occurs. Inc. (‘‘ICE Holdings Bylaws’’). typographical error in the title of Article Because, under Section 3.2(a), the Proposed Amendments to the Exchange EIGHTH, correcting ‘‘Liabilitv’’ with stockholders determine the number of Certificate ‘‘Liability’’. directors, a new directorship may be The Exchange proposes to amend the Article NINTH created. Accordingly, the Exchange Exchange Certificate as follows. proposes to add to Section 3.6(a)(i) that In a non-substantive change, the any newly created directorship will be Introductory Paragraph Exchange proposes to amend Article filled with a person who satisfies the In a non-substantive change, the NINTH to replace a reference to classification associated with the seat. Exchange proposes to delete the The first two sentences of the sentence stating ‘‘[t]he Certificate of 9 See Exchange Act Release No. 82925 (March 22, amended paragraph would be as follows 2018), 83 FR 13165 (March 27, 2018) (SR– Incorporation was restated on June 29, NYSENAT–2018–04). (additions italicized): 2006, December 30, 2011, and February 10 See NYSE Chicago Release, supra note 4, at 14. Notwithstanding any provision herein 18, 2015.’’ See also Eighth Amended and Restated Bylaws of to the contrary, any vacancy in the Cboe BZX Exchange, Inc. (‘‘Cboe BZX Bylaws’’), Board, however occurring, including a Article FIRST Section 3.4(c) (providing that ‘‘[n]o Representative Director may be removed from office by a vote of vacancy resulting from an increase in In a non-substantive change, the the stockholders at any time except for cause, the number of the directors, may be Exchange proposes to replace ‘‘NYSE which shall include, but not limited to, (i) a breach filled (i) by the Chairman of the Board, NATIONAL, INC.’’ with ‘‘NYSE of a Representative Director’s duty of loyalty to the subject to the approval by a majority of National, Inc.’’ in Article FIRST, to Corporation or its stockholders, (ii) acts or omissions not in good faith or which involve the directors then in office, or (ii) by intentional misconduct or a knowing violation of action taken by the stockholders of the 6 See NYSE Chicago Release, supra note 4, at 3. law, (iii) transactions from which a Representative Exchange, and those vacancies resulting 7 The other NYSE Group Exchanges, NYSE and Director derived an improper personal benefit, or from removal from office by a vote of the NYSE American, are limited liability companies (iv) a failure of a Representative Director to be free organized under New York and Delaware limited from a statutory disqualification (as defined in stockholders for cause may be filled by liability company law, respectively. Section 3(a)(39) of the Act)’’) (emphasis added; a vote of the stockholders at the same 8 The NYSE Chicago Certificate and NYSE NYSE Operating Agreement, Article II, Section meeting at which such removal occurs. Chicago Bylaws have been filed with the SEC, and 2.03(l) (providing that cause ‘‘shall include, without Any vacancy or newly-created will become operative when the NYSE Chicago limitation, the failure of [a] Director to be free of Certificate becomes effective pursuant to its filing any statutory disqualification . . .’’); and NYSE directorship will be filled with a person with the Secretary of State of the State of Delaware. American Operating Agreement, Article II, Section who satisfies the classification (e.g., See NYSE Chicago Release, supra note 4, at 4. 2.03(l) (same). public) associated with the vacant seat.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61179

The change would be consistent with reducing the minimum notice consistent with the NYSE Chicago clause (ii) of Article II, Section 5 of the requirement to one day is reasonable as Bylaws.15 NYSE Chicago Bylaws, which was it would facilitate the Board meeting Article IV (Stockholders) amended at the time of its acquisition quickly. by ICE.11 Paragraph (b) of Section 3.10 requires Sections 4.1 (Annual Meeting), 4.2 Section 3.7 (Removal): Section 3.7 the person calling a special meeting to (Special Meetings), and 4.4 (Quorum provides that any director may be fix the time and place at which the and Vote Required for Action): Among removed from office by a vote of the meeting will be held, and deems notice other provisions, Sections 4.1 and 4.2 stockholders at any time with or to be given five business days after set forth the notice requirements for without cause, except that non-affiliated deposit in the United States mail. In an annual and special meetings of directors may only be removed for administrative change, the Exchange stockholders. Section 4.4 sets forth the cause. The Exchange proposes to amend proposes to: quorum and voting requirements. For the definition of ‘‘cause’’ to provide that • the reasons set forth above, the the list set forth in the provision is Eliminate the requirement that the person calling the special meeting fix Exchange proposes to make the inclusive, by replacing ‘‘mean only’’ following administrative changes to the with ‘‘include.’’ As a result of the the time and place of the meeting, as Article III, Section 3.8 already addresses provisions: proposed amendment, the definition of • ‘‘cause’’ would be substantially similar the place and mode of Board meetings; The Exchange proposes to add to the definition in Article FIFTH(b) of • state that notice may be given by ‘‘[e]xcept as otherwise provided by the NYSE Chicago Certificate. written, electronic or telephonic means; law,’’ before the sentences in Sections In a non-substantive change, the and 4.1 and 4.2 that set forth the written 16 Exchange proposes to amend clause (iii) • reduce the period for deemed notice notice requirements. to replace a reference to ‘‘Delaware’’ of mailed notice from five to two • In Section 4.4, the Exchange with ‘‘the State of Delaware.’’ business days. proposes to replace ‘‘statute’’ with Section 3.9 (Regular Meetings): The changes would be consistent with ‘‘law’’ in paragraph (a) and ‘‘Statute’’ Section 3.9 specifies that regular Article II, Section 9(b) of the NYSE with ‘‘General Corporation Law of the meetings may be held, with or without Chicago Bylaws. State of Delaware’’ in paragraph (b). notice, at such time or place as the Sections 3.11 (Voting; Quorum and The changes would be consistent with Board may specify in a resolution. The the NYSE Chicago Bylaws.17 Exchange proposes an administrative Action by the Board) and 3.14 (Action change to eliminate the requirement for in Lieu of Meeting): Section 3.11 Section 4.3 (List of Stockholders): a Board resolution. The change would provides that the presence of a majority Section 4.3 provides that the Secretary be consistent with the governing of the directors then in office shall or a designated person shall have charge documents of the other NYSE Group constitute a quorum for Board meetings. of the stock ledger of the Exchange and, Exchanges, which do not require a Section 3.14 provides that, unless before every stockholder meeting, shall board resolution in order to call a otherwise restricted by statute, the prepare a list of stockholders entitled to meeting.12 Exchange Certificate or the Exchange vote. In an administrative change, the Section 3.10 (Special Meetings): By-Laws, action may be taken without a Exchange proposes to amend the Paragraph (a) of Section 3.10 permits meeting if certain procedural provision such that, as permitted by special meetings of the Board to be requirements are met. The Exchange Section 219(a) of the DGCL, the called on two days’ notice to each proposes to make the following ‘‘Exchange’’ keeps the ledger and Director by the Chairman or the Chief administrative changes to the prepares the list of stockholders.18 The Executive Officer, or by the Secretary provisions: change would be consistent with Article upon the request of any three Directors. • In Section 3.11, the Exchange III, Section 4 of the NYSE Chicago 19 In an administrative change, The proposes to clarify that the proposed Bylaws. Exchange proposes to reduce the quorum requirement would apply Section 4.6 (Action in Lieu of minimum notice requirement from two ‘‘[e]xcept as otherwise required by Meeting): Section 4.6 permits days to one day, consistent with Article law’’ 14 and to change a reference to stockholder action to be taken by II, Section 9(a) of the NYSE Chicago ‘‘statute’’ with ‘‘law.’’ written consent and provides certain 13 Bylaws. The Exchange believes that • In Section 3.14, the Exchange requirements related to such written proposes to replace ‘‘restricted by consent. In an administrative change, 11 See Exchange Act Release No. 83635 (July 13, statute’’ with ‘‘provided by law.’’ the Exchange proposes to amend the 2018), 83 FR 34182 (July 19, 2018) (SR–CHX–2018– provisions to permit stockholder action 004), and Partial Amendment No. 2 to SR–CHX– The change to add an exception to to be taken by written consent and to 2018–004 (June 11, 2018). Section 3.11 would allow the written 12 the extent provided by the DGCL, but See NYSE Arca Bylaws, Article III, Section notice to be consistent with both 3.05; NYSE Chicago Bylaws, Article II, Section 8; only if the matter to be voted upon were applicable law and the Exchange NYSE Operating Agreement, Article II, Section approved by the Board and the Board Bylaws, should applicable law set forth 2.03(c); and NYSE American Operating Agreement, had directed that the matter be brought Article II, Section 2.03(c). specific requirements that differ from 13 before the stockholders. The amended See NYSE Chicago Release, supra note 4, at 24. the Bylaw provision. The Exchange One day of notice would be consistent with the provision would be substantially similar bylaws of other national securities exchanges. See proposes to change ‘‘statute’’ to ‘‘law,’’ NYSE Operating Agreement, Article II, Section as the latter is a broader term, which 15 See NYSE Chicago Bylaws, Article II, Sections 2.03(c) (requiring 12 or 24 hours of notice, with the includes non-statutory law, such as 10 and 13; and NYSE Chicago Release, supra note exception of mailed notice); NYSE American common law. The changes would be 4, at 26–27. Operating Agreement, Article II, Section 2.03(c) 16 (requiring 12 or 24 hours of notice, with the See Del. Code tit. 8, § 222. exception of mailed notice); Cboe BZX Bylaws, Nasdaq, Inc., Article IV, Section 4.12 (requiring that 17 See NYSE Chicago Bylaws, Article III, Sections Section 3.11 (requiring 24 hours of notice); Tenth notice be sent no later than ‘‘the day before the day’’ 1, 2, and 5(b); and NYSE Chicago Release, supra Amended and Restated Bylaws of Cboe Exchange, of the meeting, with the exception of mailed note 4, at 29–31. Inc. (‘‘Cboe Exchange Bylaws’’), Section 3.11 notice). 18 Del. Code tit. 8, § 219(a). (requiring 24 hours of notice); and Bylaws of 14 See, e.g. DCGL Section 141(b). 19 See NYSE Chicago Release, supra note 4, at 30.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61180 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

to Article III, Section 7 of the NYSE with the Exchange Bylaws’ obligations to the Exchange or any other Chicago Bylaws.20 terminology.26 The proposed text willful and deliberate breach in bad follows: faith of such person’s duty to the Article V (Committees) (a) The Exchange shall, to the fullest Exchange or its stockholders. Section 5.2 (Appointment; Vacancies; extent permitted by law, as those laws (c) The foregoing provisions of this and Removal): Section 5.2(b) provides may be amended and supplemented Section 7.1 shall be deemed to be a that any vacancy in a Board committee from time to time, indemnify any contract between the Exchange and each shall be filled by the Chief Executive director or officer made, or threatened to director or officer who serves in such Officer with the approval of the Board. be made, a party to any action, suit or capacity at any time while this bylaw is Consistent with the DGCL and Article proceeding, whether criminal, civil, in effect, and any repeal or modification IV, Section 2(b) of the NYSE Chicago administrative or investigative, by thereof shall not affect any rights or Bylaws,21 the Exchange proposes to reason of being a director or officer of obligations then existing with respect to provide that only the Board can fill a the Exchange or a predecessor any state of facts then or theretofore vacancy in a Board committee. corporation or, at the Exchange’s existing or any action, suit or Section 5.6 (Regulatory Oversight request, a director, officer, partner, proceeding theretofore or thereafter Committee): Section 5.6 establishes the member, employee or agent of another brought based in whole or in part upon powers and responsibilities of the corporation or other entity; provided, any such state of facts. The rights Regulatory Oversight Committee, and is however, that the Exchange shall provided to any person by this bylaw substantially the same as the related indemnify any director or officer in shall be enforceable against the provisions in the governing documents connection with a proceeding initiated Exchange by such person, who shall be 22 of the other NYSE Group Exchanges. by such person only if such proceeding presumed to have relied upon it in Among other things, the provision states was authorized in advance by the Board serving or continuing to serve as a that ‘‘[t]he Board may, on affirmative of Directors of the Exchange. The director or officer or in such other vote of a majority of directors, at any indemnification provided for in this capacity as provided above. time remove a member of the ROC for Section 7.1 shall: (i) Not be deemed (d) The Board of Directors in its cause.’’ The Exchange proposes to add exclusive of any other rights to which discretion shall have power on behalf of language clarifying that the majority those indemnified may be entitled the Exchange to indemnify any person, affirmative vote requirement is based on under any bylaw, agreement or vote of other than a director or officer, made or the ‘‘directors then in office,’’ as stockholders or disinterested directors threatened to be made a party to any opposed to total number of seats on the or otherwise, both as to action in their action, suit or proceeding, whether Board. The change would be consistent official capacities and as to action in criminal, civil, administrative or with Article IV, Section 6 of the NYSE another capacity while holding such investigative, by reason of the fact that Chicago Bylaws.23 office; (ii) continue as to a person who such person, or his or her testator or Article VII (Indemnification) has ceased to be a director or officer; intestate, is or was an officer, employee and (iii) inure to the benefit of the heirs, or agent of the Exchange or, at the Current Article VII includes Exchange’s request, is or was serving as provisions related to indemnification by executors and administrators of an indemnified person. a director, officer, partner, member, the Exchange. As a wholly-owned employee or agent of another subsidiary of ICE, the Exchange believes (b) Expenses incurred by any such person in defending a civil or criminal corporation or other entity. it appropriate to harmonize the (e) To assure indemnification under action, suit or proceeding by reason of Exchange’s indemnification provisions this Section 7.1 of all directors, officers, the fact that he is or was a director or with those of ICE and the Exchange’s employees and agents who are officer of the Exchange (or was serving intermediate holding company, ICE determined by the Exchange or at the Exchange’s request as a director, Holdings.24 The same change was made otherwise to be or to have been officer, partner, member, employee or to Article VI of the NYSE Chicago ‘‘fiduciaries’’ of any employee benefit agent of another corporation or other Bylaws.25 plan of the Exchange that may exist entity) shall be paid by the Exchange in Accordingly, the Exchange proposes from time to time, Section 145 of the advance of the final disposition of such to delete the text of Section 7.1 Delaware General Corporation Law action, suit or proceeding upon receipt (Indemnification) in its entirety and shall, for the purposes of this Section replace it with proposed text that is of an undertaking by or on behalf of 7.1, be interpreted as follows: An ‘‘other substantially similar to the CHX, ICE such director or officer to repay such enterprise’’ shall be deemed to include and ICE Holdings provisions, with the amount if it shall ultimately be such an employee benefit plan, exception of changes to be consistent determined that he or she is not entitled including without limitation, any plan to be indemnified by the Exchange as of the Exchange that is governed by the 20 See id., at 31–32. authorized by law. Notwithstanding the Act of Congress entitled ‘‘Employee 21 See Del. Code tit. 8, § 141(c)(1). foregoing, the Exchange shall not be Retirement Income Security Act of 22 See NYSE Arca Rule 3.3; NYSE Operating required to advance such expenses to a 1974,’’ as amended from time to time; Agreement, Article II, Section 2.03(h)(ii); NYSE person who is a party to an action, suit the Exchange shall be deemed to have American Operating Agreement, Article II, Section or proceeding brought by the Exchange 2.03(h)(ii); NYSE Chicago Bylaws, Article IV, requested a person to serve an employee Section 6. and approved by a majority of the Board benefit plan where the performance by 23 See NYSE Chicago Release, supra note 4, at 35. of Directors of the Exchange that alleges such person of his duties to the The Exchange understands that NYSE, NYSE willful misappropriation of corporate American, and NYSE Arca propose to file similar Exchange also imposes duties on, or assets by such person, disclosure of otherwise involves services by, such changes to their respective ROC provisions. confidential information in violation of 24 See ICE Bylaws, Article X, Section 10.6, and person to the plan or participants or ICE Holdings Bylaws, Article X, Section 10.6. such person’s fiduciary or contractual beneficiaries of the plan; excise taxes 25 See NYSE Chicago Release, supra note 4, at 41. assessed on a person with respect to an The Exchange understands that NYSE, NYSE 26 For example, proposed Section 7.1 uses American, and NYSE Arca propose to file similar ‘‘officer’’ instead of ‘‘Senior Officers,’’ ‘‘Exchange’’ employee benefit plan pursuant to such changes to their respective indemnification instead of ‘‘Corporation,’’ and ‘‘Section 7.1’’ instead Act of Congress shall be deemed provisions. of ‘‘Section 10.6.’’ ‘‘fines.’’

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61181

Article IX (Certificates of Stock and the Board to revoke such voting power Exchange will continue to operate as a Their Transfer) or constitute another officer with such separate self-regulatory organization and Section 9.1 (Form and Execution of voting power. The change would be to have rules and membership rosters Certificates): Section 9.1 provides consistent with Article X, Section 4 of distinct from the rules and membership 30 requirements related to the execution of the NYSE Chicago Bylaws. rosters of the other NYSE Group Exchanges. stockholder certificates. The Exchange 2. Statutory Basis proposes to amend the requirements to The Exchange also believes that the The Exchange believes that the provide that the certificate may be greater consistency among the governing proposed rule change is consistent with signed by ‘‘any two authorized officers,’’ documents of the NYSE Group Section 6(b) of the Exchange Act,31 in instead of listing the specific officers Exchanges, ICE and ICE Holdings would general, and furthers the objectives of authorized to execute a certificate, promote the maintenance of a fair and Section 6(b)(1) 32 in particular, in that it which better reflects the requirements of orderly market, the protection of enables the Exchange to be so organized Section 158 of the DGCL.27 The change investors and the protection of the as to have the capacity to be able to would be consistent with Article VIII, public interest. Indeed, the proposed carry out the purposes of the Exchange Section 1 of the NYSE Chicago amendments would make the corporate Act and to comply, and to enforce Bylaws.28 requirements and administrative Article XI (General Provisions) compliance by its exchange members processes relating to the Board, Board Section 11.2 (Dividends): Section 11.2 and persons associated with its committees, officers, stockholders, and permits the Board to declare dividends. exchange members, with the provisions other corporate matters more similar to The Exchange proposes to replace the of the Exchange Act, the rules and those of the NYSE Group Exchanges, in phrase ‘‘[s]ubject to any provisions of regulations thereunder, and the rules of particular CHX and NYSE Arca, which any applicable statute,’’ which qualifies the Exchange. The Exchange also have been established as fair and the Board’s authority to issue dividends, believes that the proposed rule change designed to protect investors and the with ‘‘[s]ubject to any applicable law’’ is consistent with Section 6(b)(5) of the public interest.34 33 so as to eliminate redundant language Exchange Act, in that it is designed to The proposed amendments to clarify and clarify that proposed Section 11.2 prevent fraudulent and manipulative the meaning of certain provisions of the would be subject to any non-statutory acts and practices, to promote just and Exchange Certificate and the Exchange law, such as common law. The change equitable principles of trade, to foster Bylaws, to better comport certain would be consistent with Article X, cooperation and coordination with provisions with the DGCL and to effect Section 2 of the NYSE Chicago persons engaged in facilitating non-substantive changes would Bylaws.29 transactions in securities, to remove facilitate the Exchange’s continued Section 11.4 (Subsidiaries): Section impediments to and perfect the compliance with the Exchange 11.4 authorizes the Board to constitute mechanism of a free and open market Certificate and Bylaws and applicable any officer of the Exchange to vote the and a national market system and, in law, which would further enable the stock of any subsidiary corporation on general, to protect investors and the Exchange to be so organized as to have behalf of the Exchange. In an public interest. the capacity to be able to carry out the administrative change, the Exchange The Exchange believes that the purposes of the Exchange Act and to proposes to add a second sentence proposed amendments to harmonize comply, and to enforce compliance by stating that ‘‘[i]n the absence of specific certain provisions of the Exchange its exchange members and persons action by the Board of Directors, the Certificate and Bylaws with similar associated with its exchange members, Chief Executive Officer and Secretary of provisions of the governing documents with the provisions of the Exchange Act, the Exchange shall have authority to of other NYSE Group Exchanges, ICE the rules and regulations thereunder, represent the Exchange and to vote, on and ICE Holdings would contribute to and the rules of the Exchange. Such behalf of the Exchange, the securities of the orderly operation of the Exchange amendments would also remove other corporations, both domestic and and would enable the Exchange to be so impediments to and perfects the foreign, held by the Exchange.’’ organized as to have the capacity to mechanism of a free and open market by The Exchange believes that permitting carry out the purposes of the Exchange removing confusion that may result the Secretary of the Exchange to act on Act and comply with the provisions of from corporate governance provisions behalf of the Exchange pursuant to the Exchange Act by its members and that are either unclear or inconsistent proposed Section 4 is appropriate given persons associated with members. For with the governing law. that the Secretary is frequently tasked to example, the proposed changes would The Exchange also believes that the execute the Exchange’s actions, create greater conformity between the proposed amendments would remove especially as it relates to corporate Exchange’s provisions relating to impediments to and perfect the governance. Under Section 11.4, the stockholders, officers, and stock mechanism of a free and open market by Board may constitute any officer of the certificates and those of its affiliates, ensuring that persons subject to the Exchange, which includes the Secretary, particularly CHX and NYSE Arca. The Exchange’s jurisdiction, regulators, and to vote the stock of any subsidiary of the Exchange believes that such conformity the investing public can more easily Exchange. The Board has approved the would streamline the NYSE Group navigate and understand the governing proposed changes to the Bylaws, Exchanges’ corporate processes, create documents. The Exchange further including the proposed changes to more equivalent governance processes believes that the proposed amendments Section 11.4. By approving the proposed among them, and also provide clarity to would not be inconsistent with the changes to Section 11.4, the Board the Exchange’s members, which is public interest and the protection of granted the Secretary the authority beneficial to both investors and the investors because investors will not be described therein. Moreover, proposed public interest. At the same time, the harmed and in fact would benefit from Section 11.4 would continue to permit 34 See NYSE Chicago Release, supra note 4, 30 See id., at 51–52. Exchange Act Release Nos. 83303 (May 22, 2018), 27 31 See Del. Code tit. 8, § 158. 15 U.S.C. 78f(b). 83 FR 24517 (May 29, 2018) (SR–CHX–2018–004); 28 See NYSE Chicago Release, supra note 4, at 47. 32 15 U.S.C. 78f(b)(1). and 81419 (August 17, 2017), 82 FR 40044 (August 29 See id., at 51. 33 15 U.S.C. 78f(b)(5). 23, 2017) (SR–NYSEArca–2017–40).

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61182 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

increased transparency and clarity, including whether the proposed rule DEPARTMENT OF THE TREASURY thereby reducing potential confusion. change is consistent with the Act. Comments may be submitted by any of Agency Information Collection B. Self-Regulatory Organization’s the following methods: Activities; Submission for OMB Statement on Burden on Competition Review; Comment Request; Multiple The Exchange does not believe that Electronic Comments Departmental Offices Information the proposed rule change will impose • Use the Commission’s internet Collection Requests any burden on competition that is not comment form (http://www.sec.gov/ necessary or appropriate in furtherance rules/sro.shtml); or AGENCY: Departmental Offices, U.S. of the purposes of the Exchange Act. • Send an email to rule-comments@ Department of the Treasury. The proposed rule change is not sec.gov. Please include File Number SR– ACTION: Notice. intended to address competitive issues NYSENAT–2018–24 on the subject line. SUMMARY: The Department of the but rather is concerned solely with the Paper Comments corporate governance and Treasury will submit the following • administration of the Exchange. Send paper comments in triplicate information collection requests to the to Secretary, Securities and Exchange Office of Management and Budget C. Self-Regulatory Organization’s Commission, 100 F Street NE, (OMB) for review and clearance in Statement on Comments on the Washington, DC 20549–1090. accordance with the Paperwork Proposed Rule Change Received From All submissions should refer to File Reduction Act of 1995, on or after the Members, Participants, or Others Number SR–NYSENAT–2018–24. This date of publication of this notice. The No written comments were solicited file number should be included on the public is invited to submit comments on or received with respect to the proposed subject line if email is used. To help the these requests. rule change. Commission process and review your DATES: Comments should be received on comments more efficiently, please use III. Date of Effectiveness of the or before December 28, 2018 to be only one method. The Commission will Proposed Rule Change and Timing for assured of consideration. post all comments on the Commission’s Commission Action ADDRESSES: Send comments regarding internet website (http://www.sec.gov/ the burden estimate, or any other aspect The Exchange has filed the proposed rules/sro.shtml). Copies of the of the information collection, including rule change pursuant to Section submission, all subsequent suggestions for reducing the burden, to 19(b)(3)(A)(iii) of the Act 35 and Rule amendments, all written statements 36 (1) Office of Information and Regulatory 19b–4(f)(6) thereunder. Because the with respect to the proposed rule Affairs, Office of Management and proposed rule change does not: (i) change that are filed with the Budget, Attention: Desk Officer for Significantly affect the protection of Commission, and all written Treasury, New Executive Office investors or the public interest; (ii) communications relating to the Building, Room 10235, Washington, DC impose any significant burden on proposed rule change between the 20503, or email at OIRA_Submission@ competition; and (iii) become operative Commission and any person, other than OMB.EOP.gov and (2) Treasury PRA prior to 30 days from the date on which those that may be withheld from the Clearance Officer, 1750 Pennsylvania it was filed, or such shorter time as the public in accordance with the Ave. NW, Suite 8100, Washington, DC Commission may designate, if provisions of 5 U.S.C. 552, will be 20220, or email at [email protected]. consistent with the protection of available for website viewing and FOR FURTHER INFORMATION CONTACT: investors and the public interest, the printing in the Commission’s Public Copies of the submissions may be proposed rule change has become Reference Room, 100 F Street NE, obtained from Jennifer Quintana by effective pursuant to Section 19(b)(3)(A) Washington, DC 20549, on official emailing [email protected], calling of the Act and Rule 19b–4(f)(6)(iii) business days between the hours of 10 (202) 622–0489, or viewing the entire thereunder. a.m. and 3 p.m. Copies of the filing also information collection request at At any time within 60 days of the will be available for inspection and www.reginfo.gov. filing of such proposed rule change, the copying at the principal office of the Commission summarily may Exchange. All comments received will SUPPLEMENTARY INFORMATION: temporarily suspend such rule change if be posted without change. Persons Departmental Offices (DO) it appears to the Commission that such submitting comments are cautioned that action is necessary or appropriate in the we do not redact or edit personal 1. Title: Reporting of International public interest, for the protection of identifying information from comment Capital and Foreign Currency investors, or otherwise in furtherance of submissions. You should submit only Transactions and Positions the purposes of the Act. If the information that you wish to make OMB Control Number: 1505–0149. Commission takes such action, the available publicly. All submissions Commission shall institute proceedings Type of Review: Extension without should refer to File Number SR– change of a currently approved under Section 19(b)(2)(B) 37 of the Act to NYSENAT–2018–24 and should be determine whether the proposed rule collection. submitted on or before December 19, Description: 31 CFR part 128 change should be approved or 2018. disapproved. establishes general guidelines for For the Commission, by the Division of reporting on U.S. claims on, and IV. Solicitation of Comments Trading and Markets, pursuant to delegated liabilities to foreigners; on transactions authority.38 Interested persons are invited to in securities with foreigners; and on Brent J. Fields, submit written data, views, and monetary reserve of the U.S. It also arguments concerning the foregoing, Secretary. establishes guidelines for reporting on [FR Doc. 2018–25896 Filed 11–27–18; 8:45 am] the foreign currency of U.S. persons. It 35 15 U.S.C. 78s(b)(3)(A)(iii). BILLING CODE 8011–01–P includes a record keeping requirement 36 17 CFR 240.19b–4(f)(6). in section 128.5. 37 15 U.S.C. 78s(b)(2)(B). 38 17 CFR 200.30–3(a)(12). Form: None.

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices 61183

Affected Public: Businesses or other DEPARTMENT OF THE TREASURY In compliance with the court’s order, for-profits. BEP intends to meet individually with Estimated Number of Respondents: Agency Information Collection blind and visually impaired persons and 2,134. Activities; Submission for OMB request their feedback about tactile Frequency of Response: On occasion. Review; Comment Request; Generic features that BEP is considering for Estimated Total Number of Annual Clearance for Meaningful Access possible incorporation into the next U.S. Responses: 21,568. Information Collections paper currency redesign. BEP Estimated Time per Response: 20 AGENCY: Departmental Offices, U.S. employees will attend national minutes. Department of the Treasury. conventions and conferences for disabled persons. At those gatherings, Estimated Total Annual Burden ACTION: Notice. Hours: 7,189. BEP employees will invite blind and SUMMARY: The Department of the visually impaired persons to provide 2. Title: Request for Transfer of Property Treasury will submit the following feedback about certain tactile features Seized/Forfeited by a Treasury Agency information collection requests to the being considered for inclusion in future OMB Control Number: 1505–0152. Office of Management and Budget United States currency paper designs. Type of Review: Revision of a (OMB) for review and clearance in Form: None. currently approved collection. accordance with the Paperwork Affected Public: Individuals and Description: Form TD F 92–22.46 is Reduction Act of 1995, on or after the households. necessary for the application for receipt date of publication of this notice. The Estimated Number of Respondents: of seized assets by State and Local Law public is invited to submit comments on 650. Enforcement agencies. these requests. Frequency of Response: Once. Estimated Total Number of Annual Form: TD F 92–22.46. DATES: Comments should be received on Responses: 650. Affected Public: State and local or before December 28, 2018 to be Estimated Time per Response: 1 hour. governments. assured of consideration. Estimated Total Annual Burden Estimated Number of Respondents: ADDRESSES: Send comments regarding Hours: 650. 1,000. the burden estimate, or any other aspect Authority: 44 U.S.C. 3501 et seq. Frequency of Response: On occasion. of the information collection, including Estimated Total Number of Annual suggestions for reducing the burden, to Dated: November 21, 2018. Responses: 7,000. (1) Office of Information and Regulatory Spencer W. Clark, Estimated Time per Response: 30 Affairs, Office of Management and Treasury PRA Clearance Officer. minutes. Budget, Attention: Desk Officer for [FR Doc. 2018–25910 Filed 11–27–18; 8:45 am] Estimated Total Annual Burden Treasury, New Executive Office BILLING CODE 4840–01–P Hours: 3,500. Building, Room 10235, Washington, DC 20503, or email at OIRA_Submission@ 3. Title: Assessment of Fees on Large OMB.EOP.gov and (2) Treasury PRA Bank Holding Companies and Nonbank DEPARTMENT OF VETERANS Clearance Officer, 1750 Pennsylvania Financial Companies AFFAIRS Ave. NW, Suite 8100, Washington, DC OMB Control Number: 1505–0245. 20220, or email at [email protected]. [OMB Control No. 2900–0208] Type of Review: Revision of a FOR FURTHER INFORMATION CONTACT: Agency Information Collection Activity currently approved collection. Copies of the submissions may be Under OMB Review: Department of Description: The Financial Research obtained from Jennifer Quintana by Veterans Affairs Acquisition Fund (FRF) Preauthorized Payment emailing [email protected], calling Regulation; Architect-Engineer Fee Agreement form will collect information (202) 622–0489, or viewing the entire Proposal; Contractor Production with respect to the final rule (31 CFR information collection request at Report; Daily Log and Contract part 150) on the assessment of fees on www.reginfo.gov. Progress Report large bank holding companies and SUPPLEMENTARY INFORMATION: nonbank financial companies AGENCY: Office of Acquisition and supervised by the Federal Reserve Board Bureau of Engraving and Printing (BEP) Logistics, Department of Veterans to cover the expenses of the FRF. Title: Generic Clearance for Affairs. Form: TD F 105.1. Meaningful Access Information ACTION: Notice. Affected Public: Businesses or other Collections (Conferences). for-profits. OMB Control Number: 1520–0009. SUMMARY: In compliance with the Estimated Number of Respondents: Type of Review: Extension without Paperwork Reduction Act (PRA) of 39. change of a currently approved 1995, this notice announces that the Frequency of Response: Once. collection. Office of Acquisition and Logistics, Estimated Total Number of Annual Description: A court order was issued Department of Veterans Affairs, will Responses: 39. in American Council of the Blind v. submit the collection of information Estimated Time per Response: 15 Paulson, 591 F. Supp. 2d 1 (D.D.C. abstracted below to the Office of minutes. 2008) (‘‘ACB v. Paulson’’) requiring the Management and Budget (OMB) for Estimated Total Annual Burden Department of the Treasury and BEP to review and comment. The PRA Hours: 10. ‘‘provide meaningful access to United submission describes the nature of the information collection and its expected Authority: 44 U.S.C. 3501 et seq. States currency for blind and other visually impaired persons, which steps cost and burden and it includes the Dated: November 21, 2018. shall be completed, in connection with actual data collection instrument. Spencer W. Clark, each denomination of currency, not DATES: Comments must be submitted on Treasury PRA Clearance Officer. later than the date when a redesign of or before December 28, 2018. [FR Doc. 2018–25909 Filed 11–27–18; 8:45 am] that denomination is next approved by ADDRESSES: Submit written comments BILLING CODE 4810–25–P the Secretary of the Treasury . . .’’ on the collection of information through

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\28NON1.SGM 28NON1 61184 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Notices

www.Regulations.gov, or to Office of • Renumber VA Form 10–6298 Progress Report, depending on the size Information and Regulatory Affairs, Architect-Engineer Fee Proposal, to ‘‘VA of the contract: Is used to record the Office of Management and Budget, Attn: Form 6298,’’ and revise the content in data necessary to ensure the contractor VA Desk Officer; 725 17th St. NW, the form with updated thresholds and provides sufficient labor and materials Washington, DC 20503 or sent through FAR citations. to accomplish the contract work. electronic mail to oira_submission@ The above proposed revisions do not Contractors are required to guarantee omb.eop.gov. Please refer to ‘‘OMB change the currently approved burden the performance of the work necessary Control No. 2900–0208’’ in any hours. The actual VA Form 10101 and to complete the project. VAAR 852.236– correspondence. VA Form 6298 can be located at VA 79 details what needs to be addressed FOR FURTHER INFORMATION CONTACT: Forms website https://www.va.gov/ by the contractor on the Contractor Rafael Taylor, Procurement Policy and vaforms/default.asp. Production Report. Failure to receive Warrant Management Service (003A2A), The Department of Veterans Affairs, information from the Contractor Department of Veterans Affairs, 425 I Office of Construction and Facilities Production Report could result in a Street NW, Washington, DC 20001, (202) Management (CFM), manages a claim for non-performance and 382–2787 or email Rafael.Taylor@ multimillion-dollar construction construction delays against the va.gov. Please refer to ‘‘OMB Control program that involves the design and Government if the Government were No. 2900–0208’’ in any correspondence. construction of medical centers, and unable to collect this information to administer the contract. SUPPLEMENTARY INFORMATION: other VA facilities including building Authority: 44 U.S.C. 3501–21. improvements and conversions. The An agency may not conduct or Title: Department of Veterans Affairs actual construction work is contracted sponsor, and a person is not required to Acquisition Regulation (VAAR): VA out to private construction firms. respond to a collection of information Form 6298 (formerly 10–6298), VA Form 6298 (formerly 10–6298), unless it displays a currently valid OMB Architect-Engineer Fee Proposal; VA Architect-Engineer Fee Proposal: The control number. The Federal Register Form 10101, Contractor Production use of this form is mandatory for Notice with a 60-day comment period Report (formerly VA Form 10–6131, obtaining the proposal and supporting soliciting comments on this collection Daily Log and VA Form 10–6001a, cost or pricing data from the contractor of information was published at 83 FR Contract Progress Report). and subcontractor in the negotiation of 45482 on September 7, 2018. OMB Control Number: 2900–0208. all architect-engineer contracts for Affected Public: Business or other for- Type of Review: Renewal with design services when the contract price profit and not-for-profit institutions. changes of a currently approved is estimated to be $50,000 or more. It is Estimated Annual Burden: VA Form collection. also used in obtaining proposals and 6298—1,000 Burden Hours. VA Form Abstract: This Paperwork Reduction supporting cost or pricing data for 10101—4,341 Burden Hours. Act (PRA) submission seeks renewal architect-engineer services for research Estimated Average Burden per with changes of Office of Management study, seismic study, master planning Respondent: VA Form 6298—4 Hours. and Budget (OMB) approval No. 2900– study, construction management and VA Form 10101—24 Minutes. 0208 as follows: other related services contracts. A Frequency of Response: On occasion. • Replace both existing VA Form 10– Contractor Production Report is also Estimated Number of Respondents: 6131 (Daily Log (Contract Progress used, but supplemented or modified as VA Form 6298—250. VA Form 10101— Report—Formal Contract)) and VA Form needed for the particular project type. 10,853. 10–6001a (Contract Progress Report) (VA Acquisition Regulation (VAAR) with one new form, which combines the 836.606–71, Architect-engineer’s By direction of the Secretary: intended purpose for VA Form 10–6131 proposal, and VAAR 853.236–70.) Cynthia D. Harvey-Pryor, and VA Form 10–6001a. The new VA Form 10101, Contractor Government Information Specialist, combined form would now read: ‘‘VA Production Report (formerly VA Form Department of Veterans Affairs. Form 10101, Contractor Production 10–6131), Daily Log—Formal Contract, [FR Doc. 2018–25911 Filed 11–27–18; 8:45 am] Report.’’ and VA Form 10–6001a, Contract BILLING CODE 8320–01–P

VerDate Sep<11>2014 16:19 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00041 Fmt 4703 Sfmt 9990 E:\FR\FM\28NON1.SGM 28NON1 Vol. 83 Wednesday, No. 229 November 28, 2018

Part II

Federal Housing Finance Agency

12 CFR Parts 1290 and 1291 Affordable Housing Program Amendments; Rules

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28NOR2.SGM 28NOR2 61186 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

FEDERAL HOUSING FINANCE fhfa.gov. These are not toll-free Targeted Community Lending Plans AGENCY numbers. The mailing address is: (TCLPs). The Banks typically hold their Federal Housing Finance Agency, 400 AHP funding rounds in the spring or 12 CFR Parts 1290 and 1291 Seventh Street SW, Washington, DC summer of each year, and would need RIN 2590–AA83 20219. The telephone number for the sufficient time to publish their revised Telecommunications Device for the AHP Implementation Plans and TCLPs, Affordable Housing Program Hearing Impaired is 800–877–8339. and announce their AHP funding Amendments SUPPLEMENTARY INFORMATION: allocations, well in advance of the start of that calendar year. AGENCY: Federal Housing Finance I. Sections 1291.2 and 1290.8— In view of the publication of the final Agency. Compliance Dates rule late in 2018, FHFA recognizes that ACTION: Final rule. Section 1291.2 of the final rule it may not be feasible for the Banks to provides generally, that through complete all of the above actions in time SUMMARY: The Federal Housing Finance December 31, 2020, a Bank may comply for implementation of revised Programs Agency (FHFA or Agency) is amending with either the AHP regulation in effect for 2019 or 2020, even though the final its regulation addressing requirements immediately prior to this final rule’s rule does not adopt the proposed for the Federal Home Loan Banks’ effective date, or this final rule. On and outcome-based scoring framework and (Banks) Affordable Housing Program after January 1, 2021, a Bank must instead adopts a scoring framework (AHP or Program). The final rule comply with this final rule. However, more similar to the existing scoring amends the regulation to: Provide the for the owner-occupied retention requirements of the Competitive Banks additional authority to allocate agreement requirements in Application Program. A January 1, 2021 their AHP funds; authorize the Banks to § 1291.15(a)(7), the final rule provides compliance date for the final rule, thus, establish separate competitive funds that through December 31, 2019, a Bank is warranted. However, there are certain that target specific affordable housing may comply with either § 1291.9(a)(7) of changes in the final rule that will needs in their districts; provide the the AHP regulation in effect benefit households without requiring Banks additional flexibility in designing immediately prior to this final rule’s significant changes to the Banks’ their project selection scoring systems to effective date, or § 1291.15(a)(7) of this information systems and, therefore, can address affordable housing needs in final rule. On and after January 1, 2020, be implemented more quickly. In their districts; remove the requirement a Bank must comply with particular, the final rule establishes a for retention agreements for owner- § 1291.15(a)(7) of the final rule. compliance date of January 1, 2020 by occupied units where the AHP subsidy Regarding proxies for determining a which the Banks must implement the is used solely for rehabilitation; provide subsequent purchaser’s income, the new owner-occupied retention for a calculation of household subsidy final rule provides that a Bank shall agreement provisions in § 1291.15(a)(7), repayment amount that prioritizes comply with § 1291.15(a)(7)(ii)(B) of the including the requirement to calculate return of the household’s investment in final rule on the date set forth in the AHP subsidy repayment based on net the housing to the household; reduce FHFA guidance on proxies referenced proceeds and household’s investment administrative burdens related to therein. (§ 1291.15(a)(7)(v)), the de minimis calculating and obtaining household Similarly, § 1290.8 of the final rule subsidy repayment exception of $2,500 subsidy repayments based on net provides that through December 31, or less (§ 1291.15(a)(7)(ii)(C)), and the proceeds of the sale of a home; further 2020, a Bank must comply with either elimination of the requirement for align certain project monitoring prior part 1290 (Community Support owner-occupied retention agreements requirements with those of other federal Requirements regulation) or this part for rehabilitation (§ 1291.15(a)(7)). Prior government funding programs; clarify 1290. On and after January 1, 2021, a to January 1, 2020, or such earlier the requirements for remediating AHP Bank must comply with this part 1290. compliance date as the Bank elects, a noncompliance; clarify certain The proposed rule did not address Bank must continue to comply with the operational requirements; and effective or compliance dates. The current regulation, including its streamline and reorganize the Banks requested that the final rule not requirement that subsidy be recovered regulation. become effective for at least two years. only from ‘‘net gain,’’ a concept that in They stressed that the proposed many respects resembles the more DATES: Effective date: This final rule is substantive changes to the regulation, clearly articulated standards of ‘‘net effective on December 28, 2018. especially the proposed outcome-based Compliance dates: For applicable proceeds’’ and ‘‘household’s scoring framework, would require compliance dates, see the discussions investment’’ in the final rule. extensive changes to their existing Because some Banks may find it under §§ 1290.8 and 1291.2 in Section scoring, information and reporting feasible to implement certain provisions I. of the SUPPLEMENTARY INFORMATION systems, as well as education and of the final rule before the applicable below. training of Bank staff, members, and compliance dates, such as the FOR FURTHER INFORMATION CONTACT: Ted potential project sponsors. Bank staff provisions benefiting households, Wartell, Manager, Office of Housing and indicated that they would need to provisions easing operational burdens, Community Investment, 202–649–3157, consult with their Bank Advisory or provisions for the establishment of [email protected]; Marcea Barringer, Councils, boards of directors, and board Targeted Funds, the final rule provides Senior Policy Analyst, Office of Housing committees on changes to their Program, that a Bank may choose to comply with and Community Investment, 202–649– including systems and procedures. They any provision of the final rule before the 3275, [email protected]; would need to seek approval by their applicable compliance date. A Bank that Marshall Adam Pecsek, Senior Counsel, boards of changes to their policies for chooses to comply with a specific Office of General Counsel, 202–649– their General Funds and provision before the applicable 3380, [email protected]; or Homeownership Set-Aside Programs, compliance date must also comply with Sharon Like, Managing Associate and for establishment of Targeted all other provisions related to that General Counsel, Office of General Funds, along with related changes to specific provision in part 1291 and Counsel, 202–649–3057, sharon.like@ their AHP Implementation Plans and § 1290.6. For example, if a Bank decides

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61187

to establish a Targeted Fund before implement a scoring system subject to consider clarifications and January 1, 2021 pursuant to requirements in the regulation, which enhancements to further empower the § 1291.20(b), the Bank must also comply serves as a mechanism for evaluating Banks in the management of their with the funding allocation and phase- and selecting the project applications to Programs. in requirements for Targeted Funds in receive AHP subsidies. Under the In response to the Banks’ §§ 1291.20(b)(1) and 1291.12(c)(1), Homeownership Set-Aside Program, recommendations, FHFA undertook a respectively, must amend its AHP members apply to the Banks for grants, comprehensive review of the AHP Implementation Plan to include its which are provided to low- or moderate- regulation, including AHP issues on requirements for the Targeted Fund income homebuyers or homeowners for which FHFA had provided regulatory pursuant to § 1291.13(b)(3), and must purchasing or rehabilitating homes. guidance. To further inform the review, amend its Targeted Community Lending The AHP has played an important FHFA conducted outreach with the Plan to include the specific housing role in facilitating the Banks’ support of Banks and a wide range of AHP needs to be addressed by the Targeted their members’ efforts to meet the stakeholders. The Banks and Fund pursuant to § 1290.6(a)(5)(vi). affordable housing needs of their stakeholders uniformly expressed communities. Between 1990 and 2017, support for the AHP, and noted the II. Background the Banks awarded approximately $5.8 critical role it plays in affordable A. Overview of Current Program billion in AHP subsidies to assist the housing initiatives throughout the financing of over 865,000 affordable country and its longstanding reputation The Federal Home Loan Bank Act housing units. AHP subsidies have as a well-managed program. At the same (Bank Act) requires each Bank to proven particularly effective in time, the Banks and stakeholders offered establish a Program to provide subsidies leveraging additional public and private a number of specific recommendations for long-term, low- and moderate- resources for funding affordable housing to improve the operation of the AHP. income, owner-occupied and affordable projects that present underwriting The recommendations were directed rental housing. Each Bank is required to challenges, such as projects for largely at: (1) Expanding the Banks’ allocate annually 10 percent of its prior homeless households and special needs authority to allocate their AHP funds; year’s net income to fund its Program to populations. For example, project (2) providing the Banks authority to help subsidize the purchase, sponsors have used AHP funds in devise their own project selection construction, and rehabilitation of conjunction with a number of different methods, including the use of non- affordable rental and owner-occupied federal and state funding sources, competitive processes; (3) clarifying the housing. Homeowners and homebuyers including Low-Income Housing Tax requirements for determining a project’s receiving AHP subsidies must be low- or Credits (LIHTC or tax credits), to need for AHP subsidy; (4) aligning the moderate-income (incomes at or below develop rental housing for very low- project monitoring requirements with 80 percent of area median income income households. For 2018, the those of other major funding sources; (5) (AMI)). For rental housing, at least 20 Banks’ combined required annual AHP clarifying the Banks’ authorities to percent of the units must be occupied contribution is approximately resolve project noncompliance; (6) by very low-income households $384,310,000. clarifying certain operational (incomes at or below 50 percent of AMI) requirements; and (7) codifying FHFA B. AHP Regulatory History and must be affordable (rents charged regulatory guidance in the regulation. do not exceed 30 percent of income).1 FHFA and one of its predecessor Based on FHFA’s analyses of the The current AHP regulation agencies, the Federal Housing Finance recommendations and its review of the authorizes the Banks to establish and Board (Finance Board), have engaged in Program, FHFA published a proposed administer two programs for awarding numerous rulemakings over the years to rule to amend the AHP regulation, AHP subsidies: a mandatory revise, clarify, and streamline the AHP which is discussed below. Competitive Application Program requirements as the Program has (referred to in the proposed and final evolved and housing markets have C. Proposed Rule rules as the ‘‘General Fund’’); and an changed. Successive rulemakings On March 14, 2018, FHFA published optional Homeownership Set-Aside progressively devolved specific AHP a Notice of Proposed Rulemaking Program.2 Each Bank must allocate application approval and governance (NPRM or proposed rule) in the Federal annually at least 65 percent of its authorities from the Finance Board to Register to amend the AHP regulation.4 required annual AHP contribution to its the Banks in order to enhance the ability Taking into account the Banks’ and Competitive Application Program, and of the Banks to address specific stakeholders’ input and may allocate annually up to the greater affordable housing needs in their recommendations discussed above, the of $4.5 million or 35 percent of its respective districts. proposed rule would have significantly required annual AHP contribution to its The genesis of the current AHP altered how the Banks approach and Homeownership Set-Aside Program.3 rulemaking was the Notice of Regulatory implement their AHP project selection Under the Competitive Application Review published in the Federal responsibilities. The proposed rule Program, members apply to the Banks Register in 2013 requesting comment on would have replaced the current project for AHP subsidies on behalf of project FHFA’s existing regulations for selection scoring process, a front-end sponsors, which are typically nonprofit purposes of improving their process that requires the Banks to affordable housing developers, but may effectiveness and reducing their burden. allocate at least 50 percent of the total include for-profit organizations. The In response, the Banks jointly submitted points for scoring applications to Banks are required to develop and a letter to FHFA commenting on the specific statutory and regulatory AHP and other FHFA regulations. The priorities set forth in the regulation, 1 See 12 U.S.C. 1430(j). letter contended that prescriptive, with a back-end process using a scoring 2 See 12 CFR part 1291. outdated, or ambiguous provisions of process and ‘‘outcome-based approach’’ 3 Where a Bank allocates the alternative the AHP regulation created for project selection. Under the maximum amount of $4.5 million to its Homeownership Set-Aside Program, the Bank may inefficiencies and uncertain risk proposal, each Bank would have been allocate less than 65 percent of its total AHP funds exposures, and recommended that to its Competitive Application Program. FHFA review the regulation and 4 See 83 FR 11344 (Mar. 14, 2018).

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61188 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

required to establish its own scoring of AHP projects that have received Development Financial Institutions system containing Bank-identified LIHTC, and for initial and long-term (CDFIs) submitted 50 comment letters. district housing needs priorities for monitoring of AHP projects that have Nonprofit and for-profit developers awarding AHP subsidies, subject to received funding from certain other submitted 204 comment letters. meeting certain FHFA-prescribed federal government programs. Individuals submitted the remaining 13 outcome requirements for statutory and In addition, the proposed rule would comment letters. regulatory priorities set forth in the clarify a number of operational FHFA also held a number of webinars proposed rule. Each Bank would have responsibilities. For example, the and meetings with Bank representatives been evaluated according to whether a proposed rule would clarify the process and stakeholders to describe the content certain percentage of its total AHP funds and responsibilities of the various of the proposed rule, discuss issues was awarded to projects or households parties for remediating AHP raised by the proposed rule, and obtain that met the applicable priorities. The noncompliance. The proposed rule also clarifications of specific comments NPRM stated that the proposal would would have clarified the process for made in the letters.6 address many of the Banks’ and determining a project’s need for AHP Six proposals received the most stakeholders’ concerns by providing the subsidy. comments: The outcome-based Banks greater flexibility to design their Finally, the proposed rule would approach for project selection; the competitive application programs while streamline and reorganize the regulation authority for the Banks to establish continuing to ensure the programs to enhance its utility and readability. Targeted Funds; the increase in the fulfilled the statutory requirements. D. Overview of Comments Received on maximum permissible annual funding The NPRM also proposed additional the Proposed Rule allocation to a Bank’s Homeownership options for the Banks to allocate their Set-Aside Program from 35 to 40 total annual AHP contributions. Each The NPRM initially provided the public 60 days to submit comments on percent; the removal of the requirement Bank would have been required to for owner-occupied retention allocate at least 50 percent of its total the proposed rule. The Agency received numerous requests from commenters to agreements; a clarification of the ‘‘cure- annual AHP contribution to its General first’’ requirement for project Fund, down from the current 65 extend the comment period by an additional 30 days. FHFA also noncompliance; and the responsibility percent. Each Bank also would have of the full board of directors to approve been authorized to allocate up to 40 identified an error in the calculation of strategic AHP decisions. The comments percent of its required annual AHP the outcome requirement in the on these six proposals and FHFA’s contribution to a maximum of three proposed rule text and related preamble decisions in the final rule are discussed ‘‘Targeted Funds,’’ a new type of discussion. In response to the requests in Section III., below. Comments on competitive application fund under the for an extension of the comment period other provisions of the proposed rule AHP, to address specific affordable and to correct the error in the outcome are discussed under each applicable housing needs within its district, subject calculation and encourage comments on provision in the Section-by-Section to a phase-in period. In addition, the the corrected calculation, FHFA Analysis in Section IV., below. proposed rule would have increased the published a notice in the Federal maximum percentage of a Bank’s total Register containing the corrected III. Discussion of Comments on Key annual AHP contribution that could be calculation and extending the comment Proposals and Decisions in the Final allocated to its Homeownership Set- period by an additional 30 days.5 The Rule Aside Program from 35 to 40 percent, extended comment period ended on with the existing alternate threshold of June 12, 2018. A. Proposed Outcome-Based Approach $4.5 million retained. FHFA received 394 comment letters for Project Selection The proposed rule also would have in response to the proposed rule. Of Final rule. The final rule does not eliminated the current requirement for those letters, 251 expressed unique adopt the proposal for an outcome- an owner-occupied unit retention comments and recommendations, with based framework for project selection. agreement, under which AHP-assisted the remaining 143 being form letters or Instead, the final rule amends the households must repay AHP subsidy to requests to extend the original 60-day current regulatory scoring framework for the Bank under certain circumstances if comment period. The Presidents of the project selection to provide the Banks they sell or refinance their homes eleven Banks submitted a joint comment with additional flexibility in designing during the AHP five-year retention letter. Nine Banks also submitted their project selection scoring systems to period. The NPRM discussed that this individual comment letters. FHFA address affordable housing needs in would ease the administrative burdens received 16 comment letters from the their districts, similar to the on the Banks of recovering subsidy Banks’ boards of directors, Affordable recommendations made by the Banks in repayments from households, and Housing Advisory Councils (Bank their joint comment letter, but with enhance households’ ability to build Advisory Councils), and Community certain changes to reflect particular wealth, which appear to outweigh the Investment Officers (CIOs). Eighteen policy objectives. retention agreements’ potential to deter members of Congress representing the Current regulation. The current AHP rare instances of flipping. states of Arkansas, Louisiana, regulation prescribes a scoring-based In addition, the proposed rule would Mississippi, New Mexico, and Texas co- project selection system based on a 100- streamline the responsibilities of the signed a comment letter. A member of point scale, under which each Bank parties involved in monitoring projects Congress representing the state of New must allocate: for compliance with AHP income Jersey also submitted a comment letter. • At least 5 points each to two targeting and rent requirements by FHFA received 99 letters from trade priorities derived from the statute aligning the AHP project monitoring associations, nonprofit organizations, (combined 10 points minimum); requirements with those of certain other and state and local government government funding programs. For organizations. Lenders such as banks, 6 Summaries of each of these meetings are example, the proposal would remove credit unions, and Community available on FHFA’s website at: https:// certain back-up documentation www.fhfa.gov/SupervisionRegulation/Rules/Pages/ requirements for the initial monitoring 5 See 83 FR 19188 (May 2, 2018). Comment-List.aspx?RuleID=612.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61189

• At least 5 points each to four least 55 percent of its total AHP funds percentages that the Banks would be regulatory priorities addressing specific to projects, in the aggregate, meeting at required to meet under the outcome housing needs set forth in the least two of the three other regulatory requirements, raising concerns that regulation, and at least 20 points for the priorities. requiring mathematical calculations of regulatory priority for income targeting The proposed rule would have dollar amounts and numbers of rental (a combined 40 points minimum for the permitted the Banks to re-rank the order units would increase the Program’s five regulatory priorities). of applications, by replacing a higher complexity. Many commenters, • The remaining maximum of 50 scoring application that does not including the Banks, a Bank Advisory points to one or more housing needs contribute to meeting the outcome Council, and a trade association, specified under the first Bank district requirements with a lower scoring strongly objected to the proposal to priority (from 12 eligible housing needs project that does, in order to enable the permit the Banks to re-rank the order of specified in the regulation, and to one Banks to meet the outcome scored applications as a way to meet the or more housing needs in the Banks’ requirements. If a Bank failed to fulfill proposed outcome requirements. districts selected by the Banks under the the outcome requirements, FHFA would Commenters expressed concern that the second Bank district priority (with at have the authority to require the Bank ability to re-rank scored applications least 5 points allocated to each Priority). to develop and implement a housing would undermine the integrity, Proposed rule. The proposed rule plan for addressing the Bank’s predictability, simplicity, and would have authorized the Banks to noncompliance, or to order the Bank to transparency of the AHP, and deter design their own scoring systems, reimburse its AHP Fund in the amount project sponsors from submitting subject to an outcome-based framework of funds necessary to address the dollar applications to the Program. under which a specified percentage of shortfall. Numerous commenters, including the each Bank’s total annual AHP funds Comments. A large majority of Banks, a trade association, and lenders, would be required to be awarded to commenters addressed the proposed strongly opposed the proposed projects meeting specific outcome outcome-based framework for project enforcement provisions for Bank requirements established by FHFA in selection. Most commenters, including noncompliance with the proposed the proposed rule. As discussed in several Banks, several trade outcome requirements. Commenters Section II.B. and C. above, the proposal associations, numerous lenders, many stated that requiring a Bank to was intended to address the Banks’ and nonprofit and for-profit developers, and reimburse its AHP Fund in the amount stakeholders’ input on the AHP by some members of Congress, expressed of any dollar shortfall would impose a providing the Banks greater flexibility to reservations about, or opposition to, the ‘‘penalty’’ and ‘‘undue and severe design their competitive application proposed approach. Many of these punishment’’ on the Bank. A Bank programs to meet their district housing commenters asserted that the proposal noted that requiring such needs while continuing to ensure the was too prescriptive and complicated, reimbursement would result in a Bank Programs fulfill the statutory and would result in unintended contributing annually more than the requirements. The proposed outcome consequences, such as increased statutorily required 10 percent of its net requirements would have included the Program complexity, preferences for income to its AHP for the particular three statutory priorities for: (1) Projects certain types of projects, and reduced year. Commenters also suggested that a sponsored by a government or nonprofit transparency of the AHP. While not reimbursement requirement would lead entity; (2) use of donated or conveyed explicitly expressing support for the to reductions in the diversity of the government property; and (3) purchase proposal, several commenters projects awarded AHP funds, as the of homes by low- or moderate-income acknowledged the potential benefits of Banks would select conventional and households. Each Bank would have the proposed outcome-based approach. unchallenging housing needs as part of been required to award at least 55 For example, a nonprofit intermediary their scoring systems in order to ensure percent of its total AHP funds to recognized that the approach may fulfillment of the proposed outcome projects meeting the donated or facilitate the Banks’ ability to increase requirements and avoid having to conveyed government properties the diversity of populations receiving reimburse their AHP Funds. priority or government or nonprofit AHP funds, as well as fulfill a broader The eleven Banks jointly submitted a sponsorship priority, and to award at range of district affordable housing proposal for project selection based on least 10 percent of its total AHP funds needs. Several commenters, including a the current regulatory scoring system, to households or projects meeting the number of Banks, also acknowledged with certain changes to the regulatory priority for purchase of homes by low- that the proposed regulatory priorities priorities and required minimum or moderate-income households. under the outcome-based approach were allocations of scoring points. The Banks’ In addition, the proposed outcome germane to the affordable housing needs proposal is discussed further below requirements would have included four of their districts. under § 1291.26 (Scoring Criteria for the regulatory priorities, with specified However, most of the commenters General Fund) in Section IV. eligible housing needs included under expressed concern that the proposal Decision in the final rule. The final each of the regulatory priorities, for: (1) would or might restrict the Banks’ and rule does not adopt the proposed Very low-income targeting for rental members’ ability to address the outcome-based framework. Instead, the units; (2) underserved communities and particular housing needs of local final rule amends the current regulatory populations; (3) creating economic communities, which some of these scoring framework to provide the Banks opportunity; and (4) affordable housing commenters described as a ‘‘hallmark’’ with additional flexibility in designing preservation. Each Bank would have of the AHP, in favor of a national their project selection scoring systems to been required to ensure that at least 55 housing needs focus. Some Bank address affordable housing needs in percent of all rental units in rental Advisory Councils also expressed their districts, similar to the projects receiving AHP awards were concern that the proposal would recommendations made by the Banks in targeted to very low-income households diminish the role of the Bank Advisory their joint comment letter but with (households with incomes at or below Councils in identifying the affordable certain changes to reflect particular 50 percent AMI). In addition, each Bank housing needs of the districts. Several policy objectives. Revisions to the would have been required to award at commenters focused on the proposed existing regulatory scoring system

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61190 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

include broader regulatory priorities the first day that applications may be Comments. FHFA received a mix of encompassing more housing needs and submitted for that Targeted Fund comments in support of and opposition additional discretion in allocating (unless the Targeted Fund is specifically to the proposal to authorize Targeted scoring points under the Bank district targeted to address a federal or state- Funds. A nonprofit organization priority. declared disaster). Further, the final rule commented that Targeted Funds would FHFA’s analyses of the Banks’ awards requires a Bank to establish a minimum enhance the interaction between a in recent years indicate that most, if not of three scoring criteria for each Bank’s board of directors and its Bank all, of the Banks would have readily met Targeted Fund that assist the Bank in Advisory Council. The commenter also the proposed outcome requirements, selecting the projects that meet the noted that Targeted Funds would especially with the correction to the specified affordable housing needs to be provide each Bank greater opportunities calculation of the proposed outcome addressed by the Targeted Fund. In to address varying market needs, reach requirement for the three regulatory addition, the final rule provides that a more underserved communities, and priorities, while having increased Bank may not allocate more than 50 possibly expand the geographical flexibility to target district housing points to any one scoring criterion. The footprint of its AHP. The Banks and needs. However, the Banks and other final rule also implements a phase-in several Bank Advisory Councils stated commenters expressed concern about period for establishing Targeted Funds. that Targeted Funds would prove the proposed outcome requirements, A Bank would be limited initially to beneficial by providing the Banks with especially the prospect of accountability establishing one Targeted Fund to the ability to target specific affordable for noncompliance with the outcome which it could allocate up to 20 percent housing needs within their districts. requirements and the potential to have of its total annual AHP funds. In the The Banks also commented that the use to reimburse their AHP Funds for any second year, the Bank could establish of Targeted Funds would provide dollar shortfall. Because FHFA has two Targeted Funds with a maximum additional flexibility and decided not to implement the proposed allocation of 30 percent, and in the third responsiveness to changing housing outcome-based approach, the proposed year three Targeted Funds with a needs by permitting the Banks to enforcement provisions for Bank maximum allocation of 40 percent. establish and tailor separate scoring noncompliance with the outcome Current regulation. The current priorities. The Banks and Bank requirements (proposed §§ 1291.48 and regulation does not authorize a Bank to Advisory Councils stated, however, that 1291.49) are moot and, therefore, not establish Targeted Funds. implementation of the proposed adopted in the final rule. Proposed rule. The proposed rule outcome-based framework would The Agency finds the Banks’ proposal would authorize the Banks to establish undermine the potential benefits of for project selection, which is based on up to three competitive Targeted Funds, Targeted Funds. They also asserted that both the current scoring system and and to allocate a maximum of 40 FHFA’s proposed regulatory priorities specific regulatory priorities in the percent of their total annual AHP funds under the outcome-based framework proposed rule, to be a reasonable to establish such Targeted Funds, would drive the scoring process and approach, subject to certain changes to subject to the phase-in requirements overshadow the local needs of each achieve specific policy objectives. The described above. The Banks would use district. revised scoring-based framework in the these funds to address specific Several commenters, including the final rule is discussed in Section IV. affordable housing needs within their Banks, Bank Advisory Councils, a trade below, under § 1291.25 (Scoring districts that are unmet, have proven association, and a policy organization, Methodologies), and § 1291.26 (Scoring difficult to address through the existing supported the proposed maximum 40 Criteria for the General Fund). General Fund, or align with objectives percent funding allocation for Targeted identified in their strategic plans. B. Authority for the Banks To Establish Funds. In contrast, a nonprofit advocacy FHFA’s intent in proposing this organization and a government entity Targeted Funds authority was to help address challenges expressed concern that the proposal Final rule. Consistent with the the Banks experience when trying to would lead to a decrease in funding for proposed rule, the final rule authorizes target specific affordable housing needs affordable rental housing. A nonprofit the Banks to establish funds targeted to within their districts, especially in a intermediary supported Targeted Funds, address specific affordable housing single AHP funding round. Banks report but recommended that the Banks be needs within their districts that are that the existing regulatory scoring permitted to allocate an unspecified either unmet, have proven difficult to requirements can affect their efforts to percentage that is less than 40 percent address through the Bank’s General fully address affordable housing needs to their Targeted Funds to ensure that a Fund, or align with objectives identified within their districts. Establishing a majority of the Banks’ AHP subsidies in their strategic plans (referred to as Targeted Fund with a dedicated funding remain available under the General ‘‘Targeted Funds’’). allocation to a particular housing need Fund to address a broad spectrum of The final rule requires the Banks to would enable competitive projects affordable housing needs within each adopt and implement parameters to serving that housing need to receive district. A nonprofit developer asserted ensure that each Targeted Fund is awards pursuant to the competitive that Targeted Funds would compel designed to receive a sufficient number process under that Targeted Fund, while project sponsors to apply for AHP of applicants for the amount of AHP other projects would receive awards subsidy under both the General Fund funds allocated to the Targeted Fund under the General Fund, thereby serving and the Targeted Fund, resulting in such that administration of each multiple housing needs in the same costly compliance and administration Targeted Fund results in a robust AHP funding round. The Banks would expenses for the Banks, members, and competitive scoring process. These be required to adopt and implement project sponsors. parameters include requirements that a controls to ensure that each Targeted The Banks expressed concern that the Bank must specify the particular type of Fund is designed to receive sufficient proposed regulatory language requiring affordable housing needs the Bank plans numbers of applicants for the amount of each Bank to adopt and implement to address through any Targeted Funds AHP funds allocated to the Targeted controls to ensure that each Targeted in its TCLP, and that a Bank must Fund to enable the Bank to facilitate a Fund receives sufficient numbers of publish its TCLP at least 90 days before genuinely competitive scoring process. applicants for the amount of AHP funds

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61191

allocated to the Targeted Fund is vague, applying to both Funds in the same requests that the Agency provide the complex, and undefined. year, FHFA does not anticipate this Banks additional flexibility to target Decision in the final rule. FHFA has becoming a significant problem for the specific housing needs in their districts. considered the comments received on Banks and project sponsors due to the Comments. The commenters were the proposal for Targeted Funds and limited scope of Targeted Funds, and divided over the proposal. The Banks, continues to be persuaded that Targeted the time involved in completing Bank Advisory Councils, several Funds may increase the flexibility of the multiple applications. The specific nonprofit organizations, and trade Banks to emphasize multiple housing requirements in the final rule for associations supported the proposal. needs in a given year, thereby establishing and administering Targeted Some nonprofit organizations and trade enhancing their ability to address Funds are discussed under associations expressed support for the specific affordable housing needs in § 1291.20(b)(1) in Section IV., below. proposed amendments that would their districts. The Agency also expand and enhance the reach of the continues to be persuaded that the C. Proposed Increase in the Maximum Homeownership Set-Aside Programs. Banks should be permitted to allocate Permissible Annual Funding Allocation One trade association supported the up to 40 percent of their total annual for Homeownership Set-Aside Programs proposed increase, expressing the hope AHP funds to Targeted Funds. Although Final rule. In a change from the that it would help increase the supply a number of commenters expressed proposed rule, the final rule retains the of entry-level homes, as well as improve concern that allocation of AHP funds to current maximum permissible annual the affordability of the homes. A Targeted Funds would potentially funding allocation of 35 percent for nonprofit organization stated that the reduce the total amount of AHP funds Homeownership Set-Aside Programs. proposal would increase the number of available for affordable rental housing, The final rule also retains the current low- and moderate-income homebuyers they offered no support to substantiate alternate maximum permissible annual or homeowners that would be able to their concerns that the Banks would funding allocation of $4.5 million for purchase or rehabilitate their homes. A target their Targeted Funds for owner- such Programs. trade association suggested that FHFA occupied housing. The 40 percent limit Current regulation. The current index the dollar cap for the $4.5 million would provide the Banks significant regulation authorizes each Bank, in its alternate maximum allocation to flexibility to allocate AHP subsidy to discretion, to allocate annually up to the address further erosion of the funds’ Targeted Funds, which could include greater of $4.5 million or 35 percent of purchasing power as mortgage rates and Targeted Funds for owner-occupied the Bank’s annual required AHP home prices rise. housing or rental housing. In fact, the contribution for Homeownership Set- Numerous nonprofit organizations Banks indicated that they would likely Aside Programs. opposed the proposed increase on the use Targeted Funds for rental housing. Proposed rule. The proposed rule basis that it would effectively reduce The final rule requires that the Banks would have increased the current AHP funding for rental housing. allocate at least 50 percent of their total maximum permissible annual funding Commenters noted the important role annual AHP funds to the competitive allocation for Homeownership Set- the AHP plays in supporting the General Fund. The final rule also allows Aside Programs from 35 to 40 percent, preservation and expansion of rental a Bank to allocate up to 35 percent of and would have retained the current properties for very low-income and its total annual AHP funds to optional, alternate maximum permissible annual extremely low-income households. A noncompetitive Homeownership Set- funding allocation of $4.5 million. The nonprofit organization cited data Aside Programs, which are discussed NPRM noted that the current regulation derived from the American Community further under § 1291.12 (Allocation of allows the Banks to establish more than Survey describing the Nation’s Required Annual AHP Contribution) one Homeownership Set-Aside Program significant shortage of affordable rental below. Thus, the final rule ensures that to address the homeownership needs of housing, including for extremely low- the Banks award a majority of their AHP different populations, such as military income households (incomes of less funds through competitive processes veterans or disaster victims. FHFA than 30 percent of AMI or less than the (for example, 50 percent for the General stated that the increase in the maximum federal poverty line). Another nonprofit Fund plus 15 percent for Targeted percentage allocation amount would organization acknowledged the Funds, or 65 percent for the General enhance the ability of the Banks and importance of promoting Fund). their members to meet the demand for homeownership for lower income FHFA also considered the Banks’ set-aside funds and provide more households, but opposed the proposed concerns about the proposed language assistance to low- or moderate-income increase without an offsetting increase that each Targeted Fund have controls homebuyers and homeowners, in funding for affordable rental projects, for ensuring that it is designed to including first-time homebuyers. FHFA to help address the significant need for receive sufficient numbers of applicants also noted that the increase would assist such housing nationwide. Several for the amount of AHP funds allocated Bank members by enhancing their nonprofit organizations that advocate to the Targeted Fund. The requirement ability to access a wider customer base, for the development of multifamily that the Targeted Fund be designed to originate new mortgages for low- and housing also opposed the proposal on receive sufficient numbers of applicants moderate-income households, and the basis that a reduction in the amount pertains to the scope and scoring fulfill their obligations under the federal the Banks must allocate to their General methodology of the Targeted Fund, and Community Reinvestment Act. Funds would run counter to the is not a guarantee of the actual number FHFA acknowledged that the increase promotion, development, and of applicants received. could result in a smaller amount of preservation of rental housing. One of FHFA also acknowledges the funds allocated by the Banks to their the nonprofit organizations urged FHFA commenter’s concern that project competitive application programs, to maintain the existing funding sponsors may feel compelled to submit which could result in reduced funding allocation cap of 35 percent because it applications for the same project to both for rental projects. However, FHFA ensures that a minimum 65 percent of the General Fund and any applicable considered the proposal to be each Bank’s total annual AHP Targeted Fund at a Bank. While the final reasonable given the significant demand contribution is available to fund rental rule does not prohibit applicants from for set-aside funds and stakeholder projects. The commenter also implied

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61192 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

that funding for the General Fund the alternate $4.5 million maximum flip properties. However, as also noted should have priority over funding for threshold. FHFA has analyzed whether in the NPRM, homes purchased by Homeownership Set-Aside Programs revisions to the $4.5 million limit would AHP-assisted households are not because rental housing projects must be necessary and concluded that the typically located in neighborhoods with address the accessibility needs of future Banks’ need for, or use of, the $4.5 rapidly appreciating house prices that residents, while single-family million maximum is unlikely to change. would encourage flipping, and most homeownership programs do not. The specific requirements for AHP-assisted households do not sell Decision in the final rule. In response establishing, funding, and administering their homes during the five-year to the commenters’ concerns and the Homeownership Set-Aside Programs are retention period. Moreover, the NPRM continued need for affordable rental discussed below in §§ 1291.12 and indicated that the underlying policy of housing, FHFA has decided to retain the 1291.40 through 1291.44 of Section IV. the AHP is to enable low- and moderate- existing maximum permissible funding D. Proposed Elimination of the income households to receive the allocation of 35 percent of a Bank’s Requirement for Owner-Occupied benefits of homeownership, including required annual AHP contribution for Retention Agreements appreciation in the value of their homes, Homeownership Set-Aside Programs. which would weigh in favor of a The final rule also retains the alternate Final rule. In a change from the reduction in the amount of subsidy $4.5 million threshold. proposed rule, the final rule eliminates repaid by the household when selling or The continued need for affordable the current requirement for owner- refinancing the unit. rental housing is supported by the Joint occupied retention agreements where Comments. The NPRM specifically Center for Housing Studies of Harvard households use the AHP subsidy solely requested comments on the advantages University in its annual overview of the for rehabilitation of a unit, but retains it and disadvantages of the AHP owner- housing conditions in the United States. in other circumstances. occupied retention agreement, whether The organization’s report, The State of Current regulation. The current eliminating it would impact FHFA’s the Nation’s Housing 2018, examined regulation requires owner-occupied ability to ensure that AHP funds are and assessed the Nation’s progress in retention agreements where a household being used for the statutorily intended producing decent and affordable homes uses the AHP subsidy for purchase, for purposes, whether there are ways to for all households.7 The report found purchase in conjunction with deter flipping other than a retention that more than 38 million households in rehabilitation, or solely for agreement, and whether the proposed the U.S. have housing cost burdens that rehabilitation of a unit. Members must increase in the maximum permissible leave little income to pay for food, ensure that the AHP-assisted owner- grant to households from $15,000 to healthcare, and other basic necessities. occupied unit is subject to a five-year $22,000 under the Homeownership Set- The report determined that more than deed restriction or other legally Aside Program should impact the 11 million renters are severely cost enforceable retention agreement or decision on whether to eliminate burdened because they pay more than mechanism requiring that, in the case of retention agreements. half their incomes for housing. The a sale or refinancing of the unit prior to The majority of commenters who report also found that for every 100 the end of the retention period, the addressed the proposal to eliminate the extremely low-income renters, only 35 household repays the Bank an amount requirement for owner-occupied rental units were affordable and equal to a pro rata share of the AHP retention agreements generally opposed available in 2016—a nationwide subsidy that financed the purchase, it. A number of nonprofit advocacy shortfall of more than 7.2 million units. construction, or rehabilitation of the organizations asserted that elimination Very low-income renter households also unit, reduced for every year the of owner-occupied retention agreements faced a shortfall of 56 affordable and household owned the unit, from any net would, by increasing homeowner available rental units per 100 gain realized upon the sale or equity, expose subsidy recipients to households. The report concluded that refinancing, unless either the unit is greater risks of fraud and abuse by conditions at the low end of the purchased by a very low-, or low- or predatory lenders and unscrupulous affordable housing rental market would moderate-income household or, investors. These commenters also stated probably remain exceptionally tight following a refinancing, the unit that the use of owner-occupied retention over the long term in the face of strong remains subject to a retention agreement agreements has played an important role demand and diminishing supply.8 or other appropriate mechanism as in preventing waste and abuse of AHP In addition, under the new authority described in the regulation. subsidies for homeownership. for the Banks to establish Targeted Proposed rule. The proposed rule Several nonprofit organizations Funds for homeownership or rental would have eliminated the retention asserted that retention agreements play projects, the Banks may increase their agreement requirement for all owner- an important role in deterring property focus on homeownership needs by occupied units, regardless of how the flipping. These commenters noted that establishing Targeted Funds for subsidy was used by the household. The organizations that provide access for homeownership. This mitigates the NPRM did not specifically address or homeownership opportunities to lower- need to increase the maximum request comment on whether the income families frequently employ permissible annual funding allocation elimination of owner-occupied retention retention agreements, often in the form for Homeownership Set-Aside agreements should apply only where the of subordinate liens. They stated that Programs. AHP subsidy is used for rehabilitation this strategy has proven extremely The final rule does not adopt the without an accompanying purchase of effective in protecting homeowners from commenter’s recommendation to index the unit. predatory lenders and preventing the FHFA noted in the NPRM that the loss of homeowner equity and subsidies 7 See Joint Center for Housing Studies of Harvard purpose of retention agreements is to through flipping. They suggested that University, State of the Nation’s Housing 2018 deter flipping of homes, and also FHFA provide the Banks with discretion (2018), available at http://www.jchs.harvard.edu/ discussed the moral hazard risk that on whether to use retention agreements sites/default/files/Harvard_JCHS_State_of_the_ Nations_Housing_2018.pdf (last accessed 11/15/ may be associated with the use of as the Banks deem appropriate, to 2018). subsidy intended to provide housing to ensure protection of homeowner equity 8 Id. low- or moderate-income households to and AHP subsidies. A state housing

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61193

agency emphasized the benefits of the requirement for an owner-occupied E. Clarification of the ‘‘Cure-First’’ having owner-occupied retention retention agreement where a household Requirement for Project Noncompliance agreements when recipients receive uses the AHP subsidy for rehabilitation Final rule. The final rule adopts the substantial amounts of grant funds. without an accompanying purchase. sequence of remedial steps in the event Although one of the Banks discounted Many of the commenters tied their of project noncompliance set forth in property flipping as a substantial risk, strong support for owner-occupied the proposed rule, with clarification of the Bank stated that predatory lending retention agreements to their view that the ‘‘cure-first’’ step to indicate that a does pose risks for AHP-assisted the agreements help deter flipping or project sponsor or owner must make a households. other types of fraud, although neither reasonable effort to cure the A nonprofit organization commented supporting data nor studies were noncompliance, and if the that while flipping in the AHP may be provided to support those views. Due to noncompliance cannot be cured within rare, it is rare precisely because of the the volume of comments FHFA a reasonable period of time, the Bank retention agreement and not because received, particularly from must proceed to the next step of homes purchased by AHP-assisted organizations with extensive experience evaluating the project for a households are not typically located in with the AHP and similar programs that modification. neighborhoods with rapidly offer comparable homeownership Current regulation. The current appreciating housing prices, as FHFA assistance, FHFA is persuaded that regulation specifies three types of indicated in the NPRM. The commenter retention agreements may play a remedial actions to address AHP project stated that it has seen evidence of relevant role in deterring abuse and noncompliance resulting from the flipping and other forms of fraud flipping, as well as protecting actions or omissions of a project sponsor (specifically, the use of ‘‘straw buyers’’), homeowners from predatory schemes. or project owner, but does not specify and that these material risks are largely The use of retention agreements in the order in which a Bank must pursue unrecognized because of the connection with AHP subsidies these remedies. The remedial actions effectiveness of retention agreements provided for home purchase, and are: (1) Cure by the project sponsor or like those in the AHP. rehabilitation with an accompanying Several commenters, including all of owner of the noncompliance within a purchase, aligns with approaches of the Banks and a number of nonprofit reasonable period of time; (2) other down payment assistance organizations, recommended that FHFA modification of the terms of the providers that require retention authorize the Banks to use retention approved AHP application; or (3) agreements for purchase of homes, agreements in their discretion, based on recovery of the AHP subsidy or including the U.S. Department of criteria determined by each Bank, which settlement for less than the full amount Housing and Urban Development’s would enable the Banks to address the of subsidy due. FHFA may require the different housing markets both across (HUD) HOME Investment Partnerships Bank to reimburse its AHP Fund in the and within their districts, differences in Program (HOME), certain private amount of the shortfall, unless: (1) The eligible uses of AHP grants (e.g., down lenders, and state and local agencies. Bank has sufficient documentation payment, closing costs, rehabilitation), However, as further discussed below showing that the sum agreed to be and grant amounts among the Banks’ under § 1291.15(a)(7) in Section IV., the repaid under the settlement is General Funds and Homeownership Set- final rule adopts several requirements reasonably justified, based on the facts Aside Programs. The Banks stated that for owner-occupied retention and circumstances of the their Bank Advisory Councils and agreements that are intended to ease the noncompliance; or (2) the Bank obtains boards of directors have the necessary operational burdens on the Banks and a determination from FHFA that the experience, knowledge, and familiarity members, and reduce the financial sum agreed to be repaid under the with local real estate markets to burden on AHP-assisted households, by settlement is reasonably justified, based determine whether the need for minimizing the frequency and amount on the facts and circumstances of the retention agreements exists in each of AHP subsidy repayments by such noncompliance. market. Several of the Banks indicated households. Proposed rule. The proposed rule that, if given the discretion, they would In contrast, where the AHP subsidy is would require the following sequence of choose not to use retention agreements. used solely for rehabilitation of homes, remedial steps in the event of project One Bank and a commercial lender with no accompanying purchase, noncompliance: (1) The project sponsor specifically opposed requiring retention flipping of the homes is unlikely. Many or owner must cure the noncompliance agreements where AHP subsidies are of the recipients of AHP subsidy for within a reasonable period of time; (2) used for rehabilitation of units for rehabilitation are long-term if the project sponsor or owner cannot elderly households and special needs homeowners, typically elderly cure the noncompliance within a households, such as persons with households or persons with disabilities. reasonable period of time, the Bank disabilities. The Bank noted that These homeowners often need AHP must determine whether the changes in circumstances related to funds for rehabilitation of their homes, circumstances of the noncompliance households’ ages or health could affect such as installing a wheelchair ramp or can be eliminated through a their need to sell their homes, and repairing a leaky roof, to enable them to modification of the terms of the retention agreements requiring remain in their homes and, therefore, approved application under proposed repayment of AHP subsidy upon sale are less likely to move from their homes § 1291.27; and (3) if the circumstances would unduly burden these households. within a five-year period. In addition, of the noncompliance cannot be Decision in the final rule. In a the requirement to repay AHP subsidy eliminated through a cure or significant change from the proposed may impose a financial burden on such modification, the Bank (or member if so rule, the final rule retains the current households in the event that they are delegated) shall make a demand on the requirement for owner-occupied required to sell their homes to pay project sponsor or owner for repayment retention agreements where a household expenses associated with a change in of the full amount of the AHP not used uses the AHP subsidy for purchase, or life circumstances, such as the need to in compliance with the AHP application for purchase in conjunction with move to an assisted living facility or commitments, and if that demand is rehabilitation, of a unit, but eliminates nursing home. unsuccessful, the member, in

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61194 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

consultation with the Bank, shall make naturally meet the ‘‘good cause’’ noncompliance is beyond the control of reasonable efforts to collect the AHP requirement for modification because the project sponsor or owner, they may subsidy from the project sponsor or the project sponsors, owners, or be unable to cure the noncompliance owner, which may include settlement members have no control over the within a reasonable period of time. The for less than the full amount due. The noncompliance. project sponsor or owner does not have NPRM emphasized the importance of A trade association stated that a to try to cure noncompliance that is first requiring the project sponsor or ‘‘cure-first’’ requirement could cause incurable; it would simply provide a owner to cure project noncompliance problems for members that provide reasonable written justification to the within a reasonable timeframe, stating equity for projects or that have Bank indicating why it could not cure that the objective of the AHP is to committed construction or permanent the noncompliance. If the justification is provide affordable housing for eligible financing. A nonprofit organization reasonable, the Bank would then households for the duration of the AHP commented that focusing on curing evaluate whether it could approve a retention period, so recovery of AHP noncompliance first might result in modification under the rule’s subsidy should be the last resort. Cure displacement of residents from the modification requirements. of noncompliance is preferable to project. In view of the apparent modification of the commitments in the Decision in the final rule. misunderstanding of the ‘‘cure-first’’ AHP application or recovery of AHP Modification of a project’s AHP provision, FHFA has clarified the subsidy as it holds the project sponsor application commitments should not be language in §§ 1291.29(a)(1) and to its AHP application commitments, the first option for a Bank to address 1291.60(b)(1) of the final rule by adding which result in greater benefits to project noncompliance. Inherent in a that project sponsors or owners must eligible households than if the competitive application program is an ‘‘make a reasonable effort’’ to cure the commitments are reduced through award recipient’s responsibility to fulfill noncompliance, and adding a statement modification or eliminated by recovery the commitments in its application. A immediately following that one that if of the subsidy. Bank should expect and require project the noncompliance cannot be cured The proposed rule also would have sponsors or owners to make a within a reasonable period of time, the added a new section addressing reasonable effort to comply with their requirements for a modification in the remedial actions that FHFA could take AHP application commitments before next paragraph shall apply. if a Bank failed to comply with the agreeing to modify a project. It is also Because the final rule does not adopt proposed outcome requirements and preferable that recovery of AHP subsidy the proposed outcome-based scoring FHFA determined that compliance was be the last option for curing framework, the proposed remedial feasible. The proposed remedial noncompliance because the objective of actions for failure to meet the outcome authority would have included: the AHP is to provide affordable requirements are moot and, thus, not Requiring the Bank to develop and housing for eligible households for the adopted in the final rule. Other implement a housing plan approved by duration of the AHP retention period. If remedies provisions related to AHP FHFA; describing the specific actions subsidy is repaid for noncompliant noncompliance are discussed below the Bank will take to comply with the units for the remainder of the AHP under §§ 1291.60 through 1291.65 in outcome requirements for the next retention period, those units would no Section IV. longer be subject to AHP income calendar year; or requiring the Bank to F. Responsibility of Full Board of targeting and rent restrictions. reimburse its AHP Fund for the Directors for Strategic AHP Decisions difference in the amount of AHP funds Commenters described, and FHFA required to meet the outcome acknowledges, that there are cases Final rule. In a change from the requirements and the amount the Bank where sound reasons exist for why a proposed rule, the final rule retains the actually awarded. project sponsor or owner may be unable current authority for a Bank’s board of Comments. The Agency received to meet its AHP application directors to delegate to a board numerous comments expressing commitments. Further, there may be committee the responsibility to meet concern about the proposed ‘‘cure-first’’ cases where project sponsors or owners quarterly with the Bank Advisory requirement for addressing project cannot cure noncompliance because it is Council, and to approve or disapprove noncompliance. Commenters asserted beyond their control to cure. However, applications for AHP subsidies and that the Banks can address compliance commenters appeared to misread the alternates. Consistent with the proposed issues more effectively and efficiently language of the proposed ‘‘cure-first’’ rule, the final rule adopts the proposed through modification of the project’s provision to require project sponsors or prohibition on a Bank’s board delegating application commitments. The Banks owners to cure noncompliance to a board committee the responsibility and a nonprofit homeless services regardless of the causes of the to approve General Fund, Targeted agency stated that the ‘‘cure-first’’ noncompliance, including Fund, and Homeownership Set-Aside requirement might increase costs and noncompliance beyond their control to Program policies, the AHP delay disbursement of funds, and the cure, thereby preventing the Banks from Implementation Plan, and the TCLP. nonprofit organization indicated that it moving to modifications as a remedy for Current regulation. The current could result in termination of a project the noncompliance. This was not the regulation provides that a Bank’s in a tight housing market like Boston. intent of the proposed ‘‘cure-first’’ Advisory Council shall meet with Other commenters expressed concern provision, as indicated by the language representatives of the Bank’s board of that a ‘‘cure-first’’ requirement would in the following paragraph of the directors at least quarterly to provide force developers to make ‘‘feigned proposed rule stating that ‘‘[i]f the advice on ways in which the Bank can attempts’’ to cure unresolvable issues. A project sponsor or project owner cannot better carry out its housing finance and nonprofit developer asserted that the cure the noncompliance within a community lending mission, and proposal for subsidy repayment would reasonable period of time, the Bank permits that responsibility to be not take into account the cause of the shall determine whether the delegated to a committee of the board failure of a project, including fires or circumstances of the noncompliance but not to Bank officers or other Bank earthquakes. The Bank Advisory can be eliminated through a employees. The requirement for board Councils commented that some projects modification . . . .’’ If cure of the representatives to meet quarterly with

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61195

the Bank Advisory Council is a Bank of board governance best practices, and provide reports on the meetings to the Act requirement.9 The current the proposal would be an unnecessary full board. Commenters also stated that regulation also permits the board to encroachment on the boards’ ability to the proposed approach would be more delegate to a committee of the board, but oversee Bank operations. restrictive than the governing statutory not to Bank officers or other Bank Several Banks and their Bank provision, which requires each Bank’s employees, the responsibility to appoint Advisory Councils described the Banks’ Advisory Council to meet quarterly with the Bank Advisory Council members. In board committee structures and ‘‘representatives of’’ the board of addition, the current regulation permits corporate governance principles to directors. the board to delegate the responsibility demonstrate that their full boards are for approving or disapproving AHP fully engaged and aware of all AHP Decisions in the final rule. After applications and alternates, and for responsibilities and initiatives. A considering the comments, FHFA has adopting its AHP Implementation Plan, number of commenters stated that the decided to retain in the final rule the Homeownership Set-Aside Program, Banks’ AHP governance structures and current authority for the Bank’s board to and conflict of interest policies, to a processes work effectively, with the delegate to a board committee the committee of the board, but not to Bank board housing committees providing responsibility to meet quarterly with the officers or other Bank employees. reports to the full board. A Bank cited Bank’s Advisory Council. FHFA is Proposed rule. The proposed rule FHFA’s regulation at 12 CFR 1239.3, persuaded by the comments about the would have extended the existing which authorizes the Banks to model costs, inconveniences, and prohibition on the board delegating their corporate governance and inefficiencies of holding the quarterly certain AHP responsibilities to Bank indemnification practices on the meetings with the full board, the value officers and other Bank employees to Revised Model Business Corporation of quarterly off-site meetings with board include a prohibition on delegating such Act (RMBCA), as support for committees, and the language in the responsibilities to board committees. maintaining the existing AHP regulatory statute referencing ‘‘representatives of’’ Specifically, the full board, instead of a requirements concerning board the board. The final rule also retains the board committee, would have been delegations. The Bank also referred to authority for the Bank’s board to required to meet quarterly with the FHFA’s regulation at 12 CFR 1239.5, Bank Advisory Council, to approve which permits the boards to appoint delegate to a board committee the General Fund, Targeted Fund, and board committees to carry out much of responsibility to approve or disapprove Homeownership Set-Aside Program the board’s responsibilities. The Bank applications for AHP subsidies and policies, to approve and amend the AHP stated that under the RMBCA, the full alternates. Approval or disapproval of Implementation Plan and the TCLP, and board must consider only those AHP applications is based on scoring to approve or disapprove applications activities that ‘‘so substantially affect rankings under the Bank’s scoring for AHP subsidies and alternates. As the rights of the shareholders or are so system and not on strategic policy stated in the NPRM, the goal of the fundamental to the governance of the decisions. proposed non-delegation provisions was corporation.’’ The Bank further stated However, the Banks’ full boards to engage the full board in developing that delegation is a fundamental concept should be responsible for approving all and adopting strategic decisions for the of efficient and competent corporate strategic AHP policy decisions. AHP, as part of the overall strategic governance. Consistent with 12 CFR 1239.5, the planning of the Bank. FHFA noted that Numerous commenters opposed board may rely on reports from board while it anticipated that the AHP requiring a Bank’s full board, rather committees, but under the final rule, the responsibilities currently assigned to the than a committee of the board, to meet board committees would remain largely with the Bank’s Advisory Council each authority to approve strategic policy unchanged in response to the proposal, quarter. The Banks focused on the decisions resides with the full board. As the full board would have more challenges and inconveniences of noted by commenters, the board engagement with board committee requiring quarterly meetings of the full committees, whose members have recommendations and decisions. boards and Bank Advisory Councils. special housing expertise, perform an Comments. A number of commenters Some commenters stated that quarterly important role in the AHP strategic disagreed with the Agency’s rationale meetings with the full boards would be policymaking process by evaluating and for encouraging full board engagement inefficient and unnecessarily costly, developing policy recommendations, in AHP strategic responsibilities. They requiring Bank Advisory Council and FHFA expects their involvement in stated that involving more board members to spend additional time away this process to continue. However, members in the intricacies of AHP from their primary jobs in affordable instead of the board committees organizational planning and reporting housing and economic development. approving strategic policy decisions on would dilute the influence and housing Commenters also expressed concern behalf of the full board, the board expertise of the board committees that the proposal would reduce the committees will need to report their tasked with AHP responsibilities. They influence and expertise of the Bank policy recommendations to the full Advisory Councils. They pointed out stated that the proposal would create board for its approval or disapproval. that the board members who are not on inefficiencies and could result in less The specific AHP strategic policy integration of the board committees’ the board housing committees possess decisions that will need to be approved contributions into the board’s decisions different areas of expertise and, as a on Bank housing activities than the result, may not have the backgrounds by the full board are approval of General existing practices employed by the necessary to engage fully in housing Fund, Targeted Fund and Banks. One Bank stated that a board’s policy discussions with the Bank Homeownership Set-Aside Program ability to use board committees Advisory Councils. Commenters noted policies, and approval and amendment effectively, including the ability to that some Banks hold annual meetings of the AHP Implementation Plan and delegate AHP responsibilities to a board of the full board and Bank Advisory the TCLP. committee, is a fundamental component Council members, and their board housing committees meet quarterly with 9 See 12 U.S.C. 1430(j)(11). the Bank Advisory Councils and

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61196 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

IV. Section-by-Section Analysis referenced above. The Banks would also Bank Advisory Councils, but indicated be required to publish their TCLPs on that it may add value to the process if Community Support Requirements their public websites within 30 days of FHFA abandoned the proposed Regulation approval by the Bank’s board of outcomes requirements for project This section discusses the final rule’s directors, and at least six months before selection. The Banks and the Bank changes to the current Community the beginning of the Plan year. Proposed Advisory Councils also expressed Support Requirements regulation. § 1291.20(b)(1) would have prohibited a concerns about the proposed § 1290.6 Bank Community Support Bank from establishing or administering requirement to obtain empirical data Programs a Targeted Fund unless at least 12 about the housing needs in the districts, months had passed since publication of which they viewed as diminishing the Final rule. The final rule requires the its TCLP. The purpose of the 12-month Bank Advisory Councils role in advising Banks to identify in their TCLPs the notice requirement was to provide the Banks’ boards of directors. Two housing needs the Banks plan to address potential project sponsor applicants Banks opposed the proposed in their AHPs, including the particular with ample notice of the Banks’ plans to notification requirement to obtain housing needs they plan to address target AHP awards to a narrower pool of empirical data because gathering and through any Targeted Funds. The Banks potential applicants so that the project assessing the data would prevent the must publish their TCLPs at least 90 sponsors could prepare applications for Bank from responding quickly to use the days before the initial date for submission to the Targeted Fund, with AHP for disaster relief. A nonprofit submission of applications for the the goal being to generate sufficient affordable housing intermediary application funding round for the numbers of applications for the Bank to opposed the proposed requirement to specific Targeted Fund. Targeted Funds be able to conduct a robust competitive obtain empirical data on the grounds addressing federal- or state-declared scoring process for the Targeted Fund. that the requirement would add a disasters are exempt from the 90-day The proposed rule would also prohibit burden to the Banks and would not requirement. a Bank’s board of directors from prove useful in making decisions about Current regulation. FHFA’s current delegating the responsibility for how to direct AHP funding because of Community Support Requirements adopting or amending the TCLP to a the extent of housing needs throughout regulation requires the Banks to adopt committee of the board. districts. A national affordable housing annual TCLPs in conjunction with their Comments. FHFA specifically policy and advocacy organization responsibility to establish and maintain requested comments on the benefits of recommended that the Banks be 10 community support programs. The the proposed expansion of the contents required to consult with state housing Banks’ TCLPs must describe how each of the TCLPs and their linkage to the finance agencies in developing their Bank plans to address identified credit AHP Implementation Plans. FHFA also TCLPs. needs and market opportunities in its requested comments on whether the Decisions in the final rule. FHFA has district. The Banks are required to proposed expansion would impede the considered the comments and remains consult with their Bank Advisory Banks’ ability to respond to disasters of the opinion that the Banks’s TCLPs Councils, members, housing associates, through the AHP. The commenters who should identify and assess the and public and private economic responded to the proposal generally significant affordable housing needs in development organizations when opposed it, stating that the proposed their districts. The changes to the developing and implementing their requirements would be overly current requirements for developing the TCLPs. Although the Banks are required prescriptive and burdensome. The TCLPs will help to ensure that the to provide an annual notice to their Banks, a state government entity, and a Banks identify such housing needs and members about their community nonprofit developer particularly guide the Banks in deciding how to support programs, they are not required criticized the seeming disconnect design their AHPs. to make their TCLPs available to their between the timing requirements for the The final rule requires the Banks to members or to the public. TCLP and those of other sources of identify, from among the affordable Proposed rule. The proposed rule funding, such as housing finance housing needs addressed in their would amend § 1290.6(a)(5) to enhance agencies. Several commenters advised TCLPs, the housing needs they plan to the function and usefulness of the that the proposed 12-month and 6- address through the Banks’ AHP, and TCLPs, as well as improve the TCLPs’ month notice periods would conflict including the specific needs to be connection to the Banks’ strategies for with the Banks’ need for flexibility in addressed by any Targeted Funds. This implementing their AHPs. The proposal responding to disasters. One Bank differs from the proposed rule, which would require the Banks to identify and calculated that it would take would have required each Bank to assess in their TCLPs the significant approximately one to two years of identify in its TCLP the specific housing affordable housing needs in their advance work to meet the required lead needs it planned to address through the districts, reflecting market research and time in the proposed rule when Bank’s funding allocations and scoring supported by empirical data, and would factoring in time for conducting criteria under its General Fund and any have required the Banks to specify, from research, obtaining the necessary Targeted Funds and Homeownership among those housing needs, the specific internal Bank approvals, and publishing Set-Aside Programs in its AHP housing needs the Banks would address the TCLP. Implementation Plan. FHFA had through their funding allocations and The Banks commented that FHFA’s proposed that the Banks expand the scoring criteria under their General proposed outcomes requirements for scope and specificity of their TCLPs in Funds and any Targeted Funds and project selection would effectively conjunction with the outcome-based Homeownership Set-Aside Programs, as establish each Bank’s housing needs approach for project selection. Because set forth in their AHP Implementation priorities, obviating any need to conduct the final rule does not adopt the Plans. The Banks would continue to be market research, obtain empirical data, outcome-based approach, there is no required to develop their TCLPs in and expand the content of the TCLPs. longer a need to require the Banks to conjunction with the stakeholders Several Banks and a Bank Advisory include detailed information about their Council expressed concern that the General Funds and Homeownership Set- 10 12 CFR 1290.6(b). proposal could diminish the role of the Aside Programs in their TCLPs.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61197

In addition, the final rule removes the application funding round to develop or from delegating the responsibility for proposed requirement that the Banks revise AHP policies and procedures for adopting or amending the TCLP to a support the identification and inclusion in their AHP Implementation committee of the board. assessment of significant affordable Plans, and conduct outreach to educate § 1290.8 Compliance Dates housing needs with empirical data, in members, potential project sponsor response to commenters’ concerns that applicants, and other AHP stakeholders The dates by which the Banks must this would be burdensome for Banks to about the Bank’s revised scoring system. comply with these revised provisions implement. Many of the Banks were However, as discussed under Section are discussed above in Section I. concerned that the word ‘‘empirical’’ III.A. above, the final rule does not Affordable Housing Program Regulation implied that the Banks would be adopt the proposed outcome-based required to commission third-party approach. Therefore, there is no need to Reorganization of the Current AHP studies to determine district affordable require the Banks to publish their Regulation housing needs. However, the final rule TCLPs 12 months before the beginning The final rule adopts the proposed continues to require that the Banks of the TCLP year. Instead, the final rule reorganization of the current AHP assess market research they conduct or requires the Banks to publish their regulation, with some modifications to obtain in order to identify significant TCLPs no later than the publication date take into account certain changes from affordable housing needs in their of their AHP Implementation Plans. provisions in the proposed rule. The districts. Banks can also obtain This should provide the Banks reorganization is intended to provide information from their Advisory sufficient time to develop and publish greater clarity for users of the AHP Councils to support their market their TCLPs, while underscoring the regulation. Current and new regulatory research. linkage between the TCLPs and the AHP sections are grouped under new Subpart The final rule continues to require the Implementation Plans. headings according to similar subject Banks to consult with their Bank As noted above, the proposed rule matter, resulting in renumbering of most Advisory Councils, members, housing would have required a Bank planning to sections of the current regulation. The associates, and public and private establish a Targeted Fund to publish its numbering of the sections is not economic development organizations in TCLP at least 12 months before consecutive from Subpart to Subpart in developing their TCLPs, which should establishing and administering the order to reserve room within Subparts ensure a robust process for obtaining Targeted Fund. FHFA finds for the addition of new sections in the input on the TCLPs. In response to the commenters’ concerns persuasive that future, as necessary. FHFA received no comment that the Banks should also this proposed timeframe would impede comments on the proposed consult with state housing finance the Banks’ ability to address pressing reorganization of the regulation. agencies in developing their TCLPs, affordable housing needs, including The following discusses each section those entities likely are housing natural disasters. Accordingly, the final of the final rule amending the current associates, as defined under FHFA’s rule sets the time period for publishing AHP regulation in the order the sections General Definitions regulation,11 so the a TCLP that addresses the use of appear in the final rule. final rule makes no change to this Targeted Funds as 90 days before the Subpart A—General language in the Community Support opening of the AHP application funding Requirements regulation. A Bank may round, with an exemption for Targeted § 1291.1 Definitions also choose to consult with other parties Funds addressing federal- or state- As proposed, the final rule retains not referenced in the regulation as declared disasters, as they require most of the definitions currently in appropriate. expedited assistance. Because most § 1291.1. The final rule revises some of However, FHFA agrees with Banks’ TCLP years typically begin on the current definitions and adds commenters’ concerns about the January 1, the final rule does not tie the definitions, which are discussed below proposed six-month requirement for 90-day timeframe to January 1, which in the context of the related regulatory publishing the TCLPs. The commenters would result in the Banks having to amendments. stated that the proposed six-month publish their TCLPs by September 30 In addition, as proposed, the final rule requirement would inhibit the Banks’ each year. Instead, the final rule ties the makes the following technical changes abilities to respond to district affordable 90-day timeframe to the first day AHP to certain definitions, which did not housing needs, including disasters, in a applications can be submitted for the receive any comments: timely manner. The six-month funding rounds for the Targeted Funds, • A definition of ‘‘AHP’’ is added, requirement was proposed in which may be different dates which means the Affordable Housing conjunction with the Agency’s proposal throughout the year and be open for Program required to be established by for an outcome-based framework for different lengths of time. This will the Banks pursuant to 12 U.S.C. 1430(j) project selection. Under the proposed provide the Banks more flexibility in and this part 1291. outcome-based approach, a Bank would administering their Targeted Funds. • The definition of ‘‘Homeownership have been required to identify in its While significantly shorter than 12 Set-Aside Program’’ indicates that TCLP the specific housing needs the months, the 90-day timeframe should establishment of such a program is in Bank intended to address through its still provide potential applicants with the Bank’s discretion and is a funding allocations and scoring criteria sufficient notice of the Banks’ plans for noncompetitive program. under its General Fund and any their Targeted Funds so that applicants • The definition of ‘‘net earnings of a Targeted Funds and Homeownership can prepare applications for submission Bank’’ is revised by removing the Set-Aside Programs, as set forth in its to the Targeted Funds, with the goal requirement to deduct the Bank’s AHP Implementation Plan. FHFA being to produce sufficient numbers of annual contribution to the Resolution presumed that the Banks and other applications for the Banks to be able to Funding Corporation, as the Banks are stakeholders would need additional conduct robust competitive scoring no longer required to make annual time between the publication of the processes for their Targeted Funds. contributions to the Resolution Funding TCLPs and the beginning of the AHP As discussed under Section III.F. Corporation. above, the final rule adopts the proposal • In the definition of ‘‘rental project,’’ 11 12 CFR part 1201. prohibiting a Bank’s board of directors the term ‘‘manufactured housing’’ is

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61198 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

changed to ‘‘manufactured housing annual AHP contribution to up to three Homeownership Set-Aside Programs communities,’’ which more accurately Targeted Funds. The current regulation from 35 to 40 percent will continue to describes this type of housing in the requires that at least 65 percent of each ensure that each Bank generally context of rental projects. Bank’s required annual AHP allocates a minimum of 65 percent of its • References to the ‘‘competitive contribution be allocated to its total AHP funds to competitive application program’’ are changed to the Competitive Application Program. As application programs via the mandatory General Fund and any Targeted Funds. noted in Section III.B. above, the current General Fund and any optional Targeted References to ‘‘homeownership set-aside regulation does not authorize the Funds.13 Overall, FHFA intends the programs’’ are capitalized. establishment of Targeted Funds. final rule to provide the Banks greater The final rule also makes the For the reasons identified above in flexibility to allocate their total annual following technical revisions and an Section III.C., § 1291.12(b) of the final AHP funds to address the affordable addition to the definitions for greater rule retains the current limit that a Bank rental and homeownership needs within clarity, which were not included in the may allocate to its Homeownership Set- their districts. proposed rule: Aside Programs up to the greater of $4.5 • Changes ‘‘funding period’’ to million or 35 percent of its annual Homeownership Set-Aside Programs ‘‘funding round’’ to reflect the required AHP contribution. The One-third funding allocation terminology commonly used by the proposed rule would have increased the requirement for first-time homebuyers Banks and AHP stakeholders. Adds a 35 percent limit to 40 percent. or owner-occupied rehabilitation, or a definition of ‘‘LIHTC’’ to mean Low- As discussed in the NPRM, the combination of both. Income Housing Tax Credits under proposed rule would reduce the current Consistent with the proposed rule, section 42 of the Internal Revenue Code annual required allocation to a Bank’s § 1291.12(b) of the final rule requires (26 U.S.C. 42). General Fund (i.e., Competitive that at least one-third of a Bank’s • In the definition of ‘‘visitable,’’ the Application Program) from 65 percent to aggregate annual funding allocation to reference to ‘‘2 feet, 10 inches’’ is 50 percent, but noted that the 50 percent its Homeownership Set-Aside Programs changed to the equivalent ‘‘34 inches,’’ threshold would still ensure that the be allocated to assist first-time consistent with the use of ‘‘inches’’ later Banks make at least half of their AHP homebuyers or households for owner- in the definition. funds available to address a broad occupied rehabilitation, or a spectrum of affordable housing needs combination of both. The current § 1291.2 Compliance Dates within their districts through their regulation applies the one-third funding The dates by which the Banks must General Funds. FHFA also stated in the allocation requirement only to first-time comply with the revised AHP regulatory NPRM that it is extremely important homebuyers. In support of the proposal, provisions are discussed above in that a substantial portion of AHP funds FHFA noted in the NPRM that a Section I. continue to assist in the development of substantial need for owner-occupied rehabilitation funds exists in many Bank Subpart B—Program Administration rental housing for lower income districts, and the demand for such funds and Governance households given the need for more affordable rental housing throughout the is likely to increase as the country’s § 1291.10 Required Annual AHP Nation. The vast majority of awards population ages.14 FHFA reasoned that Contribution under the Competitive Application expanding the scope of the one-third Consistent with the proposed rule, the Program serve rental housing. In 2017, funding allocation requirement to final rule relocates current § 1291.2(a) to the Banks awarded 90 percent of include owner-occupied rehabilitation § 1291.10. Section 1291.10 contains the competitive funds to rental housing. could facilitate additional funding for Bank Act requirement stating that each The proposal would enable the Banks to home repairs and accessibility Bank shall contribute annually to its target simultaneously additional modifications for households including AHP 10 percent of its net income for the specific affordable housing needs in the elderly, persons with disabilities, preceding year, subject to a minimum their districts through the allocation of and military veterans. annual combined contribution by all of the remaining total AHP funds to The Banks, Bank Advisory Councils, the Banks of $100 million.12 Targeted Funds, as well as the optional and an advocacy organization supported Homeownership Set-Aside Programs. the proposal, stating that it would § 1291.11 Temporary Suspension of Two nonprofit organizations that encourage the use of more AHP Contributions advocate for the development of Homeownership Set-Aside Program Consistent with the proposed rule, the affordable multifamily housing opposed funds for owner-occupied rehabilitation final rule retains current § 1291.11 on any reduction in the minimum funding at a time when the Banks have the temporary suspension of AHP allocation to the General Fund because identified a substantial need for these contributions without change. FHFA it would result in less funding for funds. did not receive any comments on this affordable rental projects. One of those Two nonprofit organizations opposed provision. commenters supported this position by the proposal, emphasizing the scarcity referencing the NPRM discussion about of resources for low- and moderate- § 1291.12 Allocation of Required the Banks’ requests for additional income first-time homebuyers and Annual AHP Contribution funding allocation authority for noting that alternatives to AHP funding Allocation of AHP funds. Consistent Homeownership Set-Aside Programs, with the proposed rule, § 1291.12(a) of which the Banks find easier to 13 When a Bank allocates the alternate maximum the final rule requires each Bank to administer than the General Funds. amount of $4.5 million to its Homeownership Set- Aside Programs, the Bank may allocate, in the allocate annually at least 50 percent of After considering the comments, aggregate, less than 65 percent of its total AHP its required annual AHP contribution to FHFA has decided to adopt the funds to its General Fund and any Targeted Funds. its General Fund, and § 1291.12(c) proposed minimum 50 percent funding 14 83 FR at 11348, citing Harvard Joint Center for permits each Bank to allocate up to 40 allocation requirement for the General Housing Studies, Housing America’s Older Adults (Sept. 2, 2014), available at http:// percent, in the aggregate, of its required Fund in the final rule. FHFA’s decision www.jchs.harvard.edu/sites/jchs.harvard.edu/files/ not to increase the maximum percentage jchs-housing_americas_older_adults_2014-ch4.pdf 12 See 12 U.S.C. 1430(j)(5)(C). allocation for the optional (last accessed on 11/15/2018).

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61199

exist for rehabilitation. One of these allocate up to 20 percent of its required to Bank officers or other Bank commenters recommended that FHFA annual AHP contribution to one employees. establish a separate funding allocation Targeted Fund. This percentage limit § 1291.13 Targeted Community requirement for owner-occupied increases to 30 and 40 percent in Lending Plan; AHP Implementation rehabilitation to ensure that a portion of subsequent years, depending on the Plan Homeownership Set-Aside Program number of additional Targeted Funds funds are provided for this purpose, established, up to a maximum of three Targeted Community Lending Plan. while allowing the Banks to continue to Targeted Funds. The final rule makes a As discussed in § 1290.6 above and as fulfill the one-third allocation technical change to the references to the proposed, the final rule amends requirement by providing set-aside Targeted Funds being administered § 1290.6(a)(5) of the current Community funds to first-time homebuyers. concurrently to refer to their Support Requirements regulation to Assisting first-time homebuyers is an administration in the same year instead. require each Bank to identify and assess important priority for the AHP, and the This change recognizes that the Banks in its annual TCLP the significant Banks’ support for such homebuyers has may choose to administer their Targeted affordable housing needs in its district greatly exceeded the required one-third Funds at different times during the year. that it plans to address through its AHP, funding allocation requirement. Since FHFA did not receive any comments on as well as any specific affordable the inception of Homeownership Set- the proposed phase-in requirements for housing needs it plans to address Aside Programs in 1995, over 80 percent funding Targeted Funds. The phase-in through any Targeted Funds. In a of set-aside households have been first- requirements governing the number of change from the proposed rule, time homebuyers. At the same time, a Targeted Funds that a Bank may §§ 1290.6(c) and 1291.13(a)(2) of the substantial need for owner-occupied establish in any given year are discussed final rule require that if a Bank plans to rehabilitation funds exists in many Bank below under § 1291.20. establish a Targeted Fund, it must publish its TCLP at least 90 days prior districts and the demand will likely Transfer of uncommitted Targeted to the opening of the application increase over time. Expanding the scope Funds amounts. Proposed funding round for the Targeted Fund, of the one-third funding allocation § 1291.12(c)(2) would have required a unless the Targeted Fund addresses requirement in the final rule to permit Bank to transfer any uncommitted federal- or state-declared disasters. The owner-occupied rehabilitation may help Targeted Fund amounts to its General final rule also provides that a Bank’s address this need by encouraging the Fund for awards to alternates in the TCLP must be published on or before Banks to increase their set-aside funding same calendar year. Section 1291.28(b) the date of publication of its annual allocations for this purpose, while of the final rule makes approval of continuing to support the needs of first- AHP Implementation Plan. A Bank is alternates under the General Fund and required to notify FHFA of any time homebuyers. FHFA is not adopting any Targeted Funds optional for a Bank the commenter’s recommendation to amendments to its TCLP within 30 days pursuant to adoption of a Bank policy establish a separate funding allocation after their adoption by the Bank’s board. on approving alternates, and requires requirement for owner-occupied AHP Implementation Plan. As funding of the alternates if the Bank has rehabilitation, as this could limit the proposed, the final rule relocates such a policy and sufficient previously Banks’ flexibility to determine how best current § 1291.3, which contains the committed AHP subsidies become to use their set-aside funds to meet the requirements for the Banks’ AHP available within one year of application first-time homebuyer and owner- Implementation Plans, to § 1291.13(b), approval. Section 1291.70(b) of the final occupied rehabilitation needs within with changes to reflect the inclusion of rule provides flexibility for the Banks to their districts. new policies required under the final The final rule also adopts a proposed determine how to commit any rule. The prohibition on delegating technical revision to clarify that the one- uncommitted Targeted Fund amounts certain strategic responsibilities to a third funding allocation requirement where the Bank does not have a policy committee of the board is discussed applies to the amount of set-aside funds to approve alternates under its General below, as are certain requirements for ‘‘allocated’’ by the Bank to such Fund or Targeted Funds. the Plan meriting particular discussion. households, not to the amount of set- Acceleration of funding. Consistent No delegation. As discussed in aside funds actually used by them, with the proposed rule, the final rule Section III.F. above and consistent with because the Bank cannot control relocates current § 1291.2(b)(3), which the proposed rule, § 1291.13(b) of the whether sufficient numbers of such contains the discretionary authority for final rule prohibits a Bank’s board of households ultimately request set-aside a Bank to accelerate future required directors from delegating to a committee funds in a given year. If an insufficient annual AHP contributions to its current of the board, Bank officers, or other number of such households request set- year’s Program, to § 1291.12(d), with Bank employees, the responsibility to aside subsidies, any unused funds certain clarifying technical edits. FHFA adopt, and make any amendments to, its would be provided to non-first-time did not receive any comments on the AHP Implementation Plan. This is an homebuyers, and a Bank will not be technical revisions. expansion of the current prohibition on considered in violation of the funding No delegation. As discussed in delegating such strategic responsibilities allocation requirement as long as it Section III.F. above and consistent with to Bank officers or other Bank allocated the required amount. FHFA the proposed rule, § 1291.12(e) of the employees. received no comments on this proposed final rule prohibits a Bank’s board of Requirements for each Fund technical change. directors from delegating to a committee (§ 1291.13(b)(2), (b)(3), (b)(5)). In the Phase-in funding allocation of the board, Bank officers, or other current regulation, each Bank must requirements for Targeted Funds. As Bank employees the responsibility for include in its AHP Implementation Plan proposed, § 1291.12(c) of the final rule adopting the policies for its General its requirements for its Competitive adopts a phase-in process for the Fund and any Targeted Funds and Application Program, including its allocation of funds to Targeted Funds in Homeownership Set-Aside Programs. scoring guidelines, and any order to address the risks of Targeted The prohibition on delegating to a Homeownership Set-Aside Programs. Funds given their targeted nature. A committee of the board is an expansion Consistent with the proposed rule, the Bank initially will be permitted to of the current prohibition on delegating final rule requires a Bank to include

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61200 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

those requirements in its AHP (§ 1291.13(b)(7)). The final rule includes Representatives of for-profit Implementation Plan for its General a requirement that a Bank include in its organizations. The Bank Act requires Fund and any Targeted Funds and AHP Implementation Plan the Bank’s that each Bank appoint a Bank Advisory Homeownership Set-Aside Programs. standards for approving a relocation Council of persons drawn from The final rule also requires a Bank to plan for current occupants of rental ‘‘community and not-for-profit include in its AHP Implementation projects pursuant to organizations’’ actively involved in Plan, the Bank’s application scoring tie- § 1291.23(a)(2)(ii)(B). providing or promoting low- and breaker policy, and any policies adopted Optional Bank district eligibility moderate-income housing in its by the Bank, in its discretion, for requirements (§ 1291.13(b)(8)). district.15 As proposed, § 1291.14(a)(1) approving AHP application alternates Consistent with the current requirement of the final rule clarifies that for funding under its General Fund and in § 1291.5(c)(15) and the proposed rule, ‘‘community organizations’’ include for- any Targeted Funds. the final rule requires a Bank to include profit organizations, which is consistent For any Targeted Funds, a Bank is in its AHP Implementation Plan any with existing Agency guidance. required to include specific parameters optional Bank district eligibility An organization that advocates on that ensure that the Targeted Fund is requirements adopted by the Bank behalf of multifamily housing providers designed to receive sufficient numbers pursuant to § 1291.24(c). strongly endorsed including of applicants for the amount of AHP Re-use of repaid AHP direct subsidy representatives of for-profit funds allocated to the Fund to facilitate in same project (§ 1291.13(b)(12)). In a organizations on the Bank Advisory a robust competitive scoring process, as change from the proposed rule, the final Councils, noting that such required in § 1291.20(b)(2)(i). In a representation adds the voices of rule retains current § 1291.3(a)(7), change from the proposed rule, the final developers and owners with experience which requires a Bank to include its rule does not require a Bank to include in affordable multifamily housing and requirements for re-use of repaid AHP in its AHP Implementation Plan the increases the pool of applicants for the direct subsidy in its AHP specific funding allocation amounts for AHP. Implementation Plan, if the its General Fund and any Targeted In contrast, several nonprofit requirements are adopted by the Bank Funds and Homeownership Set-Aside organizations expressed concern that pursuant to current § 1291.8(f)(2), which Programs, including how the Bank will for-profit organization representation on is now § 1291.64(b). The proposed rule apportion the one-third funding the Bank Advisory Councils could would have deleted § 1291.3(a)(7) allocation under its Homeownership dilute the representation and Set-Aside Programs. This will because the requirements for owner- importance of nonprofit or mission- accommodate any potential timing occupied retention agreements would driven organizations on the Bank issues a Bank may encounter that could have been eliminated in all cases, Advisory Councils. The commenters delay its ability to identify the specific meaning there would be no repayments urged FHFA to ensure that the Bank amounts of its funding allocations. of AHP subsidy by households that Advisory Councils are populated Applications to multiple Funds could then be re-used under predominantly by nonprofit and public (§ 1291.13(b)(4)). Consistent with the § 1291.8(f)(2). The final rule retains the sector representatives, who have proposed rule, the final rule requires a current requirement for owner-occupied mission-driven commitments to serving Bank to include in its AHP retention agreements where the the community. Implementation Plan the Bank’s policy household uses the AHP subsidy for FHFA acknowledges the important on how it will determine under which purchase, or purchase in conjunction role that nonprofit organizations play in Fund to approve a project that applies with rehabilitation, but not where the addressing the housing needs of low- to more than one Fund and scores high household uses the subsidy solely for and moderate-income households enough to be approved under each of rehabilitation. A household that uses throughout the country. Nonprofit, as the Funds. the subsidy for purchase, or purchase in well as for-profit and public sector, Retention agreements conjunction with rehabilitation, may be organizations all bring important (§ 1291.13(b)(6)). The final rule retains required to repay subsidy if the affordable housing perspectives to the the current requirement that a Bank household sells or refinances the home Bank Advisory Councils. In 2018, 56 include its rental retention agreement within the AHP five-year retention percent of the total membership of all requirements in its AHP period and none of the regulatory eleven Bank Advisory Councils Implementation Plan, and requires exceptions to subsidy repayment represented nonprofit organizations, inclusion of the Bank’s owner-occupied applies. Since the possibility of such and 15 percent represented for-profit retention agreement requirements for subsidy repayments remains under the organizations. The rest of the households who use the AHP subsidy final rule, a Bank could adopt a subsidy membership represented consulting for purchase, or for purchase in re-use program under § 1291.64(b). firms and government entities. For- conjunction with rehabilitation. Because Accordingly, the Bank’s requirements profit organization representation is the final rule eliminates the requirement for re-use of repaid AHP subsidy under consistent with § 1291.14(a)(3) of the for an owner-occupied retention any Bank subsidy re-use program final rule, which retains the current agreement where the household uses the adopted pursuant to § 1291.64(b) must requirement in § 1291.4(a)(3) for a AHP subsidy solely for rehabilitation, be included in its AHP Implementation diverse range of membership on the nothing is required to be included in the Plan. Bank Advisory Council such that AHP Implementation Plan regarding § 1291.14 Advisory Councils representatives of no one group such agreements. This is a change from constitute an undue proportion of the the proposed rule, which would have Consistent with the proposed rule, the membership, giving consideration to the eliminated all owner-occupied retention final rule relocates current § 1291.4, size of the Bank’s district and the agreements and, therefore, the which addresses the membership diversity of low- and moderate-income requirement to address the agreements requirements and duties of the Banks’ housing and community lending needs in the AHP Implementation Plan. Advisory Councils, to § 1291.14, with and activities within the district. Relocation plans for current the clarifications and change discussed occupants of rental projects below. 15 See 12 U.S.C. 1430(j)(11).

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61201

Recommendations on Bank Targeted not require the Banks to conduct long- Bank and a nonprofit developer stated Community Lending Plans. FHFA’s term monitoring of AHP projects that that project owners may not remember Community Support Requirements received LIHTCs during the AHP 15- their obligation to report LIHTC regulation16 requires the Banks to year retention period. Noncompliance noncompliance to the Bank under their consult with their Bank Advisory with LIHTC income-targeting and rent AHP monitoring agreements. Finally, Councils and other groups in requirements has been the same as or several commenters stated that the developing and implementing their substantially equivalent to proposal would place an additional 15- TCLPs. As proposed, noncompliance with AHP income- year regulatory burden to monitor the § 1291.14(d)(1)(ii)(A) of the final rule targeting and rent requirements. projects on members and the original includes the parallel requirement for the Although LIHTC project noncompliance project sponsors even if they had Bank Advisory Councils to provide is rare, instances of noncompliance with transferred ownership of the project recommendations to the Banks on their LIHTC income targeting or rent after project development. TCLPs, and any amendments thereto. requirements can occur during the AHP FHFA finds the comments about the No delegation. For the reasons retention period, which would mean infrequent instances of LIHTC project discussed in Section III.F. above, the that the projects’ incomes or rents likely noncompliance and the minor nature of final rule does not adopt the proposed are also in noncompliance with similar some of the noncompliance persuasive. amendment requiring a Bank’s full AHP requirements. However, the The Banks do not need to receive board of directors to meet quarterly with noncompliance generally would not notices of LIHTC noncompliance that its Bank Advisory Council. come to the attention of a Bank during will be easily resolved because these types of noncompliance will be cured § 1291.15 Agreements the AHP retention period because the Banks do not monitor LIHTC projects. within a reasonable period of time and As proposed, the final rule relocates FHFA specifically requested do not jeopardize the long-term current § 1291.9, which governs the comments on the practicality of the financial viability of the project. AHP contractual agreements that must proposed notice requirement, and However, the Banks should be notified be in place between the Banks and whether it should also be required in in the event of any material and members, and between the members the event of noncompliance by projects unresolved noncompliance during the and project sponsors or owners, to with the income-targeting or rent AHP 15-year retention period, which § 1291.15. The final rule makes a requirements of the government housing may trigger a tax benefit recapture number of changes and clarifications to programs discussed under event, so that the Bank can monitor the the provisions in this section from those § 1291.50(c)(1)(ii) below. project’s status and take remedial action in the proposed rule, as discussed Several nonprofit intermediaries and as required by the AHP regulation. As below. an advocacy organization supported the noted above, the Banks likely would not Notice to Bank of LIHTC project proposed notice requirement as become aware of material and noncompliance (§ 1291.15(a)(5)(ii)). reasonable. A number of other unresolved noncompliance without Consistent with the proposed rule, commenters, including developers, a notification because they do not monitor § 1291.15(a)(5)(ii) of the final rule adds nonprofit affordable rental housing LIHTC projects during the retention a monitoring agreement requirement for trade association, and an affordable period. notices of LIHTC project noncompliance housing developer, recommended that Concerning the comments asserting that is not contained in the current notice to the Banks only be required that the proposal would impose an regulation. The Banks’ AHP agreements where the noncompliance is additional 15-year regulatory with their members must require the ‘‘unresolved.’’ The commenters noted monitoring burden on members, FHFA members’ monitoring agreements with that the Internal Revenue Service (IRS) notes that only project owners would be project owners to include a provision requirements for notification of required to report noncompliance to the requiring the latter to agree to provide noncompliance result in the issuance of Bank. prompt written notice to the Bank if an many notices for small, easily resolved The final rule does not include a LIHTC project is in noncompliance with operating issues, and only a small requirement that project sponsors or the LIHTC income targeting or rent fraction of those notices remain owners send notices to the Banks of requirements during the AHP 15-year unresolved for a substantial period of noncompliance by projects with the retention period. However, in a change time. The notices that remain requirements of the other specified from the proposed rule, the final rule unresolved may involve projects with government housing programs because a only requires that such notice be material noncompliance issues that separate monitoring provision in the provided where the LIHTC could have an impact on the projects’ final rule addresses such noncompliance is material and financial viability. Commenters stated noncompliance. Specifically, unresolved, which may trigger a tax that the Banks should only be made § 1291.50(c)(1)(i) and (ii) requires the benefit recapture event and repayment aware of such material and unresolved Banks to obtain information annually of some of the AHP subsidy. If tax problems. from project sponsors or owners on their benefits are recaptured from a project, it In contrast, the Banks opposed the projects’ compliance with other may impact the project’s financial proposal. One Bank stated that government funding sources, as well as viability. A corresponding monitoring implementation of the proposal would the projects’ on-going financial viability, requirement that the Banks review the be impracticable because the Banks as part of ‘‘enhanced certifications’’ to LIHTC noncompliance notices received must defer to the state housing finance the Banks. from project owners during the AHP agency or the IRS in cases of Owner-occupied retention agreements retention period is included in noncompliance. A trade association and for purchase, or for purchase in § 1291.50(c)(1)(ii) of the final rule, as a developer of housing with supportive conjunction with rehabilitation proposed. services suggested that the proposal (§ 1291.15(a)(7)). For the reasons Consistent with the current regulation would have limited effect because discussed in Section III.D. above, and proposed rule, the final rule does LIHTC projects rarely become § 1291.15(a)(7) of the final rule retains noncompliant due to the nature of the the current requirement for an owner- 16 12 CFR 1290.6(a)(5)(iii). private equity investments. Another occupied retention agreement where the

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61202 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

household uses the AHP subsidy for determine whether to require notice to housing programs, and in particular, purchase of a home, or for purchase of a designee as may be appropriate for HUD’s HOME Program. The NPRM a home in conjunction with its that Bank’s operations. Accordingly, the discussed the Owner Investment rehabilitation, but eliminates the current final rule allows a Bank to determine, in Returned First approach under the requirement for an owner-occupied its discretion, whether to require notice HOME Program which, if applicable to retention agreement where the to a designee of the Bank. the AHP, would calculate net proceeds household uses the AHP subsidy solely Sale, transfer, or assignment. The available for recapture as the sales price for rehabilitation of a home. The final final rule provides that the retention minus outstanding superior debt and rule makes accompanying conforming agreement applies not only to a sale of seller paid costs, with the seller changes to various references to owner- an owner-occupied unit, but also to a recovering its entire investment first occupied retention agreements transfer or assignment of title or deed, from the net proceeds, the Bank then throughout the final rule. during the retention period, as these recovering the AHP subsidy on a pro Notice to Bank or Bank designee. forms of conveyance are the functional rata basis, and any remaining net Section 1291.15(a)(7)(i) of the final rule equivalent of sales. proceeds returned to the seller. FHFA provides that the Bank, and in its Calculation of AHP subsidy requested comments on the merits and discretion any designee of the Bank, repayment based on net proceeds and disadvantages of this approach and the shall be given notice of any sale, household’s investment. Consistent with transfer, assignment of title or deed, or § 1291.9(a)(7) of the current regulation, net gain approach from the standpoint refinancing of an AHP-assisted unit § 1291.15(a)(7) of the final rule requires of the AHP-assisted households and the during the AHP five-year retention an AHP-assisted household to repay a Banks, and whether there are other period. This is a change from the pro rata portion of the AHP subsidy if subsidy repayment approaches FHFA current regulation, which requires the unit is sold or refinanced during the should consider if a retention agreement notice to the Bank or its designee. five-year retention period, subject to requirement were retained in the final FHFA requested comments in the certain exceptions. However, the final rule. proposed rule on whether owner- rule prescribes a ‘‘net proceeds’’ FHFA received a number of occupied retention agreements, if calculation for determining the amount comments on whether it should require retained in the final rule, should require of subsidy subject to recovery. This is a a net gain or net proceeds calculation that such notice be provided to both the change from the current regulation, for determining the AHP subsidy Bank and its designee (typically the which requires repayment of a portion repayment amount. One Bank supported member), rather than to one or the other. of AHP subsidy from any net gain the use of the net gain calculation FHFA indicated that such a requirement realized upon sale or refinancing. The discussed in the NPRM as the would facilitate Program operations by subsidy repayment calculation in the appropriate basis for calculating a pro giving the Bank simultaneous notice final rule also prioritizes return of the rata repayment. In support of this with the Bank’s designee (if the Bank AHP-assisted household’s investment in recommendation, however, the Bank has one), and could facilitate repayment the home to the household. The pro rata cited the benefits of coordinating the of AHP subsidy to the Bank in cases subsidy amount subject to repayment AHP calculation methodology with where a member subsequently fails and cannot exceed what is available from those in other government programs, is subject to receivership actions by the net proceeds of the sale or such as those used by HUD, without other federal agencies. refinancing. specifying these HUD programs. One Bank favored requiring notice to Although the current regulation does Because the NPRM specifically both parties, noting that it includes this not define ‘‘net gain,’’ as FHFA noted in described only one HUD program—the requirement in its standard retention the proposed rule, a majority of the agreements as it is beneficial to the Bank Banks calculate the net gain as the sales HOME Program—in the context of the to know that a sale or refinancing of the price minus the original purchase price, owner-occupied retention agreement property has occurred. A nonprofit purchaser and seller paid closing costs, repayment calculation, and the version organization also favored requiring and capital improvement costs, and of the HOME Program calculation notice to both parties, stating that the then apply the pro rata repayment described in the NPRM is more similar minimal cost of the extra notice is worth requirement. Some of these Banks have to the net proceeds approach than the the additional layer of oversight. also deducted the AHP subsidy amount net gain approach, this commenter Another Bank indicated that it includes from the original purchase price. Other appears to have mistaken the net a requirement for notice to the Bank in Banks have calculated the subsidy proceeds and net gain calculations. its retention agreements, but opposed repayment amount using net proceeds Another Bank stated that the net gain requiring notice to a Bank designee, identified on the Closing Disclosure, by calculation has been effective for AHP- stating that this requirement might deducting the senior mortgage debt from assisted home sales, but noted that the cause confusion as to who is responsible the sales price and, depending on the calculation does not work effectively for for calculating and providing a payoff in Bank, crediting or not crediting the AHP rehabilitation grants because the the event of a sale of the property. household with its investments in the AHP-assisted homeowners are As the comments indicate, requiring home. Some of these Banks have also frequently elderly or disabled, have notice to the Bank is sound practice to added the AHP subsidy amount to the lived in their houses for decades, and ensure that the Bank is aware of events total proceeds. generally are unable to recall or do not that might trigger an obligation to Because the proposed rule would have documentation of the original recover AHP subsidy. Therefore, the have eliminated the requirement for purchase price of their homes, a final rule requires that the Banks receive owner-occupied retention agreements in necessary component of the net gain such notice. However, FHFA is all cases, it did not propose a specific calculation. Several Banks indicated persuaded by the comments that method in the rule text for calculating support for an approach that would requiring notice to both the Bank and a the repayment of AHP subsidy. minimize the need to obtain information Bank designee could be disruptive to However, the NPRM noted that FHFA from the AHP-assisted households or the Bank’s established processes. Each reviewed the subsidy repayment third parties, noting that they have Bank should have the discretion to requirements of other government experienced frequent difficulty

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61203

obtaining original purchase prices of the The subsidy repayment calculation in calculation should account for the AHP- homes. the final rule also prioritizes return of assisted household’s investment in the A nonprofit organization expressed the AHP-assisted household’s home. Households invest resources in support for using the net proceeds investment in the home to the their homes in the form of down recapture approaches as prescribed household. Specifically, payments, transaction costs (such as under the HOME Program. The § 1291.15(a)(7)(v) provides that the broker’s commission and title search commenter characterized the HOME household shall repay the Bank the fees), capital improvement costs, and Program approach as fair, and lesser of: (i) The AHP subsidy, reduced repayment of senior mortgage principal. emphasized the value of promoting on a pro rata basis per month until the The household’s investment should be alignment between multiple government unit is sold, transferred, or its title or retained and prioritized in light of the subsidy sources often used together in deed transferred, or is refinanced, purpose of AHP subsidies to provide projects. A nonprofit economic research during the AHP five-year retention households with the benefits of organization supported using a net period; or (ii) any net proceeds from the homeownership. The ‘‘household’s proceeds approach, with AHP-assisted sale, transfer, or assignment of title or investment’’ is defined in § 1291.1 to households able to recover their capital deed of the unit, or the refinancing, as mean reasonable and customary improvement costs, noting that this applicable, minus the AHP-assisted transaction costs paid in connection could help incentivize such households household’s investment. Section 1291.1 with the purchase of the unit, down to maintain their properties. A Bank of the final rule defines ‘‘net proceeds’’ payment, cost of capital improvements similarly commented that a repayment as the sales price minus reasonable and made, and any mortgage principal calculation that allows for recovery by customary costs paid by the household repaid since the purchase of the unit households of their capital and outstanding superior debt, or, in the until the time of sale or refinancing improvement costs would incentivize case of a refinancing, the principal during the AHP five-year retention households in distressed areas to invest amount of the new mortgage minus period where the household documents in such improvements. reasonable and customary costs paid by these costs to the Bank or its designee. The final rule eliminates the the household and the principal amount For example, a household could requirement for retention agreements for of the refinanced mortgage. This produce documentation of its AHP subsidies used solely for calculation uses only information that is expenditures associated with the rehabilitation. This change will available from the settlement installation of a new roof. eliminate the administrative burden on documents. The calculation also does Banks and members of attempting to not incorporate the subsidy originally Consistent with § 1291.9(a)(7)(ii) of obtain subsidy repayments from provided to the AHP-assisted the current regulation, the final rule households and also relieve a financial household, i.e., the subsidy is not added requires that the AHP subsidy be burden on those households. For owner- to the net proceeds or subtracted from reduced on a pro rata basis for the time occupied retention agreements where any of the components of the net that the household owned the unit until the household used the AHP subsidy for proceeds calculation. No AHP subsidy its sale or refinancing. However, purchase, or for purchase in conjunction may be recovered by the Bank unless whereas the current regulation provides with rehabilitation, the final rule the net proceeds exceed the AHP- generally for this reduction each year, establishes a net proceeds calculation assisted household’s investment. the final rule requires a reduction each that addresses the above-described FHFA is persuaded by the month, consistent with current Bank concerns with the net gain approach. commenters that the subsidy recovery practice, as provided below:

The final rule provides that the Bank purchaser’s income using one or more members to determine subsequent shall recover the lesser of: (i) The pro proxies that are reliable indicators of the purchasers’ incomes in order to rata subsidy amount; or (ii) the net subsequent purchaser’s income, which determine whether the subsidy proceeds minus the household’s may be selected by the Bank pursuant repayment exception applies. The investment. to guidance that FHFA will issue on current regulation is silent on the use of Exception where the subsequent proxies and which must be included in proxies in evaluating a subsequent purchaser is low- or moderate-income. the Bank’s AHP Implementation Plan. purchaser’s income. At least one Bank, Consistent with § 1291.9(a)(7)(ii) of the The requirement will become effective however, has applied a proxy, under current regulation, § 1291.15(a)(7)(ii)(B) upon issuance of the guidance. limited circumstances, to evaluate of the final rule provides an exception Neither the Bank nor its designee is subsequent purchasers’ incomes, in to the AHP subsidy repayment required to request or obtain the light of these operational constraints. requirement if the AHP-assisted unit is subsequent purchaser’s income, but FHFA requested comments on what sold to a low- or moderate-income must evaluate any income approaches should be specified in the household. However, in contrast to the documentation if made available. As retention agreement, if retained in the current regulation, the final rule noted in the proposed rule, the final rule, that would provide a provides methods of evaluating the subsequent purchaser of an AHP- reasonable basis to assume that the subsequent purchaser’s income in the assisted unit is under no obligation to subsequent purchaser of an AHP- absence of actual documentation. In provide income documentation to the assisted unit is likely to be low- or such cases, the Bank or its designee Bank or member. This has made it moderate-income, including proxies shall determine the subsequent difficult for the Banks and their that could serve this purpose such as

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 ER28NO18.000 61204 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

the following: Certification from the commenter also opposed the use of subsidy amount is $2,500 or less, subsequent purchaser or a third party third-party certifications, stating that it calculation of net proceeds is that the subsequent purchaser’s income had witnessed significant unintended unnecessary. The current regulation is at or below the low- or moderate- consequences of certification does not provide for an exception to the income limit; evidence that the requirements in the context of FHA AHP subsidy repayment requirement for subsequent purchaser is receiving direct insurance and the foreclosure process. ‘‘de minimis’’ amounts of AHP subsidy homebuyer assistance from another A nonprofit organization encouraged subject to repayment. government program with household the use of person-based proxies, such as FHFA requested comments in the income targeting requirements evidence that the homebuyer received proposed rule on whether, if the owner- substantially equivalent to those of the down payment assistance or occupied retention agreement AHP; purchase price of the AHP- participated in first-time homebuyer requirement were retained in the final assisted unit is less than the median programs or family self-sufficiency rule, there should be an exception to home price in the area; the AHP-assisted programs, rather than geographically- AHP subsidy repayment where the unit is located in a census tract or block based proxies, stating that amount of subsidy subject to repayment, group where at least 51 percent of the geographically-based proxies fail to after calculating the net proceeds or net households are low- or moderate- account for gentrification. The gain, is $1,000 or less. A number of income; or Federal Housing commenter stated, however, that self- commenters specifically supported a Administration (FHA) or other certification or certain types of third- $1,000 de minimis threshold. For underwriting standards indicate that the party certification (by the loan example, a state government housing income required to purchase the AHP- originator, for example) would be authority, an individual commenter, assisted unit at the purchase price is adequate. and a Bank stated that at a net gain of low- or moderate-income. One Bank expressed concern $1,000, the administrative cost of Commenters generally offered mixed generally about the exception to the ensuring repayment generally exceeds opinions on the use of proxies, subsidy repayment requirement for sale the value of any recaptured AHP providing a variety of responses to a low- or moderate-income purchaser, subsidy. A national nonprofit addressing which proxies would serve noting that the subsequent purchaser’s intermediary recommended a de as acceptable methods for likely income is not correlated to the AHP- minimis threshold of greater than determining the income of the assisted household’s income. The Bank $2,000, stating that this amount subsequent purchaser. A Bank asserted that the subsidy repayment constitutes a reasonable balance supported the use of two proxies: Third- exception results in different treatment between the need for sound Program party certifications; and evidence that of similarly situated AHP-assisted stewardship and asset building for low- the subsequent purchaser was receiving households based on the subsequent or moderate-income families. An direct homebuyer assistance from purchaser’s income. Another Bank affordable housing policy organization another government program. The Bank objected to any requirement for a Bank and a national trade organization noted that using median home price and or member to obtain sensitive income recommended a de minimis threshold of census tract income data may not be information from a subsequent at least $5,000. A nonprofit consumer reasonable approaches as these data purchaser with which neither organization supported FHFA points would not adequately recognize institution has a contractual establishing the de minimis threshold or track areas affected by gentrification. relationship. amount for the Banks, and suggested The Bank asserted that gentrification FHFA has considered the comments that it be adjusted using an inflator occurs gradually and that median sales regarding the use of proxies in the AHP based on the Agency’s house price price and census tract data would not and determined that the use of certain index so that it remains reasonable as reflect investor purchases and sales to proxies will help ensure that Banks and home prices escalate. new or higher-income populations. members are not requiring repayment of The affordable housing policy Another Bank supported the use of subsidy by AHP-assisted households in organization stated that if the original third-party certifications, evidence that cases where the subsequent purchaser is AHP subsidy amount was $5,000 or less, the subsequent purchaser was receiving low- or moderate-income. Therefore, there should be no subsidy repayment direct homebuyer assistance from FHFA will require that Banks use one or requirement, as such a small amount of another government program, and FHA more proxies that are reasonable subsidy would be unlikely to trigger or other underwriting standards. A indicators that the subsequent purchaser flipping, and the transaction costs nonprofit organization supported use of is likely a low- or moderate-income would nullify the value of the AHP the latter two proxies. household, pursuant to Agency subsidy. A community-based affordable The nonprofit organization objected to guidance. FHFA acknowledges housing financing organization and a the use of geographically-based proxies, commenters’ discussions of the community bank made a similar such as the purchase price of the AHP- limitations of the proxies included in recommendation where the original assisted unit relative to area median the NPRM. The Agency notes that as AHP subsidy was $7,500 or less, or home price, or location of the unit in a approximations, no proxy will be able to $10,000 or less, respectively, on the census tract or block group where at definitively determine the income of the basis that the administrative expense least 51 percent of the households are subsequent purchaser. was likely to exceed the value of the low- or moderate-income, because AHP subsidy repayment exception for investment, and households should be higher income homebuyers could de minimis subsidy amount. Section entitled at a minimum to recover their purchase homes in low-income 1291.15(a)(7)(ii)(C) of the final rule required investment at the time of sale, neighborhoods or census tracts. Another provides for an exception to the AHP net of AHP repayment so as not to nonprofit organization stated that subsidy repayment requirement for impose financial injury. certain portions of distressed AHP-assisted households where the The Banks supported a ‘‘de minimis’’ neighborhoods may be more upscale amount of AHP subsidy subject to threshold exception to the AHP subsidy than nearby sections due to the presence repayment pursuant to the calculation repayment requirement, but of certain amenities, such as water in § 1291.15(a)(7)(v) is $2,500 or less. recommended that the amount of the features and golf courses. The Under that provision, if the pro rata threshold be determined by each Bank

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61205

based on the specific facts and de minimis threshold, 783 of the 1,080 the Banks clarifying that transfer by circumstances of its district, rather than repaid grants, which is approximately 3 deed in lieu of foreclosure is the set by FHFA in the regulation. One Bank out of every 4 repaid grants, or functional equivalent of foreclosure, stated that the Banks should be approximately 73 percent, would have facilitating coordination of the AHP authorized to adjust the de minimis been exempted from repayment. with FHA requirements, and clarifying threshold over time to account for Based on this data, FHFA has decided that the heirs of the AHP-assisted housing market fluctuations and to set the de minimis threshold homeowner are not subject to any AHP inflation. Another Bank suggested that exception for AHP subsidy repayment at subsidy repayment obligation upon the the Banks be permitted to establish a de $2,500. This will result in fewer death of such homeowner. minimis amount based on a percentage households subject to subsidy recapture, The proposed rule requested of the original AHP subsidy amount, thereby enabling households to benefit comments on whether this clarification rather than a fixed dollar amount, more from appreciation in the value of should be made in the final rule if because of the variations in the size of their homes, and reduce the Banks’ FHFA retained the current requirement AHP subsidy amounts provided by the operational expenses associated with for owner-occupied retention different Banks. A nonprofit the subsidy repayment process. FHFA agreements in the final rule. The Banks organization recommended requiring set the de minimis threshold at a fixed and a trade organization favored each Bank to establish a de minimis dollar amount, rather than a percentage including the clarifying language in the threshold based on the Bank’s and its that varies based upon the grant final rule. One Bank stated that the members’ actual administrative costs for amount, for ease of implementation by clarification would be useful for assigning a lien on a property and the Banks, members, and households. members and project sponsors using the calculating repayments of subsidy. The FHFA considered requiring each Bank AHP Bank in that it would help the commenter stated that applying a de to establish a de minimis threshold Banks resolve ongoing issues with minimis threshold would avoid based on the actual administrative costs homebuyers using FHA loans as the economic waste, but that support of a incurred by the Bank and its members underwriters flag the loans if this prescribed amount was impossible for assigning liens on properties and language is missing from the AHP without further data. calculating subsidy repayments, but did retention agreements. The Bank also FHFA has considered the comments not receive any comments or other indicated that elderly owners are and has decided to establish a de information quantifying the actual sometimes reluctant to sign the AHP minimis threshold of $2,500 in the final administrative costs that FHFA could retention agreement for fear that the rule. As discussed in the NPRM and evaluate. FHFA also opted not to index potential AHP subsidy repayment underscored by the comments, the de minimis threshold to an inflator obligation will fall on their beneficiaries establishing a de minimis threshold of based upon the Agency’s house price upon their death(s). $2,500 may deter flipping of AHP- index, in order to provide a definitive Retention agreements for rental assisted units, while at the same time de minimis threshold for AHP projects. The final rule retains minimize the financial burden on low- stakeholders. However, FHFA may § 1291.9(a)(8) of the current regulation, or moderate-income households of consider adjusting the de minimis which contains the requirement for AHP having to repay AHP subsidy if they sell threshold in the future to account for 15-year retention agreements for rental their homes during the AHP retention house price fluctuations and Bank use projects, with several changes that are period. The underlying policy of the of the new authority to establish higher discussed below. Current § 1291.9(a)(8) AHP has always been that the purpose set-aside grant amounts per household. provides that if a rental project is sold of the AHP subsidy is to enable low- or Other exceptions to subsidy or refinanced during the 15-year moderate-income households to receive repayment. Consistent with retention period, the full amount of the the benefits of homeownership § 1291.9(a)(7)(ii) of the current AHP subsidy must be repaid to the including appreciation in the value of regulation, § 1291.9(a)(7)(ii) of the final Bank, unless certain exceptions apply. their homes and, thus, to minimize any rule provides that the obligation to Notice to the Bank or Bank designee. AHP subsidy repayments. A $2,500 repay a pro rata portion of the AHP In a change from the current regulation threshold will also reduce the subsidy amount upon sale or and proposed rule, the final rule administrative obligations of the Banks refinancing does not apply if the unit provides that the retention agreement and members associated with recovering was assisted with a permanent mortgage for rental projects shall include a AHP subsidies. loan funded by an AHP subsidized requirement that notice of a sale or In response to the comments to adopt advance. Also consistent with the refinancing of the rental project during a de minimis threshold greater than current regulation, the final rule the AHP 15-year retention period be $1,000, FHFA analyzed Bank data for provides an exception to repayment provided to the Bank and, in its set-aside grants awarded to households obligation if, following a refinancing, discretion, to a designee of the Bank. in 2012 and subsequently repaid during the unit continues to be subject to a This is consistent with the change made the five-year retention period ending in deed restriction or other legally for owner-occupied retention 2017. The data indicate that 1,080 grants enforceable retention agreement or agreements discussed above. The of a total 10,203 set-aside grants mechanism. current regulation requires that such awarded in 2012 were repaid during Termination of AHP subsidy notice be provided to the Bank or its that time period. FHFA queried the data repayment obligation. Section designee. The proposed rule would have to determine how many of those grants 1291.15(a)(7)(iv) of the final rule provided that the notice be provided to would have been subject to de minimis clarifies that the obligation to repay both the Bank and its designee. The thresholds of $2,000 or $2,500. The AHP subsidy to a Bank terminates not NPRM stated that requiring notice to Agency’s analysis revealed that at a only after any event of foreclosure, but both the Bank and its designee $2,000 de minimis threshold, 683 of the also after transfer by deed in lieu of (typically a member) would facilitate 1,080 repaid grants, which is foreclosure, assignment of an FHA Program operations by giving the Bank approximately 2 out of every 3 repaid mortgage to HUD, or death of the simultaneous notice with the Bank’s grants, or 65 percent, would have been owner(s) of the unit. This is consistent designee (if the Bank has one), and exempted from repayment. At a $2,500 with guidance FHFA has provided to could facilitate repayment of AHP

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61206 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

subsidy to the Bank in cases where a contractors, in the sponsor loan closings and construction. The member subsequently fails and is qualifications and Agreements sections, nonprofit intermediary also stated that subject to receivership actions by other as proposed, because the definition of other financing sources frequently federal agencies. ‘‘sponsor’’ is not being expanded to require that project sponsors conduct A Bank and a nonprofit intermediary include such parties. rigorous bidding processes in selecting supported the proposal. The Bank stated Section 1291.1 of the current general contractors, making a parallel that owners of multifamily properties regulation defines the ‘‘sponsor’’ of a evaluation by the Banks of the general often do not have other incentives to project as a nonprofit, for-profit, or contractors’ qualifications unnecessary provide the Bank or its member with public entity meeting one of four and overly burdensome. notice, and without notice to the Bank, specific criteria. Section 1291.5(c)(10) The Bank Advisory Councils urged the Bank might find it difficult to know provides that for a project to be eligible FHFA to maintain the current regulatory the identity of the acquiring owner in to receive AHP subsidy, the project requirement for project sponsor the case of a sale, or whether the sponsor must be qualified and able to qualifications and require that project subsidy should remain with the perform its responsibilities as sponsors certify compliance with the property or the Bank should request committed to in its AHP application. FHFA’s Suspended Counterparty repayment. A nonprofit lender Paragraphs (b)(4) and (g)(3) of § 1291.5 Program regulation only prior to AHP recommended providing the Banks require a Bank to verify that the project subsidy disbursement. The Bank discretion regarding whether to require meets its AHP application commitments Advisory Councils stated their that project owners provide the notice to at AHP application, and prior to each preference for the Banks to be able to the Banks or designees. Two Banks disbursement of AHP subsidy to the rely on the due diligence and capacity opposed any change in the notice project, respectively. review by other funders of project requirement because they address issues The proposed rule would retain the sponsors and their affiliates and team directly with the project sponsor. One definition of ‘‘sponsor’’ in current members. The Bank Advisory Councils Bank also stated that providing notice to § 1291.1, but would have revised noted that the Banks currently have the member may be viewed as imposing § 1291.5(c)(10) by extending the processes in place to monitor project additional obligations on the member, qualifications requirement to the project progress and the project sponsor’s which could discourage members’ use sponsor’s affiliates and team members, performance. of the AHP. including the general contractor. Thus, The Banks asserted that requiring that For the same reasons discussed above at AHP application, and prior to each the Banks’ assessment of project sponsor under the owner-occupied retention AHP subsidy disbursement to a project, capacity include compliance with agreements, the final rule requires that a Bank would have been required to FHFA’s Suspended Counterparty notice be provided to the Bank and, in determine whether the project sponsor, Program regulation by all parties is its discretion, to a designee of the Bank. as well as all of its affiliates and team unnecessary. They stated that the Banks Sale, transfer, or assignment. members, are qualified to perform the lack privity of contract with general Consistent with proposed AHP project application commitments. contractors and other parties and, § 1291.15(a)(7), § 1291.15(a)(8) of the The proposed rule would have added a therefore, cannot compel them to final rule clarifies that the retention requirement in the Agreements section disclose such information. The Banks agreement applies not only to a sale of of the regulation that, at AHP emphasized this point in particular with the rental project, but also to a transfer application, and prior to each respect to owner-occupied rehabilitation or assignment of title or deed, during disbursement of AHP subsidy to the grants that involve multiple contractors. the AHP 15-year retention period, as project, the project sponsor must certify, They also commented that other these forms of conveyance are the or respond to specific questions about, funding sources perform due diligence functional equivalent of sales. FHFA whether it and its affiliates and team reviews of the general contractor. received no comments on this members have engaged in any A Bank pointed out that while the provision. misconduct as defined in FHFA’s term ‘‘sponsor’’ is defined in the current Project sponsor qualifications. The Suspended Counterparty Program regulation and proposed rule as a final rule relocates current regulation or by the Bank. The Bank’s nonprofit, for-profit, or public entity § 1291.5(c)(10) on project sponsor AHP subsidy application form and meeting one of four specified criteria, qualifications to § 1291.15(b)(2), and subsidy disbursement forms, or other the proposal states in § 1291.15(b)(2) makes a number of changes from the related forms, would have been be that ‘‘a project sponsor includes all proposed rule. Specifically, the final required to include the qualifications affiliates and team members such as the rule requires the Banks to evaluate the criteria and certification or questions general contractor.’’ The Bank stated qualifications of, and any covered about any misconduct to be completed that if the term ‘‘sponsor’’ is intended to misconduct by, the project sponsor at by the project sponsor. include affiliates and team members, the AHP application, and prior to each AHP Commenters who responded to this Bank would need to consider whether subsidy disbursement. The Bank’s AHP issue overwhelmingly opposed the its AHP subsidy collection efforts and subsidy application form and AHP proposal. A nonprofit intermediary settlements in the event of project subsidy disbursement form (or other commented that evaluating the noncompliance could extend beyond related documents) must include a qualifications of the general contractor the assets of the project sponsor to requirement for the project sponsor to and its team members at AHP include those of the project sponsor’s certify to this effect. The Banks will not application would be problematic affiliates and team members. A be required to evaluate the because the project sponsor has yet to nonprofit intermediary noted that the qualifications and any misconduct of identify them at the AHP application proposed rule did not provide guidance the project sponsor’s affiliates and team stage. The nonprofit intermediary and a on the definitions of ‘‘affiliate’’ and members, including general contractors, wide diversity of other commenters ‘‘team member.’’ as proposed. The final rule does not noted that project sponsors often select A nonprofit developer commented include the proposed rule’s references the general contractors after all funding that the proposal would ‘‘cut out’’ team to the project sponsor’s affiliates and sources are committed to the project and members that have yet to establish a team members, including general the project is ready to move forward to track record in the industry from AHP

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61207

participation. Likewise, a housing commenters’ concerns that projects with regarding the evaluation, approval, authority stated that the proposal has less experienced team members would funding, monitoring, or any remedial the potential to unreasonably exclude, be excluded where the project team as process for an AHP project. Examples or discriminate against, AHP applicants a whole possesses the capacity to cited included the purchase of an with new or less tested team members, successfully develop the project. insurance product, an investment in a but who possess sufficient overall Accordingly, the final rule requires 401(k) account, and a retirement strength as a team to be successful. the Banks to obtain a certification from pension plan. FHFA notes that the FHFA’s intent for the proposal was to the project sponsor of only its own scope of the AHP conflict of interest ensure that, in addition to the project qualifications and lack of misconduct at policy provision in § 1291.16 is limited sponsor, the project sponsor’s affiliates the time of AHP application and at AHP to financial interests ‘‘in projects’’ that and team members have the necessary subsidy disbursement. are the subject of a pending or approved qualifications to perform the AHP The final rule makes two AHP application and, thus, does not application commitments. The proposal clarifications to the proposed rule apply to the types of routine was also intended to enable a Bank to language. First, it changes the reference transactions cited by the Bank. identify any misconduct by the project to ‘‘misconduct’’ to ‘‘covered sponsor and any affiliates or team misconduct’’ to reflect the terminology Subpart C—General Fund and Targeted members so that the Bank could in the Suspended Counterparty Program Funds determine whether it should accept the regulation. Second, it states that if a § 1291.20 Establishment of Programs project sponsor’s AHP application or Bank adopts its own definition of General Fund. Consistent with the approve requests from the project ‘‘covered misconduct,’’ that definition proposed rule, § 1291.20(a)(1) of the sponsor for AHP subsidy disbursement. must incorporate the definition of Banks would have the latitude to define ‘‘covered misconduct’’ in the final rule replaces current § 1291.5(a) by ‘‘misconduct’’ to include types of Suspended Counterparty Program requiring each Bank to establish a misconduct beyond those specifically regulation at a minimum. General Fund pursuant to the addressed by FHFA in the Suspended Application to existing AHP requirements of this part. ‘‘General Counterparty Program regulation. agreements. The final rule relocates Fund’’ is the new term for the current Therefore, if a Bank subsequently § 1291.9(c) of the current regulation to ‘‘Competitive Application Program.’’ determined that a project sponsor’s § 1291.15(c), and revises the provision Eligibility requirements. Consistent certification was false and that the to make it applicable only to existing with the current regulation, project sponsor or its affiliates and team AHP agreements where the Bank is a § 1291.20(a)(2) of the final rule provides members were not qualified to perform party. The provisions of the AHP that a Bank may not adopt eligibility the AHP application commitments, the regulation, as amended from time to requirements for its General Fund Bank would have a contractual basis to time, are deemed incorporated into all except as specifically authorized in the cancel the project sponsor’s AHP such agreements. This amendment regulation. application and deny its requests for recognizes that FHFA regulates the FHFA did not receive comments on disbursement of AHP subsidy. The Bank Banks and not third parties. FHFA will these provisions. would also have a basis to reject future provide guidance, as necessary, for Targeted Funds. As proposed, AHP applications from the project specific situations where a Bank is not § 1291.20(b)(1) of the final rule provides sponsor, or to reject AHP applications a party to existing AHP agreements and that a Bank may establish, in its that include the project sponsor’s questions arise as to applicability of discretion, a maximum of three Targeted affiliates or team members, on the basis AHP amendments to those agreements. Funds, on a phased-in basis, to address that the project sponsor is not qualified specified affordable housing needs in its § 1291.16 Conflicts of Interest to carry out its AHP responsibilities. district. Targeted Funds are further As noted by the commenters, Consistent with the proposed rule, the discussed above under Section III.B. and however, project sponsors generally final rule relocates current § 1291.10, § 1291.12(c)(1) (phase-in of funding have not selected their general which addresses conflicts of interest allocations). contractors at the time of AHP regarding financial interests of Bank Proposed § 1291.20(b) would have application. Thus, it would be directors, Bank employees, Bank prohibited a Bank from establishing a impossible for project sponsors to Advisory Council members, and their Targeted Fund unless at least 12 months evaluate and certify as to the family members, unchanged to had passed since the publication of the qualifications and any misconduct of § 1291.16. FHFA did not propose any Bank’s TCLP. The final rule addresses their general contractors and the general changes to this section. the timing of the establishment of contractors’ subcontractors at the time A Bank commented that the terms Targeted Funds in § 1291.13(d) and (e), of AHP application. Concerning the ‘‘financial interest’’ and ‘‘family and in § 1290.6(c) of the Community comments on the Banks’ lack of privity member’’ were overly broad and should Support Requirements regulation. with the general contractors and that an be defined in accordance with Comments received on the proposed evaluation by the Banks of the general comparable terms in FHFA’s regulation timing requirements are addressed contractors’ qualifications parallel to governing conflict of interest policies for under § 1290.6 above. that of other funders is unnecessary, Bank directors.17 The Bank identified The final rule establishes the phase-in FHFA notes that it did not propose that several ordinary course financial requirements for a Bank’s establishment the Banks evaluate or underwrite transactions that it said should not be of Targeted Funds. A Bank may directly the general contractors’ considered ‘‘financial interests’’ for AHP establish one Targeted Fund in the first qualifications, but rather that the Banks conflict of interest purposes because year that it establishes a Targeted Fund. obtain certifications from the project they would not be expected to motivate If a Bank has previously administered at sponsors on their general contractors’ Bank directors, Bank employees, or least one Targeted Fund in any qualifications. The Agency’s decision Bank Advisory Council members to preceding year, a Bank may establish not to adopt the proposed requirement influence decisions by the Bank two Targeted Funds. If a Bank has for evaluation of the general contractor’s previously administered two Targeted qualifications should alleviate 17 12 CFR 1261.11(f)(1), (2). Funds in any preceding year, it may

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61208 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

establish three Targeted Funds. The the final rule does not include the initial occupancy of the rental units. For phase-in requirements help ensure that proposal to extend the qualifications projects involving the purchase or a Bank has demonstrated its ability to requirement to include the project rehabilitation of rental housing that are manage the risks associated with sponsor’s affiliates and team members, occupied at the time of AHP administering more than one including general contractors. application, the households must have competitive program in a year. incomes meeting the income targeting § 1291.22 Funding Rounds; Eligibility requirements. As discussed commitments in the approved AHP Application Process above under Section III.B., application at the time of the AHP § 1291.20(b)(2) of the final rule adopts As proposed, the final rule relocates application. The purpose of qualifying the proposed requirement that the the funding round and application current occupants’ incomes at the time Banks adopt and implement parameters process requirements in § 1291.5(b)(1), of AHP application is to discourage (referred to as ‘‘controls’’ in the (b)(3), and (b)(4) of the current displacement of occupants whose proposed rule), as specified in their regulation to § 1291.22. The final rule incomes are higher than the income AHP Implementation Plans, for ensuring substitutes the term ‘‘rounds’’ for commitments in the approved AHP that each Targeted Fund is designed to ‘‘periods’’ to reflect common usage application. receive sufficient numbers of applicants among the Banks and AHP stakeholders. FHFA specifically requested for the amount of AHP funds allocated FHFA did not receive any comments on comments on how to encourage to the Targeted Fund to facilitate a this section. preservation of rental projects through robust (referred to as ‘‘genuinely’’ in the § 1291.23 Eligible Projects the AHP while discouraging proposed rule) competitive scoring displacement of current occupants with process. In addition, as with General Eligibility requirements. Consistent incomes higher than those targeted in Funds, the final rule provides that the with the proposed rule, new § 1291.23 the AHP application, including whether Banks may not adopt eligibility of the final rule sets forth the eligibility the proposed requirement for a requirements for their Targeted Funds requirements for AHP projects, and relocation plan approved by the primary except as specifically authorized in the comprises a number of provisions funder of the project is reasonable. A regulation. related to what constitutes an eligible state agency and a bank supported the The Banks questioned whether this project in § 1291.5(c) of the current proposed requirement for submission of proposed requirement was designed to regulation. This section includes the a relocation plan, stating that it would measure sufficiency in terms of a Bank’s eligibility requirements for owner- provide adequate protection of tenants approach in soliciting applications, or occupied and rental housing projects, from displacement. A trade organization based on the number of applications projects that are or are not occupied, recommended that the Banks have actually received. Two of those Banks project feasibility, timing of AHP discretion to either establish such a suggested that the measurement be subsidy use, retention agreements for policy or to defer to policies established based on the structure of the Targeted owner-occupied and rental projects, and for other subsidy programs assisting the Fund and not on the actual number of compliance with fair housing laws. In a project. applications received. FHFA notes that change from the proposed rule, the Several other commenters and a Bank the language stating that the Targeted current eligibility requirement for a five- noted that there may be cases where Fund is ‘‘designed to receive sufficient year retention agreement for owner- review by the Bank may be necessary to number of applicants’’ indicates that the occupied projects in § 1291.5(c)(9)(i) determine whether a relocation plan requirement pertains to the scope and where the AHP subsidy is used for provides adequate tenant protections scoring methodology of the Targeted purchase, or purchase in conjunction and assistance. A nonprofit Fund, and is not a guarantee of the with rehabilitation, is retained in intermediary recommended that the actual number of applications received. § 1291.23(d)(1) of the final rule, as Banks have discretion to evaluate the Therefore, no change to this language is discussed in Section III.D. above. appropriateness of tenant protections in made in the final rule. Tenant income qualification in rental the context of the local market. Another projects. Section 1291.23(a)(2)(ii) of the Bank, a CDFI, and a nonprofit developer § 1291.21 Eligible Applicants final rule provides that, in order for an stated that for multifamily preservation Member applicants. As proposed, the occupied rental project to satisfy the projects that have no relocation plans final rule relocates the eligibility income targeting commitments in the because they lack government funding requirement for member applicants in AHP application at initial occupancy or their primary funders are commercial § 1291.5(b)(2) of the current regulation after completion of the purchase or banks, the Bank should have authority to § 1291.21(a), without changes except rehabilitation, the project must have a to approve a relocation plan. The Bank that the reference to the ‘‘competitive relocation plan for current occupants reported that in 15 percent of its rental application program’’ is replaced with that is approved by one of the project’s rehabilitation projects, AHP funds and references to the General Fund and any federal, state, or local government the projects’ replacement reserves were Targeted Funds established by the Bank. funders, or a reasonable relocation plan the only sources of funds and, thus, the FHFA did not receive any comments on that is otherwise approved by the Bank projects were not subject to relocation this provision. according to standards included in its plans approved under a government Project sponsor qualifications. As AHP Implementation Plan. The program. proposed, the final rule relocates the proposed rule would have required a The majority of commenters that eligibility requirements in relocation plan approved by one of the addressed this issue, including § 1291.5(c)(10) of the current regulation project’s primary funders. nonprofit intermediaries, trade for project sponsors applying for AHP Under the current regulation, for associations, a lender, and nonprofit funds in conjunction with members to rental projects that are not occupied at developers, recommended that FHFA § 1291.21(b). The final rule retains the the time of application and are require the Banks to apply either a ‘‘next current requirement that a project approved for AHP subsidy, the tenant’’ policy or a ‘‘grandfather’’ policy sponsor must be qualified and able to households must have incomes meeting to existing tenants who exceed the AHP perform its responsibilities. As further the income targeting commitments in income commitments in order to avoid discussed under § 1291.15(b)(2) above, the approved AHP application upon displacement of those tenants from the

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61209

project. Under a ‘‘next tenant’’ policy, Banks be allowed to ‘‘grandfather’’ a project must equal its estimated uses the project’s current tenant income mix existing tenants based on their incomes of funds, as reflected in the project’s would not be evaluated at the time of when they moved into the project. development budget. Where the AHP application, but the project owner However, FHFA has not included this project’s uses of funds exceed its would be required to rent the unit, recommendation in the final rule sources of funds (excluding the AHP when it becomes vacant, of a tenant not because the income targeting subsidy), the difference is the project’s meeting the AHP income commitments requirements for other federal and state need for AHP subsidy, which is the to a tenant who meets those programs could differ substantially from maximum amount the project may commitments. In contrast, a the AHP income targeting requirements receive. ‘‘grandfather’’ policy would deem (e.g., targeting units at 60 percent, 65 As discussed in the NPRM, Banks and tenants in previously or currently- percent, or 80 percent AMI, as opposed various stakeholders have asserted that income restricted units who were to the AHP income targeting the current regulatory language, as well income-eligible at the time they moved requirement of 50 percent AMI for at as preamble language from an earlier in but whose incomes subsequently least 20 percent of the units in the rental AHP rulemaking, indicate that, for exceed the income-eligibility project). rental projects, the Banks are only thresholds, as income-eligible under the FHFA is also not adopting required to review the project’s AHP. Two commenters stated that a commenters’ recommendations for a development budget and not its ‘‘grandfather’’ policy would be ‘‘next-tenant’’ policy in the final rule. operating pro forma in determining its consistent with HUD requirements, While the approach would avoid need for AHP subsidy. The NPRM noted which prohibit the permanent displacement of current tenants not that FHFA’s long-standing policy has relocation of existing residents in many meeting the AHP income targeting been that the Banks review both the preservation transactions, as well as commitments, it could be a number of project development budget and the with proposed legislative changes to years before these tenants move out of operating pro forma in making this LIHTC policy and the California Tax the building and AHP income-eligible determination. Credit Allocation Committee’s tenants replace them, meaning the In an effort to address any regulations. One commenter stated that project would not be serving AHP- misunderstandings or differences in without use of a ‘‘grandfather’’ policy, income eligible households for some views about the process and preservation projects financed through period of time. In addition, the practice requirements for determining a rental HUD Sections 202 and 236, and the could increase the income-targeting project’s need for AHP subsidy, the Rental Assistance Demonstration monitoring burden on the Banks and proposed rule would have required the program, would be disadvantaged in the project sponsors. Banks to review the project’s operating pro forma, in addition to the AHP application process. Another § 1291.24 Eligible Uses commenter recommended that the development budget, consistent with relocation requirement for currently Eligible uses of AHP subsidy. FHFA’s long-standing policy. As assisted properties be consistent with Consistent with the proposed rule, discussed in the NPRM, a Bank must other federal program requirements. § 1291.24(a) of the final rule groups review a rental project’s development After considering the comments, together a number of provisions in budget to determine whether a funding FHFA is adopting in the final rule the § 1291.5(c) of the current regulation gap exists between the sources and uses proposal to allow income qualification related to eligible uses of AHP subsidy. of funds. Review of the project’s of current occupants at initial These include: use of the AHP subsidy operating pro forma enables the Bank to occupancy after completion of the for purchase, construction, or assess the reasonableness of the purchase or rehabilitation, at the Bank’s rehabilitation of owner-occupied or project’s projected cash flow, which discretion provided there is a relocation rental housing; determinations of the could have an impact on the Bank’s plan for current occupants that is need for the AHP subsidy, including assessment of the need for AHP subsidy. approved by one of the project’s federal, sponsor-provided permanent financing; For example, a debt coverage ratio or state, or local government funders, or a reasonable project costs determinations; cash flow amount that exceeds the reasonable relocation plan for current reasonable financing costs Bank’s feasibility standards could occupants that is otherwise approved by determinations; eligible counseling indicate that the project does not need the Bank. By requiring that the costs; eligible refinancing; optional the full amount of AHP subsidy relocation plan be government- Bank district eligibility requirements; requested because it will have sufficient approved, or otherwise approved by the and calculation of the AHP subsidy. The funds from ongoing operations to repay Bank subject to a reasonableness provisions and any changes are the debt associated with developing the standard, as opposed to any relocation discussed below. rental project. If so, the project may be plan approved by one of the project’s Need for AHP subsidy. The final rule able to supplant part, or all, of the AHP primary funders, the final rule helps relocates the need for AHP subsidy subsidy through other means. ensure that the relocation plan meets eligibility requirement in § 1291.5(c)(2) The NPRM included proposed standards for adequate relocation of the current regulation to guidance for evaluating that a project’s protections and assistance to tenants. § 1291.24(a)(3), but does not adopt the cash flow and costs are reasonable, and Allowing a Bank to approve a proposed changes. FHFA plans instead how the Banks should perform the need reasonable relocation plan also responds to separately address the need for for subsidy analysis in cases where: (1) to the commenters’ concerns about subsidy determination. Capitalized reserves exceed the Bank’s projects where there is no government- The current regulation requires that project cost guidelines; (2) the project approved relocation plan, or where the rental projects establish their eligibility provides supportive services; and (3) the Bank has determined that some types of for AHP subsidy by demonstrating: (1) cash flow or debt coverage ratio exceeds relocation plans typically approved in A need for the AHP subsidy; (2) the Bank’s project cost guidelines. its district may not provide adequate developmental and operational Numerous commenters, including the tenant relocation protections. feasibility; and (3) project cost Banks, nonprofit advocacy organizations FHFA acknowledges the value in the reasonableness. The regulation states and intermediaries, trade associations, commenters’ recommendations that the that the estimated sources of funds for and nonprofit and for-profit developers,

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61210 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

expressed views about the proposed readily bifurcated, the operating pro their financing model operates regulatory change and guidance for forma should capture the supportive essentially as a revolving loan fund. determining the need for subsidy. A services income and expenses. The FHFA specifically requested comments majority of the commenters opposed Banks and many other commenters in the proposed rule on whether the requiring the Banks to review a project’s stated that requiring creation of an current AHP requirements for sponsor- operating pro forma in addition to its operating pro forma for housing and a provided permanent financing are development budget. A common separate one for supportive services reasonable, including whether the concern raised was that the proposal could result in an inaccurate accounting sponsors have a need for AHP subsidy could lead to cancellation of AHP of costs. They recommended that in light of their particular financing subsidy awards due to a lack of need for supportive services expenses be treated model, and whether the current method the subsidy, negatively impacting as standard operating expenses and, in the regulation for determining their individual projects and the overall therefore, included in the operating pro need for AHP subsidy understates or Program. The commenters forma. overstates the amount of AHP subsidy acknowledged the value of the operating The comments received in response to needed. FHFA also requested comments pro forma in assessing the financial the proposed regulatory change and on whether the regulation should viability of a rental project, but not in guidance reflect significant differences consider sponsors using this financing determining the project’s need for between the commenters’ understanding model to be revolving loan funds and, subsidy. The commenters emphasized of, and experience implementing, the if so, whether they should be subject to that having a strong cash flow at some requirement for determining need for current or different AHP revolving loan point during a project’s lifecycle does subsidy and the Agency’s rationale for fund requirements. not indicate that the project can borrow addressing and clarifying the A national intermediary and a number more funds or attract additional grant requirement. In light of these of its affiliates opposed the current AHP funding. One nonprofit affordable differences, the final rule does not adopt regulatory requirements for sponsor- housing intermediary stressed that the proposed regulatory requirement for provided permanent financing. They because AHP funds play a subordinate the Banks to review the operating pro stated that the AHP regulation does not role in the production and financing of forma in determining the need for AHP require any other lender to disclose how affordable housing, FHFA should not subsidy, and the proposed guidance is it obtains funds to lend to a homebuyer require the Banks to assess not included in the final rule preamble. and that this is an unfair burden placed independently the reasonableness of a Instead, FHFA plans to separately solely on sponsor-provided permanent rental project’s cash flow. The address the need for subsidy mortgage lenders. Commenters stated commenter stated that the Banks should determination. that, from a practical and examination Sponsor-provided permanent be permitted to rely on cash flow and standpoint, the AHP subsidy must be financing to homeowners. As proposed, debt service parameters established by disclosed on the Closing Disclosure, the final rule relocates the requirements first position lenders and equity which shows the face value of the in § 1291.5(c)(2)(ii) of the current sources. The commenter and a nonprofit regulation for sponsor-provided mortgage loan and demonstrates the housing developer recommended that permanent financing to pass through of the AHP grant to the FHFA issue guidance encouraging the § 1291.24(a)(3)(ii) with no changes from homebuyer. The national intermediary Banks to leverage the underwriting the current regulation. FHFA expects to further stated that the regulatory processes of other funding sources when initiate a rulemaking on this subject in requirement was intended to show that making a need for subsidy the near future. due to lending money at a below market determinations at application or at The current regulation provides that interest rate, the AHP subsidy is needed initial monitoring. One of the when a Bank determines the need for as a source for the discounted loan commenters also suggested that FHFA AHP subsidy in homeownership (present value of the loan). The allow the Banks to rely on certifications projects where the sponsor extends commenter asserted, however, that since by the project owner that the AHP funds permanent financing to the homebuyer, the ‘‘present value loan amount’’ is not were needed, or to structure AHP the sponsor’s cash contribution (which on the Closing Disclosure, this creates awards as loans or repayable grants that is included in the project’s cash sources an additional document for these the project could repay from cash flow of funds) shall include the present value organizations to create that is if funds remained. of any payments the sponsor is to burdensome and provides no additional For rental projects providing receive from the buyer, including any value to the Banks in evaluating the supportive services, the proposed cash down payment from the buyer, need for AHP subsidy. guidance in the NPRM recognized the plus the present value of any purchase In view of the comments and the challenges associated with the analysis note the sponsor holds on the unit. If value of receiving further input on these of these projects since, under the Bank the note carries a market interest rate issues, FHFA has not adopted any Act and the AHP regulation, AHP commensurate with the credit quality of changes to these requirements in the subsidy may not be used to fund the buyer, the present value of the note final rule and intends to conduct supportive services expenses. The equals the face value of the note. If the rulemaking in the near future on NPRM stated that the Banks should note carries an interest rate below the sponsor-provided permanent financing. require a separate supportive services market rate, the present value of the Prohibited uses of AHP subsidy. As in budget that captures income and note shall be determined using the the proposed rule, § 1291.24(b) of the expenses for all supportive services market rate to discount the cash flows. final rule includes the prohibited uses activities to ensure that the project can Prior to the issuance of the proposed of AHP subsidy set forth in reasonably offer them. The NPRM rule, some Banks and AHP stakeholders § 1291.5(c)(16) of the current regulation. indicated that for projects where a requested that FHFA eliminate this These prohibited uses are: certain government entity provides operating provision, citing the complexity of the prepayment fees imposed by a Bank; subsidies that fund both housing calculation. Others suggested that the fees imposed by a Bank for cancellation operating costs and supportive services regulation should treat sponsors like of a subsidized advance commitment; and the operating subsidies cannot be revolving loan funds, on the basis that and processing fees charged by members

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61211

for providing AHP direct subsidies to a could limit Bank exposure to risk member, per project, or per project unit project. associated with a single project sponsor for the General Fund and for each As proposed, § 1291.24(b)(4) of the and encourage diversification of project Targeted Fund, which shall apply to all final rule adds that, consistent with sponsors, but because project sponsors applicants to the specific Fund. This current practice, capitalized reserves, differ substantially in size, scale, requirement also applies to the newly periodic deposits to reserve accounts, geographic scope, capacity, and internal authorized maximum subsidy limit per operating expenses, and supportive controls, individual AHP applications project sponsor. The purpose of this services expenses are not eligible uses of should be evaluated based on their requirement is to ensure consistency, AHP subsidy. The Banks concurred that merits without an arbitrary project clarity, and a level playing field for all supportive services expenses are not an sponsor subsidy limit. The commenter applicants to a specific Fund, and avoid eligible use of AHP subsidy. No recommended that the Banks establish administrative burdens for the Banks if comments were received on the other any project sponsor subsidy limit as a they were permitted to determine prohibited uses of AHP subsidy. percentage of total AHP awards, so that different subsidy limits for different Optional Bank district eligibility it is high enough to allow a project regions or types of projects. requirements—maximum subsidy sponsor to receive multiple awards in a As proposed, the final rule further limits. As proposed, § 1291.24(c) of the single AHP funding round. A nonprofit provides that the maximum AHP final rule retains § 1291.5(c)(15) of the affordable housing intermediary subsidy limit per project or per project current regulation, which authorizes a likewise supported awarding AHP unit may differ for each Fund. FHFA’s Bank to establish limits on the subsidy based on the merits of intent in providing this flexibility is to maximum amount of AHP subsidy individual applications, but allow the Banks to establish maximum available per member, per project, or per acknowledged that having a project subsidy limits for each Fund that project unit in a single AHP funding sponsor subsidy limit would make the addresses the specific characteristics of round, and adds that a Bank may AHP subsidy available to more project project applicants for that Fund. For establish a maximum subsidy limit per sponsors. instance, a Bank may want to establish project sponsor. This change and other Other commenters opposed providing a higher maximum subsidy limit per changes are discussed below. the Banks discretion to adopt project project for a Targeted Fund focused on Maximum subsidy limit per member sponsor subsidy limits. A nonprofit certain geographies or development each year. As proposed, the final rule affordable housing intermediary types in light of differences in housing removes the reference in the current commented that the Banks can have a development costs, such as high-cost regulation to ‘‘per member each year’’ as much greater impact if they award AHP areas or projects where most units unnecessary because it can be factored subsidy based on the merits of contain three or more bedrooms to into the subsidy limit per member in a individual applications rather than accommodate larger households. FHFA single AHP funding round, especially as setting an arbitrary maximum subsidy did not receive any comments on this no Bank currently conducts more than limit per project sponsor. Two nonprofit proposal. one AHP funding round per year. developers stated that the proposed Applications to multiple Funds— Maximum subsidy limit per project project sponsor subsidy limit would subsidy amount. Consistent with the sponsor. As proposed, the final rule penalize project sponsors that have proposed rule, § 1291.24(d) of the final revises the current regulation to allow a multiple projects that score well and are rule provides that if an AHP application Bank to adopt a maximum subsidy limit eligible for subsidy awards. A trade for a project is submitted to more than per project sponsor in a single AHP organization stated that the proposed one Fund at the same time, the funding round. A Bank might choose to project sponsor subsidy limit would application for each Fund must be for establish such a limit in order to allow less qualified projects and project the same amount of AHP subsidy. This provide opportunities for smaller or less sponsors to benefit at the expense of will ensure that the project experienced project sponsors to better qualified projects and project demonstrates the same need for AHP compete successfully for AHP subsidies. sponsors whose applications exceed the subsidy in each application. If a project On the other hand, a project sponsor subsidy limit, thereby eroding the sponsor applies for a different amount limit could prevent worthy projects transparency of the application approval of AHP subsidy in each application, the developed by larger, more experienced process. Bank would communicate with the project sponsors from receiving AHP After consideration of the comments, sponsor to determine which subsidy subsidy. FHFA specifically requested FHFA has decided to adopt the proposal amount the Bank should evaluate for comments in the NPRM on the potential in the final rule. Each Bank should have both applications. Otherwise, it would advantages and disadvantages of discretion to determine whether the raise questions about whether the allowing the Banks to impose a benefits of establishing a project sponsor project would be over-subsidized if maximum subsidy limit per project subsidy limit in its district outweigh its awarded the higher amount of subsidy. sponsor. potential disadvantages, based on FHFA did not receive any comments on One Bank supported the proposal on factors such as the characteristics of this proposal. the basis that it would reduce the their project sponsor applicant pools, concentration of AHP awards in a small the record of accomplishment of § 1291.25 Scoring Methodologies number of project sponsors. Several experienced and less experienced As discussed in Section III.A. above, other commenters provided mixed or project sponsors in receiving AHP the final rule does not adopt the qualified views on the proposal. A Bank subsidy awards, and the housing needs proposed outcome-based framework and stated that a project sponsor subsidy of the district. instead revises the scoring-based project limit could provide an opportunity for Number of maximum subsidy limits selection framework in the current other types of project sponsors to per Fund. Consistent with Agency regulation for the General Fund. New participate, but it could also restrict guidance for the current Competitive § 1291.25 addresses scoring project sponsors with otherwise Application Program and with the methodologies for evaluating competitive applications from receiving proposed rule, the final rule provides applications under the General Fund AHP awards. A trade association stated that a Bank may establish only one and Targeted Funds. Section 1291.25 that a project sponsor subsidy limit maximum AHP subsidy limit per retains much of the content in current

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61212 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

§ 1291.5(d)(1) through (4), with certain for housing located in the Bank’s discussed in Section III.A. above, the modifications discussed below. The district, the Bank may not allocate final rule does not adopt the proposed requirements for the scoring criteria for points to the scoring criterion in a way outcome-based framework for project the General Fund and Targeted Funds that excludes all out-of-district projects selection, and instead revises the are included in new §§ 1291.26 and from its General Fund. This provision scoring-based project selection 1291.27, respectively. strengthens the statement in the framework in the current regulation. Written scoring methodologies. preamble to the 2006 AHP final rule that The scoring-based framework in the Section 1291.25(a)(1) of the final rule a Bank should not use the scoring final rule incorporates housing needs establishes requirements for the Banks’ criterion in this way by explicitly priorities from the current regulation scoring methodologies that are generally prohibiting the allocation of points in and the proposed rule, and provides the comparable to current § 1291.5(d)(1) such way. FHFA did not receive Banks with additional discretion in the with changes to reflect the Banks’ new comments on this provision. selection of Bank district housing needs authority to administer Targeted Funds. For Targeted Funds, as proposed, than is provided in the current Consistent with the current regulation, a § 1291.25(a)(2)(ii) of the final rule regulation. Bank’s scoring methodologies must be requires a Bank to allocate 100 points Current regulation. The current written, and a Bank may not adopt among all of the scoring criteria adopted regulation prescribes a scoring-based additional scoring criteria or scoring by the Bank for the Targeted Fund. The points allocations except as specifically final rule adds a requirement that a project selection system based on a 100- authorized by the regulation. Consistent Bank may not allocate more than 50 point scale. Under the current system, with proposed § 1291.25(a), the final points to any one scoring criterion for a each Bank must allocate at least five rule provides that the scoring Targeted Fund in order to ensure that points to each of two scoring criteria methodology for each Fund may be applications are evaluated in a reflecting priorities in the Bank Act— different. competitive process, taking all of the use of donated or conveyed government- Scoring points allocations. Section scoring criteria into account. owned or other properties, and 1291.25(a)(2)(i) of the final rule Scoring tied applications. Section sponsorship by a nonprofit organization establishes scoring points allocation 1291.25(c) of the final rule adopts, as or government entity. Each Bank must requirements for the General Fund. proposed, a requirement that each Bank allocate at least 40 points collectively to Consistent with current § 1291.5(d)(2) establish and implement, as necessary, five scoring criteria reflecting FHFA and proposed § 1291.25(b), the final rule a scoring tie-breaker policy to address regulatory priorities—20 points to requires that a Bank allocate 100 points the case of two or more applications to income targeting, and five points each to among the relevant scoring criteria. its General Fund or any Targeted Fund housing for homeless households, However, as discussed in Section III.A. receiving identical scores in the same promotion of empowerment, AHP above, the final rule revises the current AHP funding round and there is subsidy per unit, and community minimum scoring points allocation insufficient AHP subsidy to approve all stability. Of the remaining 50 points, a requirements. Specifically, while the of the tied applications but sufficient minimum of 5 points must be allocated income targeting scoring criterion must subsidy to approve at least one of them. to each of two Bank district priority still be allocated at least 20 points, and The specific requirements in the final categories: The first Bank district the remaining scoring criteria must still rule for the scoring tie-breaker policy priority, for which a Bank selects one or be allocated at least 5 points each, if a are consistent with guidance FHFA has more housing needs from 12 eligible Bank adopts a scoring criterion for home provided to the Banks and with the housing needs specified in the purchase by low- or moderate-income proposed rule, except that the final rule regulation; and the second Bank district households as an optional scoring provides that the approval of tied priority addressing one or more housing criterion, the Bank may allocate fewer applications as alternates is only needs in the Bank’s district, as defined than the full 5 points to it, with the applicable if the Bank has adopted a by the Bank, with the Bank permitted to remainder of such points allocated to written policy to approve alternates for select an eligible housing need from the one or a combination of the other funding under the applicable Fund. first Bank district priority provided it is scoring criteria other than to the Bank Approval of alternates is discussed different from the housing needs district priorities scoring criterion. The further under § 1291.28(b) below. FHFA selected by the Bank under the second scoring points allocation requirements did not receive comments on this Bank district priority. The current are further discussed in connection with provision. regulation, thus, establishes a 50–50 specific scoring criteria under § 1291.26 distribution of points that must be below. § 1291.26 Scoring Criteria for the allocated to: (i) The combination of In addition, as proposed, the final rule General Fund statutory and regulatory priorities; and provides that if a Bank adopts a scoring Final rule. In a significant change (ii) the combination of first and second criterion under its Bank district priority from the proposed rule, and as Bank district priorities.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61213

Proposed rule. As discussed in in rental units; (2) underserved Comments. The Banks jointly Section III.A. above, the proposed rule communities and populations; (3) submitted an alternative proposal for would have replaced the current creating economic opportunity; and (4) project selection that retains the current scoring-based framework with an affordable housing preservation, with scoring-based system, with certain outcome-based approach which would examples of eligible housing needs changes to the regulatory priorities and have included four regulatory priorities specified under the latter three required minimum scoring allocations, for: (1) Very low-income targeting for regulatory priorities. as described below.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4725 E:\FR\FM\28NOR2.SGM 28NOR2 ER28NO18.001 ER28NO18.002 61214 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

Statutory priorities. The Banks’ regulation requires the Banks to allocate diversity,’’ rather than use the current proposal retains the following statutory to the regulatory priorities therein. In regulatory definition. The proposed rule priorities as mandatory scoring FHFA’s view, this proposed five-point would have required the Banks to use priorities, consistent with the current reduction in the number of points FHFA’s Duty to Serve definitions of regulation and proposed rule: (1) allocated to regulatory priorities would those terms. Projects sponsored by a government or not significantly impact whether FHFA Bank district priorities. The Banks’ nonprofit entity; and (2) projects using has met its statutory requirement to proposal permits the Banks to allocate donated or conveyed government establish priorities for the use of the the remaining maximum of 50 points to property. The Banks’ proposal adds a AHP subsidies.19 The Banks’ proposal priorities that address affordable scoring criterion for the Bank Act further supports this conclusion because housing needs in the Bank’s district that priority for the purchase of homes by it maintains the current 50–50 point the Bank has not otherwise adopted in low- or moderate-income households,18 allocation between statutory/regulatory its scoring framework. which a Bank would be required to priorities and Bank district priorities, as Additional comments received from implement if it does not allocate at least further discussed below. the Banks and other commenters on 10 percent of its total annual required In addition, the Banks’ proposal specific scoring criteria proposed by AHP contribution to Homeownership retains certain standards in the current FHFA are discussed below. Set-Aside Programs. Each of the scoring criteria. The proposal retains the Decision in final rule. FHFA finds the statutory priorities is allocated a current 60 percent maximum scoring Banks’ proposal to be a reasonable minimum of 5 points. standard for targeting very low-income approach for project selection, subject to Regulatory priorities. The Banks’ households as part of the income certain changes in response to various proposal also includes five regulatory targeting priority. The Bank’s proposal comments received and to achieve priorities, each of which must be also retains the current minimum specific policy objectives. Accordingly, allocated a minimum of 5 points, except threshold of 20 percent for the number the final rule adopts a scoring-based that income targeting must be allocated of units in a project that must target framework based on the current at least 15 points, resulting in a homeless or special needs households regulation that incorporates many combined minimum allocation of 35 in order to receive points, and includes features from the Banks’ proposal— points. These priorities generally a minimum 20 percent threshold for significantly, the statutory priorities in include the four regulatory priorities in projects serving other targeted the current regulation, an additional the proposed rule, but with some populations, in contrast to the 50 statutory priority for home purchases by modifications to the specific eligible percent minimum threshold for these low- or moderate-income households, housing needs included under those populations in the proposed rule. In the proposed regulatory priorities for regulatory priorities. The fifth regulatory addition, the Banks’ proposal makes income targeting, underserved priority is community stability, which slight changes to the types of communities and populations, creating the Banks’ proposal retains, with populations included under the special economic opportunity, and affordable limited revisions, from the current needs and other targeted populations housing preservation (in conjunction regulation. The Banks’ proposal does categories, discussed further below. with community stability), and a Bank not retain the current scoring criterion Finally, the Banks’ proposal provides district priority as in the current for AHP subsidy per unit. The Banks’ for the Banks to define the terms ‘‘rural regulation. The regulatory priorities proposed minimum allocation of 35 area’’ and ‘‘affordable housing incorporate the regulatory priorities in points for the regulatory priorities is a preservation,’’ as currently allowed, and the current regulation but are broader in reduction from the 40 points the current to define ‘‘residential economic scope. The statutory and regulatory priorities, and related comments 18 12 U.S.C. 1430(j)(3)(A). 19 See 12 U.S.C. 1430(j)(9)(B). received, are discussed further below.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61215

Statutory priorities for government criterion in the project selection consistent with the priority in the Bank properties and project sponsorship framework in the final rule. Act for the purchase of homes by low- (§ 1291.26(a), (b)). The scoring Similarly, sponsorship of a project by or moderate-income families. FHFA framework in the final rule retains the a nonprofit organization or government specifically requested comments on statutory priorities for the use of entity is a priority specified in the Bank whether 10 percent of a Bank’s total donated or conveyed government Act and, therefore, is also retained as a annual required AHP contribution properties and for projects sponsored by scoring criterion in the project selection constitutes sufficient prioritization for a nonprofit organization or government framework in the final rule. The Banks this home purchase priority, or whether entity. A for-profit developer award a majority of AHP awards the percentage should be higher or commented that retention of these through their Competitive Application lower. A number of commenters scoring criteria would greatly limit Programs to projects with nonprofit or expressed differing views over the participation in the program by government entity sponsors. Continued proposed 10 percent figure. A Bank affordable housing providers. A CDFI support of these types of project stated that it would establish an opposed land donation as a scoring sponsors is important because they have appropriate prioritization, while the criterion, questioning its utility in the a long record of using AHP subsidies to Banks opposed it as overly prescriptive current affordable housing environment. support affordable housing. and difficult to meet in high cost areas. A nonprofit developer stated that Statutory priority for purchase of The scoring criterion in the final rule donated land is available to it on very homes by low- or moderate-income responds to commenters’ concerns that few occasions. A Bank Advisory households (§ 1291.26(c)). The project the proposed 10 percent allocation to a Council stated that at the time Congress selection framework in the final rule Bank’s Homeownership Set-Aside enacted the Bank Act amendments adds a statutory priority for the Programs would be too restrictive. In authorizing the AHP, there were purchase of homes by low- or moderate- areas of Bank districts where the cost of significant government-held, real estate- income households that a Bank must homeownership is very high, owned inventories and proposed adopt if it does not allocate at least 10 comparatively fewer low- or moderate- military base closures, but that percent of its total required annual AHP income households would be able to government properties are now rarely a contribution to Homeownership Set- afford to purchase homes, even if funds factor in the funding of affordable Aside Programs. This requirement is for down payment and closing costs housing projects, illustrating the need consistent with the Banks’ proposal for were available to them from a for regulatory flexibility. Several CDFIs project selection. Homeownership Set-Aside Program. A commented that revolving loan fund Proposed § 1291.48(b) would have Bank with such high cost areas in its programs typically do not score well required that, each year, each Bank district, thus, may prefer not to allocate under this criterion. award at least 10 percent of its annual funds to Homeownership Set-Aside FHFA acknowledges, as it did in the required AHP contribution to low- or Programs and to support instead the NPRM, that in the Program’s experience, moderate-income households, or to development of rental units as the most a relatively limited number of projects projects targeting such households, for impactful use of its AHP subsidies. The have satisfied the government properties the purchase by such households of final rule enables the Banks to address priority, and the Agency expects that to homes under any or some combination such situations by providing them the continue. However, because the use of of the Bank’s General Fund, any option to adopt the scoring criterion for government-owned properties is a Targeted Funds, and any home purchase by low- or moderate- priority specified in the Bank Act, Homeownership Set-Aside Programs. As income households in lieu of allocating FHFA is retaining it as a scoring discussed in the NPRM, this priority is at least 10 percent of their AHP funds

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 ER28NO18.003 61216 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

to Homeownership Set-Aside Programs. in this regard. At the same time, the under the underserved communities FHFA expects that such a scoring final rule retains the current 60 percent and populations regulatory priority. In criterion will have an impact, even in of units standard, which is intended to contrast to the current regulation, the the absence of a set-aside program. encourage the awarding of more points final rule makes adoption of a housing Regulatory priority for income to mixed-income housing. The income for homeless households scoring targeting (§ 1291.26(d)). The scoring targeting standards in the regulation criterion optional rather than framework in the final rule retains the cannot be changed to align completely mandatory. In a change from the current regulatory priority for targeting with the LIHTC income targeting proposed rule, the final rule retains the very low- and low- or moderate-income standards because the Bank Act’s current minimum threshold for the households, including the specific standards are different. number of units that must be reserved scoring methodology for targeting these Regulatory priorities for underserved for homeless households at 20 percent households. The final rule continues the communities and populations, creating in order for a project to receive points. current required allocation of at least 20 economic opportunities, and The proposed rule would have points for this priority, in contrast to the community stability including increased the minimum threshold to 50 Banks’ proposal to reduce the minimum affordable housing preservation. percent to encourage projects dedicated point allocation to 15 points. The final rule adopts three regulatory to serving the needs of those Proposed § 1291.48(c) would have priorities, each of which comprises a households. FHFA specifically established an outcome requirement for number of specified eligible housing requested comments on whether this a regulatory priority for very low- needs, some of which are scoring proposed increase would be income targeting for rental units. Each criteria in the current regulation. The appropriate. Bank would have been required to specified eligible housing needs are Commenters overwhelmingly ensure that each year, at least 55 percent examples of the kinds of housing needs opposed the proposed increase in the of all rental units in rental projects a Bank may choose to adopt under each minimum threshold. A number of receiving AHP awards under the Bank’s regulatory priority and are not commenters raised project development General Fund and any Targeted Funds exclusionary. A Bank may choose to concerns with the proposal, such as are reserved for very low-income adopt other housing needs under the difficulties in securing a project site or households (households with incomes regulatory priority that are similar in project financing. A Bank Advisory at or below 50 percent AMI). FHFA nature to those specified under the Council stated that a minimum 50 specifically requested comments on this regulatory priority. FHFA may also percent threshold would be very proposed requirement, including specify additional eligible housing challenging for project sponsors to meet whether the proposed 55 percent needs under the regulatory priorities by given the lack of operating subsidies threshold, the applicability solely to separate guidance, as new housing available for homeless housing and rental units, and income-targeting at 50 needs arise. A Bank must adopt at least special needs housing. A Bank and its percent AMI were appropriate. one housing need as a scoring criterion Bank Advisory Council emphasized that Commenters generally opposed the under each of the three regulatory a minimum 50 percent threshold would proposal. The Banks, a Bank Advisory priorities. not align with current housing models Council, and two trade and policy FHFA’s research to develop the or the requirements of other funders that organizations expressed concern that housing priorities in the proposed rule also fund AHP projects, especially since this requirement would fail to recognize leads it to believe that these three many housing finance agencies require the benefits of mixed-income occupancy regulatory priorities represent the most that a maximum of 25 or 30 percent of projects, which allow developers to pressing housing needs currently facing the units in a project target homeless cross-subsidize units. A nonprofit the Nation, while providing the Banks households. A number of intermediary stated that the income sufficient flexibility to meet future representatives of a nonprofit developer targeting standards should align with housing needs. The three regulatory stated that a specific project would not LIHTC income targeting standards. The priorities and examples of their eligible have been able to overcome community Banks’ project selection proposal retains housing needs are discussed below. opposition if it had been required to the standard for targeting very low- and reserve 50 percent of its units for Regulatory Priority for Underserved low- or moderate-income households set homeless households. A number of Communities and Populations forth in the current regulation, which, nonprofit housing developers asserted (§ 1291.26(e)) for rental projects, requires the Banks to that many homeownership projects, award the maximum income targeting Consistent with the proposed rule, the even those serving specified score to projects that reserve 60 percent final rule adopts a regulatory priority for populations, would find it difficult to of the units for households with underserved communities and meet a 50 percent threshold as these incomes at or below 50 percent AMI. populations, including the following populations often find it difficult to As discussed under Section III.A. eligible housing needs described in qualify for homeownership above, the final rule does not adopt the further detail below: Housing for opportunities. proposed outcome-based scoring homeless households; housing for FHFA is persuaded by the framework, including this proposed special needs populations; housing for commenters that increasing the current very low-income targeting regulatory other targeted populations; housing in minimum 20 percent threshold for priority. Instead, consistent with the rural areas; and rental housing for homeless households to 50 percent Banks’ project selection proposal, the extremely low-income households. could create difficulties for the final rule retains the current scoring FHFA may also identify other specific financing of such projects, particularly criterion for income targeting in order to housing needs as eligible under this in states or localities with limited continue the AHP’s important role in regulatory priority by separate guidance, designated funding sources for such addressing the housing needs of very as new housing needs arise. households. The Agency also recognizes low- as well as low- or moderate-income Housing for homeless households that the development of such projects at households. Retaining the existing 20- (§ 1291.26(e)(1)). As proposed, the final a 50 percent threshold level may face point minimum allocation for income rule includes housing for homeless community opposition. Therefore, the targeting also emphasizes the AHP’s role households as an eligible housing need final rule retains the current minimum

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61217

threshold of 20 percent for homeless emphasized that a minimum 50 percent provide supportive services, or access to households. threshold would not align with current supportive services, for special needs Housing for special needs housing models or the requirements of populations in order to receive points (§ 1291.26(e)(2)). As proposed, the final other funders that also fund AHP under this scoring criterion. As rule includes housing for special needs projects, especially since, according to discussed in the NPRM, this populations as an eligible housing need these commenters, many housing requirement was proposed because under the underserved communities finance agencies require that a these populations have special needs and populations regulatory priority. The maximum of 25 or 30 percent of the associated with their particular life current regulation includes housing for units in a project target special needs. circumstances that could be addressed special needs populations as an optional Numerous commenters also questioned by targeted supportive services. An eligible housing need under the first whether the proposed increase in the advocacy organization focused on Bank district priority. As in the current threshold would be consistent with addressing the needs of persons with regulation and proposed rule, the final other applicable federal law governing disabilities urged that the final rule rule includes the following as eligible the housing integration of persons with provide project sponsors with discretion special needs populations under this disabilities.20 A nonprofit intermediary to offer supportive services and provide scoring criterion: The elderly; persons indicated that, since 2015, one-third of residents with disabilities individual recovering from physical abuse or its AHP-funded supportive housing choice in how and from whom they alcohol or drug abuse; persons with projects targeted less than 50 percent of access services. The Banks’ project HIV/AIDS; persons with disabilities; their units to supportive housing. The selection proposal does not require and housing that is visitable by persons commenter indicated that this portion of provision of, or access to, supportive with physical disabilities who are not its portfolio provided needed housing services for special needs populations. occupants of such housing. In addition, units for households who benefited One Bank, in support of the Banks’ as proposed, the final rule expands the from the provision of supportive project selection proposal, stated that eligible special needs populations from housing units. The commenter stated many housing providers do not provide those in the current regulation to that increasing the threshold to 50 on-site supportive services, and another include: Formerly incarcerated persons; percent could diminish the flexibility Bank stated that, among those providers victims of domestic violence, dating developers need, impeding supportive who do provide supportive services, violence, sexual assault or stalking; and housing development in some many may not continue to do so in the unaccompanied youth. communities. A number of nonprofit future. Several Banks recommended that However, in a change from the housing developers asserted that many the final rule leave the decision on proposed rule, the final rule retains the homeownership projects, even those whether supportive services are current minimum threshold of 20 serving specified populations, would appropriate for particular projects to the percent for the number of units that find it difficult to meet a 50 percent discretion of affordable housing must be reserved for special needs threshold as special populations often developers. populations in order for a project to find it difficult to qualify for FHFA notes that the proposed rule receive scoring points. FHFA homeownership opportunities. An would not have required the provision specifically requested comments on advocacy organization that focuses on of supportive services but merely whether this proposed increase, which the housing needs of people with ‘‘access to’’ those services. Nevertheless, was intended to encourage projects disabilities opposed the proposed 50 FHFA finds the comments on dedicated to serving special needs percent threshold for housing for people supportive services persuasive and has populations, would be appropriate. In with disabilities, stating that it would not included a supportive services addition, in contrast to the proposed result in isolation of such individuals requirement in the final rule. The final rule, which would have required from other populations. The commenter rule, instead, authorizes the Banks, in projects with units serving special needs recommended that FHFA consider their discretion, to adopt a supportive populations to provide supportive adopting a maximum limit of 25 percent services requirement for specific special services or access to supportive services of the number of units within a project needs populations identified by the for the specific special needs population that could be reserved for occupancy by Bank. served, the final rule does not require the applicable targeted population, Other commenters provided input on projects to provide such services or citing HUD’s Section 811 Project Rental the specific special needs populations access to such services in order to Assistance program as a federal program proposed for inclusion under this receive points under this scoring reflecting this approach. scoring criterion. An advocacy criterion. For the same reasons discussed under organization that focuses on addressing One commenter supported the the homeless households scoring the needs of people with disabilities proposed increase in the minimum criterion above, the final rule retains the supported including people with threshold from 20 to 50 percent, stating current minimum threshold of 20 disabilities as an underserved that significant evidence documents that percent for special needs households. population under the special needs people with disabilities prefer to live in The final rule does not adopt the scoring criterion. An intermediary that housing designed to address their commenter’s recommendation to focuses on supportive housing specific needs, rather than being establish a maximum 25 percent limit supported the inclusion of: Formerly dispersed through a mixed-occupancy on the number of units in a project that incarcerated persons; victims of project. Commenters otherwise could be reserved for occupancy by domestic violence, dating violence, overwhelmingly opposed the proposed persons with disabilities because it sexual assault, or stalking; and increase in the minimum threshold. A would unnecessarily constrain Banks in unaccompanied youth. No commenter Bank Advisory Council stated that a districts that can accommodate projects objected to the inclusion of any of the minimum 50 percent threshold would with a higher threshold. populations specified in the proposed be very challenging for project sponsors Several commenters objected to the rule. to meet given the lack of operating proposed requirement that projects Accordingly, the final rule includes subsidies available for special needs. A the eligible special needs populations Bank and its Advisory Council 20 See 28 CFR 35.130(d). specified in the proposed rule. As

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61218 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

discussed in the NPRM, the reference to supported the inclusion of the specified housing in rural areas as an eligible ‘‘persons with AIDS’’ in the current other targeted populations as a housing need under the underserved regulation is updated to ‘‘persons with regulatory priority, noting that many of communities and populations HIV/AIDS’’ to more closely align it with the specified populations reside in rural regulatory priority, in light of the common nomenclature and in communities. The commenter also significant and particularized housing recognition of the fact that persons with recommended that FHFA narrow the needs experienced by rural households, HIV experience comparable housing targeting of housing for Native as discussed in the NPRM. However, needs to persons with AIDS. The term Americans to housing for Native unlike the proposed rule, which would ‘‘mentally or physically disabled Americans on or near federally have defined ‘‘rural area’’ according to persons’’ in the current regulation recognized tribal lands, stating that this the definition in FHFA’s Duty to Serve similarly is updated to ‘‘persons with is where housing needs are most acute regulation, the final rule follows the disabilities’’ to reflect more commonly for this population. The Banks’ proposal approach of the current regulation and acceptable terminology. As discussed in for project selection replaces the term allows each Bank to adopt its own the NPRM, persons with disabilities are ‘‘Native Americans’’ with ‘‘Native definition of ‘‘rural area.’’ That included under this scoring criterion Peoples,’’ to ensure that the category definition, like the Bank’s Program in because they benefit from housing includes Native Alaskan and Hawaiian general, would have to be reasonable, features such as wheelchair-accessibility populations. The Banks’ proposal and would be subject to FHFA or enhancements for visual or hearing eliminates the multigenerational examination. impairments. household category. Multiple Banks A trade association and two nonprofit Housing for other targeted characterized the term affordable housing intermediaries populations (§ 1291.26(e)(3)). As ‘‘multigenerational’’ as ambiguous, specifically supported the proposed proposed, the final rule includes expressing concern that the proposed inclusion of rural housing as a specified housing for other targeted populations rule would prioritize housing that need in the Program. One of the as an eligible housing need under the accommodates only parents and intermediaries commented that its underserved communities and children. partners, largely comprising rural populations regulatory priority. As proposed, the final rule includes community-based housing providers, Generally consistent with the proposed Native Americans as a specific eligible found that their applications for AHP rule, the final rule includes the targeted population under this scoring funds are less competitive than in the following as eligible ‘‘other targeted category, in view of their significant past. The commenter suggested that populations:’’ Agricultural workers; housing needs, as discussed in the rural applicants do not score as well as military veterans; Native Americans; NPRM. The final rule continues to use urban or suburban applicants, whose households requiring large units; and the term ‘‘Native Americans’’ because it projects are of a larger scale and whose kinship care households, because of the is commonly used in other programs. borrowers may have higher incomes and significant housing needs these Under this scoring category, a Bank may greater access to financial services. populations face, as discussed in the also include Native Alaskan and Native Several commenters provided input on NPRM. In a technical change from the Hawaiian populations, at its discretion. the proposed definition of ‘‘rural area.’’ proposed rule, as discussed further The Agency acknowledges the acute The nonprofit intermediary stated that, below, the final rule replaces the term housing needs of Native Americans on though it regards local government ‘‘multigenerational households’’ with or near federally recognized tribal lands, entities and communities as best ‘‘kinship care households,’’ and but also recognizes that Bank districts equipped to define rural areas, it removes the category of persons with vary in the degree to which they contain supported the proposed definition as a disabilities, which are covered under federally recognized tribal lands. The comprehensive and structured the special needs scoring criterion. In broader definition in the final rule gives classification for rural areas under the addition, for the same reasons discussed the Banks discretion to best target AHP AHP. It characterized the proposed under the homeless households and subsidies to meet the housing needs of definition as an enhancement that relies special needs scoring criteria above, the Native American populations in their on a more accurate definition of rural final rule does not adopt the proposed districts. territory and that minimizes increase in the number of units reserved Regarding multigenerational misclassification of projects in suburban for occupancy by the relevant targeted households, such as grandparents or exurban areas. population from 20 to 50 percent. FHFA raising grandchildren, the NPRM In contrast, a Bank and its Bank specifically requested comments on explained that such households may Advisory Council asserted that the whether this proposed increase, which have a need for special housing that proposed definition is overly restrictive was intended to encourage projects includes, for example, features of within metropolitan areas because it dedicated to serving other targeted elderly projects (e.g., handrails in excludes small towns that are truly rural populations, would be appropriate. The bathrooms and hallways), as well as in character. These commenters also final rule also does not include the features of family housing (e.g., outdoor stated that the AHP would not be able qualifying phrase ‘‘not necessarily with play spaces). To better describe the to maximally coordinate with USDA supportive services’’ that was in the intended population in response to the programs, as there are areas eligible for proposed rule because, as discussed comments, the final rule replaces the USDA assistance under USDA’s under the special needs scoring term ‘‘multigenerational household’’ definition of ‘‘rural area’’ that would be criterion above, the final rule does not with the term ‘‘kinship care.’’ Kinship excluded under the proposed definition. adopt a supportive services requirement care households are defined as In their proposal for project selection, for that scoring criterion. households in which children are in the the Banks recommended that each Bank FHFA received several comments on care of cohabitating relatives, such as have the authority to define ‘‘rural this proposed scoring category, grandparents, aunts, or uncles, or area.’’ One Bank commented that the including comments on the types of cohabitating close family friends. proposed definition would be overly targeted populations that should be Housing in rural areas complicated for purposes of the AHP. included. A nonprofit affordable (§ 1291.26(e)(4)). Consistent with the The Bank indicated that the Banks housing intermediary strongly proposed rule, the final rule includes designed their project selection proposal

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61219

to provide each Bank with flexibility to have local or state rental housing proposed minimum 20 percent adopt its own definition so that each development resources and access to threshold. After consideration of the Bank could align its standards with federal project-based rental assistance comments on the proposed threshold, those used by other state and local programs. The commenter suggested use including the recommendation for a affordable housing financing sources of a sliding points scale to encourage sliding scale that would allow projects that fund AHP projects. projects that target more units to with some extremely low-income units FHFA is persuaded by commenters’ extremely low-income people, up to a but less than 20 percent to receive concerns about the definition of ‘‘rural maximum of 20 or 25 percent of the points, FHFA is persuaded that a 20 area’’ in the proposed rule. The units in a project, rather than percent threshold may be too high in Agency’s aim of aligning, where establishing a minimum of 20 percent of most circumstances. FHFA notes that appropriate, AHP definitions with those the units. A nonprofit intermediary the differing comments on the proposed in other FHFA programs such as the recommended a sliding points scale of threshold may stem from the differences Duty to Serve Program was not intended up to 100 percent of the units in a in the financial viability of projects with to constrain each Bank’s flexibility to project. extremely low-income units in different coordinate with other funding sources Other commenters opposed the local housing markets. Therefore, in in responding to housing needs within proposed minimum 20 percent order to encourage targeting of its district. Continuing to give the Banks threshold. A Bank commented that it extremely low-income households discretion to define ‘‘rural area’’ will may render smaller projects financially while providing adequate discretion to allow them to align their Programs with infeasible. A CDFI trade organization the Banks to take into account other local and state funding programs stated that while targeting units for differences in housing markets among for affordable housing. Accordingly, and extremely low-income households is the Banks, the final rule includes a consistent with the current regulation, important, a minimum 20 percent scoring criterion for projects targeting the final rule authorizes each Bank to threshold would create incentives for such households but also authorizes the establish its own definition of ‘‘rural concentrations of populations of Banks to establish their own minimum area.’’ extremely low-income households, thresholds for the number of units a Rental housing for extremely low- which would decrease residential project is required to reserve for such income households (§ 1291.26(e)(5)). As economic diversity. A CDFI opposed a households in order for the project to proposed, the final rule includes minimum 20 percent threshold on the receive scoring points. housing for extremely low-income grounds that projects that overestimate FHFA notes that most Banks have not households as an eligible housing need the number of extremely low-income allocated scoring points for projects under the underserved communities units they can support may face specifically targeting extremely low- and populations regulatory priority, in financial instability. A trade income households, which suggests that light of the severe affordable housing organization supported the goal of including this housing need under the challenges faced by such households, as targeting extremely low-income underserved communities and discussed in the NPRM. Consistent with households, but stated that a minimum populations regulatory priority would the proposed rule, the final rule adds a 20 percent threshold would not be not be redundant. FHFA also notes that definition of ‘‘extremely low-income feasible because the amount of AHP housing for extremely low-income household’’ in § 1291.1 to mean a subsidy would generally be insufficient households is an optional scoring household with an income at or below to offset the reduction in rents required category in the final rule, which Banks 30 percent AMI. In a change from the to serve such households. The Banks may choose to adopt in addition to the proposed rule, the final rule authorizes stated that some projects may not be mandatory regulatory priority for each Bank to define its own minimum able to secure rent subsidies to support income targeting for very low-income threshold for the percentage of units a minimum 20 percent threshold, households. reserved for extremely low-income making the projects financially Regulatory Priority for Creating households that a project must meet in infeasible. order to qualify for points under this The Banks’ proposal on project Economic Opportunity (§ 1291.26(f)) scoring criterion. The proposed rule selection does not include a scoring As proposed, the final rule adopts a would have set this minimum threshold priority for housing for extremely low- regulatory priority for creating economic at 20 percent. FHFA specifically income households. One Bank stated opportunity, including the following requested comments on whether the that the Banks could address this eligible housing needs as scoring proposed 20 percent minimum housing need under their Bank district criteria: promotion of empowerment threshold is appropriate. priority scoring criterion, and that and residential economic diversity. Several housing policy organizations, including a scoring criterion for housing FHFA may also identify other specific a CDFI, and two nonprofit developers for extremely low-income households housing needs that facilitate economic generally supported this proposed would overlap with the scoring criterion opportunity as eligible under this scoring criterion. A nonprofit developer for housing for other targeted regulatory priority by separate guidance, supported the scoring criterion but populations. Another Bank stated that a as new housing needs arise. The eligible encouraged FHFA to allow AHP-funded scoring criterion for housing for housing needs are discussed further projects targeting extremely low-income extremely low-income households below. occupants to adjust their income would be redundant with the income Promotion of empowerment targeting and rent restrictions in the targeting scoring criterion. Multiple (§ 1291.26(f)(1)). Consistent with the event the project sponsor, through no Banks expressed doubt that a project proposed rule, the final rule includes fault of its own, loses its project-based meeting a 20 percent threshold for promotion of empowerment as an operating subsidy. One of the housing extremely low-income households eligible housing need under the creating policy organizations acknowledged the could demonstrate financial feasibility. economic opportunity regulatory benefits of targeting extremely low- In summary, most commenters priority. In contrast to the current income households, but asserted that a acknowledged the importance of regulation, promotion of empowerment minimum 20 percent threshold could be targeting extremely low-income would be an optional rather than a difficult to meet in states that do not households, but objected to the mandatory scoring criterion. As

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61220 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

proposed, the final rule retains the to have discretion to adopt their own will occur, assuring that such eligible empowerment services included definitions in order to be able to align households will be assisted to minimize in § 1291.5(d)(5)(v) of the current their Programs with the economic the impact of such displacement. The regulation. For the reasons discussed in characteristics of their districts. One final rule adds, as an example of the the NPRM and comments discussed Bank recommended that FHFA expand types of projects that promote below, the final rule adds the following the definition to explicitly include the community stability, projects that empowerment services not included in development of mixed-income housing preserve affordable housing. The final the current regulation: Childcare; adult in middle- and high-income rule further modifies the current daycare services; afterschool care; neighborhoods, in addition to low- and community stability scoring criterion by tutoring; health services, including moderate-income neighborhoods, in replacing the term ‘‘neighborhood mental health and behavioral health order to provide the Banks flexibility to stabilization plan’’ with ‘‘community services; and workforce preparation and respond to the best evidence on the development or economic development integration. impact of living in high opportunity strategy,’’ and providing that such a A nonprofit intermediary that focuses areas for low-income families. The strategy may be approved by an on supportive housing strongly Banks’ proposal on project selection instrumentality of government. The supported the addition of health allows each Bank to define ‘‘high final rule also retains the above- services as an eligible empowerment opportunity area,’’ and allows mixed- described non-displacement provision activity. The commenter urged that the income housing in any area that the from the current regulation. In a change final rule include an explicit reference Bank designates. The Banks indicated from the proposed rule, the final rule to mental and behavioral health that they prefer flexibility to align the does not provide examples illustrating services, which are mentioned in the residential economic diversity standards the types of projects that may be case study cited in the NPRM. FHFA with those of state and local funders. considered affordable housing concurs in the importance of mental and FHFA agrees with the comments that preservation. behavioral health services and has requiring use of the Duty to Serve The proposed rule would have added a reference to these services in definition for residential economic specified two eligible housing needs connection with health services in the diversity under the AHP, especially the under the proposed affordable housing final rule. Consistent with the proposed component definition of ‘‘high preservation regulatory priority: rule, the reference to ‘‘welfare to work’’ opportunity area,’’ could limit the Affordable rental housing preservation in the current regulation is updated to extent to which the Bank are able to and affordable homeownership ‘‘workforce preparation and integration’’ align their Programs, where appropriate, preservation. Affordable rental housing to broaden the scope beyond with residential economic diversity preservation would have included households receiving public assistance standards of state and local funders. The housing needs such as: Existing to include initiatives providing skills to final rule, therefore, allows each Bank to affordable housing in need of those entering or re-entering the define ‘‘high opportunity area.’’ In rehabilitation as indicated by workforce. FHFA received no comments addition, FHFA is persuaded that deteriorating physical condition, high addressing any of the other proposed mixed-income housing may, in certain vacancy rates, or poor financial additions to the promotion of Bank districts and under some performance; affordable rental housing empowerment scoring criterion. circumstances, be beneficial in middle- with energy or water efficiency Residential economic diversity and high-income neighborhoods. improvements (meeting the (§ 1291.26(f)(2)). As proposed, the final Accordingly, the final rule does not requirements in the Duty to Serve rule includes residential economic adopt the proposed requirement that the regulation); projects that received diversity as an eligible housing need mixed-income housing be located in an funding from certain government under the regulatory priority for creating area of concentrated poverty, and affordable rental housing programs economic opportunity. The current instead provides discretion to the Banks specified under the Duty to Serve regulation includes residential to designate the areas in which the regulation, i.e., HUD Section 8, Section economic diversity as an optional mixed-income housing must be located. 236, Section 221(d)(4), Section 202, and scoring criterion under the first Bank Section 811 programs; McKinney-Vento Regulatory Priority for Community district priority. The proposed rule Homeless Assistance; USDA Section Stability Including Affordable Housing would have revised the current 515; LIHTC; or other state or local Preservation (§ 1291.26(g)) definition of residential economic affordable housing programs diversity to reflect the definition in In a change from the proposed rule, comparable to the foregoing housing FHFA’s Duty to Serve regulation. The the final rule adopts community programs. Affordable homeownership final rule adopts a modified version of stability, including affordable housing preservation would have included the Duty to Serve definition that preservation, as a regulatory priority. owner-occupied rehabilitation, shared provides discretion to the Banks in Community stability is a mandatory equity programs, owner-occupied defining certain component terms scoring criterion in the current housing with energy or water efficiency thereof, as further discussed below. regulation, but was not included as a improvements (meeting the The proposed rule would have regulatory priority in the proposed rule. requirements in the Duty to Serve defined ‘‘residential economic Section 1291.5(d)(5)(ix) of the current regulation), or other housing finance diversity’’ as the financing of either regulation provides that a project may strategies to preserve homeownership. A affordable housing in a high opportunity receive points under this scoring Bank has discretion under the final rule area, or mixed-income housing in an criterion if it promotes community to include any of these types of housing area of concentrated poverty, with those stability, such as by rehabilitating needs under its community stability terms defined in accordance with the vacant or abandoned properties, being scoring criterion. Duty to Serve regulation and Evaluation an integral part of a neighborhood In addition, the final rule provides Guidance. FHFA received a number of stabilization plan approved by a unit of that FHFA may also identify other comments opposing adoption of the state or local government, and not mechanisms for affordable rental Duty to Serve definition. Two Banks displacing low- or moderate-income housing preservation or affordable and a Bank Advisory Council preferred households, or if such displacement homeownership preservation as eligible

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61221

under this regulatory priority by flexibility to include those or other criteria for Targeted Funds. For each separate guidance, as new housing housing needs under affordable housing Targeted Fund established by a Bank, needs arise. preservation to meet the specific the Bank must include a minimum of A Bank commented that including housing needs of their districts. three different scoring criteria, as affordable housing preservation as a established by the Bank, that allow the Current Regulatory Priority for Subsidy regulatory priority would provide Bank to select applications that meet the per Unit substantial encouragement to address specific affordable housing need or this pressing need effectively. Other As proposed, the final rule eliminates needs being addressed by the Targeted commenters indicated that the proposed the current mandatory scoring criterion Fund. This requirement for at least three affordable housing preservation for AHP subsidy per unit. This criterion scoring criteria is consistent with the definition is too narrow. A number of favors more highly leveraged projects, Banks’ comment on the scoring criteria nonprofit developers stated that the such as LITHC projects and other large for Targeted Funds and is a change from proposed regulatory priority would rental projects, where the AHP award is the proposed rule, which did not apply only in very limited a smaller percentage of the total project include this requirement. As discussed circumstances to affordable development budget. A Bank may want under § 1291.25 above, the maximum homeownership projects such as those to encourage AHP awards to projects points allocation for a single scoring where the AHP sponsor is engaged in that may not be able to leverage as much criterion under a Targeted Fund is 50 owner-occupied rehabilitation or funding from other sources and, points. These requirements should permanent affordability strategies. The therefore, need deeper subsidy from the promote a robust competitive scoring commenters asserted that, although the AHP. Eliminating this scoring criterion process under the Targeted Fund. types of affordable homeownership provides the Banks with more discretion preservation identified in the proposed to target the types of projects that best § 1291.28 Approval of AHP rule are viable and important strategies meet the housing needs in their Applications Under the General Fund in many areas of the country, they may districts. The Banks’ proposal for project and Targeted Funds not be the most impactful or appropriate selection also eliminates this scoring AHP application approvals generally. for many communities in each of the criterion. Under the final rule, a Bank, Consistent with the application Banks’ districts. The Bank Advisory in its discretion, could choose to approval requirements in the current Councils and a Bank noted that the include AHP subsidy per unit as a regulation, the final rule provides proposed affordable housing scoring criterion under its Bank district generally that a Bank’s board of preservation regulatory priority would priorities category. directors shall approve (i.e., award) applications for AHP subsidy under the not include projects that repurpose or Bank District Priorities (§ 1291.26(h)) adapt non-housing properties, such as General Fund and any Targeted Funds former schools, industrial properties, or The final rule adopts a cumulative that meet all of the applicable AHP commercial properties, which would be minimum points allocation of 50 points eligibility requirements in descending covered under the current community for the statutory and regulatory order, starting with the highest scoring stability scoring criterion. The Banks’ priorities, consistent with the application until the total funding proposal for project selection includes cumulative minimum points allocation amount for the particular AHP funding separate regulatory priorities for required for the statutory and regulatory round, except for any amount affordable housing preservation and priorities in the current regulation. The insufficient to fund the next highest community stability. final rule permits the Banks to allocate scoring application, has been approved. FHFA notes that the proposed the remaining maximum 50 points to Exceptions to this process, as proposed, regulatory priority for affordable affordable housing needs in the Banks’ are discussed below. housing preservation would have districts selected by the Banks. This is AHP application alternates. Section allowed the Banks to adopt other types a modified version of the current 1291.28(b) of the final rule provides the of affordable housing preservation needs regulation, which has two scoring Banks with discretion to approve a similar to those specified in the categories of Bank district priorities. specified number, as determined by the regulatory priority. However, FHFA Under the first Bank district priority, a Bank in its discretion, of the next acknowledges that replacing the current Bank must choose one or more housing highest scoring applications as community stability scoring criterion needs from 12 specified eligible housing alternates eligible for funding, and may with affordable housing preservation needs. Under the second Bank district approve any tied applications as would have omitted strategies outside of priority, a Bank adopts one or more alternates eligible for funding pursuant affordable housing preservation that are housing needs in the Bank’s district to § 1291.28(c)(2), when any previously important for addressing community identified by the Bank, which must be committed AHP subsidies become stability, such as adaptive re-use and the different from those chosen by the Bank available, pursuant to a written policy development of infill housing that are under its first Bank district priority. The established by the Bank. If a Bank has included under the current community final rule essentially combines the established such a policy for approving stability scoring criterion. Because current first and second Bank district alternates for funding and sufficient affordable housing preservation is an priorities into one category under which previously committed AHP subsidies important strategy for achieving a Bank may adopt specific district become available within one year of community stability, the final rule housing needs, for a maximum of 50 application approval, the Bank is adopts a regulatory priority for points. This will provide the Banks with required to approve the designated community stability that specifically additional flexibility to tailor their alternates for funding within that one- includes affordable housing General Funds to meet specific housing year period. This is a change from the preservation. FHFA is not retaining the needs in their districts. current regulation, which requires a proposed definition of affordable Bank to approve at least the next four housing preservation, which referenced § 1291.27 Scoring Criteria for Targeted highest scoring applications in the specific programs and strategies Funds General Fund as alternates, but gives the included in the Duty to Serve Section 1291.27 of the final rule sets Bank the option whether to approve the regulation, in order to provide the Banks forth general requirements for scoring designated alternates for funding if

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61222 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

previously committed AHP subsidies reflect the current structure of the under the final rule, where the Bank has become available within one year of projects or their funding needs. Projects a written policy to approve alternates. application approval. The final rule is may also have received funding from Applications to multiple Funds— consistent with the proposed other sources in the meantime to approval under one Fund. Section requirement that the Banks fund the substitute for the AHP funding 1291.28(d) of the final rule provides that General Fund alternates within one year requested. The projects, thus, may no if an application for the same project is of approval if any previously committed longer meet the AHP eligibility submitted to more than one Fund at a AHP subsidies become available, but requirements, including the need for Bank in a calendar year and the requires this only where the Bank has AHP subsidy, or may need to be re- application scores high enough to be adopted a policy to approve alternates scored due to the changes in the approved under each Fund, the Bank for funding. The final rule also links projects’ structures and funding. shall approve the application under approval of tied applications as Requiring re-underwriting, as well as only one of the Funds pursuant to the alternates, pursuant to § 1291.28(c)(2), possible re-scoring, of these projects Bank’s policy established in its AHP to establishment by a Bank of a written may be unnecessary and burdensome in Implementation Plan. For example, a policy for approval of alternates for such circumstances. In addition, the Bank’s policy could provide that any funding. In addition, the final rule Banks should not have to select project that is competitive under applies the above requirements alternates if they do not intend to fund multiple Funds will be approved under applicable to the approval of General these projects. Accordingly, the final the General Fund. The proposed rule Fund alternates to the approval of rule revises the current regulation to referred to submission of an application Targeted Fund alternates. The proposed make the approval of alternates for the same project in an AHP funding rule would have given the Banks discretionary rather than mandatory for round. The final rule changes this to a discretion regarding the approval and the Banks, pursuant to a written policy calendar year to take into account that funding of Targeted Fund alternates. established by the Bank, and to require Banks may hold separate funding The purpose of FHFA’s proposal to the Bank to approve such alternates for rounds for their General Fund and require funding of alternates under the funding within one year of approval if Targeted Funds at different times in a General Fund within one year of any previously committed AHP calendar year. No comments were approval if previously committed AHP subsidies become available but only if received on this proposal. funds become available was to ensure the Bank has a policy to approve No re-ranking of scored applications that the Banks award the AHP funds to alternates for funding. and alternates. As discussed in Section alternates in the General Fund rather Where a Bank does not adopt a policy III.A. above, the final rule does not than selecting General Fund alternates to approve alternates for its General adopt the proposal to allow the Banks, but transferring AHP funds from the Fund or any Targeted Funds, the Bank in their discretion, to re-rank scored General Fund to the Bank’s may use previously committed AHP applications and alternates, in light of Homeownership Set-Aside Programs or subsidies that become available under FHFA’s determination not to adopt the Targeted Funds instead. The Banks and the applicable Fund to address other proposed outcomes framework in the a trade association opposed the district affordable housing needs final rule. proposal, noting that projects approved through the Banks’ Homeownership Set- No delegation. The final rule retains as alternates typically seek additional Aside Programs or project the provision in the current regulation funding sources or change the scope of modifications, as currently permitted, or prohibiting a Bank’s board of directors the development if approved as through any Bank Targeted Funds. This from delegating to Bank officers or other alternates, which may significantly may benefit Banks, for example, that Bank employees the responsibility to change the structure of the projects. wish to establish a Targeted Fund to approve or disapprove the AHP subsidy They pointed out that a mandatory address a federal- or state-declared applications, as well as alternates. Since funding requirement for such projects disaster. It may also benefit Banks the final rule provides that the Banks would require the Banks to first re- receiving requests for subsidy to assist are no longer required to approve underwrite the projects to determine households under their Homeownership alternates, the final rule states that the their satisfaction with the AHP Set-Aside Programs that exceed the delegation prohibition is applicable to eligibility requirements, including the current maximum annual allowable the approval of alternates only if a Bank need for AHP subsidy, which would funding allocation of 35 percent, which has a written policy to approve increase the burden and costs to the is retained in the final rule. alternates for funding under its General Banks and the project sponsors. The Tied applications. As discussed above Fund or any Targeted Fund. The final Banks further stated that the proposal under the scoring tie-breaker policies in rule does not adopt the proposed could require the Banks to fund §§ 1291.25(c) and 1291.28(c)(2) of the prohibition on delegation by the Bank’s alternates that do not serve the housing final rule, where there is insufficient board to a committee of the board needs prioritized in the Banks’ TCLPs or AHP subsidy to approve all tied because the approval of AHP the proposed outcome requirements. applications for the General Fund or a applications is not a strategic policy The Banks and their Bank Advisory Targeted Fund, and the Bank has a decision. Comments received on Councils urged FHFA to continue written policy to approve alternates for delegation are covered in the previous allowing the Banks the discretion to funding under the applicable Fund, the discussion of comments on the other approve alternates for the General Fund, Bank must approve a tied application as proposed prohibited delegations in and to provide similar discretion to an alternate if it does not prevail under Section III.F. above. approve alternates for any Targeted the Bank’s scoring tie-breaker Funds established by the Banks. methodology, or is tied with another § 1291.29 Modifications of Approved FHFA finds relevant the comments application but requested more subsidy AHP Applications that previously committed AHP than the amount of AHP funds that The final rule relocates the provisions subsidies often do not become available remain to be awarded under the Fund. on modifications of approved AHP until well after the conclusion of the This is consistent with current FHFA applications from current § 1291.5(f) to AHP funding round, by which time guidance to the Banks for their General § 1291.29, with a number of clarifying alternates’ applications may no longer Funds except that it is only required, and other changes.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61223

Approval of modifications. Consistent Good cause. Consistent with the include why a cure of noncompliance with the proposed rule, the final rule current regulation and proposed rule, was not successful or attempted. provides that if the requirements for a the final rule continues to require that Consistent with the proposed rule, the modification are satisfied, the Bank there be good cause for a modification, final rule also makes technical changes must approve the modification request, with the Bank’s analysis and to the language in § 1291.29(b)(1) to unless the request is for an increase in justification for the modification clarify any ambiguity about the AHP subsidy, which a Bank may documented in writing. As proposed, requirement that requests for subsidy approve in its discretion. The final rule the final rule clarifies that remediation increase modifications must also meet is a change from the current regulation, of project noncompliance is not, in and the requirements for approval which allows for Bank discretion in of itself, good cause for a modification. applicable to other modifications in approving all modification requests. If a As discussed below under § 1291.60 § 1291.29(a). project re-scores successfully in its (Remedial Actions for Project § 1291.30 Procedures for Funding original funding round and all of the Noncompliance), the final rule adds that other modification requirements are the written analysis and justification for Consistent with the proposed rule, the satisfied, there should be no reason for good cause must include why a cure of final rule relocates the procedures for the Bank not to approve the noncompliance was not successful or AHP funding from § 1291.5(g) of the modification. FHFA did not receive any attempted. current regulation to § 1291.30, with comments on removing discretionary A Bank provided comments on the several changes. Cancellation of AHP application approvals. good cause determination for modifying approvals. The final rule clarifies in Cure of noncompliance. The final rule a project. The Bank noted that it § 1291.30(b) and (c) that if a Bank provides that before a Bank may considered remediation of project cancels any AHP application approvals approve a modification request, it must noncompliance, by itself, to be good due to lack of progress towards draw- first request that the project sponsor or cause for modification. The Bank down and use of the AHP subsidies or owner make a reasonable effort to cure stressed that a project that remains noncompliance with AHP eligibility any AHP noncompliance within a eligible for an award in its original AHP requirements, the requirement to make reasonable period of time. This funding round after the modification the AHP subsidies available to other provision includes clarifying language should be eligible for a modification AHP-eligible projects also includes the in response to comments on the without having to cure noncompliance option to make the subsidies available proposed language, and is consistent first, notwithstanding the changes made to other AHP-eligible households. after application approval. The Bank with similar clarifying language made in Compliance upon disbursement of emphasized the need to preserve the the ‘‘waterfall’’ provisions for AHP subsidies. The final rule removes AHP’s ability to accept and adapt to a remedying project noncompliance the reference to a change in the need for project’s needs. The Bank cited discussed under § 1291.60 below. AHP subsidy in § 1291.30(c). This potential changes to green initiatives or Comments on the cure of language is superfluous because as the the number of units reserved for noncompliance language are discussed rule states, at each disbursement of AHP homeless households that may or may under § 1291.60 below. subsidy, a project must meet all not impact the project’s budget or Re-scoring of application. Consistent eligibility requirements, which include financing commitments, as examples of with the current regulation, the need for AHP subsidy. § 1291.29(a)(3) of the final rule provides the types of changes justifying good Notification under subsidy re-use that in order to be approved for a cause for a modification. The Bank programs. As discussed under modification, the application, as contended that a cure-first requirement §§ 1291.13 above and 1291.64(b) below, reflective of the changes requested, must would add unnecessary administrative in a change from the proposed rule, the continue to score high enough to have costs for the Banks, the project sponsors, final rule retains the current regulatory been approved in the AHP funding and the members when the projects are provision enabling a Bank to adopt, in round in which it was originally scored eligible for project modifications in any its discretion, a program allowing re-use and approved by the Bank. In response case based on their scoring, feasibility, of AHP subsidy repayments in the same to questions that have arisen as to what and need for subsidy. project. Accordingly, § 1291.30(f) of the it means to score high enough where a FHFA is not persuaded by the Bank’s final rule also retains current Bank also approved applications as comments. Remediation of project § 1291.5(g)(6), which requires project alternates during the original AHP noncompliance is not, in and of itself, sponsor notification to the Bank and the funding round, the proposed rule would good cause for a modification. There member of the re-use of repaid AHP have clarified that the application must must be other reasonable justification direct subsidy where the Bank has continue to score as high as the lowest for the modification, such as a change authorized such re-use. ranking alternate that was not simply in market conditions, loss of committed Bank board duties and delegation. As designated as an alternate but approved funding to subsidize project rents, or proposed, the final rule eliminates for funding by the Bank in the loss of a major employer in the current § 1291.5(h), which addresses application’s original AHP funding community that makes it difficult to Bank board duties and delegations, as round. Because the final rule allows a find households at the incomes these duties and delegations are Bank to approve alternates for funding committed to in the project’s AHP addressed elsewhere in the final rule. in its discretion pursuant to a written application to occupy the targeted units policy adopted by the Bank, the final in the project. Otherwise, there would § 1291.31 Lending and Re-Lending of rule states that the lowest ranking be less of an incentive to cure AHP Direct Subsidy by Revolving Loan alternate approved for funding by the noncompliance if project sponsors knew Funds Bank is the applicable standard where they could simply request a The final rule relocates § 1291.5(c)(13) the Bank has a written policy to approve modification of the project terms to no of the current regulation, which alternates for funding. FHFA did not longer be in noncompliance. The final addresses the requirements for lending receive any comments on this proposed rule adds that the written analysis and and re-lending of AHP direct subsidies standard. justification for good cause must by revolving loan funds to § 1291.31,

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61224 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

without change except as related to the commenter also recommended The current regulation establishes elimination of the requirement for a establishing separate scoring criteria specific conditions under which a Bank retention agreement for owner-occupied within the AHP scoring framework for may provide AHP subsidies under its rehabilitation in the final rule. The revolving loan funds. Competitive Application Program for revolving loan fund provisions were Two Banks reported not having the origination of first mortgage loans or designed for lending and re-lending of received revolving loan fund rehabilitation loans with subsidized the AHP subsidy by distinct projects in applications for the AHP and interest rates to AHP-eligible household specific locations, or for pipelines of encouraged FHFA to engage in a through a purchase commitment by an expected projects meeting specific separate rulemaking for revolving loan entity that will purchase and pool the criteria that the revolving loan fund funds. One of the Banks indicated that loans. As stated in the NPRM, FHFA is anticipates funding and that would be it was not aware of any revolving loan not aware that any loan pools meeting specified in its AHP application. Under funds in the market that meet the these conditions have applied for AHP the regulation, the revolving loan fund current AHP regulatory requirements, subsidy since adding the regulatory may be scored on the specific criteria it and that it did not know how to make authority in 2006. FHFA is also not establishes in its AHP application for its the AHP more amenable to revolving aware of any loan pools of this type pipeline of projects, without having to loan funds. The other Bank stated that currently existing in the housing actually identify specific projects in the the proposed outcome requirements market. FHFA specifically requested AHP application. would not necessarily facilitate the use comments in the NPRM on whether To assist in anticipated future of revolving loan funds. there are loan pools currently operating rulemaking on revolving loan funds In response to FHFA’s request for in the market that meet the conditions under the AHP, FHFA specifically comment, FHFA received several in the regulation, how the loan pools are requested comments in the NPRM on comments on whether organizations addressing current housing market why certain AHP scoring criteria have using sponsor-provided permanent needs, and the potential positive or been difficult to meet, how the AHP financing models should be considered negative impacts of eliminating the retention periods could be satisfied, to be revolving loan funds. A national owner-occupied retention agreement how AHP subsidy would be repaid in nonprofit opposed this, stating that it requirement for loan pools. FHFA the event of project noncompliance, uses this model and would likely be received only one comment on this how the revolving loan fund can excluded from competitive AHP Funds section, from a Bank, which stated that demonstrate a need for AHP subsidy, if it were treated exclusively as a it had no experience with loan pools and the potential positive or negative revolving loan fund under any future meeting the AHP requirements. impacts of eliminating the owner- AHP regulation. A Bank stated that, by FHFA anticipates engaging in a future occupied retention agreement definition, there are similarities between rulemaking on loan pools with respect requirement for revolving loan funds. revolving loan funds and sponsor- to the AHP, and will consider comments A nonprofit affordable housing provided permanent financing models received in response to such rulemaking intermediary expressed general support since the funds of each are recycled on in determining the treatment of loan for increased use of AHP funds by an ongoing basis. The Bank stated, pools under the AHP regulation. revolving loan funds. A trade however, that unlike a revolving loan association for CDFIs stated that it fund, sponsor-provided permanent Subpart D—Homeownership Set-Aside would be particularly interested in financing models are project specific Programs working with FHFA and the Banks on and have readily available information § 1291.40 Establishment of Programs expanding the use and impact of that can be vetted during the application The final rule relocates § 1291.6(a) of revolving loan funds. A Bank indicated process. the current regulation on the Bank that revolving loan funds can help meet FHFA is unclear on how to interpret establishment of Homeownership Set- the rehabilitation needs of owner- the comments on identifying specific Aside Programs to § 1291.40. As occupied units. property locations in AHP applications. proposed, the final rule states that these Several CDFIs and Banks commented As discussed in the NPRM and above, programs are optional by adding that a that identifying specific project the current regulation allows a Bank to Bank may establish such programs ‘‘in locations or addresses in AHP score a revolving loan fund based on the its discretion.’’ The final rule does not applications is problematic for revolving specific criteria it establishes in its AHP include the proposed requirement that a loan funds. One of the Banks stated that application for its pipeline of projects, Bank’s analyses for establishing such revolving loan fund applications cannot without having to actually identify programs be included in its TCLP, as score sufficient points in categories tied specific projects in the AHP application. previously discussed under § 1290.6 to geography, inclusion of donated FHFA will consider the comments (Bank Community Support Programs). properties, economic diversity, or received on this issue, as well as income targeting because the revolving comments received in response to its § 1291.41 Eligible Applicants loan funds cannot commit with anticipated future rulemaking, in The final rule relocates § 1291.6(b) of certainty to the characteristics of a determining the treatment of revolving the current regulation on eligible project or household as specific loan funds under the AHP regulation. member applicants to § 1291.41, addresses or households are often § 1291.32 Use of AHP Subsidy in Loan without change. No comments were unknown by the revolving loan fund at received on this provision. the time of AHP application. Pools A CDFI and a Bank suggested that The final rule relocates § 1291.5(c)(14) § 1291.42 Eligibility Requirements applications for revolving loan funds of the current regulation, which The final rule relocates § 1291.6(c) of should describe a pipeline of potential addresses the requirements for use of the current regulation on the eligibility projects rather than discrete projects. AHP subsidies in loan pools, to requirements for Homeownership Set- Another CDFI suggested developing a § 1291.32, with a change to remove the Aside Programs to § 1291.42, with scoring system based on a commitment requirement for retention agreements for several changes, as proposed. to impact and homebuyer benefit, rather owner-occupied rehabilitation in Adoption of additional eligibility than on specific property addresses. The current § 1291.5(c)(14)(iii). requirements. Consistent with informal

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61225

guidance provided by FHFA to the because the adjustment would measure § 1291.44 Procedures for Funding Banks and the proposed rule, the final average price fluctuations in the single- The final rule relocates § 1291.6(e) of rule clarifies that the Banks may not family housing market, it would provide the current regulation, which addresses adopt eligibility requirements under insight to the Banks about whether they the procedures for set-aside funding, to their Homeownership Set-Aside should increase their individual subsidy § 1291.44, without substantive change. Programs beyond those set forth in this limit in housing markets that are section, except those related to becoming less affordable. Subpart E—Outcome Requirements for household eligibility pursuant to A state agency cautioned that the Statutory and Regulatory Priorities § 1291.42(b)(3). No comments were proposed increase in the subsidy limit FHFA proposed a number of received on this proposed clarification. could augment purchasers’ ability to benchmarks for demonstrating One-third funding allocation buy bigger houses, resulting in fewer compliance with the proposed outcome- requirement–-first-time homebuyers or grant recipients overall. A trade based approach for project selections. owner-occupied rehabilitation— association stated that raising the raising As discussed in Section III.A. above, conforming change. As discussed above the subsidy limit while also removing FHFA has decided not to adopt the under § 1291.12(b) (funding allocation the requirement for owner-occupied proposed outcome-based approach t for Homeownership Set-Aside retention agreements, as proposed, project selection in the final rule. Programs), the final rule requires that at could increase the likelihood of the Accordingly, the provisions in proposed least one-third of a Bank’s annual AHP subsidy being misused. Subpart E are not adopted in the final As discussed in the NPRM and above, Homeownership Set-Aside Program rule. funding allocation be for first-time the purpose of the increase in the homebuyers or households receiving subsidy limit is to respond to increases Subpart E—Monitoring set-aside funds for owner-occupied in the costs associated with buying or § 1291.50 Monitoring Under the rehabilitation, or a combination of both. rehabilitating homes in high cost areas, General Fund and Targeted Funds The final rule adds conforming language as well as the high costs of certain types in § 1291.42(b)(3) for households of rehabilitation generally. The increase Initial monitoring of AHP projects receiving set-aside funds for owner- also brings the subsidy limit in line with receiving LIHTC. Consistent with the occupied rehabilitation. changes in the HPI since 2002. The HPI proposed rule, § 1291.50(a)(3)(i) of the Maximum grant limit. Consistent with shows that $15,000 in January 2002 has final rule streamlines the initial the proposed rule, the final rule approximately the same buying power monitoring requirements for LIHTC authorizes the Banks to provide, as $21,500 today. FHFA acknowledges projects that also receive AHP subsidy. through their members, set-aside grants commenters’ concern that Bank The final rule retains the current initial of up to $22,000 per household, subject adoption of the proposed higher subsidy monitoring requirement that the Banks to annual upward adjustment in limit could result in fewer households review certifications from LIHTC project accordance with FHFA’s House Price receiving set-aside subsidies. However, sponsors that the residents’ incomes and Index (HPI). This is a change from the because most Banks have established the rents comply with the income- current regulation, which authorizes set- subsidy limits below the current targeting and rent commitments in the aside grants of up to $15,000 per $15,000 limit, FHFA believes that an approved AHP application. It also household and does not provide for increase in the subsidy limit to $22,000 includes a requirement, consistent with annual HPI adjustments. The purpose of is not likely to result in a significant Bank practice, that the Banks review the the increase in the subsidy limit is to overall reduction in the number of LIHTC project’s rent rolls, which respond to increases in the costs households assisted by the Banks under include each household’s income and associated with buying or rehabilitating their set-aside programs. rent. However, the final rule removes homes in high cost areas, as well as the Owner-occupied retention the current requirement that the Banks high costs of certain types of agreements. As discussed under Section review other back-up documentation on rehabilitation. It will also bring the III.D. above, the proposed rule would household incomes and rents at initial subsidy limit in line with changes in the have eliminated the requirement for all monitoring for LIHTC projects. The final HPI since 2002, when the regulation owner-occupied retention agreements. rule also streamlines the language of the established the $15,000 subsidy limit. The owner-occupied retention LIHTC monitoring provisions as The HPI upward adjustments will agreement requirement for households proposed. account for future house price increases, assisted with set-aside funds in current The proposed rule requested negating any need for periodic revisions § 1291.6(c)(5), thus, would have been comments on whether this proposed of the subsidy limit by regulation. FHFA eliminated. Because the final rule streamlining of the Banks’ initial will notify the Banks annually of the retains the requirement for owner- monitoring requirements for LIHTC maximum subsidy amount based on the occupied retention agreements where projects is reasonable, taking into HPI. the AHP subsidy is used for purchase, consideration the risks of A number of commenters generally or for purchase in conjunction with noncompliance and the costs of project supported raising the subsidy limit per rehabilitation, the retention agreement monitoring. Commenters who household from $15,000 to $22,000. requirement for such uses of AHP commented on this proposal Some of the commenters provided subsidy is retained in § 1291.42(e) of the overwhelmingly supported it. A reasons for their support that were cited final rule. nonprofit affordable housing by FHFA in the NPRM, specifically, that intermediary, a trade group, and the the proposed increase would provide § 1291.43 Approval of AHP Banks stated generally that the proposal additional flexibility, benefit Applications is reasonable and would not add any homeowners in high-cost areas, and The final rule relocates § 1291.6(d) of operational risks. support owner-occupied rehabilitation the current regulation, which addresses In 2017, 51 percent of AHP projects and aging in place. The Banks, nonprofit the approval of set-aside applications in received LIHTC, similar to the organizations, and a CDFI supported the accordance with the Banks’ criteria percentage of AHP projects that received proposed annual upward HPI governing the allocation of funds, to LIHTC in the previous several years. adjustments. The Banks stated that § 1291.43, without substantive change. Thus, any amendments to the LIHTC

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61226 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

monitoring requirements will impact documentation for incomes and rents, changes to the initial and long-term the Banks and many project sponsors including rent rolls. FHFA guidance monitoring requirements that would and members that participate in the will include government programs that align them with the monitoring AHP. As discussed further in the NPRM, have the same or substantially requirements of other federal programs, it is reasonable to allow the Banks to equivalent rent, income, and retention stating that they present very little risk. rely on the monitoring by the state- period requirements as the AHP, very An intermediary supported reduced designated tax credit allocation agencies low occurrences of noncompliance with monitoring for projects involving USDA of AHP-assisted LIHTC projects because those requirements, and monitoring Section 514 and Section 515 properties the LIHTC income, rent, and long-term entities that have demonstrated and because it would decrease regulatory retention period requirements have been continue to demonstrate their ability to and reporting burden. A CDFI supported substantially equivalent to those of the monitor the programs. FHFA will reduced monitoring because it decreases AHP, the tax credit allocation agencies update the guidance as appropriate to the final burden on project sponsors, monitor the projects, and LIHTC remain current with federal program members, and the Banks. projects rarely go out of compliance developments. A nonprofit organization opposed with the income and rent requirements. The FHFA guidance initially will reduction to the monitoring Further, multiple parties retain a strong specify the following federal requirements for income and rental incentive to monitor LIHTC projects for government programs, which meet the validation at initial monitoring. The income and rent compliance. LIHTC standards outlined above, as eligible for commenter stated that projects are most project owners bear responsibility for the streamlined monitoring: likely to go out of compliance during Æ ensuring that their projects comply with HUD Section 202 Program for the the initial lease-up phase, and that Bank the program’s income, rent, and Elderly; Æ review at initial monitoring would retention period requirements. The HUD Section 811 Program for likely ensure that the project remained owners face severe consequences for Housing the Disabled; compliant in the long term. The Æ USDA Section 515 Rural noncompliance, which serve as a commenter did not identify any specific Multifamily Program; and substantial deterrent to noncompliance. Æ information to justify its position. Two Because LIHTC investors cannot receive USDA Section 514 Farmworker Multifamily Program. policy organizations encouraged FHFA the benefits of the tax credits for units to continue to evaluate other federal that are not in compliance, LIHTC In 2017, approximately two-thirds of AHP projects received funding from programs such as HOME, CDBG, Rental project owners guarantee to their Assistance Demonstration, and Section investors that their projects will remain other federal programs. As further discussed in the NPRM, FHFA reviewed 8 Project-Based Rental Assistance, to in compliance, or the project owners determine whether the programs could must repay investors the amount of tax the extent to which AHP projects also receive subsidies from HUD and USDA be included in the guidance. credits lost plus any penalties or interest It is reasonable to allow the Banks to levied by the IRS. programs to assess the extent to which the Banks could reasonably rely on HUD conduct less monitoring of AHP projects The Banks currently are permitted to funded by any of the four programs to review LIHTC back-up documentation and USDA monitoring for these projects. In 2017, 24 percent of AHP projects be included in the FHFA guidance, at initial monitoring on a risk basis. given the low noncompliance risk to the Given the low risks of noncompliance received HOME Program financing, 8 percent received Community AHP due to the overlap of the AHP by LIHTC projects, the Banks can monitoring requirements with USDA establish review schedules for the back- Development Block Grant (CDBG) funds, and 9 percent received other and HUD’s monitoring practices, the up documentation that are not substantially equivalent income, rent especially burdensome. Although the federal financing, including from USDA. FHFA then analyzed the HUD and and retention requirements, and the administrative burdens on the project programs’ very low noncompliance sponsors to provide, and the Banks to USDA programs to determine which programs have substantially equivalent rates. Eliminating the requirement to review, LIHTC back-up documentation provide and review back-up (other than rent rolls) at initial rent, income, and retention requirements to the AHP, very low documentation (other than rent rolls) for monitoring may not be significant, such projects at initial monitoring, and eliminating this requirement will noncompliance rates, and where the monitoring entity has demonstrated and eliminating the requirement to provide benefit the Banks and project sponsors and review any back-up documentation by reducing their administrative costs. continues to demonstrate effective (including rent rolls) for such projects Initial and long-term monitoring of monitoring of a respective program. The during long-term monitoring, will also AHP projects funded by certain other Agency determined that the four government programs specified in FHFA programs noted above meet these benefit project sponsors and the Banks standards. FHFA has not identified by reducing their administrative costs, guidance. As proposed, 21 § 1291.50(a)(3)(i) of the final rule other programs that meet these albeit modestly for the Banks. In provides that, for AHP projects funded standards at this time. The proposed addition, aligning the AHP monitoring by certain other government programs rule requested comments on whether requirements for such projects with specified in separate FHFA guidance, this proposed reduction of the Banks’ USDA’s monitoring may encourage the Banks will only be required to initial and long-term monitoring more USDA-funded projects to apply for review project sponsor certifications requirements for AHP projects funded AHP funds, thus increasing the and rent rolls, and not any other back- by certain other government programs is proportion of rural families served by up documentation, at initial monitoring. reasonable, taking into consideration the the AHP. For long-term monitoring, risks of noncompliance and the costs of FHFA will continue to assess the § 1291.50(c)(1)(ii) of the final rule project monitoring. Many commenters, programs recommended by the provides that the Banks will only be including trade groups, intermediaries, commenters, as well as other possible required to review annual project and nonprofit developers supported 21 The Banks have an average of 260 AHP rental sponsor certifications on incomes and reliance on the monitoring of other projects per Bank in long-term monitoring, where rents for such projects, and will not be federal funders of AHP projects. The monitoring reasonably be reduced through a risk- required to review any back-up Banks similarly supported the proposed based monitoring plan.

VerDate Sep<11>2014 17:47 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61227

programs, and may add programs in the can take remedial or other actions clarity on the scope of the section and guidance as appropriate. Programs will regarding the project as appropriate. the responsibilities of the parties. As be removed from the guidance when Risk factors and other monitoring. discussed extensively in Section III.E. they no longer meet the standards for Consistent with the current regulation above, the final rule adopts certain inclusion in the guidance. and proposed rule, § 1291.50(c)(2)(i) of substantive changes by establishing a Enhanced long-term monitoring the final rule requires that a Bank’s sequence of remedial steps for a Bank to certifications. Consistent with the written monitoring policies take risk follow before recovering AHP subsidy. proposed rule, § 1291.50(c)(1)(i) of the factors into account. The final rule adds The final rule also clarifies factors for final rule codifies existing Bank best project sponsor performance as one of Bank consideration in determining practices that require submission by the risk factors that Banks may take into whether to accept less than the full project sponsors of annual project account because previous compliance amount of AHP subsidy due. Because certifications during the AHP 15-year history may be a useful criterion for the final rule is not adopting the retention period to include not only the Banks to consider in developing their proposed outcome-based requirements, household income and rent information, monitoring policies. the final rule does not adopt proposed but also information addressing the on- § 1291.51 Monitoring Under § 1291.65, which would have provided going financial viability of the project, Homeownership Set-Aside Programs for a number of remedial actions that such as whether the project is current FHFA could take to address Bank The final rule relocates the on property taxes and loan payments, its noncompliance with the outcome monitoring provisions for the vacancy rate, and whether it is in requirements, including housing plans Homeownership Set-Aside Program compliance with its commitments to and reimbursement of the AHP Fund. from current § 1291.7(b) to § 1291.51. other funding sources. The changes in the final rule that are The proposed rule would have removed As discussed in the NPRM, during not discussed in Section III.E. above, are the requirement in current long-term monitoring, the Banks are discussed below. § 1291.7(b)(ii) for verifying that AHP- Scope. Consistent with the proposed required to monitor projects for assisted owner-occupied units are rule, § 1291.60 of the final rule sets forth compliance with the household income subject to retention agreements because the requirements applicable to the targeting and rent commitments in their it would have eliminated the Banks in the event of noncompliance by AHP applications. This information may requirement for owner-occupied an AHP-assisted project with its AHP not reveal operational and viability retention agreements. However, as application commitments and the challenges the projects are experiencing. discussed in Section III.D. above, the requirements of the AHP regulation, By obtaining additional information final rule eliminates the requirement for including any use of AHP subsidy by from project sponsors about the project, owner-occupied retention agreements the project sponsor or owner for the Banks may be able to work with only where the household uses the AHP purposes other than those committed to other funders to address project subsidy solely for owner-occupied in the AHP application. As proposed, concerns and any noncompliance, rehabilitation. Accordingly, the final the final rule clarifies that this section including attempting remediation rule retains the current verification does not apply to individual AHP- through workout strategies or recovery requirement for owner-occupied assisted households, or to the sale or of AHP subsidies for noncompliance. retention agreements where the refinancing by such households of their The requirement for enhanced households uses the AHP subsidy for homes, as there is no ongoing Bank certifications modestly increases the purchase of the unit, or for purchase of monitoring of households once they reporting requirements for project the unit in conjunction with purchase their homes, and sale or sponsors and Banks that are not rehabilitation. refinancing during the AHP five-year currently requiring such enhanced retention period is not considered certifications. FHFA did not receive any Subpart F—Remedial Actions for noncompliance. comments on the proposed enhanced Noncompliance Elimination of project certifications. The final rule relocates the provisions noncompliance. Section 1291.60(b) of Notice requirement for LIHTC project on remedial actions for AHP the final rule establishes a sequence of noncompliance during AHP long-term noncompliance from § 1291.8 of the remedial steps for a Bank to follow retention period. As discussed under current regulation to Subpart F. As before recovering AHP subsidy, as § 1291.15(a)(5)(ii) above, the final rule proposed, the final rule addresses each discussed below. requires the Banks to include in their type of noncompliance—project sponsor Cure of noncompliance AHP monitoring agreements with or owner, member, or Bank—in a (§ 1291.60(b)(1)). To address concerns members, and for members to include in separate section so that the that the proposed cure-first requirement their agreements with project owners, a responsibilities and potential liabilities might compel project sponsors or requirement that project owners provide of each party are clear. As proposed, the owners to continue to attempt curative prompt written notice to the Bank if an final rule also makes substantive efforts when project noncompliance AHP-assisted LIHTC project is in changes to the order in which certain cannot be cured, the final rule includes material and unresolved noncompliance remedial actions must be taken, with clarifying language applying a with LIHTC household income targeting certain clarifications to the provision on reasonableness standard for the level of or rent requirements at any time during curing noncompliance. The changes are these efforts. This clarification in the the AHP 15-year retention period. further discussed below. final rule codifies practices Banks Section 1291.50(c)(1)(ii) of the final rule generally follow now. includes a corresponding monitoring § 1291.60 Remedial Actions for Project Project modification (§ 1291.60(b)(2)). requirement that the Banks must review Noncompliance As proposed, the final rule further LIHTC noncompliance notices received Consistent with the proposed rule, provides that if the project from project owners during the 15-year § 1291.60 of the final rule addresses noncompliance cannot be cured within retention period, which will make the remedial actions for AHP project a reasonable period of time, the Bank Banks aware of any material and noncompliance. The language is revised shall determine whether the unresolved noncompliance so that they and streamlined to provide greater circumstances of the noncompliance

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61228 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

can be eliminated through a project several different bases. The Banks stated seeking FHFA’s prior approval for a modification under § 1291.29, and if so, that the facts and circumstances in the proposed subsidy settlement. As the Bank must approve the modification proposed rule were worthy but discussed in the NPRM, only one Bank request (except for modifications represented just a few of the has used this option and it was for two requests for AHP subsidy increases, considerations used in the subsidy similar cases. The Banks may enter into whose approval remains discretionary recapture process. The Banks requested, subsidy settlements, in their discretion, for the Banks). therefore, that FHFA not codify the provided the settlements are supported Reasonable collection efforts, factors in the regulation, but rather by reasonable justifications. The Banks including settlement (§ 1291.60(c)). allow each Bank to evaluate the fact- have made these types of business Consistent with the proposed rule, specific scenarios of a subsidy recapture decisions for many years without § 1291.60(c)(1) of the final rule provides and settlement process based on its own seeking prior FHFA approval. Moreover, that if the circumstances of a project’s guidelines. the final rule further clarifies the factors noncompliance cannot be eliminated A Bank Advisory Council and a the Banks should consider in deciding through a cure or modification, the nonprofit organization stated that whether to settle with a project sponsor Bank, or the member if delegated the expanding the requirements of or project owner. FHFA did not receive responsibility, must first make a reasonable collection efforts to include any comments on this provision. demand on the project sponsor or owner the Bank’s review of the financial for repayment of the full amount of the capacity and assets of both the project § 1291.61 Recovery of Subsidy for AHP subsidy not used in compliance sponsor and project owner would Member Noncompliance with the commitments in the AHP increase the Bank’s administrative Section 1291.61 of the final rule application or the AHP regulation. This burden. The commenters stated that the addresses member noncompliance, is intended to ensure that the Banks proposal could decrease the number of which is addressed in § 1291.8(b)(1) of attempt to recover all of the subsidy due project sponsors, project owners, and the current regulation. The final rule before considering settlements. This members willing to submit applications clarifies the language to focus on provision also clarifies that if the for AHP subsidy. Several commenters noncompliance with a member’s AHP noncompliance is occupancy by over- warned that the proposed requirements application or the AHP regulation as a income households, the amount of AHP regarding the repayment of AHP subsidy result of the member’s actions or subsidy due is calculated based on the would require project sponsors to act as omissions, consistent with similar number of units in noncompliance, the guarantors, responsible for repaying all language applicable to the Banks and length of the noncompliance, and the or a portion of the AHP subsidy due to project sponsors in the current portion of the AHP subsidy attributable noncompliance. A Bank and a trade regulation and Subpart F, rather than on to the noncompliant units. association opposed the proposal, impermissible use of the subsidy by the Section 1291.60(c)(2) of the final rule stating that it would effectively make member. FHFA did not receive any specifies that if the demand for AHP funds recourse obligations of the comments on this section. repayment of the full amount of subsidy project sponsor and project owner, due is unsuccessful, then the Bank, or although affordable rental housing § 1291.62 Bank Reimbursement of the member if delegated the financing, particularly for LIHTC AHP Fund responsibility and in consultation with projects, is normally nonrecourse, and As proposed, the final rule relocates the Bank, is required to make reasonable was not appropriate. efforts to collect the subsidy from the Settlement represents the last resort in § 1291.8(e) of the current regulation, project sponsor or owner, which may a series of steps that a Bank initiates to which addresses circumstances where a include settlement for less than the full remedy a project’s noncompliance, in Bank is required to reimburse its AHP amount of subsidy due. As proposed, cases where the noncompliance cannot fund, to § 1291.62, with no substantive the final rule clarifies that members be eliminated through a cure or changes. FHFA did not receive any would carry out these efforts in modification and the demand for full comments on this section. consultation with the Bank, consistent repayment of the AHP subsidy is § 1291.63 Suspension and Debarment with current practice. unsuccessful. It is reasonable, in these The final rule also retains the rare instances, for a Bank to take into Consistent with the proposed rule, the proposal to clarify that the facts and account the financial capacity and final rule relocates § 1291.8(g) of the circumstances to consider in assets of both the project sponsor and current regulation, which addresses determining whether to settle include owner to determine whether they have suspension or debarment of members, not only the degree of culpability of the the ability to repay a portion of the AHP project sponsors, or project owners, to noncomplying parties and the extent of subsidy. The Bank would not require § 1291.63, without change. FHFA did the Bank’s or member’s collection repayment of subsidy if they do not not receive any comments on this efforts, as provided in the current have resources to do so. The section. regulation, but also the financial requirement for the project sponsor or § 1291.64 Use of Repaid AHP capacity of the project sponsor or owner to repay all or a portion of the Subsidies owner, assets securing the AHP subsidy, AHP subsidy in the case of and other assets of the project sponsor noncompliance that cannot be resolved Use of repaid AHP subsidies for other or owner. FHFA specifically requested through a cure or modification is a AHP-eligible projects or households. comments on whether the facts and longstanding requirement of the AHP Consistent with the proposed rule, circumstances included in the proposed and, therefore, is unlikely to decrease § 1291.64 of the final rule includes rule are appropriate for consideration the number of applications for AHP § 1291.8(f)(1) of the current regulation, during reasonable collection efforts, and subsidy. For these reasons, the final rule which provides that AHP subsidy whether there are other factors that retains the proposed clarifications repaid to a Bank under the AHP should be considered. described above. regulation must be made available by The Banks, a Bank Advisory Council, As proposed, the final rule also the Bank for other AHP-eligible projects. a trade association, and a nonprofit eliminates current § 1291.8(d)(2), which As proposed, the final rule also clarifies organization opposed the proposal on provided the Banks the option of that the repaid subsidy may also be

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61229

made available by the Bank for AHP- Subpart G—Affordable Housing Reserve preparing this final rule, the Director eligible households. Fund considered the differences between the Re-use of repaid AHP direct subsidies § 1291.70 Affordable Housing Reserve Banks and the Enterprises as they relate in the same project. The final rule Fund to the above factors, and determined that the amendments in the final rule retains § 1291.8(f)(2) of the current Consistent with the proposed rule, the are positive for the affordable housing regulation, which provides for re-use of final rule relocates § 1291.12 of the mission of the Banks and neutral repaid AHP direct subsidies in the same current regulation, which addresses the regarding the other statutory factors. project, in the Bank’s discretion. The requirements for an Affordable Housing FHFA requested comments in the proposed rule would have eliminated Reserve Fund, to § 1291.70. The final NPRM regarding whether differences the requirement for owner-occupied rule revises the current provision by related to those factors should result in retention agreements in all cases, requiring that amounts remaining any revisions to the proposed rule. No meaning no AHP subsidy would be unused or uncommitted at year-end are significant relevant comments were repaid by households if they sold their deemed to be used or committed if, in received. homes during the five-year AHP combination with AHP funds that have VI. Paperwork Reduction Act retention period, rendering the ability to been returned to the Bank or de- re-use repaid subsidy in the project committed from canceled projects, they The Paperwork Reduction Act of 1995 moot. The final rule retains the owner- are insufficient to fund: (1) AHP (PRA) 24 requires that Federal agencies, occupied retention agreement application alternates in the Bank’s final including FHFA, consider the impact of funding round of the year for its General requirement where the household uses paperwork and other information Fund or any Targeted Funds, if the Bank the subsidy for purchase of the unit, or collection burdens imposed on the has a policy to approve alternates for public. Under the PRA and the purchase of the unit in conjunction with funding under such Funds; (2) pending implementing regulations of the Office rehabilitation, but not where the applications for funds under any Bank of Management and Budget (OMB), no household uses the subsidy solely for Homeownership Set-Aside Programs; agency may conduct or sponsor, and no rehabilitation. Thus, there remains the and (3) project modifications for AHP person is required to respond to, an possibility for repayments of subsidy by subsidy increases approved by the Bank. information collection unless it displays households if they sell their homes The proposed rule would have a currently valid OMB control number. during the five-year retention period prioritized the General Fund and then Part 1291 contains six information and none of the regulatory exceptions to any Targeted Funds. The final rule does collections (ICs) relating to the Banks’ subsidy repayment applies. FHFA did not adopt this proposed change in order AHPs, which have been approved by not receive any comments on this re-use to provide the Banks with flexibility on OMB under the PRA and assigned of repaid subsidies provision. how to use such funds. FHFA did not control number 2590–0007 (entitled receive any comments on this proposed ‘‘Affordable Housing Program’’; expires § 1291.65 Transfer of Program revision. FHFA notes that in the history Mar. 31, 2020). The final rule modifies Administration of the Program, there has never been a some of the information collection The final rule relocates § 1291.8(h) of need to establish an Affordable Housing requirements in part 1291 and makes Reserve Fund. the current regulation, which addresses other changes to the regulation that affect the reporting and recordkeeping transfer of a Bank’s Program to another V. Consideration of Differences burdens imposed by the regulation. Bank in the event of mismanagement of Between the Banks and the Enterprises FHFA has submitted the proposed and its Program, to § 1291.65, with no Section 1313(f) of the Federal Housing final rules and an analysis of the revised changes. The proposed rule did not Enterprises Financial Safety and ICs to OMB for review and has propose any changes to this provision, Soundness Act of 1992 requires the requested approval of a three-year and no comments were received on it. Director of FHFA, when promulgating extension of control number 2590–0007. regulations relating to the Banks, to Removal of Obsolete Provision consider the differences between the A. Background As proposed, the final rule rescinds Banks and the Enterprises (Fannie Mae As revised by the final rule, part 1291 current § 1291.8(i) because the provision and Freddie Mac) as they relate to the contains six ICs: (1) Competitive refers to a now-repealed Finance Board Banks’ cooperative ownership structure, applications for AHP subsidy under regulatory provision that was intended mission of providing liquidity to General Funds and Targeted Funds; (2) to establish a formal process for review members, affordable housing and compliance submissions for approved by the Board of Directors of the Finance community development mission, General Fund and Targeted Fund capital structure, and joint and several Board of certain types of supervisory projects at AHP subsidy disbursement; liability. The final rule applies only to decisions, which FHFA opted not to (3) modification requests for approved the Banks. It amends the current AHP General Fund and Targeted Fund adopt.22 Though it is not directly regulation to revise the scoring criteria projects; (4) initial monitoring comparable to the repealed Finance governing the selection of AHP award submissions for approved General Fund Board provision, FHFA’s Ombudsman recipients; provide additional authority and Targeted Fund projects; (5) long- regulation provides an avenue for the to the Banks regarding certain Program term monitoring submissions for Banks to present complaints and operations, streamline project approved General Fund and Targeted appeals to the Agency about their monitoring requirements, clarify various Fund projects; and (6) Homeownership regulation or supervision.23 FHFA did parties’ responsibilities regarding AHP Set-Aside Program applications and not receive any comments on this noncompliance, eliminate the certifications. These ICs are proposed rescission. requirement for retention agreements for substantially the same as the six AHP subsidy used to rehabilitate owner- currently-approved ICs in existing part occupied units without an 1291, although ICs #1 through #5 have 22 12 CFR 907.9. accompanying purchase, and clarify 23 See 12 CFR part 1213. certain operational requirements. In 24 44 U.S.C. 3501 et seq.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61230 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

been re-titled to refer to the Banks’ Homeownership Set-Aside programs. In General Funds and Targeted Funds over ‘‘General Fund and Targeted Fund estimating the paperwork burden that IC the next three years and that it will take projects’’ instead of their ‘‘Competitive #6 would have imposed under the an average of 24 hours to prepare and Application Program projects.’’ Under proposed rule, FHFA anticipated that submit each application, resulting in an the final rule (as under the proposed the increase in the maximum allocation estimated annual average burden of rule), projects funded under the Banks’ percentage, in combination with 35,640 hours for IC #1. General Funds and Targeted Funds will generally higher Bank incomes, would 2. Compliance Submissions for be subject to a competitive application lead the average annual number of process and to requirements regarding Homeownership Set-Aside Program Approved General Fund and Targeted subsidy disbursements, modification applications and certifications to Fund Projects at AHP Subsidy requests, and initial and long-term increase significantly, to 15,000 from Disbursement monitoring that are similar to those that the 13,000 that FHFA had estimated in FHFA estimates that the Banks will apply to the Banks’ Competitive connection with the prior renewal of the receive an annual average of 715 Application Programs. control number. This led FHFA to submissions over the next three years As required by 5 CFR 1320.8(d)(3), the estimate that the average annual burden from Bank members and project SUPPLEMENTARY INFORMATION to the imposed by IC #6 would increase from sponsors verifying that projects proposed rule included a PRA statement 65,000 to 75,000 hours under the approved under the Banks’ General setting forth FHFA’s burden estimates proposed rule. Because the final rule Funds and Targeted Funds continue to for the six ICs, as revised by the does not implement the proposed comply with the regulatory eligibility proposed rule, and requested public maximum allocation percentage requirements and all commitments comments on those estimates and on the increase, however, FHFA now made in the approved AHP applications reporting and recordkeeping burdens anticipates that the Banks will receive at the time of subsidy disbursement and that would be imposed by the rule.25 an average of only 13,260 that it will take an average of one hour The PRA statement also detailed, for Homeownership Set-Aside Program to prepare each submission, resulting in each IC, how FHFA arrived at its burden applications and certifications annually. an estimated annual average burden of estimate, the effect of the proposed rule This figure represents a two percent 715 hours for IC #2. on the scope of the IC and the burden increase from the most recent estimate 3. Modification Requests for Approved estimate, and how the collected of 13,000, to reflect a slightly higher information would be used. level of Homeownership Set-Aside General Fund and Targeted Fund In compliance with 5 CFR 1320.11(b), Program activity arising from Projects FHFA submitted the proposed rule and anticipated higher Bank incomes over FHFA estimates that Banks will an analysis of the revised ICs to OMB the next three years. As a result of this receive an annual average of 290 for review simultaneously with the change, FHFA has modified its burden requests from Bank members and publication of the proposed rule. On estimate for revised IC #6 downward to project sponsors for modifications to June 6, 2018, OMB issued a Notice of 66,300 hours from the 75,000 hours projects that have been approved under Action (NOA) to FHFA, pursuant to 5 reflected in the proposed rule’s PRA the Banks’ AHP competitive application CFR 1320.11(c), stating that OMB had statement (a decrease of 8,700 hours). programs over the next three years and not yet approved the revised ICs and Aside from the modification of the that it will take an average of 2.5 hours that the terms of the prior renewal of the burden estimate for IC #6 discussed to prepare each request, resulting in an control number remained in effect. The above, the burden estimates for, and estimated annual average burden of 725 NOA instructed FHFA to address all material details regarding, each revised hours for IC #3. comments received in response to the IC remain as described in the PRA 4. Initial Monitoring Submissions for proposed rule’s PRA statement. Under 5 statement for the proposed rule. The Approved General Fund and Targeted CFR 1320.11(f), FHFA must explain final burden estimates for revised part Fund Projects how any IC contained in the final rule 1291 appear below. responds to any comments received FHFA estimates that Banks will from OMB or the public and must B. Burden Estimates for Respondents receive an annual average of 510 identify and explain any modifications FHFA estimates that the average total submissions from Bank members and made in the final rule, or explain why burden that will be imposed upon Bank project sponsors of documentation it rejected the comments. Aside from the members and AHP project sponsors and required by the Banks as part of their NOA filed by OMB, FHFA received no owners annually over the next three initial monitoring of in-progress and comments in response to the PRA years by the six ICs in revised part 1291 recently completed projects approved statement in the proposed rule. will be 118,905 hours. This represents under their General Funds and Targeted Although not generated by PRA an increase of 3,155 total hours over the Funds over the next three years and that comments or concerns, there are a estimate of 115,750 hours made in it will take an average of 4.5 hours to number of substantive differences connection with the most recent prepare each submission, resulting in an between the proposed and final rules, as renewal of the OMB control number. estimated annual average burden of detailed above. While some of these The burden estimate for each IC and the 2,295 hours for IC #4. differences touch upon information manner in which the estimate was 5. Long-Term Monitoring Submissions collection requirements, FHFA has calculated are set forth below. concluded that the only difference that for Approved General Fund and will have a material effect on the 1. Competitive Applications for AHP Targeted Fund Projects paperwork burden imposed by the final Subsidy Under General Funds and FHFA estimates that Banks will rule is the decision not to adopt the Targeted Funds receive an annual average of 4,900 proposed increase, from 35 to 40 FHFA estimates that Banks will submissions from Bank members and percent, in the maximum percentage of receive an annual average of 1,485 project sponsors of documentation AHP funds Banks may allocate to their competitive applications for subsidy required by the Banks as part of their from Bank members on behalf of project long-term monitoring of completed 25 See 83 FR at 11370–74. sponsors and owners under their projects approved under their General

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61231

Funds and Targeted Funds over the next Mortgages, Reporting and recordkeeping plans to establish any Targeted Funds three years and that it will take an requirements. under its Affordable Housing Program, average of 2.7 hours to prepare each For the reasons stated in the the Bank must publish its Targeted submission, resulting in an estimated Preamble, FHFA amends parts 1290 and Community Lending Plan (as amended) annual average burden of 13,230 hours 1291 of Title 12 of the Code of Federal on the website on or before the date of for IC #5. Regulations as follows: publication of its annual Affordable Housing Program Implementation Plan, 6. Homeownership Set-Aside Program PART 1290—COMMUNITY SUPPORT and at least 90 days before the first day Applications and Certifications REQUIREMENTS that applications may be submitted to FHFA estimates that Banks will the Targeted Fund, unless the Targeted receive from Bank members an annual ■ 1. The authority citation for part 1290 Fund is specifically targeted to address average of 13,260 applications and continues to read as follows: a federal- or state-declared disaster. required certifications for AHP direct Authority: 12 U.S.C. 1430(g). subsidies under their Homeownership ■ 3. Add § 1290.8 to read as follows: ■ 2. Amend § 1290.6 by revising Set-Aside Programs and that it will take paragraph (a)(5) and adding paragraph § 1290.8 Compliance dates. an average of 5 hours to prepare each (c) to read as follows: submission, resulting in an estimated From December 28, 2018 to December annual average burden of 66,300 hours § 1290.6 Bank community support 31, 2020, a Bank shall comply with for IC #6. programs. either prior part 1290 (in 12 CFR part (a) * * * 1290 (January 1, 2018 edition)) or this VII. Regulatory Flexibility Act part 1290. On and after January 1, 2021, 26 (5) Include an annual Targeted The Regulatory Flexibility Act Community Lending Plan approved by a Bank shall comply with this part 1290. requires that a regulation that has a the Bank’s board of directors and subject PART 1291—FEDERAL HOME LOAN significant economic impact on a to modification. The Bank’s board of substantial number of small entities, BANKS’ AFFORDABLE HOUSING directors shall not delegate to a PROGRAM small businesses, or small organizations committee of the board, Bank officers, or must include an initial regulatory other Bank employees the responsibility ■ flexibility analysis describing the to adopt or amend the Targeted 4. Revise part 1291 to read as follows: regulation’s impact on small entities. Community Lending Plan. The Targeted PART 1291—FEDERAL HOME LOAN Such an analysis need not be Community Lending Plan shall: undertaken if the agency has certified BANKS’ AFFORDABLE HOUSING (i) Reflect market research conducted PROGRAM that the regulation will not have a in the Bank’s district; significant economic impact on a (ii) Describe how the Bank will 27 Subpart A—General substantial number of small entities. address identified credit needs and FHFA has considered the impact of the market opportunities in the Bank’s Sec. final rule under the Regulatory district for targeted community lending; 1291.1 Definitions. 1291.2 Compliance dates. Flexibility Act. The General Counsel of (iii) Be developed in consultation FHFA certifies that the final rule is not with (and may only be amended after Subpart B—Program Administration and likely to have a significant economic consultation with) its Advisory Council Governance impact on a substantial number of small and with members, housing associates, 1291.10 Required annual AHP contribution. entities because the regulation applies and public and private economic 1291.11 Temporary suspension of AHP to the Banks, which are not small development organizations in the contributions. entities for purposes of the Regulatory Bank’s district; 1291.12 Allocation of required annual AHP Flexibility Act. (iv) Establish quantitative targeted contribution. VIII. Congressional Review Act community lending performance goals; 1291.13 Targeted Community Lending Plan; (v) Identify and assess significant AHP Implementation Plan. In accordance with the Congressional 1291.14 Advisory Councils. Review Act,28 FHFA has determined affordable housing needs in its district 1291.15 Agreements. that this final rule is not a major rule that will be addressed through its 1291.16 Conflicts of interest. and has verified this determination with Affordable Housing Program under 12 CFR part 1291, reflecting market Subpart C—General Fund and Targeted the Office of Information and Regulatory Funds Affairs of the Office of Management and research conducted or obtained by the 1291.20 Establishment of programs. Budget (OMB). Bank; and (vi) For any Targeted Funds 1291.21 Eligible applicants. List of Subjects established by the Bank under its 1291.22 Funding rounds; application Affordable Housing Program, specify, process. 12 CFR Part 1290 1291.23 Eligible projects. from among the identified affordable Banks and banking, Credit, Federal 1291.24 Eligible uses. housing needs, the particular affordable 1291.25 Scoring methodologies. home loan banks, Housing, Mortgages, housing needs the Bank plans to address Reporting and recordkeeping 1291.26 Scoring criteria for the General through such Targeted Funds. Fund. requirements. * * * * * 1291.27 Scoring criteria for Targeted Funds. 12 CFR Part 1291 (c) Public access. A Bank shall 1291.28 Approval of AHP applications under the General Fund and Targeted Community development, Credit, publish its current Targeted Community Lending Plan on its publicly available Funds. Federal home loan banks, Housing, 1291.29 Modifications of approved AHP Low- and moderate-income housing, website, and shall publish any applications. amendments to its Targeted Community 1291.30 Procedures for funding. 26 5 U.S.C. 601 et seq. Lending Plan on the website within 30 1291.31 Lending and re-lending of AHP 27 5 U.S.C. 605(b). days after the date of their adoption by direct subsidy by revolving loan funds. 28 See 5 U.S.C. 804(2). the Bank’s board of directors. If a Bank 1291.32 Use of AHP subsidy in loan pools.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61232 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

Subpart D—Homeownership Set-Aside of issuing Bank System consolidated with the purchase of the unit (including Programs obligations with maturities comparable real estate broker’s commission, 1291.40 Establishment of programs. to that of the subsidized advance. attorney’s fees, and title search fees); 1291.41 Eligible applicants. Direct subsidy means an AHP subsidy (2) Any down payment paid in 1291.42 Eligibility requirements. in the form of a direct cash payment. connection with the household’s 1291.43 Approval of AHP applications. Eligible household means a household purchase of the unit; 1291.44 Procedures for funding. that meets the income limits and other (3) The cost of any capital Subpart E—Monitoring requirements specified by a Bank for its improvements made after the 1291.50 Monitoring under General Fund General Fund and any Targeted Funds household’s purchase of the unit until and Targeted Funds. and Homeownership Set-Aside the time of the subsequent sale, transfer, 1291.51 Monitoring under Homeownership Programs, provided that: assignment of title or deed, or Set-Aside Programs. (1) In the case of owner-occupied refinancing; and Subpart F—Remedial Actions for housing, the household’s income may (4) The amount of principal on any Noncompliance not exceed 80 percent of the median mortgage senior to the AHP subsidy lien income for the area; and or other legally enforceable AHP 1291.60 Remedial actions for project (2) In the case of rental housing, the noncompliance. subsidy repayment obligation repaid by 1291.61 Recovery of subsidy for member household’s income in at least 20 the household. noncompliance. percent of the units may not exceed 50 LIHTC means Low-Income Housing 1291.62 Bank reimbursement of AHP fund. percent of the median income for the Tax Credits under section 42 of the 1291.63 Suspension and debarment. area. Internal Revenue Code (26 U.S.C. 42). 1291.64 Use of repaid AHP subsidies. Eligible project means a project Loan pool means a group of mortgage 1291.65 Transfer of Program eligible to receive AHP subsidy or other loans meeting the requirements administration. pursuant to the requirements of this of this part that are purchased, pooled, Subpart G—Affordable Housing Reserve part. and held in trust. Fund Extremely low-income household Low- or moderate-income household 1291.70 Affordable Housing Reserve Fund. means a household that has an income means a household that has an income at or below 30 percent of the median of 80 percent or less of the median Authority: 12 U.S.C. 1430(j). income for the area, with the income income for the area, with the income Subpart A—General limit adjusted for household size in limit adjusted for household size in accordance with the methodology of the accordance with the methodology of the § 1291.1 Definitions. applicable median income standard applicable median income standard As used in this part: selected from those enumerated in the selected from those enumerated in the Affordable means that: definition of ‘‘median income for the definition of ‘‘median income for the (1) The rent charged to a household area,’’ unless such median income area,’’ unless such median income for a unit that is to be reserved for standard has no household size standard has no household size occupancy by a household with an adjustment methodology. adjustment methodology. income at or below 80 percent of the Family member means any individual Median income for the area means median income for the area, does not related to a person by blood, marriage, one or more of the following median exceed 30 percent of the income of a or adoption. income standards as determined by a household of the maximum income and Funding round means a time period, Bank, after consultation with its size expected, under the commitment as determined by a Bank, during which Advisory Council, in its AHP made in the AHP application, to occupy the Bank accepts AHP applications for Implementation Plan: the unit (assuming occupancy of 1.5 subsidy under its General Fund and any (1) The median income for the area, persons per bedroom or 1.0 persons per Targeted Funds. as published annually by HUD; unit without a separate bedroom); or General Fund means a program that (2) The median income for the area (2) The rent charged to a household, each Bank is required to establish and obtained from the Federal Financial for rental units subsidized with Section under which the Bank approves (i.e., Institutions Examination Council; 8 assistance under 42 U.S.C. 1437f or awards) applications for AHP subsidy (3) The applicable median family subsidized under another assistance through a competitive application income, as determined under 26 U.S.C. program where the rents are charged in scoring process and disburses the 143(f) (Mortgage Revenue Bonds) and the same way as under the Section 8 subsidy, pursuant to the requirements of published by a state agency or program, if the rent complied with this this part. instrumentality; definition at the time of the household’s Homeownership Set-Aside Program (4) The median income for the area, initial occupancy and the household means a program established by a Bank, as published by the United States continues to be assisted through the in its discretion, under which the Bank Department of Agriculture; or Section 8 or another assistance program, approves (i.e., awards) applications for (5) The median income for an respectively. AHP direct subsidy through a applicable definable geographic area, as AHP means the Affordable Housing noncompetitive process developed by published by a federal, state, or local Program required to be established by the Bank and disburses the subsidy, government entity, and approved by the Banks pursuant to 12 U.S.C. 1430(j) pursuant to the requirements of this FHFA, at the request of a Bank, for use and this part. part. under the AHP. AHP project means a single-family or Household’s investment means the Multifamily building means a multifamily housing project for owner- following, to the extent paid by the structure with five or more dwelling occupied or rental housing that has been household and documented (in the units. awarded or has received AHP subsidy Closing Disclosure or other settlement Net earnings of a Bank means the net under a Bank’s General Fund and any statement, if applicable, or elsewhere) to earnings of a Bank for a calendar year Targeted Funds. the Bank or its designee: before declaring or paying any dividend Cost of funds means, for purposes of (1) Reasonable and customary costs under section 16 of the Bank Act (12 a subsidized advance, the estimated cost paid by the household in connection U.S.C. 1436). For purposes of this part,

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61233

‘‘dividend’’ includes any dividends on repaid into the fund and re-lent to other 34 inches wide, offering 32 inches of capital stock subject to a redemption borrowers. clear passage space. request even if under GAAP those Single-family building means a dividends are treated as an ‘‘interest structure with one to four dwelling § 1291.2 Compliance dates. expense.’’ units. (a) General January 1, 2021 Net proceeds means: Sponsor means a not-for-profit or for- compliance date. Except as provided in (1) In the case of a sale, transfer, or profit organization or public entity that: paragraph (b) of this section, from assignment of title or deed of an AHP- (1) Has an ownership interest December 28, 2018 to December 31, assisted unit by a household during the (including any partnership interest), as 2020, a Bank shall comply with either AHP five-year retention period, the sales defined by the Bank in its AHP prior part 1291 (in 12 CFR part 1291 price minus reasonable and customary Implementation Plan, in a rental project; (January 1, 2018 edition)) or this part costs paid by the household in (2) Is integrally involved, as defined 1291, and on and after January 1, 2021, connection with the transaction by the Bank in its AHP Implementation a Bank shall comply with this part 1291. (including real estate broker’s Plan, in an owner-occupied project, (b) January 1, 2020 compliance date commission, attorney’s fees, and title such as by exercising control over the for owner-occupied retention search fees) and outstanding debt planning, development, or management agreements; exception for adoption of superior to the AHP subsidy lien or of the project, or by qualifying proxies. From December 28, 2018 to other legally enforceable AHP subsidy borrowers and providing or arranging December 31, 2019, a Bank shall comply repayment obligation; financing for the owners of the units; with either prior § 1291.9(a)(7) (in 12 (2) In the case of a refinancing of an (3) Operates a loan pool; or CFR part 1291 (January 1, 2018 edition)) (4) Is a revolving loan fund. AHP-assisted unit by a household or § 1291.15(a)(7), and on and after Subsidized advance means an during the AHP five-year retention January 1, 2020, a Bank shall comply advance to a member at an interest rate period, the principal amount of the new with § 1291.15(a)(7), except that a Bank reduced below the Bank’s cost of funds mortgage minus reasonable and shall comply with § 1291.15(a)(7)(ii)(B) by use of a subsidy. customary costs paid by the household on the date set forth in the FHFA Subsidy means: guidance on proxies referenced therein. in connection with the transaction (1) A direct subsidy, provided that if (including attorney’s fees and title a direct subsidy is used to write down Subpart B—Program Administration search fees) and the principal amount of the interest rate on a loan extended by and Governance the refinanced mortgage. a member, sponsor, or other party to a Owner-occupied project means, for project, the subsidy must equal the net § 1291.10 Required annual AHP purposes of a Bank’s General Fund and present value of the interest foregone contribution. any Targeted Funds, one or more owner- from making the loan below the lender’s Each Bank shall contribute annually occupied units in a single-family or market interest rate; or to its Program the greater of: multifamily building, including (2) The net present value of the (a) 10 percent of the Bank’s net condominiums, cooperative housing, interest revenue foregone from making a earnings for the previous year; or and manufactured housing. subsidized advance at a rate below the (b) That Bank’s pro rata share of an Owner-occupied unit means a Bank’s cost of funds. aggregate of $100 million to be dwelling unit occupied by the owner of Targeted Fund means a program contributed in total by the Banks, such the unit. Housing with two to four established by a Bank, in its discretion, proration being made on the basis of the dwelling units consisting of one owner- to address specific affordable housing net earnings of the Banks for the occupied unit and one or more rental needs within its district that are unmet, previous year, except that the required units is considered a single owner- have proven difficult to address through annual AHP contribution for a Bank occupied unit. its General Fund, or align with shall not exceed its net earnings in the Program means the Affordable objectives identified in its strategic plan, previous year. Housing Program established pursuant under which the Bank approves (i.e., to this part. awards) applications for AHP subsidy § 1291.11 Temporary suspension of AHP Rental project means, for purposes of through a competitive application contributions. a Bank’s General Fund and any Targeted scoring process developed by the Bank (a) Request to FHFA. If a Bank finds Funds, one or more dwelling units for and disburses the subsidy, pursuant to that the contributions required pursuant occupancy by households that are not the requirements of this part. to § 1291.10 are contributing to the owner-occupants, including overnight Very low-income household means a financial instability of the Bank, the and emergency shelters, transitional household that has an income at or Bank may apply in writing to FHFA for housing for homeless households, below 50 percent of the median income a temporary suspension of such mutual housing, single-room occupancy for the area, with the income limit contributions. housing, and manufactured housing adjusted for household size in (b) Director review—(1) Financial communities. accordance with the methodology of the instability. In determining the financial Retention period means: applicable median income standard instability of a Bank, the Director shall (1) Five years from closing for an selected from those enumerated in the consider such factors as: AHP-assisted owner-occupied unit definition of ‘‘median income for the (i) Severely depressed Bank earnings; where the AHP subsidy is used for area,’’ unless such median income (ii) A substantial decline in Bank purchase of the unit or for purchase in standard has no household size membership capital; and conjunction with rehabilitation of the adjustment methodology. (iii) A substantial reduction in Bank unit; and Visitable means, in either owner- advances outstanding. (2) Fifteen years from the date of occupied or rental housing, at least one (2) Limitations on grounds for completion for a rental project. entrance is at-grade (no steps) and suspension. The Director shall not Revolving loan fund means a capital approached by an accessible route such suspend a Bank’s annual AHP fund established to make mortgage or as a sidewalk, and the entrance door contributions if it determines that the other loans whereby loan principal is and all interior passage doors are at least Bank’s reduction in earnings is due to:

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61234 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

(i) A change in the terms of advances Bank may credit the amount of the the responsibility for adopting or to members that is not justified by accelerated contribution against amending the AHP Implementation market conditions; required AHP contributions under this Plan. The AHP Implementation Plan (ii) Inordinate operating and part 1291 over one or more of the shall set forth, at a minimum: administrative expenses; or subsequent five years. (1) The applicable median income (iii) Mismanagement. (e) No delegation. A Bank’s board of standard or standards adopted by the directors shall not delegate to a Bank consistent with the definition of § 1291.12 Allocation of required annual committee of the board, Bank officers, or AHP contribution. ‘‘median income for the area’’ in other Bank employees the responsibility Each Bank, after consultation with its § 1291.1. for adopting the Bank’s policies for its (2) For the General Fund established Advisory Council and pursuant to General Fund and any Targeted Funds written policies adopted by the Bank’s by the Bank pursuant to § 1291.20(a), and Homeownership Set-Aside the Bank’s requirements for the General board of directors, shall meet the Programs. following requirements for allocation of Fund, including the Bank’s scoring its required annual AHP contribution. § 1291.13 Targeted Community Lending methodology, including its scoring tie- (a) General Fund. Each Bank shall Plan; AHP Implementation Plan. breaker policy adopted pursuant to allocate annually at least 50 percent of (a) Targeted Community Lending §§ 1291.25(c) and 1291.28(c), and any its required annual AHP contribution to Plan—(1) Identification of housing policy on approving AHP application provide funds to members through a needs. Pursuant to the requirements of alternates for funding pursuant to General Fund established and 12 CFR 1290.6(a)(5)(v) and (vi), a Bank’s §§ 1291.25(c)(6) and 1291.28(b). administered by the Bank pursuant to annual Targeted Community Lending (3) For each Targeted Fund the requirements of this part. Plan adopted under its community established by the Bank, if any, (b) Homeownership Set-Aside support program shall, among other pursuant to § 1291.20(b), the Bank’s Programs. A Bank may, in its discretion, things, identify the significant requirements for the Targeted Fund, allocate annually, in the aggregate, up to affordable housing needs in its district including the Bank’s scoring the greater of $4.5 million or 35 percent that will be addressed through its AHP, methodology for each Fund, including of its required annual AHP contribution as well as any specific affordable its scoring tie-breaker policy adopted to provide funds to members housing needs it plans to address pursuant to §§ 1291.25(c) and participating in Homeownership Set- through any Targeted Funds as set forth 1291.28(c), and any policy on approving Aside Programs established and in its AHP Implementation Plan. AHP application alternates for funding administered by the Bank pursuant to (2) Public access. A Bank shall pursuant to §§ 1291.25(c)(6) and the requirements of this part, provided publish its current Targeted Community 1291.28(b), and the parameters adopted that at least one-third of the Bank’s Lending Plan on its publicly available pursuant to § 1291.20(b)(2). aggregate annual set-aside allocation to website, and shall publish any (4) The Bank’s policy on how it will such programs is allocated to assist first- amendments to its Targeted Community determine under which Fund to time homebuyers or households for Lending Plan on the website within 30 approve an application for the same owner-occupied rehabilitation, or a days after the date of their adoption by project that is submitted to more than combination of both. the Bank’s board of directors. If a Bank one Fund at a Bank in a calendar year (c) Targeted Funds—phase-in plans to establish any Targeted Funds and scores high enough to be approved requirements for funding allocations. under its AHP, the Bank must publish under each Fund, pursuant to Unless otherwise directed by FHFA and its Targeted Community Lending Plan § 1291.28(d). subject to the phase-in requirements for (as amended) on the website on or (5) For each Homeownership Set- the number of Targeted Funds in before the date of publication of its Aside Program established by the Bank, § 1291.20(b), a Bank may, in its annual AHP Implementation Plan, and if any, pursuant to § 1291.40, the Bank’s discretion, allocate annually, up to: at least 90 days before the first day that requirements for the program, including (1) 20 percent, in the aggregate, of its applications may be submitted to the the Bank’s application and subsidy required annual AHP contribution to Targeted Fund, unless the Targeted disbursement methodology. any Targeted Funds; Fund is specifically targeted to address (6) The Bank’s retention agreement (2) 30 percent, in the aggregate, of its a federal- or state-declared disaster. requirements for projects and required annual AHP contribution to (3) Notification of Plan amendments households under its General Fund, any any Targeted Funds, provided that it to FHFA. A Bank shall notify FHFA of Targeted Funds, and any allocated at least 20 percent, in the any amendments to its Targeted Homeownership Set-Aside Programs, aggregate, of its required annual AHP Community Lending Plan within 30 pursuant to § 1291.15(a)(7) and (8), contribution to one or more Targeted days after the date of their adoption by including the proxy or proxies selected Funds in any preceding year; or the Bank’s board of directors. (3) 40 percent, in the aggregate, of its (b) AHP Implementation Plan. Each by the Bank for determining a required annual AHP contribution to Bank’s board of directors, after subsequent purchaser’s income any Targeted Funds, provided that it consultation with its Advisory Council, pursuant to FHFA guidance under allocated at least 30 percent, in the shall adopt a written AHP § 1291.15(a)(7)(ii)(B). aggregate, of its required annual AHP Implementation Plan, and shall not (7) The Bank’s standards for contribution to one or more Targeted amend the AHP Implementation Plan approving a relocation plan for current Funds in any preceding year. without first consulting its Advisory occupants of rental projects pursuant to (d) Acceleration of funding. A Bank Council. The Bank’s board of directors § 1291.23(a)(2)(ii)(B). may, in its discretion, accelerate to its shall not delegate to Bank officers or (8) Any optional Bank district current year’s Program from future other Bank employees the responsibility eligibility requirements adopted by the required annual AHP contributions an for such prior consultations with the Bank pursuant to § 1291.24(c). amount up to the greater of $5 million Advisory Council, and shall not (9) The Bank’s requirements for or 20 percent of its required annual AHP delegate to a committee of the board, funding revolving loan funds, if adopted contribution for the current year. The Bank officers, or other Bank employees by the Bank pursuant to § 1291.31;

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61235

(10) The Bank’s requirements for (b) Terms of Advisory Council (3) Annual analysis; public access. (i) funding loan pools, if adopted by the members. Pursuant to policies adopted Each Advisory Council annually shall Bank pursuant to § 1291.32; by the Bank’s board of directors, submit to FHFA by May 1 its analysis (11) The Bank’s requirements for Advisory Council members shall be of the low- and moderate-income monitoring under its General Fund and appointed by the Bank’s board of housing and community lending any Targeted Funds and directors to serve for terms of three activity of the Bank by which it is Homeownership Set-Aside Programs years, which shall be staggered to appointed. pursuant to §§ 1291.50 and 1291.51. provide continuity in experience and (ii) Within 30 days after the date the (12) The Bank’s requirements, service to the Advisory Council, except Advisory Council’s annual analysis is including time limits, for re-use of that Advisory Council members may be submitted to FHFA, the Bank shall repaid AHP direct subsidy in the same appointed to serve for terms of one or publish the analysis on its publicly project, if adopted by the Bank pursuant two years solely for purposes of available website. to § 1291.64(b). reconfiguring the staggering of the three- (e) Expenses. The Bank shall pay (c) Advisory Council review. Prior to year terms. No Advisory Council Advisory Council members’ travel the amendment of a Bank’s AHP member may be appointed to serve for expenses, including transportation and Implementation Plan, the Bank shall more than three full consecutive terms. subsistence, for each day devoted to provide its Advisory Council an An Advisory Council member attending meetings with representatives opportunity to review the document, appointed to fill a vacancy shall be of the board of directors of the Bank and and the Advisory Council shall provide appointed for the unexpired term of his meetings requested by FHFA. its recommendations to the Bank’s or her predecessor in office. (f) No delegation. A Bank’s board of board of directors for its consideration. (c) Election of officers. Each Advisory directors shall not delegate to Bank (d) Notification of Plan amendments Council shall elect from among its officers or other Bank employees the to FHFA. A Bank shall notify FHFA of members a chairperson, a vice responsibility to appoint persons as any amendments made to its AHP chairperson, and any other officers the members of the Advisory Council or to Implementation Plan within 30 days Advisory Council deems appropriate. meet with the Advisory Council at the after the date of their adoption by the (d) Duties—(1) Meetings with the quarterly meetings required by the Bank Bank’s board of directors. Banks. (i) The Advisory Council shall Act (12 U.S.C. 1430(j)(11)). (e) Public access. A Bank shall meet with representatives of the Bank’s publish its current AHP Implementation board of directors at least quarterly to § 1291.15 Agreements. Plan on its publicly available website, provide advice on ways in which the (a) Agreements between Banks and and shall publish any amendments to Bank can better carry out its housing members. A Bank shall have in place the AHP Implementation Plan on the finance and community lending with each member receiving an AHP website within 30 days after the date of mission, including, but not limited to, subsidized advance or AHP direct their adoption by the Bank’s board of advice on the low- and moderate- subsidy an agreement or agreements directors. income housing and community lending containing, at a minimum, the following provisions, where applicable: § 1291.14 Advisory Councils. programs and needs in the Bank’s district, and on the use of AHP (1) Notification of member. The (a) Appointment. (1) Each Bank’s subsidies, Bank advances, and other member has been notified of the board of directors shall appoint an Bank credit products for these purposes. requirements of this part as they may be Advisory Council of 7 to 15 persons (ii) The Advisory Council’s advice amended from time to time, and all who reside in the Bank’s district and are shall include recommendations on: Bank policies relevant to the member’s drawn from community and not-for- (A) The Bank’s Targeted Community approved application for AHP subsidy. profit organizations that are actively Lending Plan, and any amendments (2) AHP subsidy pass-through. The involved in providing or promoting low- thereto, pursuant to 12 CFR member shall pass on the full amount of and moderate-income housing, and 1290.6(a)(5)(iii); the AHP subsidy to the project or community and not-for-profit (B) The amount of AHP funds to be household, as applicable, for which the organizations that are actively involved allocated to the Bank’s General Fund subsidy was approved. in providing or promoting community and any Targeted Funds and (3) Use of AHP subsidy—(i) Use of lending, in the district. Community Homeownership Set-Aside Programs, AHP subsidy by the member. The organizations include for-profit including how the set-aside funds member shall use the AHP subsidy in organizations. should be apportioned under the one- accordance with the terms of the (2) Each Bank shall solicit third funding allocation requirement in member’s approved application for the nominations for membership on the § 1291.12(b); subsidy and the requirements of this Advisory Council from community and (C) The AHP Implementation Plan part. not-for-profit organizations pursuant to and any subsequent amendments (ii) Use of AHP subsidy by the project a nomination process that is as broad thereto; sponsor or owner. The member shall and as participatory as possible, (D) The Bank’s scoring methodologies, have in place an agreement with each allowing sufficient time for responses. related definitions, and any additional project sponsor or owner in which the (3) The Bank’s board of directors shall optional district eligibility requirements project sponsor or owner agrees to use appoint Advisory Council members for the General Fund and any Targeted the AHP subsidy in accordance with the from a diverse range of organizations so Funds; and terms of the member’s approved that representatives of no one group (E) The eligibility requirements and application for the subsidy and the constitute an undue proportion of the any priority criteria for any requirements of this part. membership of the Advisory Council, Homeownership Set-Aside Programs. (4) Repayment of AHP subsidies in giving consideration to the size of the (2) Summary of AHP applications. case of noncompliance—(i) Bank’s district and the diversity of low- The Bank shall comply with requests Noncompliance by the member. The and moderate-income housing and from the Advisory Council for summary member shall repay AHP subsidies to community lending needs and activities information regarding AHP applications the Bank in accordance with the within the district. from prior funding rounds. requirements of § 1291.61.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61236 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

(ii) Noncompliance by a project deed restriction or other legally requirements of the Bank and such sponsor or owner—(A) Agreement. The enforceable retention agreement or section; or member shall have in place an mechanism requiring that: (B) To the member or project sponsor. agreement with each project sponsor or (i) Notice. The Bank, and in its To the member or project sponsor for re- owner in which the project sponsor or discretion any designee of the Bank, use by such member or project sponsor, owner agrees to repay AHP subsidies to shall be given notice of any sale, if the Bank has authorized retention and the member or the Bank in accordance transfer, assignment of title or deed, or re-use of such subsidy by the member or with the requirements of § 1291.60. refinancing of the unit by the household project sponsor pursuant to (B) Recovery of AHP subsidies. The occurring during the AHP five-year § 1291.64(b); member shall recover from the project retention period; (iv) Termination of subsidy sponsor or owner and repay to the Bank (ii) Repayment of subsidy; exceptions. repayment obligation. The obligation to AHP subsidies in accordance with the In the case of a sale, transfer, assignment repay AHP subsidy to the Bank shall requirements of § 1291.60 (if of title or deed, or refinancing of the terminate after any event of foreclosure, applicable). unit by the household during the transfer by deed-in-lieu of foreclosure, (5) Project monitoring—(i) Monitoring retention period, the amount of AHP an assignment of a Federal Housing by the member. The member shall subsidy calculated in accordance with Administration first mortgage to HUD, comply with the monitoring paragraph (a)(7)(v) of this section shall or death of the AHP-assisted requirements applicable to it, as be repaid to the Bank, unless one of the homeowner; and established by the Bank in its following exceptions applies: (v) Calculation of AHP subsidy monitoring policies pursuant to (A) The unit was assisted with a repayment based on net proceeds and §§ 1291.50 and 1291.51. permanent mortgage loan funded by an household’s investment. The Bank shall (ii) Agreement; LIHTC noncompliance AHP subsidized advance; be repaid the lesser of: notice. The member shall have in place (B) The subsequent purchaser, (A) The AHP subsidy, reduced on a an agreement with each project sponsor pro rata basis per month until the unit and owner, in which the project sponsor transferee, or assignee is a low- or moderate-income household, as is sold, transferred, or its title or deed and owner agree to comply with the transferred, or is refinanced, during the monitoring requirements applicable to determined by the Bank. For any sale, transfer, or assignment that occurs after AHP five-year retention period; or such parties, as established by the Bank (B) Any net proceeds from the sale, the date established by FHFA in in its monitoring policies pursuant to transfer, or assignment of title or deed guidance on the use of proxies, the Bank § 1291.50. The member’s agreement of the unit, or the refinancing, as or its designee shall determine the shall also include an agreement by the applicable, minus the AHP-assisted household’s income using one or more project owner to provide prompt written household’s investment. notice to the Bank if the project also proxies that are reliable indicators of the (8) Rental projects—required received LIHTC and the project is in subsequent purchaser’s income, which provisions for retention agreements. The material and unresolved noncompliance may be selected by the Bank pursuant member shall ensure that an AHP- with the LIHTC income targeting or rent to the FHFA guidance and shall be assisted rental project is subject to a requirements at any time during the included in the Bank’s AHP deed restriction or other legally AHP 15-year retention period. Implementation Plan, unless enforceable retention agreement or (6) Transfer of AHP obligations—(i) documentation demonstrating that mechanism requiring that: To another member. The member shall household’s actual income is available. (i) Income and rent commitments. make best efforts to transfer its The Bank or its designee is not required The project’s rental units, or applicable obligations under the approved to request or obtain such portion thereof, must remain occupied application for AHP subsidy to another documentation, but must use it in lieu by and affordable for households with member in the event of its loss of of a proxy if available; incomes at or below the levels membership in the Bank prior to the (C) The amount of the AHP subsidy committed to be served in the approved Bank’s final disbursement of AHP that would be required to be repaid in AHP application for the duration of the subsidies. accordance with the calculation in AHP 15-year retention period; (ii) To a nonmember. If, after final paragraph (a)(7)(v) of this section is (ii) Notice. The Bank, and in its disbursement of AHP subsidies to the $2,500 or less; or discretion any designee of the Bank, member, the member undergoes an (D) Following a refinancing, the unit shall be given notice of any sale, acquisition or a consolidation resulting continues to be subject to a deed transfer, assignment of title or deed, or in a successor organization that is not a restriction or other legally enforceable refinancing of the project by the project member of the Bank, the nonmember retention agreement or mechanism owner occurring during the retention successor organization assumes the described in this paragraph (a)(7); period; member’s obligations under its (iii) Subsidy repayments to Bank, (iii) Repayment of subsidy; approved application for AHP subsidy, member, or project sponsor. In the case exceptions. In the case of a sale, transfer, and where the member received an AHP of a direct subsidy, such repayment of assignment of title or deed, or subsidized advance, the nonmember AHP subsidy shall be made: refinancing of the project by the project assumes such obligations until (A) To the Bank. If the Bank has not owner during the retention period, the prepayment or orderly liquidation by authorized re-use of the repaid AHP full amount of the AHP subsidy the nonmember of the subsidized subsidy or has authorized re-use of the received by the project owner shall be advance. repaid subsidy but not retention of such repaid to the Bank, unless one of the (7) Owner-occupied units—required repaid subsidy by the member or project following exceptions applies: provisions for retention agreements. The sponsor pursuant to § 1291.64(b) of this (A) The project continues to be member shall ensure that where a part, or has authorized retention and re- subject to a deed restriction or other household receives AHP subsidy for use of such repaid subsidy by the legally enforceable retention agreement purchase, or purchase in conjunction member or project sponsor pursuant to or mechanism incorporating the with rehabilitation, of an owner- such section and the repaid subsidy is income-eligibility and affordability occupied unit, the unit is subject to a not re-used in accordance with the restrictions committed to in the

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61237

approved AHP application for the loans to the project to a rate equal to the financial interest in, or is a director, duration of the AHP 15-year retention cost of funds originally used by the officer, or employee of an organization period; or Bank to calculate the interest rate involved in, an AHP project such that (B) If authorized by the Bank, in its subsidy incorporated in the advance. he or she is subject to the requirements discretion, the households are relocated, (b) Agreements between Banks and in paragraph (a)(1) of this section, such due to the exercise of eminent domain, project sponsors or owners—(1) person shall not participate in or or for expansion of housing or services, Repayment of subsidies. A Bank may attempt to influence decisions by the to another property that is made subject have in place an agreement with each Bank regarding the evaluation, approval, to a deed restriction or other legally project sponsor or owner, in which the funding, monitoring, or any remedial enforceable retention agreement or project sponsor or owner agrees to repay process for such project. mechanism incorporating the income- AHP subsidies directly to the Bank in (b) Advisory Council members. (1) eligibility and affordability restrictions accordance with the requirements of Each Bank’s board of directors shall committed to in the approved AHP § 1291.60. adopt a written policy providing that if application for the remainder of the (2) Project sponsor qualifications. A an Advisory Council member, or such AHP 15-year retention period; and Bank’s AHP subsidy application form person’s family member, has a financial (iv) Termination of income and rent and AHP subsidy disbursement form for interest in, or is a director, officer, or restrictions. The income-eligibility and each subsidy disbursement (or other employee of an organization involved affordability restrictions applicable to related documents) must include a in, a project that is the subject of a the project shall terminate after any requirement for the project sponsor to pending or approved AHP application, foreclosure. provide a certification that it meets the the Advisory Council member shall not (9) Lending of AHP direct subsidies. If project sponsor qualifications criteria participate in or attempt to influence a member or a project sponsor lends established by the Bank and that it has decisions by the Bank regarding the AHP direct subsidy to a project, any not engaged in, and is not engaging in, approval for such project. repayments of principal and payments covered misconduct as defined in (2) If an Advisory Council member, or of interest received by the member or FHFA’s Suspended Counterparty such person’s family member, has a the project sponsor must be paid Program regulation (12 CFR part 1227), financial interest in, or is a director, forthwith to the Bank, unless the direct or as defined by the Bank, provided the officer, or employee of an organization subsidy is being both lent and re-lent by Bank’s definition incorporates the involved in, an AHP project such that a revolving loan fund pursuant to definition in 12 CFR part 1227 at a he or she is subject to the requirements § 1291.31(d). minimum. in paragraph (b)(1) of this section, such (10) Special provisions where (c) Application to existing AHP person shall not participate in or members obtain AHP subsidized agreements. The requirements of section attempt to influence decisions by the advances—(i) Repayment schedule. The 10(j) of the Bank Act (12 U.S.C. 1430(j)) Bank regarding the approval for such term of an AHP subsidized advance and the provisions of this part, as project. shall be no longer than the term of the amended, are incorporated into all AHP (c) No delegation. A Bank’s board of member’s loan to the project funded by agreements between a Bank and any directors shall not delegate to Bank the advance, and at least once in every member, project sponsor, or project officers or other Bank employees the 12-month period, the member shall be owner receiving AHP subsidies under responsibility to adopt the conflict of scheduled to make a principal the General Fund and any Targeted interest policies required by this repayment to the Bank equal to the Funds, and between a Bank and any section. amount scheduled to be repaid to the member or unit owner under any member on its loan to the project in that Homeownership Set-Aside Programs. To Subpart C—General Fund and period. the extent the requirements of this part Targeted Funds (ii) Prepayment fees. Upon a are amended from time to time, such prepayment of an AHP subsidized agreements are deemed to incorporate § 1291.20 Establishment of programs. advance, the Bank shall charge a the amendments to conform to any new (a) General Fund—(1) Establishment. prepayment fee only to the extent the requirements of this part. No A Bank shall establish a General Fund Bank suffers an economic loss from the amendment to this part shall affect the pursuant to the requirements of this prepayment. legality of actions taken prior to the part. (iii) Treatment of loan prepayment by effective date of such amendment. (2) Eligibility requirements. A Bank project. If all or a portion of the loan or may not adopt eligibility requirements loans financed by an AHP subsidized § 1291.16 Conflicts of interest. for its General Fund except as advance are prepaid by the project to (a) Bank directors and employees. (1) specifically authorized in this part. the member, the member may, at its Each Bank’s board of directors shall (b) Targeted Funds—(1) option, either: adopt a written policy providing that if Establishment; number of Targeted (A) Repay to the Bank that portion of a Bank director or employee, or such Funds and funding allocation amounts. the advance used to make the loan or person’s family member, has a financial A Bank may establish, in its discretion, loans to the project, and be subject to a interest in, or is a director, officer, or up to three Targeted Funds to address fee imposed by the Bank sufficient to employee of an organization involved specified affordable housing needs in its compensate the Bank for any economic in, a project that is the subject of a district pursuant to the phase-in funding loss the Bank experiences in reinvesting pending or approved AHP application, allocation requirements in the repaid amount at a rate of return the Bank director or employee shall not § 1291.12(c)(1), the following phase-in below the cost of funds originally used participate in or attempt to influence requirements for the number of Targeted by the Bank to calculate the interest rate decisions by the Bank regarding the Funds unless otherwise directed by subsidy incorporated in the advance; or evaluation, approval, funding, FHFA, and any other applicable (B) Continue to maintain the advance monitoring, or any remedial process for requirements of this part: outstanding, subject to the Bank such project. (i) One Targeted Fund; resetting the interest rate on that portion (2) If a Bank director or employee, or (ii) Two Targeted Funds to be of the advance used to make the loan or such person’s family member, has a administered in the same calendar year,

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61238 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

provided that the Bank administered at General Fund and any Targeted Funds must have an income meeting the least one Targeted Fund in any during a specified number of funding income targeting commitments in the preceding year; or rounds each year, as determined by the approved AHP application at the time of (iii) Three Targeted Funds to be Bank. such submission. administered in the same calendar year, (b) Submission of applications. Except (B) If the project has a relocation plan provided that the Bank administered at as provided in § 1291.29(a), a Bank shall for current occupants that is approved least two Targeted Funds in any require applications for AHP subsidy to by one of its federal, state, or local preceding year. contain information sufficient for the government funders, or a reasonable (2) Eligibility requirements. (i) A Bank Bank to: relocation plan for current occupants shall adopt and implement parameters, (1) Determine that the proposed AHP that is otherwise approved by the Bank which shall be included in its AHP project meets the eligibility according to standards included in the Implementation Plan, for ensuring that requirements of this part; and Bank’s AHP Implementation Plan, a (2) Evaluate the application pursuant each Targeted Fund is designed to household may have an income meeting to the scoring methodology adopted by receive sufficient numbers of applicants the income targeting commitments upon the Bank pursuant to §§ 1291.25, for the amount of AHP funds allocated initial occupancy of the rental unit after to the Targeted Fund to enable the Bank 1291.26, and 1291.27, as applicable. (c) Review of applications submitted. completion of the purchase or to facilitate a robust competitive scoring rehabilitation. process. Except as provided in § 1291.29(b), a (ii) A Bank may not adopt eligibility Bank shall review the applications for (b) Project feasibility—(1) requirements for its Targeted Funds AHP subsidy to determine that the Developmental feasibility. The project except as specifically authorized in this proposed AHP project meets the must be likely to be completed and part. eligibility requirements of this part, and occupied, based on relevant factors shall evaluate the applications pursuant contained in the Bank’s project § 1291.21 Eligible applicants. to the Bank’s scoring methodology feasibility guidelines, including, but not (a) Member applicants. A Bank shall adopted pursuant to §§ 1291.25, limited to, the development budget, accept applications for AHP subsidy 1291.26, and 1291.27, as applicable. market analysis, and project sponsor’s under its General Fund and any experience in providing the requested Targeted Funds only from institutions § 1291.23 Eligible projects. assistance to households. Projects receiving AHP subsidies that are members of the Bank at the time (2) Operational feasibility of rental pursuant to a Bank’s General Fund and the application is submitted to the Bank. projects. A rental project must be able any Targeted Funds must meet the (b) Project sponsor qualifications—(1) to operate in a financially sound following eligibility requirements: In general. A project sponsor must be manner, in accordance with the Bank’s (a) Owner-occupied or rental housing. qualified and able to perform its project feasibility guidelines, as The AHP subsidy shall be used responsibilities as committed to in the projected in the project’s operating pro exclusively for: application for AHP subsidy funding the forma. project. (1) Owner-occupied housing. The (2) Revolving loan fund. Pursuant to purchase, construction, or rehabilitation (c) Timing of AHP subsidy use. Some written policies adopted by a Bank’s of an owner-occupied project for very or all of the AHP subsidy must be likely board of directors, a revolving loan fund low-income or low- or moderate-income to be drawn down by the project or used sponsor that intends to use AHP direct households, where the housing is to be by the project to procure other financing subsidy in accordance with § 1291.31 used as the household’s primary commitments within 12 months of the shall: residence. A household must have an date of approval of the application for (i) Provide audited financial income meeting the income targeting AHP subsidy funding the project. statements that its operations are commitments in the approved AHP (d) Retention agreements—(1) Owner- consistent with sound business application at the time it is qualified by occupied projects. Each AHP-assisted practices; and the project sponsor for participation in unit in an owner-occupied project for (ii) Demonstrate the ability to re-lend the project; which the AHP subsidy was used for AHP subsidy repayments on a timely (2) Rental housing. The purchase, purchase, or for purchase in conjunction basis and track the use of the AHP construction, or rehabilitation of a rental with rehabilitation, of the unit by the subsidy. project, where at least 20 percent of the AHP-assisted household, is, or is (3) Loan pool. Pursuant to written units in the project are occupied by and committed to be, subject to a five-year policies adopted by a Bank’s board of affordable for very low-income retention agreement described in directors, a loan pool sponsor that households. § 1291.15(a)(7). (i) Projects that are not occupied. For intends to use AHP subsidy in (2) Rental projects. AHP-assisted accordance with § 1291.32 shall: a rental project that is not occupied at the time the AHP application is rental projects are, or are committed to (i) Provide evidence of sound asset/ be, subject to a 15-year retention liability management practices; submitted to the Bank for approval, a household must have an income agreement as described in (ii) Provide audited financial § 1291.15(a)(8). statements that its operations are meeting the income targeting consistent with sound business commitments in the approved AHP (e) Fair housing. The project, as practices; and application upon initial occupancy of proposed, must comply with applicable (iii) Demonstrate the ability to track the rental unit. federal and state laws on fair housing the use of the AHP subsidy. (ii) Projects that are occupied. (A) and housing accessibility, including, but Except as provided in paragraph not limited to, the Fair Housing Act, the § 1291.22 Funding rounds; application (a)(2)(ii)(B) of this section, for a rental Rehabilitation Act of 1973, the process. project involving purchase or Americans with Disabilities Act of 1990, (a) Funding rounds. A Bank may rehabilitation that is occupied at the and the Architectural Barriers Act of accept applications from proposed time the AHP application is submitted 1969, and must demonstrate how the projects for AHP subsidy under its to the Bank for approval, a household project will be affirmatively marketed.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61239

§ 1291.24 Eligible uses. project’s development budget, are provided to a project to write down the (a) Eligible uses of AHP subsidy. AHP reasonable, in accordance with the interest rate on a loan extended by a subsidies shall be used only for: Bank’s project cost guidelines. member, sponsor, or other party to a (1) Owner-occupied housing. The (B) For purposes of determining the project, the net present value of the purchase, construction, or rehabilitation reasonableness of a developer’s fee for a interest foregone from making the loan of owner-occupied housing. project as a percentage of total below the lender’s market interest rate (2) Rental housing. The purchase, development costs, a Bank may, in its shall be calculated as of the date the construction, or rehabilitation of rental discretion, include estimates of the application for AHP subsidy is housing. market value of in-kind donations and submitted to the Bank, and subject to (3) Need for AHP subsidy—(i) Review volunteer professional labor or services adjustment under § 1291.30(d). of project development budget. The (excluding the value of sweat equity) (ii) Where an AHP subsidized project’s estimated sources of funds committed to the project as part of the advance is provided to a project, the net shall equal its estimated uses of funds, total development costs. present value of the interest revenue as reflected in the project’s development (ii) Cost of property and services foregone from making a subsidized budget. The difference between the provided by a member. The purchase advance at a rate below the Bank’s cost project’s sources of funds (excluding price of property or services, as reflected of funds shall be determined as of the AHP subsidy) and uses of funds is the in the project’s development budget, earlier of the date of disbursement of the project’s need for AHP subsidy, which sold to the project by a member subsidized advance or the date prior to is the maximum amount of AHP subsidy providing AHP subsidy to the project, disbursement on which the Bank first the project may receive. A Bank, in its or, in the case of property, upon which manages the funding to support the discretion, may permit a project’s such member holds a mortgage or lien, subsidized advance through its asset/ sources of funds to include or exclude may not exceed the market value of liability management system, or the estimated market value of in-kind such property or services as of the date otherwise. donations and voluntary professional the purchase price was agreed upon. In (b) Prohibited uses of AHP subsidy. labor or services (excluding the value of the case of real estate owned property AHP subsidy may not be used to pay sweat equity), provided that the sold to a project by a member providing for: project’s uses of funds also include or AHP subsidy to the project, or property (1) Certain prepayment fees. exclude, respectively, the value of such sold to the project upon which the Prepayment fees imposed by a Bank on estimates. member holds a mortgage or lien, the a member for a subsidized advance that (ii) Cash sources of funds. A project’s market value of such property is is prepaid, unless: cash sources of funds shall include any deemed to be the ‘‘as-is’’ or ‘‘as- (i) The project is in financial distress cash contributions by the sponsor, any rehabilitated’’ value of the property, that cannot be remedied through a cash from sources other than the whichever is appropriate. That value project modification pursuant to sponsor, and estimates of funds the shall be reflected in an independent § 1291.29; project sponsor intends to obtain from appraisal of the property performed by (ii) The prepayment of the subsidized other sources but which have not yet a state certified or licensed appraiser, as advance is necessary to retain the been committed to the project. In the defined in 12 CFR 564.2(j) and (k), project’s affordability and income case of homeownership projects where within 6 months prior to the date the targeting commitments; the sponsor extends permanent Bank disburses AHP subsidy to the (iii) Subsequent to such prepayment, financing to the homebuyer, the project. the project will continue to comply with sponsor’s cash contribution shall (5) Financing costs. The rate of the terms of the approved AHP include the present value of any interest, points, fees, and any other application and the requirements of this payments the sponsor is to receive from charges for all loans that are made for part for the duration of the original the buyer, which shall include any cash the project in conjunction with the AHP retention period; down payment from the buyer, plus the subsidy shall not exceed a reasonable (iv) Any unused AHP subsidy is present value of any purchase note the market rate of interest, points, fees, and returned to the Bank and made available sponsor holds on the unit. If the note other charges for loans of similar for other AHP projects or households; carries a market interest rate maturity, terms, and risk. and commensurate with the credit quality of (6) Counseling costs. Counseling (v) The amount of AHP subsidy used the buyer, the present value of the note costs, provided: for the prepayment fee may not exceed equals the face value of the note. If the (i) Such costs are incurred in the amount of the member’s prepayment note carries an interest rate below the connection with counseling of fee to the Bank; market rate, the present value of the homebuyers who actually purchase an (2) Cancellation fees. Cancellation note shall be determined using the AHP-assisted unit; and fees and penalties imposed by a Bank on market rate to discount the cash flows. (ii) The cost of the counseling has not a member for a subsidized advance (iii) Cash uses. A project’s cash uses been covered by another funding source, commitment that is canceled; are the actual outlay of cash needed to including the member. (3) Processing fees. Processing fees pay for materials, labor, and acquisition (7) Refinancing. Refinancing of an charged by members for providing AHP or other costs of completing the project. existing single-family or multifamily direct subsidies to a project; or Cash costs do not include in-kind mortgage loan, provided that the (4) Reserves and certain expenses. donations, voluntary professional labor refinancing produces equity proceeds Capitalized reserves, periodic deposits or services, or sweat equity. and such equity proceeds up to the to reserve accounts, operating expenses, (4) Project costs—(i) In general. (A) amount of the AHP subsidy in the or supportive services expenses. Taking into consideration the project shall be used only for the (c) Optional Bank district eligibility geographic location of the project, purchase, construction, or rehabilitation requirements. A Bank may require a development conditions, and other non- of housing units meeting the eligibility project receiving AHP subsidies to meet financial household or project requirements of this part. one or more of the following additional characteristics, a Bank shall determine (8) Calculation of AHP subsidy. (i) eligibility requirements adopted by the that a project’s costs, as reflected in the Where an AHP direct subsidy is Bank’s board of directors and included

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61240 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

in its AHP Implementation Plan after scoring criteria in § 1291.26 other than which may differ for each Fund, and consultation with its Advisory Council: to the scoring criterion for Bank district which shall be drawn from the (1) AHP subsidy limits. A requirement priorities in § 1291.26(h). If a Bank particular Fund’s scoring criteria that the amount of AHP subsidy adopts a scoring criterion under its Bank adopted in the Bank’s AHP requested for the project does not district priorities for housing located in Implementation Plan; exceed limits established by the Bank as the Bank’s district, the Bank may not (4) The scoring tie-breaker to the maximum amount of AHP allocate points to the scoring criterion in methodology shall be reasonable, subsidy available per member, per a way that excludes all out-of-district transparent, verifiable, and impartial; project sponsor, per project, or per projects from its General Fund. (5) The scoring tie-breaker project unit in a single AHP funding (ii) Targeted Funds. A Bank shall methodology shall be used solely to round. A Bank may establish only one allocate 100 points among all of the break a scoring tie and may not affect maximum subsidy limit per member, scoring criteria adopted by the Bank for the eligibility of the applications, per sponsor, per project, or per project each Targeted Fund pursuant to including financial feasibility, or their unit for the General Fund and for each § 1291.27. A Bank may not allocate scores and resultant rankings; Targeted Fund, which shall apply to all more than 50 points to any one scoring (6) The Bank shall approve a tied applicants to the specific Fund, but the criterion for a Targeted Fund. application as an alternate pursuant to maximum subsidy limit per project or (3) Fixed-point and variable-point § 1291.28(b) if the application does not per project unit may differ among the scoring criteria. A Bank shall designate prevail under the scoring tie-breaker Funds; or each scoring criterion as either a fixed- methodology, or if the application is (2) Homebuyer or homeowner point or a variable-point criterion, tied with another application but counseling. A requirement that a defined as follows: requested more subsidy than the household must complete a homebuyer (i) Fixed-point scoring criteria are amount of AHP funds that remain to be or homeowner counseling program those that cannot be satisfied in varying awarded, if the Bank has a written provided by, or based on one provided degrees and are either satisfied or not, policy to approve alternates for funding by, an organization recognized as with the total number of points under the applicable Fund; and experienced in homebuyer or allocated to the criterion awarded by the (7) The Bank shall document in homeowner counseling, respectively. Bank to an application meeting the writing its analysis and results for each (d) Applications to multiple Funds— criterion; and use of the scoring tie-breaker subsidy amount. If an application for a (ii) Variable-point criteria are those methodology. project is submitted to more than one where there are varying degrees to Fund at the same time, the application which an application can satisfy the § 1291.26 Scoring criteria for the General for each Fund must be for the same criteria, with the number of points that Fund. amount of AHP subsidy. may be awarded to an application for A Bank shall adopt in its scoring meeting the criterion varying, methodology for its General Fund all of § 1291.25 Scoring methodologies. depending on the extent to which the the following categories of scoring (a)(1) Written scoring methodologies. application satisfies the criterion, based criteria, including at least one housing A Bank shall establish a written scoring on a fixed scale or on a scale relative to need under each of paragraphs (e), (f), methodology for its General Fund and the other applications being scored. A and (g) of this section, except that a for any Targeted Fund setting forth the Bank shall designate the targeting Bank is not required to adopt the Bank’s scoring point allocations as scoring criterion in § 1291.26(d) as a scoring criterion for homeownership by required in paragraph (a)(2) of this variable-point criterion. low- or moderate-income households in section, scoring criteria adopted (b) Satisfaction of scoring criteria. A paragraph (c) of this section if the Bank pursuant to the requirements of Bank shall award scoring points to allocates at least 10 percent of its §§ 1291.26 and 1291.27, as applicable, applications to a particular Fund based required annual AHP contribution to and related definitions. The scoring on satisfaction of the scoring criteria in any Homeownership Set-Aside methodology for each Fund may be the Bank’s scoring methodology for that Programs, and a Bank is not required to different. A Bank shall not adopt scoring Fund. adopt the scoring criterion for Bank points allocations or scoring criteria for (c) Scoring tied applications. A Bank district priorities in paragraph (h) of this its General Fund and any Targeted shall establish and implement, as section: Funds except as specifically authorized necessary, a scoring tie-breaker policy to (a) Use of donated or conveyed under this paragraph (a)(1) and address the case of two or more government-owned or other properties. §§ 1291.26 and 1291.27, respectively. applications to its General Fund or any The financing of housing using a (2) Scoring points allocations—(i) Targeted Fund receiving identical scores significant proportion, as defined by the General Fund. A Bank shall allocate 100 in the same AHP funding round and Bank in its AHP Implementation Plan, points among all of the scoring criteria there is insufficient AHP subsidy to of: adopted by the Bank for its General approve all of the tied applications but (1) Land or units donated or conveyed Fund pursuant to § 1291.26. The scoring sufficient subsidy to approve one of by the federal government or any agency criterion for targeting in § 1291.26(d) them. A Bank shall meet the following or instrumentality thereof; or shall be allocated at least 20 points. The requirements in establishing its scoring (2) Land or units donated or conveyed remaining scoring criteria shall be tie-breaker policy: by any other party for an amount allocated at least 5 points each, except (1) The Bank shall consult with its significantly below the fair market value that if a Bank adopts the scoring Advisory Council prior to adoption of of the property, as defined by the Bank criterion for home purchase by low- or its policy; in its AHP Implementation Plan. moderate-income households in (2) The Bank shall adopt the policy in (b) Sponsorship by a not-for-profit § 1291.26(c) as an optional scoring advance of an AHP funding round and organization or government entity. criterion, the Bank may allocate fewer include it in its AHP Implementation Project sponsorship by a not-for-profit than the full 5 points to it, with the Plan; organization, a state or political remainder of such points allocated to (3) The policy shall include the subdivision of a state, a state housing one or a combination of the other methodology used to break a scoring tie, agency, a local housing authority, a

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61241

Native American Tribe, an Alaskan formerly incarcerated persons; persons services, including mental health and Native Village, or the government entity recovering from physical abuse or behavioral health services; resident for Native Hawaiian Home Lands. alcohol or drug abuse; victims of involvement in decision making (c) Home purchase by low- or domestic violence, dating violence, affecting the creation or operation of the moderate-income households. The sexual assault or stalking; persons with project; or workforce preparation and financing of home purchases by low- or HIV/AIDS; or unaccompanied youth; or integration. moderate-income households. the financing of housing that is visitable (2) Residential economic diversity. (d) Income targeting. The extent to by persons with physical disabilities The financing of either affordable which a project provides housing for who are not occupants of such housing. housing in a high opportunity area, or very low- and low- or moderate-income A Bank may, in its discretion, adopt a mixed-income housing in an area households, as follows: requirement that projects provide designated by the Bank, with those (1) Rental projects. An application for supportive services, or access to terms defined and area designated by a rental project shall be awarded the supportive services, for specific special the Bank in its AHP Implementation maximum number of points available needs populations identified by the Plan. under this scoring criterion if 60 percent Bank in order for the project to receive (3) Other. The financing of other or more of the units in the project are scoring points under this paragraph housing that facilitates economic reserved for occupancy by households (e)(2). opportunity as FHFA may provide by with incomes at or below 50 percent of (3) Housing for other targeted guidance. the median income for the area. populations. The financing of housing (g) Community stability, including Applications for projects with less than in which at least 20 percent of the units affordable housing preservation. The 60 percent of the units reserved for are reserved for households specifically promotion of community stability, such occupancy by households with incomes in need of housing, such as agricultural as by preserving affordable housing, at or below 50 percent of the median workers, military veterans, Native rehabilitating vacant or abandoned income for the area shall be awarded Americans, households requiring large properties, or being an integral part of points on a declining scale based on the units, or kinship care households in a community revitalization or economic percentage of units in a project that are which children are in the care of development strategy approved by a reserved for households with incomes at cohabitating relatives, such as unit of state or local government or or below 50 percent of the median grandparents, aunts or uncles, or instrumentality thereof, and not income for the area, and on the cohabitating close family friends. displacing low- or moderate-income percentage of the remaining units (4) Housing in rural areas. The households, or if such displacement reserved for households with incomes at financing of housing located in a rural will occur, assuring that such or below 80 percent of the median area, as defined by the Bank in its AHP households will be assisted to minimize income for the area. Implementation Plan. the impact of such displacement. (5) Rental housing for extremely low- (2) Owner-occupied projects. (h) Bank district priorities. The income households. The financing of Applications for owner-occupied satisfaction of one or more housing rental housing in which a minimum projects shall be awarded points based needs in the Bank’s district, as defined percentage of the units, as defined by on a declining scale to be determined by by the Bank in its AHP Implementation the Bank in its AHP Implementation the Bank in its AHP Implementation Plan, that the Bank has not otherwise Plan, are reserved for extremely low- Plan, taking into consideration adopted under this section. percentages of units and targeted income households. Points awarded income levels. under this criterion shall be awarded in § 1291.27 Scoring criteria for Targeted (3) Separate scoring. For purposes of addition to any points awarded for Funds. this scoring criterion, applications for income targeting under paragraph (d)(1) A Bank shall adopt in its scoring owner-occupied projects and rental of this section, such that the points methodology for each Targeted Fund projects may be scored separately. awarded to a project under this criterion established by the Bank at least three (e) Underserved communities and and the income targeting criterion, different scoring criteria, as determined populations. The financing of housing combined, may exceed the maximum by the Bank in its discretion, that allow for underserved communities or number of possible points awarded the Bank to select applications that meet populations, by addressing one or more under the income targeting criterion. the specific affordable housing need or of the following specific housing needs: (6) Other. The financing of other needs being addressed by the Targeted (1) Housing for homeless households. housing addressing specific housing Fund. The financing of rental housing, needs of underserved communities or excluding overnight shelters, reserving populations as FHFA may provide by § 1291.28 Approval of AHP applications at least 20 percent of the units for guidance. under the General Fund and Targeted homeless households, the creation of (f) Creating economic opportunity. Funds. transitional housing for homeless The financing of housing that facilitates (a) Approval of AHP applications. households permitting a minimum of 6 economic opportunity for the residents Subject to the requirements in months occupancy, or the creation of by addressing one or more of the paragraphs (c) and (d) of this section, a permanent owner-occupied housing following specific housing needs: Bank shall approve applications for reserving at least 20 percent of the units (1) Promotion of empowerment. The AHP subsidy under its General Fund for homeless households, with the term provision of housing in combination and any Targeted Funds that meet all of ‘‘homeless households’’ defined by the with a program offering services that the applicable AHP eligibility Bank in its AHP Implementation Plan. assist residents in attaining life skills or requirements in this part in descending (2) Housing for special needs moving toward better economic order, starting with the highest scoring populations. The financing of housing opportunities, such as: Employment; application until the total funding in which at least 20 percent of the units education; training; homebuyer, amount for the particular AHP funding are reserved for households with homeownership or tenant counseling; round, except for any amount specific special needs, such as: The child care; adult daycare services; insufficient to fund the next highest elderly; persons with disabilities; afterschool care; tutoring; health scoring application, has been approved.

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61242 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

(b) AHP application alternates. For § 1291.29 Modifications of approved AHP such Bank to which the institution has the General Fund and any Targeted applications. transferred its obligations under the Funds, the Bank also may, in its (a) Modification procedure. If, prior to approved AHP application, or the Bank discretion, approve a specified number, or after final disbursement of funds to may disburse AHP subsidies through as determined by the Bank, of the next a project from all funding sources, in another Bank to a member of that Bank highest scoring applications as order to remedy noncompliance or that has assumed the institution’s alternates eligible for funding, and may receive additional subsidy, there is or obligations under the approved AHP approve any tied applications as will be a change in the project that application. (b) Progress towards use of AHP alternates eligible for funding pursuant would change the score that the project subsidy. A Bank shall establish and to paragraph (c)(2) of this section, if any application received in the AHP funding round in which it was originally scored implement policies, including time previously committed AHP subsidies and approved, had the changed facts limits, for determining whether progress become available, pursuant to a written been operative at that time, a Bank shall is being made towards draw-down and policy on approving alternates for approve in writing a request for a use of AHP subsidies by approved funding established by the Bank and modification to the terms of the projects, and whether to cancel AHP included in the Bank’s AHP approved application, provided that: application approvals for lack of such Implementation Plan. If a Bank has (1) The Bank first requests that the progress. If a Bank cancels any AHP established such a policy for approving project sponsor or owner make a application approvals due to lack of alternates for funding and sufficient reasonable effort to cure any such progress, the Bank shall make the previously committed AHP subsidies noncompliance within a reasonable AHP subsidies available for other AHP- become available within one year of period of time, and the noncompliance eligible projects or households. application approval, the Bank shall could not be cured within a reasonable (c) Compliance upon disbursement of approve the designated alternates for period of time; AHP subsidies. A Bank shall establish funding within that one-year period. (2) The project, incorporating any and implement policies for determining, prior to its initial disbursement of AHP (c) Tied applications. (1) Where two such changes, would meet the eligibility subsidy for an approved project, and or more applications to a General Fund requirements of this part; prior to each subsequent disbursement, or Targeted Fund have identical scores (3) The application, as reflective of such changes, continues to score high that the project meets the eligibility in the same AHP funding round and enough to have been approved in the requirements of this part and all there is insufficient AHP subsidy to AHP funding round in which the obligations committed to in the approve all of the tied applications but application was originally scored and approved AHP application. If a Bank sufficient subsidy to approve one of approved by the Bank, which is as high cancels any AHP application approvals them, a Bank shall approve the tied as the lowest ranking alternate approved due to noncompliance with eligibility application that prevails under the for funding by the Bank if the Bank has requirements of this part, the Bank shall Bank’s scoring tie-breaker methodology a written policy to approve alternates make the AHP subsidies available for in its policy adopted pursuant to for funding; and other AHP-eligible projects or § 1291.25(c). (4) There is good cause for the households. (2) A tied application that does not modification, which may not be solely (d) Changes in approved AHP subsidy prevail under the Bank’s scoring tie- remediation of noncompliance, and the amount where a direct subsidy is used breaker methodology, or is tied with analysis and justification for the to write down prior to closing the another application but requested more modification, including why a cure of principal amount or interest rate on a loan. If a member is approved to receive subsidy than the amount of AHP funds noncompliance was not successful or AHP direct subsidy to write down prior that remain to be awarded under the attempted, are documented by the Bank in writing. to closing the principal amount or the Fund, shall be approved as an alternate interest rate on a loan to a project, and for funding if the Bank has a written (b) AHP subsidy increases; no delegation—(1) AHP subsidy increases. the amount of AHP subsidy required to policy to approve alternates for funding maintain the debt service cost for the under the Fund. A Bank’s board of directors may, in its discretion, approve or disapprove loan decreases from the amount of AHP (d) Applications to multiple Funds— requests for modifications involving an subsidy initially approved by the Bank approval under one Fund. If an increase in AHP subsidy in accordance due to a decrease in market interest application for the same project is with the requirements of paragraph (a) rates between the time of approval and submitted to more than one Fund at a of this section. the time the lender commits to the Bank in a calendar year and the (2) No delegation. The authority to interest rate to finance the project, the application scores high enough to be approve or disapprove requests for Bank shall reduce the AHP subsidy approved under each Fund, the Bank modifications involving an increase in amount accordingly. If market interest shall approve the application under AHP subsidy shall not be delegated by rates rise between the time of approval only one of the Funds pursuant to the the Bank’s board of directors to Bank and the time the lender commits to the Bank’s policy established in its AHP officers or other Bank employees. interest rate to finance the project, the Implementation Plan. Bank, in its discretion, may increase the § 1291.30 Procedures for funding. AHP subsidy amount accordingly. (e) No delegation. A Bank’s board of (a) Disbursement of AHP subsidies to (e) AHP outlay adjustment. If a Bank directors may not delegate to Bank members. (1) A Bank may disburse AHP reduces the amount of AHP subsidy officers or other Bank employees the subsidies only to institutions that are approved for a project, the amount of responsibility to approve or disapprove members of the Bank at the time they such reduction shall be returned to the the AHP subsidy applications, as well as request a draw-down of the subsidies. Bank’s AHP fund. If a Bank increases any alternates under the Bank’s General (2) If an institution with an approved the amount of AHP subsidy approved Fund and any Targeted Fund if the Bank application for AHP subsidy loses its for a project, the amount of such has a written policy to approve membership in a Bank, the Bank may increase shall be drawn first from any alternates for funding under such Fund. disburse AHP subsidies to a member of currently uncommitted or repaid AHP

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61243

subsidies and then from the Bank’s evaluate the criteria for the initial the Bank in its AHP Implementation required AHP contribution for the next lending of the subsidy and the specific Plan. year. proposed project, if applicable, pursuant (e) Return of unused AHP subsidy. (f) Project sponsor notification of re- to the scoring methodology established The revolving loan fund shall return to use of repaid AHP direct subsidy. Prior by the Bank pursuant to §§ 1291.25, the Bank any AHP subsidy that will not to disbursement by a project sponsor of 1291.26, and 1291.27, as applicable. be used according to the requirements AHP direct subsidy repaid to and (c) Initial lending of subsidy. (1) The in this section. retained by such project sponsor revolving loan fund’s initial lending of the AHP subsidy shall meet the § 1291.32 Use of AHP subsidy in loan pursuant to a subsidy re-use program pools. authorized by the Bank under eligibility requirements of paragraph (a) Pursuant to written policies § 1291.64(b), the project sponsor shall of this section, shall be to projects or established by a Bank’s board of provide written notice to the member households meeting the commitments directors after consultation with its and the Bank of its intent to disburse the in the approved application for AHP Advisory Council, a Bank, in its repaid AHP subsidy to a household subsidy, and shall be subject to the discretion, may provide AHP subsidy satisfying the requirements of this part requirements in §§ 1291.15 and 1291.50, under its General Fund or any Targeted and the commitments made in the respectively. Funds for the origination of first approved AHP application. (2) If an owner-occupied unit or project funded under this paragraph (c) mortgage or rehabilitation loans with § 1291.31 Lending and re-lending of AHP is in noncompliance with the subsidized interest rates to AHP-eligible direct subsidy by revolving loan funds. commitments in the approved AHP households through a purchase Pursuant to written policies application, or is sold or refinanced commitment by an entity that will established by a Bank’s board of prior to the end of the applicable AHP purchase and pool the loans, provided directors after consultation with its retention period, the required amount of the following requirements are met: Advisory Council, a Bank, in its AHP subsidy shall be repaid to the (a) Eligibility requirements. The loan discretion, may provide AHP direct revolving loan fund in accordance with pool sponsor’s use of the AHP subsidies subsidy under its General Fund or any §§ 1291.15(a)(7), 1291.15(a)(8), and shall meet the requirements under this Targeted Funds for eligible projects and 1291.60, and the revolving loan fund section, and shall not be used for the households involving both the lending shall re-lend such repaid subsidy, purpose of providing liquidity to the of the subsidy and subsequent lending excluding the amounts of AHP subsidy originator or holder of the loans, or of subsidy principal and interest principal already repaid to the revolving paying the loan pool’s operating or repayments by a revolving loan fund, loan fund, to another owner-occupied secondary market transaction costs. provided the following requirements are unit or project meeting the initial (b) Forward commitment. (1) The loan met: lending requirements of this paragraph pool sponsor shall purchase the loans (a) Submission of application. (1) An (c) for the remainder of the retention pursuant to a forward commitment that application for AHP subsidy under this period. identifies the loans to be originated with section shall include the revolving loan (d) Subsequent lending of AHP interest-rate reductions as specified in fund’s criteria for the initial lending of subsidy principal and interest the approved application for AHP the subsidy, identification of and repayments. (1) AHP subsidy principal subsidy to households with incomes at information on a specific proposed AHP and interest repayments received by the or below 80 percent of the median project if required in the Bank’s revolving loan fund from the initial income for the area. Both initial discretion, the revolving loan fund’s lending of the AHP direct subsidy shall purchases of loans for the AHP loan criteria for subsequent lending of be re-lent by the revolving loan fund in pool and subsequent purchases of loans subsidy principal and interest accordance with the requirements of to substitute for repaid loans in the pool repayments, and any other information this paragraph (d), except that the shall be made pursuant to the terms of required by the Bank. revolving loan fund, in its discretion, such forward commitment and subject (2) The information in the application may provide part or all of such to time limits on the use of the AHP shall be sufficient for the Bank to: repayments as nonrepayable grants to subsidy as specified by the Bank in its (i) Determine that the criteria for the eligible projects in accordance with the AHP Implementation Plan and the initial lending of the subsidy, the requirements of this paragraph (d). Bank’s agreement with the loan pool specific proposed project if applicable, (2) The revolving loan fund’s sponsor, which shall not exceed one and the criteria for subsequent lending subsequent lending of AHP subsidy year from the date of approval of the of subsidy principal and interest principal and interest repayments shall AHP application. repayments, meet the eligibility be for the purchase, construction, or (2) As an alternative to using a requirements of § 1291.23; and rehabilitation of owner-occupied forward commitment, the loan pool (ii) Evaluate the criteria for the initial projects for households with incomes at sponsor may purchase an initial round lending of the subsidy, and the specific or below 80 percent of the median of loans that were not originated proposed project if applicable, pursuant income for the area, or of rental projects pursuant to an AHP-specific forward to the scoring methodology established where at least 20 percent of the units are commitment, provided that the entities by the Bank pursuant to §§ 1291.25, occupied by and affordable for from which the loans were purchased 1291.26, and 1291.27, as applicable. households with incomes at or below 50 are required to use the proceeds from (b) Review of application. A Bank percent of the median income for the the initial loan purchases within time shall review the application for AHP area, and shall meet all other eligibility limits on the use of the AHP subsidy as subsidy to determine that the criteria for requirements of this paragraph (d). specified by the Bank in its AHP the initial lending of the subsidy, the (3) A Bank may, in its discretion, Implementation Plan and the Bank’s specific proposed project if applicable, require the revolving loan fund’s agreement with the loan pool sponsor, and the criteria for subsequent lending subsequent lending of subsidy principal which shall not exceed one year from of subsidy principal and interest and interest repayments to be subject to the date of approval of the AHP repayments, meet the eligibility retention period, monitoring, and application. The proceeds shall be used requirements of § 1291.23, and shall recapture requirements, as defined by by such entities to assist households

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61244 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

that are income-eligible under the in the case of households that are first- direct subsidy or financing to the approved AHP application during time homebuyers; and household. subsequent rounds of lending, and such (3) Are first-time homebuyers or (g) Financing costs. The rate of assistance shall be provided in the form households receiving AHP subsidy for interest, points, fees, and any other of a below-market AHP-subsidized owner-occupied rehabilitation, in the charges for all loans made in interest rate as specified in the approved case of households receiving subsidy conjunction with the AHP direct AHP application. pursuant to the one-third set-aside subsidy shall not exceed a reasonable (c) Each AHP-assisted owner- funding allocation requirement in market rate of interest, points, fees, and occupied unit and rental project § 1291.12(b), and meet such other other charges for loans of similar receiving AHP direct subsidy or a eligibility criteria that may be maturity, terms, and risk. subsidized advance shall be subject to established by the Bank in its AHP (h) Counseling costs. The AHP direct the requirements of §§ 1291.15, 1291.50, Implementation Plan, such as a subsidies may be used to pay for and 1291.60, respectively. matching funds requirement, counseling costs only where: (d) Where AHP direct subsidy is being homebuyer or homeowner counseling (1) Such costs are incurred in used to buy down the interest rate of a requirement for households that are not connection with counseling of loan or loans from a member or other first-time homebuyers, or criteria that homebuyers who actually purchase an party, the loan pool sponsor shall use give priority for the purchase or AHP-assisted unit; and the full amount of the AHP direct rehabilitation of housing in particular (2) The cost of the counseling has not subsidy to buy down the interest rate on areas or as part of a disaster relief effort. been covered by another funding source, a permanent basis at the time of closing (c) Maximum grant limit. Members including the member. on such loan or loans. shall provide AHP direct subsidies to (i) Cash back to household. A member households as a grant, in an amount up may provide cash back to a household Subpart D—Homeownership Set-Aside to a maximum established by the Bank, at closing on the mortgage loan in an Programs not to exceed $22,000 per household, amount not exceeding $250, as which limit shall adjust upward on an determined by the Bank in its AHP § 1291.40 Establishment of programs. annual basis in accordance with Implementation Plan, and a member A Bank may establish, in its increases in FHFA’s House Price Index shall use any AHP direct subsidy discretion, one or more Homeownership (HPI). In the event of a decrease in the exceeding such amount that is beyond Set-Aside Programs pursuant to the HPI, the subsidy limit shall remain at its what is needed at closing for closing requirements of this part. then-current amount until the HPI costs and the approved mortgage increases above the subsidy limit, at § 1291.41 Eligible applicants. amount as a credit to reduce the which point the subsidy limit shall principal of the mortgage loan or as a A Bank shall accept applications for adjust to that higher amount. FHFA will credit toward the household’s monthly AHP direct subsidy under its notify the Banks annually of the payments on the mortgage loan. Homeownership Set-Aside Programs maximum subsidy limit, based on the only from institutions that are members HPI. A Bank may establish a different § 1291.43 Approval of AHP applications. of the Bank at the time the application maximum grant limit, up to the A Bank shall approve applications for is submitted to the Bank. maximum grant limit, for each AHP direct subsidy under its Homeownership Set-Aside Program it Homeownership Set-Aside Programs in § 1291.42 Eligibility requirements. establishes. A Bank’s maximum grant accordance with the Bank’s criteria A Bank’s Homeownership Set-Aside limit for each such program shall be governing the allocation of funds. Programs shall meet the eligibility included in its AHP Implementation requirements set forth in this section. A Plan, which limit shall apply to all § 1291.44 Procedures for funding. Bank may not adopt additional households in the specific program for (a) Disbursement of AHP direct eligibility requirements for its which it is established. subsidies to members. (1) A Bank may Homeownership Set-Aside Programs (d) Eligible uses of AHP direct disburse AHP direct subsidies under its except for eligible households pursuant subsidy. Households shall use the AHP Homeownership Set-Aside Programs to paragraph (b) of this section. direct subsidies to pay for down only to institutions that are members of (a) Member allocation criteria. AHP payment, closing cost, counseling, or the Bank at the time they request a direct subsidies shall be provided to rehabilitation assistance in connection draw-down of the subsidies. members pursuant to allocation criteria with the household’s purchase or (2) If an institution with an approved established by the Bank in its AHP rehabilitation of an owner-occupied application for AHP direct subsidy loses Implementation Plan. unit, including a condominium or its membership in a Bank, the Bank may (b) Eligible households. Members cooperative housing unit or disburse AHP direct subsidies to a shall provide AHP direct subsidies only manufactured housing, to be used as the member of such Bank to which the to households that: household’s primary residence. institution has transferred its obligations (1) Have incomes at or below 80 (e) Retention agreement. An owner- under the approved AHP application, or percent of the median income for the occupied unit purchased, or purchased the Bank may disburse AHP direct area at the time the household is in conjunction with rehabilitation, using subsidies through another Bank to a accepted for enrollment by the member AHP direct subsidy, shall be subject to member of that Bank that has assumed in the Bank’s Homeownership Set-Aside a five-year retention agreement the institution’s obligations under the Programs, with such time of enrollment described in § 1291.15(a)(7). approved AHP application. by the member defined by the Bank in (f) Financial or other concessions. The (b) Reservation of Homeownership its AHP Implementation Plan; Bank may, in its discretion, require Set-Aside Program subsidies. A Bank (2) Complete a homebuyer or members and other lenders to provide shall establish and implement policies homeowner counseling program financial or other concessions, as for reservation of set-aside subsidies for provided by, or based on one provided defined by the Bank in its AHP households enrolled in the Bank’s by, an organization experienced in Implementation Plan, to households in Homeownership Set-Aside Programs. homebuyer or homeowner counseling, connection with providing the AHP The policies shall provide that set-aside

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61245

subsidies be reserved no more than two commitments made in the approved (2) The entity has demonstrated and years in advance of the Bank’s time AHP application; continues to demonstrate its ability to limit in its AHP Implementation Plan (ii) The household incomes and rents monitor the project; for draw-down and use of the subsidies comply with the income targeting and (3) The entity agrees to provide by the household and the reservation of rent commitments made in the reports to the Bank on the project’s subsidies be made from the allocation approved AHP application; incomes and rents for the full 15-year for the Homeownership Set-Aside (iii) The project’s costs were AHP retention period; and Programs for the year in which the Bank reasonable in accordance with the (4) The Bank reviews the reports from makes the reservation. Bank’s project cost guidelines, and the the monitoring entity to confirm that (c) Progress towards use of AHP direct AHP subsidies were necessary for the they comply with the Bank’s monitoring subsidy. A Bank shall establish and completion of the project as currently policies. implement policies, including time structured, as determined pursuant to (c) Long-term monitoring policies for limits, for determining whether progress § 1291.24(a)(4); rental projects. In cases where a Bank does not rely on monitoring by a federal, is being made towards draw-down and (iv) Each AHP-assisted unit of an state, or local government entity use of the AHP direct subsidies by owner-occupied project and rental pursuant to paragraph (b) of this section, eligible households, and whether to project is subject to an AHP retention pursuant to written policies established cancel AHP application approvals for agreement that meets the requirements by the Bank, the Bank shall monitor lack of such progress. If a Bank cancels of § 1291.15(a)(7) and (8), respectively; completed AHP rental projects any AHP application approvals due to and approved under its General Fund and lack of such progress, it shall make the (v) The services and activities any Targeted Funds, commencing in the AHP direct subsidies available for other committed in the approved AHP second year after project completion applicants for AHP direct subsidies application have been provided. through the AHP 15-year retention under the Homeownership Set-Aside (3) Back-up and other project period, to verify, at a minimum, Programs or for other AHP-eligible documentation. The Bank’s written satisfaction of the requirements in this projects. monitoring policies shall include section. requirements for: Subpart E—Monitoring (1) Annual project sponsor or owner (i) Bank review within a reasonable certifications; backup and other project § 1291.50 Monitoring under the General period of time after project completion documentation. A Bank’s written Fund and Targeted Funds. of back-up project documentation monitoring policies shall include regarding household incomes and rents requirements for: (a) Initial monitoring policies for (not including the rent roll) maintained owner-occupied and rental projects. A (i) Bank review of annual by the project sponsor or owner, except certifications by project sponsors or Bank shall adopt written policies for projects that received funds from pursuant to which the Bank shall owners to the Bank that household other federal, state or local government incomes and rents are in compliance monitor each AHP owner-occupied entities whose programs meet the project and rental project approved with the commitments made in the requirements in paragraphs (b)(1) and approved AHP application during the under its General Fund and any (2) of this section as specified in Targeted Funds prior to, and within a AHP 15-year retention period, along separate FHFA guidance, or projects with information on the ongoing reasonable period of time after, project that have also been allocated LIHTC; completion to verify, at a minimum, financial viability of the project, and including whether the project is current satisfaction of the requirements in this (ii) Maintenance and Bank review of section. on its property taxes and loan payments, other project documentation in the its vacancy rate, and whether it is in (1) Satisfactory progress. The Bank Bank’s discretion. shall determine that: compliance with its commitments to (4) Sampling plan. The Bank shall not other funding sources; (i) The project is making satisfactory use a sampling plan to select the (ii) Bank review of back-up project progress towards completion, in projects to be monitored under this documentation regarding household compliance with the commitments paragraph (a), but may use a reasonable incomes and rents, including the rent made in the approved AHP application, risk-based sampling plan to review the rolls, maintained by the project sponsor Bank policies, and the requirements of back-up project documentation. or owner, except for projects that also this part; and (b) Long-term monitoring—reliance on received funds from other federal, state (ii) Following completion of the other governmental monitoring for or local government entities whose project, satisfactory progress is being certain rental projects. For completed programs meet the requirements in made towards occupancy of the project AHP rental projects that also received paragraphs (b)(1) and (2) of this section by eligible households. funds from federal, state, or local as specified in separate FHFA guidance, (2) Project sponsor or owner government entities other than LIHTC, a or projects that have been allocated certification, rent roll and other Bank may, in its discretion, for purposes LIHTC, provided that the Bank shall documentation; backup and other of long-term AHP monitoring under its review any LIHTC noncompliance project documentation. Within a General Fund and any Targeted Funds, notices received from project owners reasonable period of time after project rely on the monitoring by such entities pursuant to § 1291.15(a)(5)(ii) during the completion, the Bank shall review a of the income targeting and rent AHP 15-year retention period; and certification from the project sponsor or requirements applicable under their (iii) Maintenance and Bank review of owner, the project rent roll (which programs, provided that the Bank can other project documentation in the includes household incomes and rents), show that: Banks’ discretion. and any other documentation to verify (1) The compliance profiles regarding (2) Risk factors and other that the project meets the following income targeting, rent, and retention monitoring—(i) Risk factors; other requirements, at a minimum: period requirements of the AHP and the monitoring. A Bank’s written (i) The AHP subsidies were used for other programs are substantively monitoring policies shall take into eligible purposes according to the equivalent; account risk factors such as the amount

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 61246 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

of AHP subsidy in the project, type of incomes maintained by the member; Bank, or the member if delegated the project, size of project, location of and responsibility, shall make a demand on project, sponsor experience and (3) Maintenance and Bank review of the project sponsor or owner for performance, and any monitoring of the other documentation in the Bank’s repayment of the full amount of the project provided by a federal, state, or discretion. AHP subsidy not used in compliance local government entity. (c) Sampling plan. The Bank may use with the commitments in the AHP (ii) Risk-based sampling plan. A Bank a reasonable sampling plan to select the application or the requirements of this may use a reasonable, risk-based households to be monitored, and to part (plus interest, if appropriate). If the sampling plan to select the rental review the back-up and any other noncompliance is occupancy by projects to be monitored under this documentation received by the Bank, households with incomes exceeding the paragraph (c), and to review the back-up but not the member certifications income-targeting commitments in the and any other project documentation. required in paragraph (b) of this section. AHP application, the amount of AHP The risk-based sampling plan and its The sampling plan and its basis shall be subsidy due is calculated based on the basis shall be in writing. in writing. number of units in noncompliance, the (d) Annual adjustment of targeting length of the noncompliance, and the Subpart F—Remedial Actions for commitments. For purposes of portion of the AHP subsidy attributable Noncompliance determining compliance with the to the noncompliant units. targeting commitments in an approved § 1291.60 Remedial actions for project (2) Settlement. (i) If the demand for AHP application for both initial and noncompliance. repayment of the full amount due is long-term AHP monitoring purposes (a) Scope. This section sets forth the unsuccessful, the Bank, or the member under a Bank’s General Fund and any requirements applicable to the Banks in if delegated the responsibility and in Targeted Funds, such commitments the event of noncompliance by an AHP- consultation with the Bank, shall make shall be considered to adjust annually assisted project with the commitments reasonable efforts to collect the subsidy according to the current applicable made in its application for AHP from the project sponsor or owner, median income data. A rental unit may subsidies and the requirements of this which may include settlement for less continue to count toward meeting the part, including any use of AHP subsidy than the full amount due, taking into targeting commitment of an approved by the project sponsor or owner for account factors such as the financial AHP application as long as the rent purposes other than those committed to capacity of the project sponsor or charged to a household remains in the AHP application. This section owner, assets securing the AHP subsidy, affordable, as defined in § 1291.1, for does not apply to individual AHP- other assets of the project sponsor or the household occupying the unit. assisted households or to the sale or owner, the degree of culpability of the refinancing by such households of their project sponsor or owner, and the extent § 1291.51 Monitoring under of the Bank’s or member’s collection Homeownership Set-Aside Programs. homes. (b) Elimination of project efforts. (a) Adoption and implementation. noncompliance—(1) Cure. In the event (ii) The settlement with the project Pursuant to written policies adopted by of project noncompliance, the Bank sponsor or owner must be supported by a Bank, the Bank shall monitor shall request that the project sponsor or sufficient documentation showing that compliance with the requirements of its owner make a reasonable effort to cure the sum agreed to be repaid under the Homeownership Set-Aside Programs, the noncompliance within a reasonable settlement is reasonably justified, based including monitoring to determine, at a period of time. If the noncompliance on the facts and circumstances of the minimum, whether: cannot be cured within a reasonable noncompliance, including any factors in (1) The AHP subsidy was provided to period of time, the requirements for paragraph (c)(2)(i) of this section that households meeting all applicable project modification in paragraph (b)(2) were considered in reaching the eligibility requirements in § 1291.42(b) of this section shall apply. If the settlement. and the Bank’s Homeownership Set- noncompliance is cured within a § 1291.61 Recovery of subsidy for member Aside Program policies; and reasonable period of time, the Bank noncompliance. (2) All other applicable eligibility shall not require the project sponsor or A Bank shall recover from a member requirements in § 1291.42 and the owner to repay AHP subsidy to the Bank’s Homeownership Set-Aside the amount of any AHP subsidy (plus Bank. interest, if appropriate) not used in Program policies are met, including that (2) Project modification. If the project the AHP-assisted units are subject to compliance with the commitments in sponsor or owner cannot cure the the member’s AHP application or the retention agreements, as required under noncompliance within a reasonable § 1291.15(a)(7), where the AHP subsidy requirements of this part as a result of period of time, the Bank shall determine the actions or omissions of the member. was used for purchase of the unit, or for whether the circumstances of the purchase of the unit in conjunction with noncompliance can be eliminated § 1291.62 Bank reimbursement of AHP rehabilitation. through a modification of the terms of fund. (b) Member certifications; back-up the AHP application pursuant to (a) By the Bank. A Bank shall and other documentation. The Bank’s § 1291.29. When the circumstances of reimburse its AHP fund in the amount written monitoring policies shall the noncompliance can be eliminated of any AHP subsidies (plus interest, if include requirements for: through a modification, the Bank shall appropriate) not used in compliance (1) Bank review of certifications by approve the modification and shall not with the commitments in an AHP members to the Bank, prior to require the project sponsor or owner to application or the requirements of this disbursement of the AHP subsidy, that repay AHP subsidy to the Bank. part as a result of the actions or the subsidy will be provided in (c) Reasonable collection efforts—(1) omissions of the Bank. compliance with all applicable Demand for repayment. If the (b) By FHFA order. FHFA may order eligibility requirements in § 1291.42; circumstances of a project’s a Bank to reimburse its AHP fund in an (2) Bank review of back-up noncompliance cannot be eliminated appropriate amount upon determining documentation regarding household through a cure or modification, the that:

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR2.SGM 28NOR2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61247

(1) The Bank has failed to reimburse Advisory Council, in its AHP contribute to the Program in any year its AHP fund as required under Implementation Plan, provided all of pursuant to § 1291.10(a), 90 percent of paragraph (a) of this section; or the following requirements are satisfied: the unused or uncommitted amount (2) The Bank has failed to recover the (i) The member or the project sponsor shall be deposited by the Bank in an full amount of AHP subsidy due from a originally provided the AHP direct Affordable Housing Reserve Fund project sponsor, project owner, or subsidy as down payment, closing cost, established and administered by FHFA. member pursuant to the requirements of rehabilitation, or interest rate buy down The remaining 10 percent of the unused §§ 1291.60 and 1291.61, and has not assistance to an eligible household for and uncommitted amount retained by purchase, or for purchase in conjunction shown that such failure is reasonably the Bank should be fully used or with rehabilitation, of an owner- justified, considering factors such as committed by the Bank during the those in § 1291.60(c)(2)(i). occupied unit pursuant to an approved AHP application; following year, and any remaining § 1291.63 Suspension and debarment. (ii) The AHP direct subsidy, including portion shall be deposited in the (a) At a Bank’s initiative. A Bank may any interest, was repaid to the member Affordable Housing Reserve Fund. suspend or debar a member, project or project sponsor as a result of a sale, (b) Use or commitment of AHP funds. sponsor, or project owner from transfer, or assignment of title or deed Approval of applications for AHP funds participation in the Program if such of the unit prior to the end of the from members sufficient to exhaust the party shows a pattern of retention period to a subsequent amount a Bank is required to contribute noncompliance, or engages in a single purchaser that is not a low- or moderate- pursuant to § 1291.10(a) shall constitute instance of flagrant noncompliance, income household; and use or commitment of funds. Amounts (iii) The repaid AHP direct subsidy is with the terms of an approved remaining unused or uncommitted at made available by the member or project application for AHP subsidy or the year-end are deemed to be used or requirements of this part. sponsor, within the period of time committed if, in combination with AHP (b) At FHFA’s initiative. FHFA may specified by the Bank in its AHP order a Bank to suspend or debar a Implementation Plan, to another AHP- funds that have been returned to the member, project sponsor, or project eligible household for purchase, or for Bank or de-committed from canceled owner from participation in the Program purchase in conjunction with projects, they are insufficient to fund: if such party shows a pattern of rehabilitation, of an owner-occupied (1) AHP application alternates in the noncompliance, or engages in a single unit in the same project in accordance Bank’s final funding round of the year instance of flagrant noncompliance, with the terms of the approved AHP for its General Fund or any Targeted with the terms of an approved application. Funds, if the Bank has a policy to application for AHP subsidy or the (2) No delegation. A Bank’s board of approve alternates for funding under requirements of this part. directors shall not delegate to Bank such Funds; officers or other Bank employees the § 1291.64 Use of repaid AHP subsidies. responsibility to adopt any Bank (2) Pending applications for funds (a) Use of repaid AHP subsidies for policies on re-use of repaid AHP direct under the Bank’s Homeownership Set- other AHP-eligible projects or subsidies in the same project pursuant Aside Programs, if any; and households. Except as provided in to paragraph (b) of this section. (3) Project modifications for AHP paragraph (b) of this section, amounts of subsidy increases approved by the Bank AHP subsidy, including any interest, § 1291.65 Transfer of Program administration. pursuant to the requirements of this repaid to a Bank pursuant to this part part. shall be made available by the Bank for Without limitation on other remedies, other AHP-eligible projects or FHFA, upon determining that a Bank (c) Carryover of insufficient amounts. households. has engaged in mismanagement of its Such insufficient amounts as described (b) Re-use of repaid AHP direct Program, may designate another Bank to in paragraph (b) of this section shall be subsidies in same project—(1) administer all or a portion of the first carried over by the Bank for use or Requirements. AHP direct subsidy, Bank’s annual AHP contribution, for the commitment in the following year in its including any interest, repaid to a benefit of the first Bank’s members, General Fund, any Targeted Funds, or member or project sponsor, as under such terms and conditions as any Homeownership Set-Aside applicable, under a Bank’s General FHFA may prescribe. Programs. Fund and any Targeted Funds may be Subpart G—Affordable Housing Dated: November 16, 2018. repaid by such parties to the Bank for Reserve Fund Melvin L. Watt, subsequent disbursement to and re-use by such parties, or retained by such § 1291.70 Affordable Housing Reserve Director, Federal Housing Finance Agency. parties for subsequent re-use, as Fund. [FR Doc. 2018–25635 Filed 11–27–18; 8:45 am] authorized by the Bank, in its (a) Deposits. If a Bank fails to use or BILLING CODE 8070–01–P discretion, after consultation with its commit the full amount it is required to

VerDate Sep<11>2014 16:40 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00063 Fmt 4701 Sfmt 9990 E:\FR\FM\28NOR2.SGM 28NOR2 Vol. 83 Wednesday, No. 229 November 28, 2018

Part III

Department of Veterans Affairs

38 CFR Parts 17, 51, and 52 Per Diem Paid to States for Care of Eligible Veterans in State Homes; Final Rule

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28NOR3.SGM 28NOR3 61250 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

DEPARTMENT OF VETERANS proposed rule on or before August 17, their domiciliary programs because of AFFAIRS 2015, and we received 32 public these costs. A commenter said that VA’s comments. Several commenters proposed definition of ‘‘domiciliary 38 CFR Parts 17, 51, and 52 commended and supported revisions care’’ needs to be clearer for the State RIN 2900–AO88 that reorganize, update, and clarify the homes to tell whether their programs fit regulations, particularly those that the definition. Similarly, others said Per Diem Paid to States for Care of increase the State homes’ ability to that States need a clearer definition of Eligible Veterans in State Homes emphasize the independence of adult what domiciliary care is to know day health care participants. VA thanks whether the per diem rate for that care AGENCY: Department of Veterans Affairs. these commenters for their support of will sustain their programs. ACTION: Final rule. the rule. We have responded to the rest VA agrees that the application of of the comments recommending whole regulations governing the nursing SUMMARY: This rulemaking adopts as changes to the proposed rule under the home care program to the domiciliary final, with changes, proposed heading of the sections with which the care program, as proposed §§ 51.300 and amendments to VA’s regulations commenters expressed concern. 51.350 would have done, would be governing payment of per diem to States excessively burdensome. We have for nursing home care, domiciliary care, Technical Correction revised those sections to eliminate the and adult day health care for eligible The notice of proposed rulemaking application of multiple nursing home veterans in State homes. This proposed to amend 38 CFR part 51 provisions to the domiciliary care rulemaking reorganizes, updates, and under the part heading, ‘‘PART 51—PER program. We discuss each change from clarifies State home regulations, DIEM FOR NURSING HOME, the proposed rule in the discussion of authorizes greater flexibility in adult DOMICILIARY, OR ADULT DAY §§ 51.300 and 51.350 below. day health care programs, and HEALTH CARE OF VETERANS IN VA agrees that the definition of establishes regulations regarding STATE HOMES.’’ The correct heading domiciliary care in proposed § 51.2 domiciliary care, with clarifications of part 51 until this rulemaking becomes requires clarification. We have, regarding the care that State homes must final is, ‘‘PER DIEM FOR NURSING therefore, added to it a description of provide to veterans in domiciliaries. HOME CARE OF VETERANS IN STATE what constitutes ‘‘necessary medical DATES: This rule is effective on HOMES.’’ The notice of proposed services’’ for purposes of State home December 28, 2018. rulemaking neglected to include domiciliary care, which are the services described in subpart E of this FOR FURTHER INFORMATION CONTACT: amendatory language proposing to rulemaking. This updated definition, Dr. George F. Fuller, Chief Consultant, change the heading of part 51. We are along with the revisions to the proposed Geriatrics and Extended Care Services correcting this omission by adding that domiciliary care requirements under (10NC4), Veterans Health amendatory language and the revised subpart E of this rule, described in Administration, 810 Vermont Avenue heading of part 51 below as amendatory detail below, allows a user to tell NW, Washington, DC 20420, (202) 461– action 3. We have renumbered all whether a State home program fits the 6750. (This is not a toll-free number.) subsequent amendatory instructions accordingly. definition of domiciliary care. SUPPLEMENTARY INFORMATION: On June A commenter said VA may need to 17, 2015, VA proposed changes to parts Subpart A—General clarify the definition of domiciliary care 17, 51, and 52 of title 38 Code of Federal regarding whether domiciliary care is a 51.1 Purpose and Scope of Part 51 Regulations. 80 FR 34794. VA published temporary or permanent living technical corrections to the proposed We have changed ‘‘rules’’ to arrangement so State homes could rulemaking on June 24, 2015, 80 FR ‘‘requirements’’ in the sentence of § 51.1 assess whether their programs meet the 36305. This final rule amends part 17 by beginning, ‘‘Subpart C sets forth definition. The commenter said that deleting provisions that applied to State requirements governing . . . .’’ The State home domiciliaries offer different home hospitals, because there no longer term ‘‘rule’’ is commonly used as a types of programs, including retirement, are any, and moving to part 51 the other synonym for ‘‘regulation’’ in federal independent living, transitional care, or provisions that apply to State homes, rulemaking, as in the ACTION heading permanent care programs. VA received including State home domiciliary care of this rulemaking. Avoiding its use in other comments raising similar concerns programs. It revises part 51 subparts A, the text of a regulation eliminates a about State homes’ abilities to provide B, and C to eliminate redundancy in the possible point of confusion. The term transitional care in domiciliaries under regulations governing the payment of ‘‘requirements’’ better describes the the proposed rules. per diem to State home nursing home, function and scope of the regulations in VA declines to change the definition domiciliary, and adult day health care subpart C of part 51. of domiciliary care to differentiate programs by combining similar between temporary and permanent regulations from part 17 and part 52. It 51.2 Definitions services. We believe the revised amends several sections of the nursing VA received comments related to the definition provides necessary guidance, home regulations in part 51 subpart D, definition of domiciliary care, and and also provides flexibility so that and adds subparts E and F on concerns that the proposed definition, State homes can operate many domiciliary care and adult day health in addition to the standards in subpart variations of domiciliary care within the care, respectively, to part 51. Because of E of the proposed regulations imposing definition, including transitional that, this rule eliminates the State home the entire nursing home program services, as long as the State home regulations from part 17 and part 52, regulations on the domiciliary care meets VA’s standards for per diem and combines in part 51 all the program, would impose unnecessary payment while the resident resides in regulations for a State home to establish and costly burdens on domiciliary the home. The changes to the definition and maintain qualification for receipt of programs that are inconsistent with of domiciliary care in § 51.2 and to the VA per diem payments. their purpose and that would replicate domiciliary requirements in subpart E of We invited interested parties to nursing home care. Several commenters this rulemaking should resolve the submit written comments on the stated some States may have to close issues raised by this comment. We

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61251

therefore make no changes based on and to submit additional evidence with current regulation, § 51.30(e), requires these comments. that response. The paragraph neglected the Under Secretary’s decision to be Although not defined in this section, to identify to whom the State home is written. We omitted this requirement we noticed the terms ‘‘treatment plan,’’ to submit the response or additional from the proposed regulation. ‘‘care plan,’’ and ‘‘plan of care’’ are used evidence. We are adding language to the We are removing the second sentence inconsistently throughout the proposed end of § 51.20(b)(3)(ii) providing that of proposed § 51.20(d)(2), which regulations to refer to the same thing: the State’s submission of a response to provided that changes in the use of The regimen of care based on a a recommendation to not recognize a particular beds between recognized comprehensive assessment that is State home is to the Under Secretary for programs of care and increases in offered in all State home programs of Health. This is consistent with current capacity that are not the result of the care. We changed all instances of these § 51.30(d), which provides for appeal expansion of the size of a home or terms to ‘‘comprehensive care plan,’’ from a recommendation against relocation to a new facility will not which is also consistent with the recognition, and inclusion of additional require recognition. Those changes are regulations in part 51 that are not material with that appeal. This is not a the subject of § 51.30. We are adding ‘‘or changed by this final rule. change from the current regulation; it capacity’’ following ‘‘size’’ in the We are also removing ‘‘primary merely fills a gap in the proposed remaining sentence of this paragraph to physician’’ from the definition proposed regulation. be clear that a recognized state home as ‘‘primary physician or primary care We are further clarifying paragraph only needs a new recognition if there is physician,’’ and changing all references (b)(3)(ii) and multiple other proposed an expansion in the physical size of the to ‘‘primary physician’’ to ‘‘primary care provisions of part 51 that measure time home, increased in the number of physician’’ throughout part 51. by qualifying the 30 days as ‘‘calendar’’ persons served, or relocation to a new Proposed part 51 had used each about days. As proposed, part 51 facility. So, we do not need to explain the same number of times. Though they inconsistently qualified the measure of in § 51.20 that the section on mean the same thing, we think this part time. We believe this inconsistency certification, § 51.30, addresses any would be clearer if the definition invites confusion. Qualifying time in changes that do not involve such an defines a single term and uses that term calendar days generally provides expansion or relocation. This is not a consistently. certainty to the time allowed in substantive change. provisions that prescribe deadlines. 51.30 Certification of a State Home Subpart B—Obtaining Recognition and There are three exceptions in part 51 Certification for per Diem Payments that measure time in ‘‘working’’ days. In § 51.30(a) and throughout part 51 wherever proposed, we are changing 51.20 Recognition of a State Home These codify long-standing practice with which VA and the State homes are ‘‘within’’ as it pertains to numbers of In §§ 51.20 and 51.30 of the proposed accustomed. These are days to ‘‘no later than.’’ We believe one rule, we used some terms that make §§ 51.30(d)(1)(iii), time to provide a can be unsure whether ‘‘within’’ sense applied to residential programs— corrective action plan; 51.320(a)(4), time includes or excludes the last day of the nursing home and domiciliary—that do for a domiciliary care program to report period. ‘‘No later than’’ more clearly not make sense applied to adult day a sentinel event; and 51.430(a)(3), time includes the last day of the period. If the health care programs. For example, for an adult day health care program to regulation provides, as in § 51.30(a) for ‘‘beds’’ is a useful term when referring report a sentinel event. example, that something be done no to the number of residents in a nursing We are clarifying proposed § 51.20(c). later than 450 days after an event one home care program or a domiciliary care As proposed, the paragraph provided, can be sure on day 451 the deadline has program, but not when referring to the ‘‘After receipt of a recommendation been missed. number of participants in an adult day from the Director, the Undersecretary VA is eliminating from proposed health care program, which has no for Health will award or deny § 51.30(c) the provisions that would overnight operations. We have, therefore recognition based on all available have allowed precertification when revised §§ 51.20 and 51.30 to speak of evidence.’’ Though it seems implicit, State homes switch capacity between ‘‘capacity’’ of a program or facility, the proposed regulation does not programs of care or increase capacity in rather than of ‘‘beds.’’ explicitly say that ‘‘all available a program of care. On further We are changing proposed § 51.20(b) evidence’’ included any evidence the consideration, we have determined that to explicitly include applicable State home submits during the 30 the regular surveys described in requirements in subpart C in the list of calendar days the preceding paragraph paragraph (b) of this section are frequent requirements and standards that VA allows for submission of a response or enough, and the provisional may evaluate in a survey of the State additional evidence. To make the certification process holds the State home. Subpart C contains requirements regulation explicit, we are adding to homes accountable enough, that the regarding eligibility, payment rates, and paragraph (c), following ‘‘Director,’’ the precertification process adds complexity payment procedures that apply to State following: ‘‘and allowing 30 calendar with little benefit. Deleting it eliminates home programs of care. We do not days for the state to respond to the an administrative burden on the State consider this a substantive change, recommendation and to submit homes and on VA. We are, therefore, because State homes would clearly need evidence . . .’’ As revised, the sentence deleting the precertification provisions to comply with subpart C under the reads, ‘‘After receipt of a in proposed § 51.30(c)(1). proposed rule. This change makes recommendation from the Director, and One commenter applauded proposed § 51.20(b) complete regarding the scope allowing 30 calendar days for the state § 51.30(c)(2), which eliminated the of surveys. to respond to the recommendation and requirement that VA perform a new We are clarifying proposed to submit evidence, the Under Secretary survey of a program upon reduction of § 51.20(b)(3)(ii). As proposed, the for Health will award or deny the capacity of that program. We have paragraph provided for the State home recognition based on all available retained this provision, but have to respond to a medical center director’s evidence.’’ We are also adding ‘‘in redesignated it as § 51.30(c). For recommendation to the Under Secretary writing’’ at the end of the second administrative convenience, in this final for Health to not recognize a state home sentence of paragraph (c) because the rule we have changed the destination to

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61252 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

which the State home must send its are complete without that proposed record of keeping veterans out of report regarding decreases in capacity to provision. hospital emergency rooms and the Office of Geriatrics and Extended hospitalizations; they care for veterans 51.31 Surveys for Recognition and/or Care in VA Central Office, from the who would otherwise be Certification Director of the VAMC of jurisdiction, as institutionalized in a nursing home. proposed, which will keep the We have changed proposed We explained in the proposed rule regulations consistent with longstanding § 51.31(b)(1). We proposed, as a that VA would not pay different rates of practice. requirement for VA to conduct a per diem to State home adult day health VA is clarifying the function and recognition survey, that a State home care programs that provide medical purpose of the provisional certification nursing home care program or supervision than to those that do not. provisions of proposed paragraph (d)(1). domiciliary care program must have at We proposed to expand the definition of The paragraph serves two purposes: (1) least 21 residents or have a number of adult day health care, which had To allow the State home to receive per residents consisting of at least 50 previously allowed only for the medical diem payments while correcting percent of the resident capacity of the model of care, to afford State homes the deficiencies a survey reveals, and (2) to home. We have reduced the residency flexibility to offer a social model of care, ensure VA does not pay per diem if a number requirement from 21 to 20, and thereby expand availability of adult survey reveals a deficiency that is an while keeping the 50 percent day health care to more Veterans immediate hazard to health or safety so alternative. We are making this change throughout the country. Though a State great, and the need to remediate so to facilitate recognition of homes using home may still choose to provide urgent, it is unreasonable to continue the small house model which is based medical supervision, and must meet the per diem payments during the time on facilities of 20 beds. standards in § 51.445 if it does, the We have removed ‘‘the Assistant until the next survey. method for calculating per diem Deputy Under Secretary for Health Specifically, VA is amending payments will remain the same (10N);’’ from the list in paragraph (c) of regardless of the type of care provided. proposed § 51.30(d)(1)(ii), which would persons the director of the VA medical If the veteran needs more medical care not allow VA to grant a provisional center of jurisdiction must notify upon than the adult day health care program certification if the State home is finding an immediate threat to safety in can provide, the State home must deficient in a standard that would a State home. Through reorganization, transfer the veteran to another jeopardize the health or safety of any Veterans Health Administration no appropriate care program. Even if VA resident or participant. Because almost longer has an officer with exactly that were to implement, under 38 U.S.C. all of the standards in these regulations title. The other listed VA offices are 1741, different rates for adult day health are aimed at promoting the health and sufficient to accomplish the necessary care programs that provide the medical safety of State home residents and oversight of State homes. Consequently, model of care, the payment would still participants, the regulation as proposed we remove the named VA officer be subject to the statutory limit of no would prevent VA from issuing most without substitution of another. more than one half of the cost of the provisional certifications, frustrating the veteran’s care. 38 U.S.C. 1741(b). We Subpart C—Requirements Applicable to purpose of provisional certifications. point this out on the assumption that Eligibility, Rates, and Payments Though some commenters favored the commenter is seeking a payment tier imposing the strictest possible State We are revising the proposed heading that provides higher payments for home compliance with all regulations, of subpart C by inserting ‘‘Requirements medical model participants than the VA believes a provisional certification Applicable to’’ before ‘‘Eligibility, Rates, current per diem payment, and not a scheme resulting in frequent denial of and Payments’’, to read, ‘‘Subpart C— lower payment tier for social model provisional certification is not in the Requirements Applicable to Eligibility, adult day health care participants. best interest of State home residents. Rates, and Payments’’. As revised, the Because the statute describes the Consequently, we clarify that the heading describes the function and maximum basic per diem payment as a deficiencies for which VA will grant scope of subpart C better than the percentage of the cost of care, and provisional certification are only those proposed heading. because we see no value in tiered that will not jeopardize the health and 51.40 Basic per Diem Rates payments merely for the sake of tiering, safety of Veterans before the State home we make no change based on this can remedy them. We are, therefore, In proposed subpart F, VA proposed comment. adding the word ‘‘immediately’’ so that changes to requirements for State home We note that since the publication of this provision reads, ‘‘None of these adult day health care to reduce the VA’s proposed rule in June 2015, the deficiencies immediately jeopardize the requirements for medical supervision in President signed into law the State health or safety of any resident or the programs. VA received comments Veterans Home Adult Day Health Care participant.’’ that VA should establish a two-tier per Improvement Act of 2017. VA is VA is eliminating the provisions that diem payment system for adult day working to implement this new were proposed as § 51.30(d)(3), which healthcare programs under § 51.40(a) authority; if any further revisions in detailed how VA would issue additional because of the higher cost of providing these regulations are needed because of provisional certifications to a State medical supervision and the lower cost this recently enacted legislation, VA home that already received a of programs that do not. The will make them through subsequent provisional certification. VA has commenters said that failure to provide rulemaking. determined that the proposed procedure separate rates for programs that offer Another commenter addressed the is inconsistent with VA’s practices of medical supervision and for those that cost of providing ‘‘primary care, medical working with State homes on corrective do not will negatively affect State homes services, and preventative care to action plans to ensure the programs are providing adult day health care services domiciliary residents while restricting brought into compliance with these with medical supervision and the the payments to ‘less than one half of regulations under one provisional veterans these programs serve. They the cost of care’ ’’ as inequitable and certification. The provisional noted the current medical supervision unrealistic. The commenter asserted the certification procedures in this final rule style of programs has a significant track current reimbursement structure does

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61253

not always cover the cost of the required correction and clarification, 80 FR absences from the domiciliary for care, and that the proposed new 36305 (June 24, 2015), acknowledging reasons other than hospitalization. regulations would introduce more that VA omitted § 51.41 from the initial VA agrees that domiciliary residents bureaucracy and ‘‘paper work’’ costs notice of proposed rulemaking require a different level of care and have and shift the cost and much of the proposing the rules this rulemaking more independence than nursing home responsibility for the health care of finalizes. The notice of correction stated residents, and imposing the same domiciliary veterans from VA to the VA is not amending § 51.41 in this requirements for absences would State homes. rulemaking, consequently comments impose an unfair burden on By law, the basic per diem rate cannot based on it are beyond the scope of this domiciliaries. State home domiciliary exceed one-half the cost of the veteran’s rulemaking. We make no changes based care programs are typically below 90 care in the State home. As such, per on this comment. percent of capacity, but VA nonetheless diem payments are not intended to Commenters objected that VA believes that it is important to pay per serve as a reimbursement for all the proposed to apply the same rule to diem during short absences to ensure costs of the care provided to veterans. payment of per diem for veterans absent that veterans who choose to take brief We make no change based on this from State home domiciliaries as it absences do not lose their spaces in comment. applies to payment of per diem for State home domiciliaries. We agree that The per diem program does not shift veterans absent from State home nursing the 12-day cumulative absence rule is costs of care or the responsibility for homes. As proposed, § 51.40(c) would impracticable and overly burdensome providing health care from VA to the for domiciliary care programs for the allow VA to pay per diem for a day State homes. Domiciliary care has long same reasons. In fact, even a 24-day without an overnight stay if the State included all ‘‘necessary medical rule, as one commenter requested, home domiciliary had an occupancy of services’’ which essentially includes all would allow less time away per year rate of 90 percent or greater on that day. outpatient care. See § 17.30(b). So, by than the 96-hour rule some commenters The per diem payments would be limiting the care that State home recommended. Consequently, we are limited to the first 10 consecutive days domiciliaries are required to provide, removing both the 90 percent and the the veteran was admitted to any hospital this rule could be seen as shifting the 12-day requirements from the final rule. and the first 12 days in a calendar year cost and responsibility for most medical We are instead codifying the 96-hour for absences other than for the purpose services to VA. Regarding additional rule for absences from domiciliaries in of receiving hospital care. Specifically, bureaucratic paper-work costs due to § 51.40(c), as it is currently in VHA the commenters objected to the this rulemaking, the commenter did not Directive 1601SH.01. Under this rule, requirement that the State home identify any specific provisions that VA will pay per diem for any absence domiciliary care program be filled to 90 would have that effect. We refer the from the domiciliary of 96 or fewer percent of capacity before VA will pay commenter to the discussions consecutive hours, unless the absence is per diem for a veteran’s absence. One throughout this supplementary for hospital care at VA expense. VA will comment said the requirement would information describing multiple changes not pay per diem for any absence that have a major financial impact on State from the proposed rules this final rule lasts longer than 96 hours. makes to reduce administrative and home domiciliaries, and that the limit To effect these changes, we are other costs. For example, see the for payments of 12 days in a calendar revising the paragraph into two discussion of changes from proposed year for absences other than for hospital paragraphs: (c)(1), ‘‘Nursing homes’’ and § 51.300. We make no change based on care would adversely affect the (c)(2), ‘‘Domiciliaries.’’ this comment. residents’ quality of life. One The same commenter expressed commenter requested VA allow 24 days 51.41 Contracts and Provider difficulty keeping track of the services of leave other than for hospital care, Agreements for Certain Veterans With covered by the different per diem arguing this would be good for the Service-Connected Disabilities payments. The commenter expressed resident and consistent with the As published in a notice of correction the desire that VA publish a capacity for independence of and clarification, 80 CFR 36305 (June comprehensive list of services covered domiciliary residents. Another asserted 24, 2015), this rulemaking as proposed by the nursing home, domiciliary, and the regulation was vague as proposed inadvertently omitted instructions for adult day care per diem payments for and needed clarification. The § 51.41. VA did not intend to propose veterans with service-connected commenter noted the proposed any changes to that section, and we disabilities rated 70 percent or 100 regulation omitted the ‘‘original’’ make none in this rulemaking. We have percent disabling. requirement that a resident not be provided amendatory language for Per diem under 38 U.S.C. 1741 is paid absent from a State Home for more than subpart C to ensure inclusion of § 51.41 under a VA grant program. VA makes 96 consecutive hours for the Home to in 38 CFR part 51, and have added the payments to the States to support receive per diem for that veteran, but § 51.41 to the table of contents. the care of veterans in State homes; it is the proposed section now states that per not ‘‘coverage’’ for specific services, like diem will be paid only for a veteran 51.42 Payment Procedures insurance. The States must meet certain who has an overnight stay, or if the As proposed, § 51.42(a) read as a 147- standards as a condition of receiving VA State Home has an occupancy rate of 90 word sentence. We have revised it to per diem to ensure the State home percent or greater on that day. This read as three sentences for clarity. We provides for the health, safety, and well- commenter pointed out that domiciliary have also revised the proposed note to being of veterans in its care. The rate of residents are independent and may paragraph (a)(1)(i), redesignated ‘‘Note per diem paid for the nursing home care choose to spend time away from the 1,’’ to clarify who must complete the of veterans with service-connected State home, which needs to guarantee financial disclosure and that adult day disabilities rated 70 percent or more is their accommodations will be available health care participants are not to the subject of § 51.41, Contracts and when they return and should be complete the financial disclosure, but provider agreements for certain veterans reimbursed for that. These commenters they must sign the form to acknowledge with service-connected disabilities. VA said VA should continue the ‘‘96-hour’’ financial responsibility. As revised, the published a notice of proposed rule; rule for payment of per diem during note also makes clear that VA will reject

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61254 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

the form as incomplete if submitted eligibility criteria include the ability to receiving per diem, § 51.58 would be without the required signature. personally participate in the incomplete without it. VA had proposed expanding the maintenance and operation of the State 51.140 Dietary Services deadline for VA to receive the forms home. The addition also harmonizes from the State home identified in this this eligibility criterion with the role of This rulemaking makes a technical section from 10 days to 12 days. The resident work in the domiciliary care amendment to § 51.140(a)(2) that was statute only allows 10 days, and we program as prescribed in §§ 51.300 and not in the proposed rule. The paragraph have no authority to allow a longer time. 51.310. The specific work the resident refers to the ‘‘American Dietetic 38 U.S.C. 1743. VA will therefore chooses will be by agreement with the Association,’’ which changed its name maintain the 10-day deadline in this interdisciplinary team that develops the to the ‘‘Academy of Nutrition and final rule by changing 12 to 10 in resident’s comprehensive care plan, and Dietetics.’’ This rulemaking updates that paragraph (b)(3) of this section. As the resident will be paid a competitive name. discussed above, we are qualifying the wage if the facility would otherwise pay Subpart E—Standards Applicable to the time as 10 ‘‘calendar’’ days and defining a non-resident for such work. There is Payment of per Diem for Domiciliary the time limit as ‘‘no later than,’’ rather flexibility in how this may be Care than ‘‘within’’ as proposed, and adding implemented, as reflected in ‘‘after care began’’, consistent with the §§ 51.300(b) on residents’ rights and VA received comments asking VA to statute. We have also made minor behavior and 51.310(c) on collaborate with national associations technical edits to this section. We have comprehensive care plans, respectively. representing State homes to revise the changed the heading of paragraph (b)(2) Multiple commenters commented the proposed regulations regarding of this section by deleting ‘‘or State home should pay residents for domiciliary care and to retain the prior precertified,’’ because, as described work. Another objected to application domiciliary rules in the interim, rather above, § 51.30(c) will not establish a through proposed § 51.300 of the than implement the proposed rules. precertification procedure. We have nursing home regulation, § 51.70(h)(1), VA is grateful to the State homes, and deleted the first sentence of paragraph permitting a resident to refuse to work. to all parties who submitted comments (b)(2) of this section for the same reason. This commenter asserted the State home on this rulemaking. The rulemaking should require each resident to work. In process we have followed allows all 51.51 Eligible Veterans—Domiciliary consideration of these comments we are members of the public to have a fair Care revising proposed § 51.300 to require opportunity to participate in the One commenter said that proposed each resident’s comprehensive care plan rulemaking process, as the § 51.51(b)(7) is ambiguous in requiring to specify whether a resident’s work for Administrative Procedure Act requires. that a veteran must be able to ‘‘[s]hare the domiciliary is paid or unpaid. 5 U.S.C. 553. VA has considered all in some measure, however slight, in the comments it received, including the maintenance and operation of the State 51.52 Eligible Veterans—Adult Day comments about the effects of the home’’ to be eligible for VA per diem Health Care proposed domiciliary regulations payments, and this provision could We have made non-substantive submitted by national associations and violate the protection from involuntary technical revisions to paragraph individual State homes, and is making servitude of the thirteenth amendment § 51.52(d)(3)(ii). As proposed, this substantial changes to the domiciliary of the U.S. Constitution. provision may have been interpreted as regulations in this final rulemaking. We We disagree with the assertion that requiring a minimum of 24 visits, 12 therefore decline to retain the prior paragraph (b)(7) compels involuntary outpatient and 12 emergency, to be rules on per diem payments to servitude. Residency in the State home considered as a high user of medical domiciliaries while developing new domiciliary care program is itself services and thereby establish eligibility regulations, but we welcome continuing voluntary. Any resident may leave. for adult day health care per diem feedback and opportunities to work Paragraph (b)(7) describes an ability payments. We intended 12 visits total, with the State homes to improve that, with the other eligibility criteria, whether outpatient, emergency, or some services to veterans. ensures the enrollees on whose behalf combination, and have changed the § 51.300 Residential Rights and VA pays per diem are appropriately in provision in this final rulemaking to Behavior; State Home Practices; Quality a domiciliary care program, and that VA clarify that. pays the State home domiciliary care of Life per diem only for such residents. 51.58 Requirements and Standards VA received a number of comments Moreover, under revised § 51.310(c), the Applicable for Payment of per Diem about § 51.300, which, as proposed, veteran is consulted and must agree to We are changing the heading of would have applied to State home the work arrangement described in his § 51.58, as shown, consistent with the domiciliaries the requirements of or her comprehensive care plan, and changed heading of subpart C, discussed §§ 51.70, 51.80, 51.90, and 51.100. § 51.300(b) requires that the resident be above, and other references to subpart C These regulations provide standards paid for work that the State home would in this part. Similar to the change that apply to State home nursing home need to pay others to perform. Together described above in § 51.20(b), we are resident rights; admission, transfer and these provisions protect residents from changing proposed § 51.58 to make discharge rights; resident behavior and involuntary servitude and from a State explicit in the introduction that State facility practices; and quality of life. In home otherwise taking unfair advantage homes must meet the requirements of response to these comments and for of the resident through its work subpart C to receive per diem payments. other reasons, we have revised proposed program. Subpart C contains the eligibility 51.300 so it does not apply to the Based on this comment, however, we requirements, payment rates, and domiciliary care program all of the are revising paragraph (b)(7) to read, payment procedures that apply to all nursing home regulations we proposed ‘‘Participate in some measure, however State home programs of care. Although to apply. We have changed the slight, in work assignments that support we do not consider this a substantive introduction to § 51.300 to specify the maintenance and operation of the change, because the provisions of which provisions of the nursing home State home.’’ This makes clear the subpart C clearly apply to State homes sections will not apply to the

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61255

domiciliary care program. Discussion of programs, including potential closures, paragraphs of each. From § 51.70, we are the specific comments and changes to which would have an especially excluding § 51.70(b)(9), (h)(1), and (m); § 51.300 follow. negative effect on the homeless from § 51.80 we are excluding Five commenters opined that population that some domiciliary care § 51.80(a)(2), (a)(4), and (b); and from compliance with §§ 51.70, 51.80, 51.90, programs widely serve. Commenters § 51.100 we are excluding § 51.100(g)(2), and 51.100 may seem reasonable as they said the proposed rules would treat (h), and (i)(5)–(i)(7). We have added pertain to veterans’ treatment and rights. otherwise homeless residents as patients provisions using the same or They asserted, however, that and would medically institutionalize substantially similar headings as the compliance with these sections also them, whereas the traditional excluded paragraphs and added imposes additional, extensive ‘‘nursing domiciliary model encourages self- provisions in language similar to the home’’ standards on the domiciliary reliance. Some commented that nursing excluded provision, adapted and programs, creating new requirements home standards would increase the tailored to the needs of the domiciliary that are not feasible under current nursing requirements for assisted-living care program. For the most part, these operation and staffing models. The domiciliaries. Some said that these changes implement changes commenters noted, for example, that requirements amounted to an unfunded commenters recommended or eliminate § 51.70 contains 14 major sections and mandate. Some said VA should either burdens commenters identified. multiple subsections of requirements, increase the per diem payment for Some commenters approved of the whereas the existing domiciliary care domiciliary care, or eliminate or reduce proposed application of nursing home program regulations have only one the requirements. regulations to domiciliary care standard ‘‘(13 Quality of Life).’’ The We disagree that any requirement in programs. They urged VA to apply all commenters asserted the other sections this rulemaking is an unfunded nursing home regulations to domiciliary to which § 51.300 refers are similarly mandate, even if compliance with some care programs. Some suggested specific burdensome, citing as another example provisions increases a State’s costs to changes to various provisions of the § 51.100 requirement that social run its program. An unfunded mandate, §§ 51.70 and 51.100 as we proposed to workers meet specific qualifications and or a ‘‘Federal intergovernmental apply them to domiciliary care that the domiciliary meet specific mandate’’ as defined in the Unfunded programs. The suggested amendments staffing requirements. Mandates Reform Act of 1995, is, in are addressed under the headings for We deduce that the commenters’ pertinent part, ‘‘any provision in those provisions. One suggested a citations of various ‘‘existing legislation, statute, or regulation that (i) substantial rewrite of §§ 51.70 and regulations,’’ e.g., ‘‘13 Quality of Life,’’ would impose an enforceable duty upon 51.100, which we discuss under the refer to provisions of the VA Guide for State, local, or tribal governments— Other Issues heading below. Inspection of State Veterans Homes: except (I) a condition of Federal A description of changes from the Domiciliary Care Standards (Nov. 26, assistance; or (II) a duty arising from proposed regulations follows. 1986) [hereafter 1986 Guide], because participation in a voluntary Federal 51.300(a) Notice of Rights and the citations are, verbatim, to headings program.’’ 2 U.S.C. 658(5). No Federal Services—Notification of Changes of standards in the 1986 Guide. We law imposes an enforceable duty on any disagree with assertions that the the States to have a State home. VA’s VA received comments that proposed regulations have many more per diem program is a benefit the United § 51.70(b)(9), Notification of changes, provisions than the 1986 Guide, and States affords veterans through the should not apply to domiciliary care with the implicit argument that more States. This rulemaking provides program residents. The comments said provisions means a greater burden of conditions of this VA assistance. Each that State homes do not currently notify compliance. First, the commenters State participates voluntarily. The cost families or legal representatives of comparison of § 51.70 with the 1986 of qualifying for VA per diem payments changes to the domiciliary residents’ Guide, which incidentally does not to State homes is not an unfunded medical status or room assignments. comprise regulations, misstated the mandate; it is simply a condition of They noted that the State home often differences. Section 51.70 is one section Federal assistance or a duty arising from asks the residents to move from rooms comprising 14 paragraphs, (a)–(n), participation in a voluntary Federal with multiple residents to single rooms which each have multiple provisions. program. We make no change based on based on availability and seniority, and Section 13 of the 1986 Guide, ‘‘Quality this comment. there is no need to inform family of Life,’’ comprises one section with six VA agrees that certain of the members in writing of such a change. standards, each with one to four requirements we proposed in § 51.300 One commenter further noted, ‘‘[T]here indicators of compliance, which in turn should not be applied to State home is no need to notify family members of each has as many as 13 elements, and domiciliaries, and we have made a changes in their medical conditions each standard one through six has a number of changes to that section in against their will in violation of their corresponding guideline paragraph. We response to the commenters’ Health Insurance Portability and further disagree that the number of recommendations. The standards VA Accountability Act rights,’’ and provisions defines the burden of will require State home domiciliary care domiciliary residents are independent compliance. The number of provisions, programs to meet under this final rule enough to oversee their own affairs. We as the commenters identify them, is an are those we have determined are interpret the comment referencing organizational device to aid readability. essential to the health, safety, and well- HIPAA to mean, if a State home were to It does not inherently correlate with the being of the residents and that will notify family members of changes in the burden of compliance. enable the State homes to continue resident’s medical condition over the The commenters also expressed providing services that foster veterans’ resident’s objection, that notice would particular concern about the cost of independence. To that end, VA will violate the resident’s rights under applying these sections to domiciliary apply some provisions of §§ 51.70, HIPAA, and therefore the proposed care programs that offer primarily 51.80, 51.90, and 51.100 to notice requirement violates HIPPA. transition services. Commenters said the domiciliaries, but we are excluding We agree that the requirement to proposed rules would have an adverse some and establishing more suitable notify a resident’s legal representative or financial effect on the domiciliary standards in the place of certain interested family member of changes to

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61256 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

the resident’s medical status or room each resident’s comprehensive care plan contract between State homes and VA assignment as § 51.70(b)(9) requires is describe the work the resident will requiring that State homes pay veterans not necessary for domiciliary care perform, that the facility consulted with Federal contract wages. The commenter program residents for the reasons the and the resident agrees to the work cites an invalid World Wide Web commenters stated. We do not address arrangement described in the address, https://www.dol.gov/ofccp/ whether the proposed notice comprehensive care plan, and that, if OFCCPRecoveryActPlan.htm, requirement would violate HIPAA the resident is paid for the work he or apparently referring to the Department because we are eliminating the she performs, payment will be at wages of Labor Office of Federal Contract requirement to notify certain people. that meet or exceed the prevailing wages Compliance Programs (OFCCP). State Instead, we have added a right to notice for similar work in the area. We have home compliance with VA per diem provision in § 51.300(a). In also included a provision to encourage regulations are not subject to the consideration of the comments for and the resident’s participation in vocational oversight of the Department of Labor against notice of certain outside and employment services, in addition to OFCCP. VA regulations on State home persons, we are making changes performing work. domiciliary residents’ work intended to balance these conflicting VA received a comment saying that requirements are not Federal contracts, concerns. Paragraph (a) of this section prevailing wages are not currently paid either between VA and the State homes will provide that the domiciliary for participation in work therapy or or between VA and the residents, and resident will have the right to decide volunteer programs. It’s unclear whether they do not subject the States to Federal whether to have the State home notify the commenter means that State home contract law. We make no change based other people of changes to the resident’s domiciliaries should have authority to on this comment. medical status or room assignment. pay residents some other wage, or whether they should have authority to 51.300(c) Married Couples 51.300(b) Work not pay residents for their work. VA We received comments objecting to VA received comments objecting to believes a resident may perform the proposed application to the applying to domiciliaries via proposed volunteer work designed for its domiciliaries of the nursing home § 51.300 the nursing home rule that therapeutic value, even if the nature of requirement from § 51.70(m), which allows residents to refuse to work in the work is not one that an outside provides married couples have the right § 51.70(h)(1). A commenter said that worker would typically be contracted to to share a room if they live in the same work programs allow residents to perform. VA also believes, however, that facility and both agree. One commenter participate in their independent living domiciliary residents are entitled to fair noted that it operates one of the oldest communities and provide valuable payment for the work they perform for State homes in the country and lacks the therapy and skills for residents who will the maintenance and operation of the space or proper facilities to provide leave the facility. In contrast, VA also State home if the home would otherwise married living quarters in the received comments that supported the hire non-residents to do the work. This domiciliary, and to do so would need proposed right to refuse to work for distinction protects the residents from renovations and the possible domiciliary residents. being used under the guise of therapy to displacement of some unmarried We agree that sharing in some portion reduce the State homes’ operating costs residents. In contrast, one commenter of the work to maintain the domiciliary by substituting residents’ labor for labor supported the requirement that State is an essential part of domiciliary care it would ordinarily hire at the prevailing home domiciliary care programs programs. By longstanding practice, in wage in the local labor market. VA receiving VA per diem payments must the absence of comprehensive State applies similar rules regarding work provide shared living quarters for home domiciliary regulations, State therapy to its own domiciliary and married veteran residents who wish home domiciliary care programs have nursing home residents, and we see no them and who each meet the eligibility followed the same work requirement difference between VA and State home criteria for the program. that applies to eligibility for VA’s programs to suggest residents should be We agree that buildings might not domiciliary care program in § 17.46(b). paid different wages when doing work always be able to accommodate married As described above, VA has adopted a for which the State homes must pay. To living quarters; however, there are ways requirement in § 51.51(b)(7) that to be make clear that State homes must pay that the State Home can make eligible for per diem payments for State residents the prevailing wage to perform accommodations for married couples to home domiciliary care the veteran must work the State home would have have private space, even if temporarily. be able to participate in some measure, otherwise hired non-residents to To accommodate the physical space however slight, in work assignments perform, we revised paragraph (b)(3) to limitations of certain State homes, but that support the maintenance and read as follows: ‘‘Compensation for establish responsibility for programs to operation of the State home. We have, work for which the facility would pay honor such requests to the extent therefore, also changed § 51.300 to a prevailing wage if done by non- possible, we have added § 51.300(c). eliminate the nursing home rule residents is paid at or above prevailing This paragraph restates § 51.70(m), regarding the right to refuse work that wages for similar work in the area where inserting ‘‘if space is available within VA had proposed to apply to State home the facility is located’’. the existing facility’’ after ‘‘has the domiciliary residents. As revised, VA received comments saying the right’’ and adding the following § 51.300(b) now states explicitly, in part, domiciliary residents should be sentence: ‘‘If the State home determines ‘‘The resident must participate, based compensated for all work they perform. existing space is not available to allow on his or her ability, in some measure, VA disagrees; the work requirement married residents to share rooms, the however slight, in work assignments does not preclude unpaid volunteer State home will make accommodations that support the maintenance and work, such as keeping one’s room for the privacy of married residents.’’ operation of the State home.’’ To ensure orderly or other housekeeping chores that the work has therapeutic value, ordinarily to be expected of persons 51.300(d) Transfer and Discharge § 51.300(b) also requires that the State sharing a residence. We received comments that State home have a written policy to One commenter asserted VA’s State homes should have a concise procedure implement the work requirement, that home per diem regulations amount to a for discharge of residents to prevent

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61257

arbitrary discharge at the whim of that reason, it would be inappropriate to We have added § 51.300(d) in management. One commenter stated apply the nursing home requirements response to these comments. Regarding there needs to be reasons for discharge for discharge or transfer of a resident to the requirement to notify a legal and a right to contest the discharge in the circumstances of most domiciliary representative or family member, in a speedy way. The commenter was residents. § 51.300(d)(4) we have changed the particularly concerned about immediate We disagree with part of this regulation by eliminating the State discharges without any mechanism for comment. The structured, residential home’s requirement to notify and giving immediate review, resulting in the environment of domiciliary programs the resident the right to decide whether resident having to abandon property can foster personal and financial growth the state home notifies a legal and even personal effects. The and accountability that allows residents representative or family member. This is commenters said a VA representative as to leave domiciliary care programs similar to the changes we made in well as a resident should be part of the because of their improved § 51.300(a) regarding notifications about process to ensure that residents’ rights circumstances. We believe therefore that medical status and room assignment are not being violated. This comment it is appropriate to retain this provision changes. Regarding the 30-day advance pertains to the application of § 51.80, with respect to discharges due to notice of transfer or discharge, we Admissions, transfer and discharge improved circumstances. The comment disagree that the requirement is overly rights, to domiciliary care programs, revealed a gap in the proposed rule, burdensome. New paragraph under proposed § 51.300. however. Focusing on transfer or § 51.300(d)(5)(i) provides ample We agree that State home discharge because of improvement exceptions to the 30-day requirement to domiciliaries must have a clearly revealed the possibility transfer or afford reasonable flexibility. The 30-day identified process for admissions, discharge could be appropriate because notice requirement, with the exceptions transfers, and discharges, and we have the residents may have ceased to meet to make it practicable, affords the amended the introductory paragraph of one or more of the eligibility criteria of residents a reasonable safeguard against § 51.300 to require the State home § 51.51. For example, the veteran’s transfer or discharge without warning. domiciliary have a written policy on the annual income may have exceeded the 51.300(e) Notice of Bed-Hold Policy topic. Additionally, we have created maximum annual rate of pension. To fill § 51.300(a) to require the facility and Readmission—Notice Before this gap, we have added paragraph Transfer management to immediately inform the (d)(2)(vii) to the criteria for transfer or As proposed, § 51.300 would have resident when there is a decision to discharge in § 51.300 to read, ‘‘The applied the nursing home regulation on transfer or discharge the resident, and a resident ceases to meet any of the new paragraph (d)(6) to require the notice of bed-hold policy and eligibility criteria of § 51.51.’’ Section readmission, § 51.80(b), to domiciliary notice to include the resident’s right to 51.51 provides eligibility criteria, but it appeal and the contact information for care programs. Based on comments does not address whether those criteria the State long-term care ombudsman. asserting this to be overly burdensome apply only to the applicant, or also to These changes to the final rule give the in the domiciliary care context, we have the resident. It is inconsistent with the residents a more defined process for determined there is no need to apply the function of the eligibility requirements, discharge. We understand the detailed notice of policy requirements to to ascertain whether someone is suitable commenter’s reference to a VA domiciliary care programs that for the domiciliary care program, to representative to mean a VA employee. § 51.80(b) applies to nursing home care apply them at entrance and not during Involving a VA employee in this process programs. Domiciliary residents still residency. A resident who ceases to would impose an unnecessary burden need information about the availability meet an eligibility criterion would on State homes. We therefore make only of a bed if they return to the home from the changes described based on that certainly meet a criterion for transfer or a period of hospital care. To achieve comment. discharge. this, we have added paragraph (e) to We received a comment objecting to We agree with the commenter that it proposed § 51.300, which provides, the application to domiciliary care is also important to include a ‘‘The facility management must provide programs of the transfer and discharge requirement for when a resident needs written information to the resident requirements from § 51.80(a)(2)(ii). to be moved to a higher level of care. We about the State home bed-hold policy Section 51.80(a)(2) requires the facility have, therefore, excluded domiciliaries upon enrollment, annually thereafter, management to permit each resident to from complying with § 51.80(a)(2), and and before a State home transfers a remain in the facility, and not transfer instead establish domiciliary transfer resident to a hospital.’’ Additionally, we or discharge the resident from the and discharge requirements in have added as the first sentence of the facility unless [circumstances meet one § 51.300(d)(2), including the paragraph, ‘‘The State home must have or more of a list of conditions]. Among requirement in § 51.300(d)(2)(ii) that a written bed-hold policy, including the circumstances permitting transfer or residents be discharged if they need a criteria for return to the facility.’’ While discharge, § 51.80(a)(2)(ii) provides, higher level of long term or acute care. we agree with the commenters that the ‘‘The transfer or discharge is appropriate VA received comments objecting to domiciliary care program bed-hold because the resident’s health has the application in proposed § 51.300 of policy does not need the degree of detail improved sufficiently so the resident no the requirement of § 51.80(a)(4) to notify § 51.80(b) applies to the nursing home longer needs the services provided by a legal representative or family member care program, we believe there must be the nursing home.’’. The commenter of a transfer or discharge, and of the a policy. This is a logical corollary to distinguished domiciliary residents requirement of § 51.80(a)(5) to provide the requirement to provide a resident from nursing home patients, in that it is that notice 30 days in advance of the the bed-hold policy. While it may seem clear when nursing home patients no transfer or discharge. The commenters obvious that the State home must have longer need nursing home services, but said these provisions eliminate a bed-hold policy to notify a resident of not clear when domiciliary residents no flexibility necessary for managing an it, we believe the paragraph is clearer to longer need domiciliary care, and independent living environment and are explicitly require the State home to have domiciliary residents are not discharged inconsistent with the independence of a bed-hold policy. We also added a just because of improved health. For the residents. provision regarding a resident’s right to

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61258 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

decide whether to have the State home and that ‘‘[t]he State home must have a have eliminated them. We will not, notify others of the change. written policy on how it determines however, remove the closet space qualifications of social workers.’’ requirement, or waive it for older 51.300(f) Resident Activities, and (g) Paragraph (g)(3) provides that ‘‘[i]t is facilities. VA has demonstrated its view Social Services highly recommended, but not required, of the importance of this requirement by Several commenters addressed social that a qualified social worker is an including it among the requirements of worker credentialing for domiciliary individual with’’ the same qualifications its construction grant regulations. 38 care programs, which we discuss below. as those required for nursing home CFR 59.140, 59.150. A State may seek a In reviewing those comments, we social services providers. part 59 grant to assist it to bring older concluded the commenters’ reasoning One commenter noted the proposed facilities into compliance with these about social workers’ credentials applies regulation applying 51.100 to essential standards, or to replace as well to credentialing of therapeutic domiciliary care programs ‘‘references facilities that cannot come into recreation specialists in domiciliary care the number of required licensed social compliance, but VA will not programs. Unlike the nursing homes, workers for the state veterans’ home,’’ ‘‘grandfather in,’’ i.e., waive the the domiciliaries do not require a and that ‘‘clarity needs to be given as it requirement for, older facilities that credentialed or licensed professional to relates to requirements for Social currently lack the required closet space. oversee the residents’ activities. We will Workers assigned to the State Home To effect these changes, we have not apply the credentials provisions of Domiciliary.’’ restated the provisions of § 51.100(i)(1)– § 51.100(g) to the domiciliary care The regulation on the number of (4) in § 51.300(h), and omitted the program as proposed. To effect that social workers, § 51.300(g)(2), provides, provisions of § 51.100(i)(5)–(7) from change, we have amended the ‘‘The State home must have a sufficient § 51.300(h). introductory paragraph of § 51.300 to number of social workers to meet exclude § 51.100(g) and have added residents’ needs.’’ We interpret the 51.300 Other Comments § 51.300(f), Resident activities, to adapt comment to be asking how the required VA received comments saying we § 51.100(g) to the domiciliary care number of social workers specified for should not apply State home nursing program. As adapted, § 51.300(f)(1) nursing homes in § 51.100(h), Social home requirements to State home restates § 51.100(g)(1), and § 51.300(f)(2) services, applies to the domiciliary care domiciliaries that would require the provides, ‘‘The activities must be program. As the introduction to final domiciliary care programs to provide directed by a qualified coordinator.’’ § 51.300 states, 51.100(h) is among the services they do not now provide. The Section 51.300 applies no other nursing home provisions this final rule commenters specifically mentioned provisions of § 51.100(g) to the does not apply to domiciliary care access to an ombudsman. The domiciliary care programs. programs. Rather, § 51.300(g)(2) affords commenters distinguished between the VA received comments objecting to State homes flexibility in determining needs of nursing home residents, whom the proposed application of nursing the number of social workers they described as an elder, very home standards for social services from ‘‘sufficient’’ to meet the object of vulnerable population, and the § 51.100(h), Social services, to paragraph (g)(1). Additionally, though domiciliary residents, who do not have domiciliary care programs under § 51.300(g)(3) strongly suggests the State the same vulnerabilities. They said the proposed § 51.300. One commenter home use licensed social workers, domiciliary care program residents are objected only to the requirement of licensure is not required. able to tend to their own affairs, and an licensed social workers, another ombudsman is therefore not necessary. objected on the grounds that the 51.300(h) Environment VA also received comments asking proposed regulations mandate specific VA received comments objecting to VA to retain the proposed requirement qualifications and staffing requirements the application of § 51.100(i), that State home domiciliary residents that are not imposed upon domiciliary Environment, to the domiciliary care have access to an ombudsman. The programs currently. Another noted that program. These objected to the proposed commenters asked VA to appoint or the State homes employ licensed and closet space requirement and to require the State to appoint an unlicensed social workers, with the maintaining temperatures at 71–81 ombudsman or patient advocate. One latter providing only case management degrees Fahrenheit. They commented commenter said that decisions would be for domiciliary residents that do not that environmental requirements of less ad hoc, more thoughtful, and more require in-depth treatment, in keeping § 51.100(i) that have not previously considerate of residents’ welfare if an with a transitional model where the applied to domiciliary care facilities ombudsman were available. social worker’s job is to assist the would pose extraordinary challenges to We agree with the commenters who resident with transitioning out of the States operating older facilities that asked VA to require domiciliary care domiciliary. were not designed to meet these program residents to have access to an We agree the specific credential requirements. One commenter reported ombudsman. We disagree with the requirements of § 51.100(h) are not it would face significant and costly commenters who argue the relative necessary for State home domiciliary upgrades, especially to a 130 year old soundness of the domiciliary residents care programs. We have added facility, if VA finalizes the proposed compared to nursing home residents § 51.300(g) to provide more flexibility in rule. The commenter requested VA means the domiciliary residents do not social worker staffing for domiciliaries. ‘‘grandfather in’’ older facilities, need an ombudsman. VA makes no Paragraph (g) provides that ‘‘[t]he State permitting them not to make upgrades change to the proposed application of home must provide social work services to meet the § 51.300 environment the ombudsman requirement of to meet the social and emotional needs requirements. Another objected it could § 51.70(j) to domiciliary programs. As of residents to attain or maintain the not provide private closet space without some commenters pointed out, and VA highest practicable mental and ‘‘massive renovations.’’ believes, domiciliary residents face psychosocial well-being of each We agree that the temperature, sound, vulnerabilities and are entitled to have resident;’’ that ‘‘[t]he State home must and lighting requirements VA proposed an advocate outside the facility who is have a sufficient number of social are unnecessary for the health and well- able to advocate on their behalf or workers to meet the residents’ needs’’; being of domiciliary residents, and we mediate situations between State home

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61259

leadership and residents when The employment regulation the residents) be made known to the necessary. State homes are already commenter seeks would conflict with 38 residents and to the public. required to ensure that nursing home U.S.C. 1742(b), which prohibits VA We disagree with this suggestion. residents have access to the State long from having any authority over the Donations to the State home, and any term care ombudsman. Extending that management or control of any State disclosure, would be the subject of State protection to domiciliary residents does home. While a resident is free to apply law. All States have laws governing not require the State to create any new to any job, it is beyond the scope of this access to public records like this. If the position; it need only provide rulemaking to create ‘‘a new Federally commenter believes that State laws need domiciliary residents with access to an protected class of veteran[s].’’ Further, to be changed, we recommend that the existing State long term care as noted above, we would prefer to give commenter seek action at the State ombudsman and information how to the States discretion to hire whom they level. Requiring States to change their contact that ombudsman. Consistent consider the best qualified employees laws governing such access is beyond with the application of the § 51.70(j) for their Veterans. the scope of this rulemaking. Regarding ombudsman rule to domiciliary Regarding creation of protected the commenters concern about legacy residents, we are also adding paragraph classes under Federal civil rights law, accounts, current regulations governing 51.300(d)(6)(v) to require any notice of VA lacks authority to create protected residents’ funds are sufficient to transfer or discharge to include the classes of citizens under Federal civil regulate the State home’s handling of name, address, and telephone number of rights laws. Creation of the protected those funds. Current regulation, 38 CFR the State long term care ombudsman. class the commenter advocates would 51.70(c) Protection of resident funds, One commenter requested that out of require legislation. Current statute applies to domiciliary care programs sensitivity to the unique needs of prohibits VA authority over ‘‘the through final § 51.300. It provides for veterans, VA add to the quality of life management or control of any State the handling and accounting for a regulations under 51.300 a requirement home,’’ 38 U.S.C. 1742(b), and the resident’s funds on deposit with a State that State homes recruit and hire establishment of a ‘‘rating and home, including their final accounting veterans for all positions in the State employment system,’’ as the commenter and conveyance upon a resident’s death. homes, and where veterans are described it, seems very likely to The regulation also provides that each unavailable, require special training of amount to management contrary to that resident is to have personal control of non-veterans in ‘‘veteranology’’ [sic], statute. Even if VA had the authority to the resident’s funds, that the State home ‘‘or the study of veterans.’’ regulate as the commenter seeks, the cannot require the resident to deposit We decline to add the suggested commenter’s suggestions are beyond the the funds with the State home, that the requirement to the quality of life scope of this final rulemaking. We make State home account for the funds to the provisions of part 51. Though the no changes based on this comment. resident or to a resident’s legal commenter’s ideas about the value of representative, and that the state make One commenter noted a State home veteran employees or of special a final accounting and conveyance of provides transitional domiciliary care to education for non-veteran employees at funds to the individual or probate Veterans who are medically able to live State homes have merit, the requirement jurisdiction administering the resident’s fully independently, but who lack the sought would impose a substantial new estate or other appropriate entity. These financial means for subsistence. The personnel burden on the state homes, rules together are consistent with which may conflict with employment commenter said that the proposed treating the residents’ finances as a laws of these States. Rather than impose application of nursing home private matter, even after death. We this requirement on the States, we requirements for State home make no change based on this comment. would prefer to give the States domiciliaries would threaten the State discretion to hire the best employees for home’s ability to maintain this practice 51.310 Resident Admission, their Veterans. Further, the commenter’s ‘‘because the Veterans would not meet Assessment, Care Plan, and Discharge suggestion is beyond the scope of this the new requirements of domiciliary We have made multiple changes to final rulemaking. Consequently, we care,’’ potentially resulting in some § 51.310. Some are in direct response to make no change based on this comment. residents being without a housing comments, and some simply improve Nevertheless, we call upon the States to alternative. organization, clarity, and readability. consider the ideas of the commenter. Though we are not making any We have revised the heading to read, The same commenter urged VA to changes in response to this comment, ‘‘Resident admission, assessment, care require the States, as a condition of we should clarify that the new plan, and discharge’’, to be more receipt of VA per diem payments, to regulations do not change eligibility descriptive of the scope of the section. permit residents for whom VA pays per requirements for residents to require We have rearranged provisions, diem to apply for career professional that they be in need of nursing home grouping related provisions together and employment at State homes as a ‘‘civil care, nor will the rule change eligibility putting them in the sequence the State right.’’ The commenter requested requirements for any veterans receiving homes will generally apply them. This regulations providing specific domiciliary care. Furthermore, as reduces the number of paragraphs in the employment practices. The commenter discussed above regarding specific section from the proposed introduction further requested VA to establish by nursing home requirements, we are plus five paragraphs, (a) through (e), to regulation ‘‘a rating and employment easing the proposed application of introduction plus four paragraphs, (a) system whereby residents of US VA Per multiple nursing home requirements on through (d). We have inserted the words Diemed [sic] State Veterans Home State home domiciliaries. This final rule ‘‘medical and comprehensive’’ before Domiciliary Programs [sic] who are will not require Veterans to be displaced ‘‘assessments’’ in the introduction, and working professionals living in an SVH in the manner the commenter described. inserted ‘‘comprehensive’’ before Domiciliary Program while seeking Another commenter asserted that VA ‘‘assessment’’ throughout the section, to employment are registered as members should have regulations requiring all indicate they are different. The medical of a new Federally protected class of cash donations to a State home be made assessment informs the State home of veteran—‘the SVH Domiciliary Veteran- known to the residents, and that legacy the new resident’s medical status and Resident Career Professional.’ ’’ accounts (accounts of deceased immediate needs on admission. The

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61260 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

comprehensive assessment incorporates Further, for clarity and certainty, we have eliminated the proposed provision the result of the medical assessment and redesignated paragraph (b) to allow the that ‘‘physician orders may be builds on it by bringing together State home 14 calendar days after submitted when available’’ from multiple health professionals’ admission to complete the § 51.310(a), because it is essential to assessments of the resident’s physical, comprehensive assessment and know of immediate medical needs at the mental, and social needs. The redesignated paragraph (c) to allow 21 time of admission, and it is inconsistent comprehensive assessment, in turn, calendar days after admission to with the changes in this final rule. informs the comprehensive care plan. develop the comprehensive care plan. VA received comments saying the We discuss these assessments below. As proposed, § 51.310(d)(2)(i) required a requirement that the medical The introductory paragraph of § 51.310 treatment plan be ‘‘Developed within 7 assessment be performed by a physician introduces each of these assessments. calendar days after completion of the rather than a nurse is overly We have also added a last sentence to comprehensive assessment,’’ but there burdensome and unnecessary because the introduction, ‘‘The State home must was no deadline for the comprehensive domiciliary residents are generally in review comprehensive assessments assessment. Without a deadline for the better health and have fewer medical annually, and promptly after every comprehensive assessment, the needs than nursing home residents. We significant change in the resident’s proposed rule was uninformative and agree that a physician need not perform physical, mental, or social condition.’’ afforded poor guidance and no certainty the resident’s medical assessment upon This sentence adds no new requirement about when the treatment plan might be entering a domiciliary care program. We to the proposed admission, assessment, done. Compared to the proposed have therefore changed proposed and comprehensive care plan process. process from admission to care paragraph (a), Admission orders and Rather it clarifies the ongoing planning, these changes afford more medical assessment, to provide that ‘‘a relationship between the comprehensive overall flexibility while also providing physician, or other health care provider assessment and the comprehensive care more useful guidance to the State homes qualified under State law’’ must perform plan. and more certainty for the State homes the assessment. We have removed proposed paragraph Three commenters asserted that the and for VA. Also, we have added (b), which provided, ‘‘The State home unknown cost of having physician’s ‘‘annually, and as required by a change must use the results of the assessment orders for each resident’s immediate in the resident’s condition’’ at the end to develop, review, and revise the care and an assessment including of paragraph (b)(1). Though this restates resident’s treatment plan.’’ Initially medical history and physical a phrase of the introduction to § 51.310, proposed paragraph (c), ‘‘coordination examination within 72 hours of we feel it is necessary to avoid any impression that the paragraph (b)(1) of assessments,’’ is redesignated admission, as proposed § 51.310(a) paragraph (b) and renamed to place this requirement to do a comprehensive required, would be excessive. The provision in the context of assessment on admission contradicts the commenters compared the proposed comprehensive assessments. As requirement of annual and as needed requirements with the 1986 Guide, restructured, the section now flows comprehensive assessments in the which required that the domiciliary functionally from (a), admission and introduction. Paragraph (b)(2) describes provide and maintain a treatment plan medical assessment, through (b), the purpose of the comprehensive for each domiciliary patient. comprehensive assessment, to (c) assessment to distinguish it from the We partly agree and partly disagree. comprehensive care plan, and finally (d) medical assessment. We agree that 72 hours is not always discharge report. enough time to perform the assessment We disagree with the comment that VA received comments saying that the with medical history and examination. physician orders for immediate proposed global nursing home We have changed proposed § 51.310(a) treatment should not be required upon assessment tool is inappropriate for to allow 7 calendar days for the medical admission. Admitting a resident into a domiciliary care programs. One assessment, which is consistent with residential program with unknown commenter noted we based proposed VA practice for its domiciliary care current health needs is an unreasonable § 51.310 on § 51.110, which requires program and will provide the State risk, both for the patient and for other nursing home care programs to use the homes with ample time to perform an residents of the domiciliary, although Centers for Medicare and Medicaid assessment of the resident. We have we recognize that this recommendation Services Resident Assessment clarified that the assessment upon was made under the assumption that Instrument Minimum Data Set (MDS), admission is a medical assessment, VA would require doctor orders and the Version 3.0. The commenter asserted adding ‘‘and medical assessment’’ to the complete assessment no later than 72 the MDS 3.0 does not allow for paragraph (a) heading, to read, ‘‘(a) hours of admission. We have revised the assessing domiciliary residents. Admission orders and medical section to distinguish between the We did not propose using a global assessment.’’ This will distinguish this medical assessment required shortly nursing home assessment tool. It assessment from the comprehensive before or soon after admission and the appears the commenters misread the assessment identified in the subsequent comprehensive assessment, notice of proposed rulemaking, which introductory paragraph and in of which the medical assessment is part. specifically explained there is no paragraph (b). We have also added a last As changed, the paragraph allows 7 national tool for assessment of sentence to paragraph (a), ‘‘The medical calendar days after admission to domiciliary residents as there is for assessment will be part of the complete the medical assessment. This nursing homes. Our intent was to comprehensive assessment.’’ This clarification and other changes to this provide State homes with reasonable makes clear that a medical assessment is section provides the State homes with flexibility in conducting the assessment, part of the comprehensive assessment, more flexibility in completing the which is why proposed § 51.310 stated consistent with the inclusion of a medical assessment and makes the the assessment objectives and process physician among the practitioners listed physician orders requirement perfectly without specifying an assessment tool. among those to do the comprehensive reasonable in light of its importance. VA received a comment that in a State assessment described in paragraph (b) of Consequently, we decline to eliminate with a State-established required this section. the physician orders requirement. We assessment tool for domiciliary care,

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61261

VA’s assessment requirements would be psychosocial needs’’. In light of calendar days to complete the duplicative, resulting in additional, comments received and described above comprehensive care plan if the unreimbursed costs. The commenter about the role of mental health and comprehensive assessment is completed recommended VA allow each State to other specialty care services in in less than the time allowed. It also use its State required assessment tool domiciliary care, we feel a change in affords certainty about when the State and for VA to provide a tool for the use terminology would allow State homes to home will have a comprehensive care of States without a state-required tool. better understand and implement this plan for each resident. VA disagrees. Section 51.310(a) does provision. As changed, redesignated Proposed paragraph (d)(2)(iii), not require duplicative assessments, paragraph (c)(1) says the comprehensive redesignated paragraph (c)(2)(iii), though it could require the State to care plan is ‘‘to address a resident’s provided for periodic review and augment its assessment procedure. The emotional, behavioral, social, and revision of the comprehensive treatment introduction to this section requires the physical needs.’’ To allow care plan. We determined that final State home to establish in a written providers the flexibility to ensure the paragraph (c)(2)(iii) would provide policy how it will complete, implement, comprehensive care plan best reflects clearer guidance if it tied in with the review, and revise comprehensive each resident’s needs, we have also introduction of paragraph (c)(1). assessments. This allows the State home added to the last sentence of paragraph Towards that end, we have changed the sufficient flexibility to use its existing (c)(1) a provision that the periodic review and revision to be assessment tool if it produces an comprehensive care plan must describe ‘‘consistent with the most recent assessment with sufficient information the items listed, ‘‘as appropriate to the comprehensive assessment’’. With this about the resident’s emotional, resident’s circumstances.’’ change, paragraph (c)(2)(iii) reads, behavioral, social, and physical needs to We have deleted the reference to ‘‘Reviewed periodically and revised inform a comprehensive care plan § 51.350 in proposed paragraph (d)(1)(i), consistent with the most recent targeted as meeting those needs. We will ‘‘as required under § 51.350;’’. The comprehensive assessment by a team of not change the regulation to explicitly reference made sense as proposed, qualified persons no less often than provide that States may use any because § 51.350 would have applied all semi-annually’’. assessment tool it may have because of multiple nursing home regulations to We also determined that redesignated there would be no assurance that the domiciliary care programs. As revised, paragraph (c)(2) did not complete the assessments would be comprehensive § 51.350 does not apply most of those logical progression of the paragraph. enough. Nor is it practicable for VA to nursing home regulations to domiciliary The point of periodic review is to review States’ assessment tools for care programs, and removing the change the treatment plan if the review sufficiency, and then monitor them for reference is consistent with the reveals it needs to change. We believe continued sufficiency subsequent to any flexibility we intend final rule it is implicit in the § 51.310 revision. We do not require the State § 51.310(c)(1)(i) to allow. introductory requirement to reassess a homes to use an assessment tool We have also changed the reference to resident promptly after every significant specifically designed for nursing homes. ‘‘the resident’s exercise of rights under change in condition that the We require the assessment to be § 51.300, including the right to refuse comprehensive care plan must also adequate to inform the comprehensive treatment’’ in proposed paragraph change promptly in response to a care plan. We believe this section is (d)(1)(ii). As revised and redesignated significant change in the resident’s flexible enough to enable the State to paragraph (c)(1)(iii), the paragraph condition. Consequently, we have avoid the cost of duplicative reads, ‘‘Any services that would added ‘‘; and’’ at the end of final assessments, while providing for the otherwise be required under § 51.350 paragraph (c)(2)(iii), followed by new health and wellness of State home but are not provided due to the paragraph (c)(2)(iv), which reads, domiciliary residents. We make no resident’s exercise of rights under ‘‘Revised promptly after a change based on this comment. § 51.70, including the right in comprehensive assessment reveals a In response to comments on § 51.51 § 51.70(b)(4) to refuse treatment. This significant change in the resident’s about residents’ work in the State home change provides the reader a more condition.’’ as part of a comprehensive care plan, direct reference to the substantive Proposed paragraph (e)(3) did not discussed above, we have added provisions concerned. Though the state as well as we intended the paragraph (c)(1)(ii) to this section, proposed reference to § 51.300 is resident’s right to control whether to providing that a comprehensive plan correct, it is indirect. Reference to include a legal representative or must describe: ‘‘The specific work the § 51.300 requires the reader to ascertain interested family member in discharge resident agrees to do to share in the that § 51.300 applies § 51.70, so the planning. We have restated that point in maintenance and operation of the State reader must then look to § 51.70 for the redesignated paragraph (d)(2) as an home upon consultation with the substantive provisions. This change of affirmative right. interdisciplinary team, and whether that cross reference simplifies finding the work is paid or unpaid’’. This identifies provisions to which the paragraph 51.330 Nursing Care with whom the resident agrees to refers. One commenter requested perform certain work, and also that the In § 51.310, we changed proposed clarification of the statement in the agreement is about which work the paragraph (d)(2)(i), which would have supplemental information of the resident will do to share in the required the State home to complete a proposed rule that the nursing care maintenance and operation of the State comprehensive care plan within 7 required in domiciliary care programs home, not whether the veteran agrees to calendar days of completion of the ‘‘would be similar to what is required in do some work. assessment. As revised, redesignated nursing homes, except that we would We have changed the proposed paragraph (c)(2)(i) requires the State not require the same level of skilled description of the purpose of the home to develop a comprehensive care nursing supervision.’’ VA received comprehensive care plan. Proposed plan no later than 21 calendar days after comments that, as proposed, § 51.330 paragraph (d)(1) provided the admission. This lets the State home would require State homes to staff comprehensive care plan is ‘‘to address manage time and resources better, domiciliary care programs with the the resident’s physical, mental, and potentially allowing more than 7 same amount of nursing staff VA

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61262 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

requires State homes to provide for review the regulation, and to maintain We recognize the confusion about nursing home care programs. They a procedure for disallowing states from what is included in primary care, which commented that currently, State home the exemption if a change permitted an has resulted from the General Counsel domiciliary care programs require a unacceptable level of nurse staffing. opinion and the proposed rule, and licensed nurse as needed to meet the This is not a practicable scheme for VA. therefore clarify that we do not consider nursing care needs of the patient, citing We believe that if a state’s regulations primary care as including section 5E of the 1986 Guide, whereas require nurse staffing equivalent to the comprehensive mental health or the proposed rule would require a level VA considers minimally surgical services. We thus do not licensed nurse for each shift, every day, acceptable, the cost cannot be consider § 51.340 as requiring a State around the clock. The commenters said significantly different from the cost of home to provide domiciliary residents that requirement could increase their compliance with § 51.330, and the state either surgical or comprehensive mental costs for nursing supervision. would not realize any cost savings from health services—only to assist residents We agree the discussion was not clear the exemption. Consequently, we make with obtaining these services. See also about what ‘‘similar to’’ and ‘‘level of no change based on this comment. section 51.2 of this rulemaking, which supervision’’ meant. We also agree that One commenter asked whether defines domiciliary care as including the proposed requirement could result facilities with ‘‘co-located’’ domiciliary ‘‘necessary medical services’’ that are in increased costs and that domiciliary care and nursing home care programs on described in subpart E. Nothing in care program residents may not require the same property or in the same subpart E requires State domiciliaries to a licensed nurse on each shift, if the building must have a director of nursing provide either surgical or nursing care needs of the residents are for each or if they may share a director comprehensive mental health services. met. We have, therefore, eliminated the of nursing. The commenter also asked We note, however that under this proposed requirement that the director whether the two programs can share the subpart (§§ 51.300(f)–(g), 51.320(d), of the nursing service designate a supervising nurse for each tour of duty, 51.340), the State home is required to licensed nurse as the supervising nurse and whether a ‘‘tour of duty’’ is the provide basic mental health screening. for each tour of duty. Otherwise, the same as a shift. We acknowledge that proposed § 51.340 staffing requirements in this final rule was unclear about what mental health We intend the State homes to have the are similar to the existing nursing care services the State home domiciliaries flexibility to staff their programs to requirements for domiciliary care would be required to provide without ensure that all residents get the nursing programs in section 5A of the 1986 many of the clarifications in this final care each resident’s comprehensive Guide, which requires an organized rule. The final rule requires the State assessment indicates each resident nursing service of personnel qualified to home to provide ‘‘its residents the needs. The regulation does not preclude meet the nursing care needs of the primary care necessary to enable them sharing a nursing director. A shared domiciliary patient. The final rule, to attain or maintain the highest nursing director would comply with the however, clarifies that the residents’ practicable . . . mental, and regulation only, however, if the State individual comprehensive assessments psychosocial well-being.’’ Though this and comprehensive care plans home can ensure it meets the total could be misread to mean the determine their need for nursing nursing care needs of all residents in the domiciliary must provide all care services, and that need must be met 24 facility. This final rule eliminates necessary to attain or maintain mental hours a day, 7 days a week. We continue proposed § 51.330(b), which required a health, we believe it is clear that it to believe this is a reasonable and licensed supervising nurse for each tour requires the domiciliary to provide only necessary requirement for availability of of duty, so the questions about a shared the necessary primary care. The State nursing care. nursing supervisor and whether a tour home discharges its obligation to enable One commenter said that some states of duty is the same as a ‘‘shift’’ are moot. its residents to attain or maintain mental have regulations prescribing staffing 51.340 Physician and Other Licensed and psychosocial well-being when it levels for State homes. The commenter Medical Practitioner Services provides primary care. It further described the staffing level required by requires the State home to assist its its Residential Care Home Licensing VA received comments about the residents to obtain other care when a Regulation. The commenter requirement in proposed § 51.340 that resident needs care other than care the recommended VA permit states with State homes provide necessary primary State home must provide. So, if the regulatory staffing levels to follow those care to domiciliary residents. veteran needs mental health care other regulations and that VA provide a Commenters objected to the proposed than that required by subpart E, the regulation for states without a State requirement in this rule, and raised State home must assist the resident to regulated staffing level. concerns about the definition of obtain that care. We decline to make the commenter’s ‘‘primary care’’ in the VA General One commenter objected to the recommended change. Section 51.330, Counsel Precedent opinion ruling that primary care requirement because it as revised, articulates VA’s view of the State home domiciliary care programs would substantially increase state minimum safe staffing for nursing care must provide primary care to be entitled expenses and undermine a resident’s in State home domiciliary care to per diem payments. VAOPGCPREC ability to obtain care from a physician programs. VA would not be comfortable 1–2014 (Mar. 21, 2014). Some of his or her choice. The commenter relying on staffing levels set by the State commenters objected to the General said the primary care requirement because they might not meet that Counsel’s inclusion of surgical services would require residents to abandon minimum. So, to allow the exemption in primary care, and some objected to its their existing physicians and mental from § 51.330 the commenter seeks, VA inclusion of mental health services in health specialists, significantly reducing would have to review each State’s primary care. The commenters said State home admissions and negatively regulation to assure it requires staffing surgical services and mental health affecting current residents. equivalent to the minimum level VA services are generally considered One commenter stated medical care considers acceptable. Such a plan specialty care, and VA should define should be the veteran’s choice when the would require a way for VA to know if primary care in the same manner as veteran is capable of making the choice. any State’s regulation changed, to again Medicare. The commenter did not address the

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61263

comment to a specific provision, so it is to define primary care with a list of annual medical assessment, restating not clear whether the commenter was specific medical services. We disagree the provision in the active voice to read, addressing a right to choose among that lack of definition of primary care ‘‘The primary care physician or other health care practitioners or a right to could affect the commenter’s primary licensed medical practitioner must choose to refuse care. care sharing agreement with a local VA conduct an in-person medical This regulation will not prevent State medical facility. Under the final assessment of the resident at least once home domiciliary residents from seeing regulation, this arrangement may a calendar year, or more frequently the private health care providers they continue. The State currently pays for based on the resident’s condition.’’ choose to see. The § 51.340 the primary care VA provides through a Though redundant of the annual requirements do not mean a resident sharing agreement, so there is no cost to medical assessment § 51.310 requires, it may not see a private physician of his transfer to the State. We make no change is useful also to restate here to or her choice or must abandon an based on this comment. consolidate the requirements regarding existing relationship with a private VA received a comment saying that physicians and other medical healthcare provider. Further, providing additional medical services practitioner services. This change also domiciliary residents retain the right to would be especially burdensome to eliminates the colloquial expression ‘‘be receive care from their private some State homes that were built in seen’’ in favor of the more precise term physicians in the State home remote locations to care for veterans in ‘‘assessment.’’ domiciliary, provided the physician is underserved communities. Those One commenter interpreted proposed credentialed and privileged in the State homes, the commenter stated, currently paragraph (e) to mean the domiciliary home. If the commenter means the experience hiring challenges and must provide or arrange for physician or veteran should have the choice whether staffing shortages, and the new other licensed medical practitioner to receive medical care, the veteran may requirements would pose challenges services 24 hours a day, 7 days a week, refuse treatment under § 51.300, which and costs associated with hiring in case of an emergency. The applies to domiciliary residents the additional staff or contracting with commenter also asked for clarification right to refuse treatment as prescribed in outside providers. whether the provider must be on site or § 51.70(b)(4). We make no change based We understand that staffing or may be on call. on these comments. otherwise obtaining the required We did not intend the commenter’s Furthermore, it is unclear why the services can be more difficult in some interpretation of the provision, which commenter believes costs would areas than others, whether because of states, ‘‘The State home must assist increase; it may be because of the remote location and a small labor pool, residents in obtaining emergency care.’’ assumption that VA intended to include or because of a central, densely served Though a State home certainly may staff mental health and surgical services in market with stiff labor competition its facility at all times, the provision primary care. The guidelines under among employers. The primary care VA does not require it. It requires only that which the State home domiciliary care requires State homes provide is the facility management be able assist programs have long operated required essential to the health, safety, and well- the resident in obtaining emergency each resident to have a primary care being of the domiciliary care residents. care. For example, a telephone call to physician responsible for the resident’s We will not eliminate or reduce the local 911, if available, could comply medical care, and required that primary requirements in response to the vagaries with § 51.340(e). We make no change care medical services be provided for of the local labor market. We make no based on this comment. residents as needed. Section 51.340 change based on this comment. imposes no additional primary care VA received comments that the State 51.350 Provision of Certain burdens or costs. Further, these home domiciliary care standards in the Specialized Services and Environmental regulations would not preclude States 1986 Guide, required that a resident be Requirements from charging the veteran’s insurance seen annually and as needed by the Proposed § 51.350 would have for providing primary care. We make no primary care physician or other licensed applied all of the standards applicable changes based on this comment. medical practitioner. The proposed rule, to State home nursing homes at VA received a comment requesting a however, specified that the resident §§ 51.140, 51.170, 51.180, 51.190, and ‘‘thorough and explicit definition of must be seen by the primary care 51.200 to State home domiciliary care what primary care entails.’’ The physician or licensed medical programs. We are making multiple commenter was ‘‘concerned that the practitioner at least every 30 days for changes to this section. These correct proposed rules would transfer all the first 90 days after admission, and at errors in the proposed rule, respond to medical costs associated with resident least once annually thereafter, or more comments, and will serve the needs of care to the state and nullify existing frequently based on the condition of the State home domiciliary care programs sharing agreements’’ with the local VA resident. The commenter said this and their residents better than would facility. Another commenter also raised requirement would result in a cost the proposed application of the whole of essentially the same points about the burden to the domiciliary, potentially a the sections we proposed to apply. extent of health care the proposed 100% increase in physician visit costs. We are removing the phrase ‘‘nursing regulations require and about We agree with the commenter that home and nursing facility’’ from the last transferring costs and sharing more frequent primary care physician’s sentence of the introduction to proposed agreements, asserting the burden of visits than the State homes have been § 51.350. Its use was an error. The cited shifting primary care costs could make accustomed to providing will increase regulations use the term ‘‘the facility,’’ operating domiciliary care the State homes’ costs. We also agree a but not, ‘‘nursing home’’ or ‘‘nursing unsustainable. domiciliary resident need not be seen facility.’’ As revised, the sentence reads, The regulation, as proposed, does not every 30 days for the first 90 days of ‘‘For purposes of this section, the specifically define primary care, and we residency. The typical domiciliary references to ‘facility’ in the cited believe the common dictionary resident’s health does not require the sections also refer to a domiciliary.’’ definition VA General Counsel quoted frequency of medical monitoring we VA received comments opposing the in the precedent opinion cited above is proposed. We have changed the imposition of the whole of these sufficient and widely used. VA declines requirement in § 51.340(d) to require an regulations on domiciliary care

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61264 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

programs and recommending the two hours between the evening meal or equipped to ensure full visual domiciliary program standards be more and breakfast. privacy for each resident.’’ Section consistent and commensurate with the Some commenters objected to the 51.200(d)(1)(viii) further specifies that stated definition and purpose of proposed monthly drug regimen review the nursing home bedrooms (other than domiciliary care. Multiple commenters required under § 51.180(c)(1), saying private rooms) must have ‘‘ceiling- recommended increasing per diem that compared to the semiannual drug suspended curtains,’’ further specifying payments for domiciliary care, as one regimen review required for domiciliary their placement and specifying other put it, ‘‘to be compensated for the residents in the 1986 Guide, the furnishings of the room to ensure increased requirements for our proposed rule would result in a ‘‘visual privacy.’’ We intend this domiciliary care facility.’’ This significant cost increase. § 51.350(d) to afford the State homes commenter specifically reported a VA agrees with the commenters. The reasonable flexibility in finding a way to $103,000.00 loss in its domiciliary care intent of the proposal, to preserve the let the domiciliary resident sleep or program in the past year, submitting a health and safety of State home change clothes or do other ordinarily financial analysis. domiciliary residents, can be met with private things without being watched or We agree that certain standards that a semiannual drug review. We have in open view of other residents. proposed § 51.350 would have applied added § 51.350(b), which requires a While many of these requirements are to domiciliary care programs are drug regimen review at least once every essential to the health, safety, and well- impracticable or inappropriate. six months and included the being of the domiciliary residents, we Consequently, we have revised requirement in § 51.180(c)(2) requiring a agree with the commenters that some proposed § 51.350, to exclude report and action if any irregularities are would pose an excessive burden to State § 51.140(f)(2)–(4), § 51.180(c), and found. home domiciliaries and are more § 51.200(a), (b), (d)(1)(ii)–(x), (f), and VA received comments objecting to appropriate for nursing home care than (h)(3) from application to domiciliary the burdens of bringing State homes domiciliaries, because domiciliary care programs. In addition, we will providing domiciliary care into residents remain more independent. For exclude other provisions as discussed compliance with the requirements of those reasons, in this final rule, we will below. Though the mechanism for § 51.200, Physical environment. not apply to domiciliaries the following setting the rate of per diem payment is Multiple commenters said that environmental requirements: prescribed by statute, we anticipate transition-based programs are not § 51.200(d)(1)(ii–x) regarding resident these changes will also reduce the costs currently required or able to meet many bedrooms; § 51.200(f) regarding resident of compliance. of the physical or plant features call systems; and § 51.200(h)(3) Section 51.140(f), Frequency of meals, included in the nursing home standards. regarding handrails. All of these requires nursing home residents to The commenters paraphrased or quoted requirements are more aligned with receive and nursing homes to provide provisions of § 51.200 to illustrate skilled nursing home care then they are three meals per day at regular times nursing home requirements they with domiciliaries, and they are not comparable to normal meal times in the asserted domiciliary care facilities could requirements in VA domiciliaries. community. Paragraph (f)(4) of that not meet. Among these paraphrases or VA received a comment that the cost section allows an interval of 16 hours quotations were ‘‘provide adequate of renovations and upgrades to meet the between dinner and breakfast if a room space in most rooms,’’ apparently environmental requirements would total nourishing snack ‘‘is provided’’ at based on § 51.200(d)(1)(i)–(iv); ‘‘provide hundreds of millions of dollars bedtime. Consistent with comments sufficient privacy (ceiling suspended nationwide, and the facilities would be about applying § 51.140 to domiciliaries curtains extending around beds for total forced to compete for funding with the that asserted the generally greater visual privacy) in rooms with more than limited resources in VA’s State home independence of domiciliary residents one resident,’’ apparently based on construction grant program. We agree as than nursing home residents, we have § 51.200(d)(1)(vii)–(viii); ‘‘provide discussed above that some of the added § 51.350(a) to apply to prescribed storage space for residents,’’ proposed requirements were too domiciliaries instead of paragraph apparently based on § 51.200(d)(2)(iv); burdensome, and we revised the (f)(2)–(4). Paragraph (a)(1) requires no ‘‘have a resident calling system directly regulation accordingly. We also agree more than a 14-hour interval between to nursing,’’ apparently based on that applications for grants from VA to the evening meal and breakfast. § 51.200(f); and ‘‘have corridors meet the cost of complying with a Paragraph (a)(2) requires the facility equipped with handrails,’’ paraphrasing § 51.350 requirement might compete staff to offer snacks at bedtime daily, as § 51.200(h)(3). We construe these with applications to fund other projects does § 51.140(f)(3). Paragraph (a)(3) comments as references to these in the construction grant program, but allows 16 hours between the evening provisions because we do not interpret life and safety projects are given priority meal and breakfast when the bedtime the commenters to literally oppose over all other types of construction snack is nourishing. The difference providing ‘‘adequate privacy,’’ or when VA determines whether to award between the domiciliary regulation and ‘‘sufficient privacy.’’ construction or acquisition grants. (See the nursing home regulation is the In response to the comments, we have 38 CFR part 59 for regulations governing difference between whether the excluded § 51.200(a), § 51.200(b), grants to States for construction or nourishing snack ‘‘is offered’’ or ‘‘is § 51.200(d)(1)(ii–x), § 51.200(f), and acquisition of State homes.) We have provided’’ to residents. This difference § 51.200(h)(3) from application to revised the final rule to ease the burden takes into account the greater domiciliaries, as noted above. In place of compliance with the specialized independence of domiciliary residents, of the privacy requirements in services and physical requirements for who can maintain adequate nutrition § 51.200(d), we have provided for State home domiciliaries; the rest of the without the monitoring the nursing ‘‘visual privacy’’ in § 51.350(d), which requirements under § 51.350 are home requirement entails. It is, reads, ‘‘The facility must provide the essential to the health, safety, or well- however, the nutritional character of the means for visual privacy for each being of domiciliary residents and offered bedtime snack, not the resident’s resident.’’ This is based on cannot be eased or removed. independence in whether to eat it, that § 51.200(d)(1)(vii), which requires One commenter asked VA to affords the State home the additional nursing home bedrooms ‘‘[b]e designed ‘‘grandfather in’’ (i.e., waive the

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61265

requirements for) older facilities that We disagree about the benefit of maintain the facility, allegations of have not needed to comply with reviewing State assisted living failure to spend VA per diem payments environmental requirements of § 51.100 regulations. State assisted living on or on behalf of the residents, or of and 51.200 that have traditionally regulations are not pertinent to VA’s diverting the funds into the State’s applied only to nursing homes, citing program of payment of per diem for general fund. The commenter requested the high costs of making the needed veterans in State home domiciliary care VA to regulate specific oversight, upgrades. Because these provisions are programs. VA does not pay for assisted staffing, financial accounting, and essential to the health, safety, and well- living. Veterans residing in a State home expenditure requirements. Specifically, being of domiciliary residents, we will must meet the eligibility criteria either the commenter requested a regulation not waive the requirements for older for a nursing home care program or for requiring ‘‘all monies that the VA gives facilities. We make no changes based on a domiciliary care program. The State to the States for these Homes be placed this comment. home must meet VA’s standards for in a separate account that can only be VA received a comment that imposing receipt of per diem for those veterans. used for the Home.’’ the nursing home fire safety standards Moreover, VA must administer a nation- We decline to add a regulation to of § 51.200 would ‘‘drive many homes wide program. Consequently, we choose implement the suggestion regarding out of business,’’ saying State homes to have regulations of uniform, nation- dedicated accounts. VA monitors each would have to reconsider providing wide application. These may be like State home’s census and its domiciliary care altogether and perhaps some State assisted living regulations expenditures on nursing home, provide only nursing home care. and unlike others, but State assisted domiciliary, and adult day health care We agree that some of the fire safety living regulations are not an appropriate services. The State home must report rules that apply to nursing home care model for VA per diem regulations. We the census of each program and submit programs are inappropriate for make no change based on this comment. a claim for per diem payments monthly VA received a comment reporting on VA Form 10–5588. See § 51.42 of this domiciliary care programs, because of grievances about conditions at State rulemaking. By statute, VA ‘‘shall have the differences in the services they home domiciliary programs and asking no authority over the management or provide. Specifically, we will not VA to apply all of the regulations control of any State home.’’ 38 U.S.C. require State home domiciliary care governing per diem payments to State 1742(b). We believe establishing the programs to meet NFPA 99, Health Care home nursing home care programs to regulation the commenter seeks would Facilities Code, as § 51.200(a) requires State home domiciliary care programs. constitute management or control of of State nursing home programs. We are, The commenter urged VA to afford State homes, contrary to the statute, and therefore, changing proposed § 51.350 domiciliary care program residents the would violate that law. We make no by adding a new paragraph (c) that only same care provided nursing home change based on this comment. requires State home domiciliaries to residents. The commenter requested Regarding the commenters’ grievances meet the ‘‘applicable’’ requirements of that VA effect that change by issuing a relating to specific State homes, VA NFPA 101. We have changed the VA General Counsel opinion. The takes reports of grievances from introduction to § 51.350 to exclude commenter argued for immediate residents of State home domiciliaries § 51.200(a) from application to implementation of this opinion as a seriously; however, VA is unable to domiciliaries. ‘‘regulatory instrument’’ until VA adjudicate the grievances in this We have also determined it would be publishes domiciliary per diem rulemaking. The commenters are inappropriate to apply the nursing home regulations. Specifically, the commenter encouraged to voice their grievances emergency power requirements of NFPA recommended as the ‘‘holding’’ of the directly with the State homes, which are 99 to domiciliary facilities. NFPA 99 opinion, ‘‘[I]n order for a State to receive better able to address such grievances. prescribes emergency generator per diem payments from the VA for a We note that § 51.300 now makes the specifications for nursing homes. It is resident in its State home domiciliary, nursing home standards regarding not necessary or appropriate to require the home must provide domiciliary care grievances applicable to State State home domiciliaries to have to the resident (or residents) in domiciliary care programs and these emergency power generating equipment accordance with 38 CFR 51, the current standards include the resident’s right to that meets the NFPA 99 specifications of VA regulation outlining long-term care voice grievances and have the facility the sort appropriate to nursing homes of veterans in state nursing homes.’’ The implement prompt efforts to resolve and specified in § 51.200(b). The commenter requested specific VA these grievances. We further note that applicable provisions of NFPA 101 officers implement the suggested State homes must satisfy these regarding emergency power will apply General Counsel opinion. standards to receive per diem. Again, instead under § 51.350(c). We have thus Another commenter reported that a specific allegations are best raised changed the introduction to § 51.350 to specific State home conducts residents’ directly with the State home. VA exclude § 51.200(b) from application to room inspections, threatens sanctions therefore makes no changes based on domiciliaries. for [resident] non-compliance with the this comment. Regarding application of all of the General Concerns Regarding State home rules, schedules re- State home nursing home program Domiciliary Regulations inspections, and then fails to follow through. The commenter stated this lack regulations to State home domiciliary One commenter, observing the of follow through ‘‘leaves us dangling,’’ care programs, we decline to do so for proposed rule appeared to require a and demonstrates the ‘‘ad hoc’’ the reasons previously stated in this level of care for domiciliary residents management of the State home. preamble. To briefly reiterate, many that mirrors nursing home care, Another commenter expressed nursing home regulations would suggested it would have been beneficial grievances about a State’s provide little benefit to domiciliary to review assisted living regulations administration of a State home, residents, or even be a detrimental across the country because most State including concerns that the domiciliary burden, while imposing excessive home domiciliaries are also licensed by housed veterans unable or unwilling to operational constraints and costs on the their state’s assisted living regulatory meet the personal hygiene requirements States. This rulemaking, however, licensure and compliance. for residency, allegations of failure to applies to the domiciliary care programs

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61266 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

those nursing care program regulations Subpart F—Standards Applicable to revised as follows: ‘‘The name address necessary to the health, safety, and well- the Payment of Per Diem for Adult Day and telephone number of the State being of domiciliary residents. See, for Health Care home’s State Department of Health and/ example, the discussion of § 51.300, or the appropriate State Department of above. VA therefore makes no changes 51.410 Transfer and Discharge Social Services representative.’’ based on this comment. We have clarified the language of The commenter raised the prospect We decline to implement the request proposed § 51.410(b), which provides that a State might not have an the commenter submitted in the form of the residents’ right to be informed about ombudsman who advocates for a suggested VA General Counsel the possible reasons for a transfer or participants in a State home adult day discharge from the program. We make opinion the commenter authored health care program. The proposed no substantive changes. seeking to have the Secretary of requirement derives from We have changed the proposed § 52.70(h)(1)(iii), which requires State Veterans Affairs assign certain named heading of paragraph (c) to read, VA officers to implement the requested home program management to provide ‘‘Notice before transfer or discharge.’’, to the State long-term care ombudsman changes. The Secretary’s statutory be more descriptive of the text of the authority includes delegation of certain with immediate access to participants. paragraph. The object of proposed § 51.410(e)(5) authority to certain subordinate VA VA received comments asking to was to ensure the notice of transfer or officers, but direct assignment of revise paragraph (c)(1), which requires discharge includes information how to responsibilities to specific VA officers is the State home to notify the participant seek help if the participant objects to the beyond the scope of this rulemaking. or his or her legal representative prior transfer or discharge. We are changing VA therefore makes no changes based to a transfer or discharge. The § 51.410(e)(5) to address the possibility on this comment. commenters wanted ‘‘or’’ in the first that a State does not have a long-term sentence to be revised to ‘‘and/or’’. VA VA received comments care ombudsman or any ombudsman believes that the intent of this recommending that part 51 ‘‘further responsive to State home adult day define the sovereign powers of the recommendation is to allow the State homes to notify, or ensure the State health care participants. We decline to Resident Councils.’’ The commenter use the ‘‘and/or’’ construction the proposed the creation of a National homes notify, both participants and their legal representatives. In fact, the commenter suggested, because it would Association of State Veterans Homes permit the State to provide the contact Domiciliary Residents’ Councils under requirement to notify the participant or the representative does not preclude the information only for an impersonal state the auspices of VA Geriatric and agency possibly difficult to navigate Extended Care Services. The commenter State home from notifying both if that is the participant’s choice. The ‘‘and’’ instead of providing the contact provided some details as to how the information of an ombudsman or other relationship should be between council alternative of ‘‘and/or’’ would, however, permit the provision to be read as known advocate. We acknowledge, members, residents and a VA liaison. however, that the proposed requirement The commenter also requested that VA requiring notice to the participant ‘‘and’’ to the representative. We intend to could be insufficient. We are changing provide whistleblower protections for paragraph (e)(5) by adding ‘‘the first State home residents who report afford the participant control of whether the State home notifies a legal listed of the following that exists in the unethical, illegal, or criminal conduct State:’’ following ‘‘The name, address by a State home or VA employee or representative, a family member, or both. On further review, we see that as and telephone number of’’. We are office, so that State homes cannot evict further revising the paragraph by adding residents for speaking up. written, ‘‘Notify the participant or the legal representative of the participant,’’ after the paragraph (e) introductory Although we decline to make the could permit the State home to notify language, the following: ‘‘(i) The State specific changes this commenter someone other than the participant and long-term care ombudsman, if the long- requested, this rulemaking does not notify the participant. To make clear term care ombudsman serves adult day implement protections for State home the participant’s right to decide who health care facilities; or (ii) Any State domiciliary residents that formerly besides the participant the State home ombudsman or advocate who serves applied only to nursing home residents. notifies of a transfer or discharge, we are adult day health care participants; or Section 51.300 requires domiciliaries to revising § 51.410(c)(1) to read as does (iii) The State agency responsible for apply the provisions of §§ 51.70 and the revision to the domiciliary notice of oversight of State adult day care 51.100 not otherwise excluded from transfer or discharge provision, facilities.’’ We intend the order of § 51.300. Among these are discussed above. As revised, paragraph precedence and other changes to afford § 51.70(b)(6)(ii) requiring the State home (c)(1) reads, ‘‘Notify the resident of the the participants the intended protection, to notify residents of the right to file transfer or discharge and the reasons for with little additional burden to the State complaints; § 51.70(j)(1)(iv) the move in writing and in a language homes. These changes are a logical guaranteeing access to the State long and manner he or she understands. The outgrowth of the comment. We have term care ombudsman; § 51.100(c) resident has the right to decide whether removed from proposed paragraph (g)(1) requiring the State home to document to have the State home notify his or her the phrase ‘‘, and ensured of timely any concerns the resident council legal representative or interested family admission to the hospital’’. We have submits; and § 51.100(d)(6) requiring the member of changes.’’. also changed ‘‘and’’ to ‘‘or’’ in both State home to listen to the views of any VA received a comment requesting instances of the phrase ‘‘transfer and resident or family group, including the changes to § 51.410(e)(5), which as discharge.’’ The State home will transfer resident council, regarding policy and proposed read, ‘‘The name, address and ‘‘or’’ discharge a participant, as operations decisions affecting resident telephone number of the State long-term circumstances require. There is no care and life in the facility. State home care ombudsman.’’ The commenter action called ‘‘transfer and discharge.’’ domiciliary residents thus will now stated the Older Americans Act As revised, the paragraph reads, have recourse for redress of grievances. Ombudsman program did not apply to ‘‘Participants will be given a transfer or We therefore make no change based on adult day health care programs and discharge from the adult day health care this comment. recommended paragraph (e)(5) be program to the hospital when transfer or

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61267

discharge is medically appropriate as program would be an undue hardship and better serve the programs and determined by a physician’’. Neither VA on the participant or the participant’s veterans. nor the State home can ensure timely care giver because screening can take As with the assessments for admission to a hospital; timeliness of multiple doctor’s office visits. The domiciliary care programs, VA will not admission is beyond VA and the State commenters, referencing an change the regulation to explicitly allow home’s control. In practice, a transfer or unpublished report of the Centers for State home adult day health care discharge to a hospital will result in Disease Control and Prevention, programs to use State-mandated admission, observation, or other action acknowledged that ‘‘elderly nursing assessment tools, though the homes may according to the participant’s medical home residents are at greater risk for do so if those tools meet the condition and the usual medical and [TB] than elderly persons living in the requirements in paragraph § 51.425(b). business practice of the hospital. community.’’ They noted current VA While we appreciate the offer to collaborate on a national tool, we 51.420 Quality of Life practice is to allow TB screening upon admission. The commenters requested believe that § 51.425(b) provides the VA received comments objecting to VA also allow the TB screening to be States with necessary flexibility to the storage requirement of performed at the adult day health care create policies to meet their state’s § 51.420(g)(3), saying that in the State program no later than 30 days after regulatory requirements or their homes’ experience, adult day health admission, which would reduce care- program’s needs, while ensuring the care participants need lockable storage giver burden and facilitate admission by health and well-being of participants. on a very limited basis because they do eliminating a potential cause of delay. We have added an introduction not live at the State home. They We agree that allowing the TB requiring the State home to establish in recommended the participants be made screening to be performed after a written policy how it will complete, aware that lockable storage is available, admission to the adult day healthcare implement, review, and revise and that the homes provide it upon program could reduce the veteran and assessments. In addition to affording the request. They suggested a locked closet caregiver’s burden and facilitate State homes flexibility in devising their with individual storage bins would be admission. We disagree, however, that methods of assessment, the introduction sufficient to secure a participant’s 30 days after admission is an helps to distinguish between the initial change of clothes, and that the State appropriate timeframe to complete medical assessment and the subsequent home should also provide a coat closet screening because of the increased risk comprehensive assessment. for daily storage of coats, etc. VA received comments of TB among the participant population We agree that the proposed recommending that programs should that the commenter identified. We also individually lockable storage is not make every effort to coordinate the necessary in the adult day health care believe it is unsafe to have a participant participant’s comprehensive care plan setting. We proposed that each private in the program any longer than that with with any existing VA or community storage space be lockable to afford his or her medical history and current provider’s comprehensive care plans, as security for wallets, purses, and the like, condition unknown. To allow more appropriate. The commenters noted and we agree the availability of locked flexibility than the proposed rule many participants seek admission to the storage for those who wish to use it is allowed, while also requiring the history State home adult day health care sufficient. Accordingly, we have and physical examination with TB program without prior use of VA changed § 51.420(g)(3) to read, ‘‘Private testing be done expeditiously, we have services, and often prefer and plan to storage space for each participant changed § 51.425(a) to allow them to be continue to use their community sufficient for a change of clothes. Upon done no later than 7 calendar days after physician for primary care. Because the request of the participant, the State admission. State home is ultimately responsible for home must offer storage space that can VA received comments regarding the care and services provided to each be secured with a lock.’’ proposed § 51.425(b), which describes participant, the commenters said they the State home adult day health care should develop a comprehensive care 51.425 Physician Orders and program’s responsibility to conduct plan that includes the recommendations Participant Medical Assessment comprehensive assessments for each of other agencies, including VA. As proposed, this section provided for participant, and lists factors the program We agree with these comments. We two types of assessments, and as a result should consider in each assessment. believe it is consistent with the State of the comments we received we have The commenters recommended that home’s responsibility to develop the changed the names of these assessments instead of the assessment guidelines in comprehensive care plan that those in the final rule for clarity and to this regulation, VA should allow each plans include the recommendations of distinguish the initial medical State with an established adult day others providing care to the participant. assessment to determine that the veteran health care program assessment tool to We believe § 51.425 allows the State is suitable for and well enough to use it, and that States without home to include the use or adaptation participate in the program and the assessment tools should work with a of existing care plans in its assessment subsequent assessment done to inform select group of members of the National and comprehensive care plan policy. the comprehensive care plan. The Association of State Veterans Homes to We make no change based on this assessment that was proposed in develop an assessment tool to adopt as comment. paragraph (a) is now called the ‘‘initial a national standard and submit to VA as Based on the comments regarding medical assessment’’ and the an alternative. The commenters noted § 51.425(b) pointing out that some assessment in § 51.425(b) is now called that the existing regulation requires participants enter State home adult day the ‘‘comprehensive assessment’’ each adult day health care program use health care programs without a current throughout the paragraph. the MDS–HC assessment tool, even care plan, we are removing the VA received comments that the though it is not an ‘‘industry standard’’ requirement from proposed § 51.425(b) requirement of § 51.425(a) for new adult among adult day healthcare programs, that the participant have an day health care participants to have and creating a new tool would solve the individualized comprehensive care plan tuberculosis (TB) screening no sooner existing problem of the lack of a on ‘‘the participant’s first visit’’ because than 30 days before admission to the nationally recognized assessment tool the requirement is unnecessarily

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61268 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

burdensome. Instead, we are requiring Because of the other changes we are day health care programs that offer that the State home complete the making to this section, discussed below, medical supervision. comprehensive assessment no later than the text proposed as § 51.440 is now the We agree with the first of these 14 calendar days after admission. introductory paragraph of the section. recommendations. As proposed, the Consistent with the comment that To make the per diem regulations provision requiring the State home to residents might not have a more concise and to eliminate repetition record the name of each participant’s comprehensive care plan upon between current parts 51 and 52 of title primary care physician is in paragraph admission, we are revising proposed 38 Code of Federal Regulations, we (a) of this section, which applies paragraph (d) to allow up to 21 calendar proposed that § 51.440 would apply the specifically to programs that offer days after admission for the State to nursing home dietary service provisions medical supervision. To apply it to all write a comprehensive care plan for of current § 51.140 to the adult day adult day health care program each participant. health care program. That was partly a participants, we have moved the We changed certain word choices and mistake. The proposal inadvertently requirement from proposed paragraph phrasing in paragraph (c), but none has applied nursing home requirements for (a)(2) to the introductory paragraph of substantive effect. We pluralized the frequency of meals under § 51.140(f) this regulation in the final rule, where word ‘‘assessment’’ in the section that would be inapplicable to adult day it applies to the entire section. We heading, and rephrased the first health care programs. For example, the redesignated proposed paragraph (a)(3) sentence of paragraph (c)(1) to clarify nursing home bedtime snack as (a)(2). that the assessments must be both requirements have no application to a We decline to require that each conducted and coordinated with the daytime only program. To correct this participant who is in a program that appropriate health care professionals. error, we have revised the introduction does not offer medical supervision see We changed ‘‘the assessment’’ to ‘‘an of § 51.440 to exclude application of a primary care physician annually, assessment’’ in (c)(2) to ensure all § 51.140(f), and added the mealtime because such a requirement is assessments are certified. We added requirements of current § 52.140(e)(1) unnecessary for all adult day health care (c)(3), ‘‘The results of the assessments and (2) as paragraphs (a) and (b). These programs. We make no change based on must be used to develop, review, and requirements are essential to ensure this comment. revise the participant’s individualized every adult day health care participant We decline to require programs that comprehensive care plan.’’ This receives at least minimal nourishment do not offer medical supervision to provision makes clear the ongoing during each session. Adding these provide for acute care. State homes may relationships among the participant’s requirements imposes no new burden choose to make acute care available, but assessments, changing condition, and on the State homes. They merely those services are not by design the comprehensive care plan. continue the current timing and intent of social model programs. We nutritional requirements of the adult 51.430 Quality of Care make no change based on this comment. day health care program without Regarding the final recommendation, We are making technical corrections change. proposed paragraph (d), Availability of to proposed paragraph (a)(2) of this physicians for emergency care, does 51.445 Physician Services section. We are removing ‘‘, review, and require that the management of all adult prevent’’ from the paragraph heading to We are revising the introduction of day health care programs ‘‘must ensure more accurately state the topic of the § 51.445. The proposed language that participants are able to obtain paragraph. As proposed, the heading mistakenly refers to a physician’s order necessary emergency care,’’ and the ‘‘Duty to report, review, and prevent for enrollment, but physicians don’t paragraph applies to all adult day health sentinel events’’ commingled the topics write orders to enroll participants in the care programs. As with domiciliaries, of paragraphs (a)(2) and (a)(3). We are adult day health care program; they the State home can meet the also striking from § 51.430(a)(2) the write orders to admit participants. We requirement by calling 911 emergency phrase ‘‘, review, and prevent’’, because have corrected this error in terminology. services on behalf of the participant. § 51.430(a)(2) is solely a notice We have also revised the next to last The State home may provide physicians provision, as is § 51.120(a)(3) from sentence to be more readable. As for emergency care, but VA will not which it derives. We are also removing revised, the sentence reads, ‘‘If a require it. We make no change based on the reference to § 51.120(a)(4) from participant’s medical needs require that this comment. proposed § 51.430(a)(2) because the participant be placed in an adult day § 51.120(a)(4) is the review, analysis, health care program that offers medical 51.455 Dental Services and prevention provision applicable to supervision, the primary care physician For clarity, we have inserted the word nursing homes. The mandate to review, must state so in the order for ‘‘dental’’ into paragraph § 4.455(a)(1) as analyze and prevent sentinel events in admission.’’ proposed to read, ‘‘In making dental adult day health care programs derives VA received comments appointments; and’’. from § 52.120(a)(4) and is restated in recommending that VA require all State 51.470 Physical Environment proposed § 51.430(a)(3). Additionally, home adult day health care programs § 51.120(a)(4) has a final sentence we undertake certain practices such as: We have changed § 51.470(a), Life did not intend to apply to § 51.430(a)(3). recording the name of the participant’s safety from fire, to read, ‘‘The State We referred to § 51.120(a)(4) in primary care physician in his or her home must meet the applicable proposed § 51.430 erroneously. medical record; requiring that each requirements of National Fire Protection participant see a primary care physician Association’s NFPA 101, Life Safety 51.440 Dietary Services annually and when there is a change in from fire, as incorporated by reference We have changed the second sentence condition; providing or arranging for in § 51.200.’’ We determined that the of proposed § 51.440 so the references in acute care when a resident needs it; and proposed language was confusing § 51.140 to ‘‘resident’’ apply to a ensuring participants are able to obtain regarding which NFPA codes applied to participant ‘‘in subpart F.’’ This clarifies emergency care when necessary. The State home adult day health care the scope of the application of § 51.140 commenters believed these practices programs. This change is for clarity to the adult day health care program. should not be restricted only to adult only.

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61269

VA received comments agreeing with under the Affordable Care Act anywhere Standards. A firm and effective VA the space requirements proposed in in the world. King v. Burwell, 576 U.S. regulatory enforcement mechanism § 51.470(b), but only for adult day ____(2015). By this interpretation, the must be established with respect to health care programs with medical commenter argued, VA must pay per State Veterans Homes for the new VA supervision. They suggested less space diem to any veteran wherever in the regulation on VA-SVH Domiciliary Care be required for programs that do not world the veteran resides. The Standards to have maximum positive provide intensive medical services. commenter advised VA to allow force and effect. Specifically, they suggested at least 70 Congress to draft the per diem The commenter recommended square feet per participant, including regulations to determine VA’s logistical, enforcing a more visible, professional office space for staff, as opposed to the financial, and fiduciary responsibilities. and proactive role for the State Veterans 100 square feet required in the proposed VA was not a party to King v. Burwell, Home [VISN] Liaison or for the SVH VA rule; and 40 square feet per participant, 576 U.S. ____(2015), and nothing it Medical Facility Representative as those excluding office space for staff, as decided is binding on VA’s payment of positions were described in VHA opposed to the 60 square feet required per diem to State homes. By law, VA Handbook 1145.01, Survey Procedures in the proposed rule. They said cannot delegate the task of writing for State Veterans Homes (SVH) programs that do not provide intensive regulations for the State home program Providing Nursing Home Care and/or medical services do not require the to Congress. In fact, Congress has Adult Day Health Care (May 17, 2010). same space as those that do, because directed VA to prescribe regulations The commenter suggested adding they do not provide rehabilitative which are necessary and appropriate to certain duties to those assigned VA services or require the same specialized carry out laws administered by VA officers, including prescribing that VA equipment as medical model programs. which would include the laws notify State home residents and resident The space requirements in proposed governing the payment of state home councils of the existence of these liaison § 51.470(b)(3) are the same as the ones per diem and standards for State officers, and that those duties be in current § 52.200(b)(3). Moreover, they programs receiving such payments. 38 enforced by legislative directives in this are the same standards VA imposes on U.S.C. 501. We make no changes in rulemaking. The commenter urged that VA adult day health care facilities. response to this comment. this rulemaking require State Likewise, we specify these space VA received a comment suggesting we Departments of Veterans Affairs to ‘‘a) allotments in the standards for funding revise the subject heading of this promulgate state legislation that VA construction grants. See 38 CFR part rulemaking to read, ‘‘Per Diem for provides regulatory oversight of State 59. We specify these space allotments Nursing Home, Domiciliary, or Adult Veterans Homes management, because we consider them essential to Day Health Care of Veterans in State administration and operations; and b) the health, safety, and well-being of the Homes.’’ The commenter recommended promulgate state legislation that participants. We make no changes based this rulemaking keep the organization provides for the regulatory compliance on this comment. and scope of the proposed rule in by State Veterans Homes of VA Program several respects. Specifically, that Regulations.’’ 51.480 Transportation subpart D continues to provide VA cannot require States to legislate. We received comments requesting regulations for nursing home care We disagree about whether this that VA provide transportation programs and part E for domiciliary care rulemaking provides effective means to reimbursement to State homes that programs. ensure compliance with these provide their residents transportation to We decline to change the name of the regulations. We believe the processes a VA medical center for medical care, final rule as the current name prescribed in this rulemaking provide noting VA reimburses veterans for adequately describes the content of the an effective means of oversight and mileage when traveling to and from a rule, and we are keeping the subpart enforcement of compliance with these VA medical facility for medical services. headings and their topics as proposed. regulations. These include the surveys The commenter is correct that VA We make no change in response to this for recognition and subsequent reimburses veterans for their travel comment. certification, provisional certification if expenses through the Beneficiary Travel The commenter commented that VA needed, and potentially denial of program. Veteran residents of a State should require each State home to certification, together with the multiple home may be eligible for Beneficiary employ a regulatory compliance officer standards the State home must meet to Travel depending on the purpose of the who will be a VA employee who resides obtain recognition and certification travel and other factors. Similarly, VA in the State home to insure the home’s under part 51. Further, we decline to may make a beneficiary travel payment compliance with all VA regulations. revise the duties of the VA officers as to a person or organization other than VA uses regular surveys of the State any such consideration would be the beneficiary when certain factors are homes to ensure compliance with VA beyond the scope of this rulemaking. met. 38 CFR 70.2 and 70.20 (defining regulations governing VA payment of The same commenter sought ‘‘claimant’’ for beneficiary travel per diem. VA lacks authority to place amendments of §§ 51.70 and 51.100, payments and explaining the VA employees on a State home’s staff, providing specific language. application for payment process). This and adopting this recommendation Specifically, the commenter sought is addressed more fully in 38 CFR part would blur the line between VA and the amendments of § 51.70(a)(1), (a)(2), 70. We make no change based on this State home’s independent management. (b)(9)(ii), (f), (j)(1)(iv), (j)(3), and (m) comment. We make no change based on this (including extensive suggestions for comment. creation and management of married Other Issues In a related comment, another quarters); § 51.100(c), (d), (f), and (i). One commenter commented on VA’s commenter asserted this rulemaking as This comment is distinguishable from definition of ‘‘State’’ in proposed § 51.2. proposed fails to establish a firm and the others that addressed the proposed The commenter said that a judicial effective system of legal enforcement by rule’s application of §§ 51.70 and 51.100 decision requires the terms ‘‘state’’ and the VA of regulatory compliance and to the domiciliary care program because ‘‘federal’’ be interpreted to encompass legislative oversight by State Veterans it seeks amendment of §§ 51.70 and any medical care a veteran obtains Homes (SVH) of VA Domiciliary Care 51.100. This rulemaking did not

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61270 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

propose to amend those sections, and commenter also urged VA to apply 38 Management and Budget (OMB) control VA declines to make any such U.S.C. 1151, Benefits for persons number. See also 5 CFR 1320.8(b)(3)(vi). amendments in this final rulemaking, disabled by treatment or vocational Although this action contains without providing an adequate period rehabilitation, to disability incurred in provisions constituting collections of for notice and comment. We will State homes receiving VA per diem information at 38 CFR 51.20, 51.30, consider these comments for possible payments. The commenter inquired of 51.31, 51.42, 51.210, 51.300, 51.310, future amendment of §§ 51.70 and the significance of residence in a State 51.320, 51.350, 51.390, 51.400, 51.405, 51.100. We make no changes here based home to a veteran’s VA disability 51.410, 51.415, 51.420, 51.425, 51.430, on these comments. compensation or pension payments. The 51.445, 51.460, and 51.475 under the VA received a comment saying that as commenter asserted VA is creating provisions of the Paperwork Reduction a resident of a State home in a remote additional burdens for states and Act of 1995 (44 U.S.C. 3501–3521), no location, a requirement to provide confusion through lack of consistency new or proposed revised collections of accommodations for family members to and clarity throughout its regulations, information are associated with this stay on special occasions would be a like that resulting from conflict of laws final rule. The information collection great benefit to veterans with families, regarding pensioners getting Medicaid- requirements for §§ 51.20, 51.30, 51.31, and even to those without, but who covered nursing home care. 51.42, 51.210, 51.300, 51.310, 51.320, would remember the happiness of The commenter raises points worthy 51.350, 51.390, 51.400, 51.405, 51.410, family life and enjoy the presence of of legal review and perhaps of 51.415, 51.420, 51.425, 51.430, 51.445, families. Another commenter urged VA rulemaking. It is beyond the scope of 51.460, and 51.475 are currently to require State homes to provide this rulemaking to harmonize approved by the Office of Management private family visitation space, reporting definitions among parts 3, 4, and 51 of and Budget (OMB) and have been that family has not visited during the title 38, Code of Federal Regulations. assigned OMB control number 2900– resident’s 13 years of residence in a The application of definitions in this 0160. State home for lack of a private rulemaking to claims for monetary Section 51.42 also provides for visitation room or space. benefits the VBA administers, including information collection. The OMB We appreciate the commenters’ desire benefits under 38 U.S.C. 1151, and the currently approves this information for State homes to facilitate family visits effect of residency in a State home on collection under control number 2900– this way and certainly encourage State any veteran’s monetary benefits, are 0091. homes to do what they can to facilitate appropriately addressed in an Regulatory Flexibility Act family visits. However, providing individual claim to VBA for those accommodations for visiting family benefits. They too are beyond the scope The Secretary hereby certifies that could be a significant expense for State of this rulemaking. Whereas the this final rule will not have a significant homes. We thus make no change based commenter has raised no issue economic impact on a substantial on this comment. regarding, or requested any change to, number of small entities as they are VA received a comment that State the proposed regulations that are within defined in the Regulatory Flexibility politics and corruption take precedence the scope of this rulemaking, we make Act, 5 U.S.C. 601–612. This rule affects over State home residents’ welfare. The no changes based on this comment. veterans, State homes, and pharmacies. commenter proposed creation of an Based on the rationale set forth in the The State homes that are subject to this oversight group to take legal action supplementary information to the rulemaking are State government against misuse of Federal funds, lest the proposed rule and in the preceding entities under the control of State funds that States have earmarked for the discussion, VA is adopting the governments. All State homes are care of Veterans disappear into other provisions of the proposed rule as final, owned, operated, and managed by State accounts in each state. with changes as noted. governments or nonprofit organizations While we understand the commenter created by the State except for a small has concerns, the solution the Effect of Rulemaking number that are operated by entities commenter seeks is beyond the scope of Title 38 of the Code of Federal under contract with State governments. this rulemaking. Consequently, we make Regulations, as revised by this final rule, These contractors are not small entities. no changes based on this comment. represents VA’s implementation of its Also, this rulemaking will not have a One commenter asked that VA legal authority on this subject. Other consequential effect on any pharmacies ‘‘coordinate the impact of the semantic than future amendments to this that could be considered small entities. differential between terms,’’ i.e., define regulation or governing statutes, no Therefore, pursuant to 5 U.S.C. 605(b), terms the same in Veterans Health contrary guidance or procedures are this rulemaking is exempt from the final Administration (VHA) regulations in 38 authorized. All existing or subsequent regulatory flexibility analysis CFR part 51 and Veterans Benefits VA guidance must be read to conform requirements of sections 603 and 604. Administration (VBA) regulations in 38 with this rulemaking if possible. If not Executive Orders 12866, 13563, and CFR parts 3 and 4. The commenter possible, this rulemaking supersedes 13771 asserted differences in the use or such guidance. definition of the same or similar terms Executive Orders 12866 and 13563 could affect how and to whom VBA Paperwork Reduction Act direct agencies to assess the costs and awards special monthly compensation The Paperwork Reduction Act of 1995 benefits of available regulatory benefits or aid and attendance benefits (44 U.S.C. 3507) requires that VA alternatives and, when regulation is under part 3, or temporary total consider the impact of paperwork and necessary, to select regulatory disability evaluations under part 4. The other information collection burdens approaches that maximize net benefits commenter asserts VA regulations are imposed on the public. Under 44 U.S.C. (including potential economic, unclear regarding whether a veteran’s 3507(a), an agency may not collect or environmental, public health and safety residency in a State home can qualify sponsor the collection of information, effects, and other advantages; for special monthly compensation or nor may it impose an information distributive impacts; and equity). pension rates that use nursing home collection requirement, unless it Executive Order 13563 (Improving care as a criterion of entitlement. The displays a currently valid Office of Regulation and Regulatory Review)

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61271

emphasizes the importance of Domiciliary Care; 64.009, Veterans § § 17.196–17.200 [Removed] quantifying both costs and benefits, Medical Care Benefits; 64.010, Veterans ■ 3. Remove §§ 17.196 through 17.200. reducing costs, harmonizing rules, and Nursing Home Care; 64.011, Veterans promoting flexibility. Executive Order Dental Care; 64.012, Veterans PART 51—PER DIEM FOR NURSING 12866 (Regulatory Planning and Prescription Service; 64.013, Veterans HOME, DOMICILIARY, OR ADULT DAY Review) defines a ‘‘significant Prosthetic Appliances; 64.014, Veterans HEALTH CARE OF VETERANS IN regulatory action,’’ requiring review by State Domiciliary Care; 64.015, Veterans STATE HOMES OMB, unless OMB waives such review, State Nursing Home Care; 64.016, as ‘‘any regulatory action that is likely Veterans State Hospital Care; 64.018, ■ 4. The authority citation for part 51 is to result in a rule that may: (1) Have an Sharing Specialized Medical Resources; amended to read as follows: annual effect on the economy of $100 64.019, Veterans Rehabilitation Alcohol Authority: 38 U.S.C. 101, 501, 1710, 1720, million or more or adversely affect in a and Drug Dependence; 64.022, Veterans 1741–1743, 1745, and as follows. material way the economy, a sector of Home Based Primary Care; 64.026, Section 51.20 and 51.30 also issued under the economy, productivity, competition, Veterans State Adult Day Health Care; 38 U.S.C. 511, 1742, 7104 and 7105. jobs, the environment, public health or and 64.053, Payments to States for Section 51.42 also issued under 38 U.S.C. safety, or State, local, or tribal Programs to Promote the Hiring and 510 and 1744. governments or communities; (2) Create Retention of Nurses at State Veterans Section 51.43 also issued under 38 U.S.C. a serious inconsistency or otherwise Homes. 1712. interfere with an action taken or Section 51.310 also issued under 38 U.S.C. planned by another agency; (3) List of Subjects in 38 CFR Parts 17, 51, 1720(f). Materially alter the budgetary impact of and 52 ■ 5. Revise the part heading as set forth entitlements, grants, user fees, or loan Administrative practice and above. programs or the rights and obligations of procedure, Claims, Day care, Dental ■ 6. Revise subpart A, consisting of recipients thereof; or (4) Raise novel health, Government contracts, Grant §§ 51.1 and 51.2, to read as follows: legal or policy issues arising out of legal programs—health, Grant programs— mandates, the President’s priorities, or veterans, Health care, Health facilities, Subpart A—General the principles set forth in this Executive Health professions, Health records, Sec. Order.’’ Mental health programs, Nursing 51.1 Purpose and scope of this part. OMB has examined the economic, homes, Reporting and recordkeeping 51.2 Definitions. interagency, budgetary, legal, and policy requirements, Travel and transportation Subpart A—General implications of this regulatory action expenses, Veterans. and it has been determined not to be a § 51.1 Purpose and scope of this part. significant regulatory action under Signing Authority Executive Order 12866. VA’s regulatory The purpose of this part is to establish The Secretary of Veterans Affairs VA’s policies, procedures, and impact analysis can be found as a approved this document and authorized supporting document at http:// standards applicable to the payment of the undersigned to sign and submit the per diem to State homes that provide www.regulations.gov, usually within 48 document to the Office of the Federal hours after the rulemaking document is nursing home care, domiciliary care, or Register for publication electronically as adult day health care to eligible published. Additionally, a copy of the an official document of the Department rulemaking and its regulatory impact veterans. Subpart B of this part sets of Veterans Affairs. Robert L. Wilkie, forth the procedures for recognition and analysis are available on VA’s website at Secretary, Department of Veterans http://www.va.gov/orpm/, by following certification of a State home. Subpart C Affairs, approved this document on sets forth requirements governing the the link for ‘‘VA Regulations Published November 9, 2018, for publication. From FY 2004 Through FYTD.’’ This rates of, and procedures applicable to, Dated: November 13, 2018. rule is not an E.O. 13771 regulatory the payment of per diem; the provision action because this rule is not Consuela Benjamin, of drugs and medicines; and for which significant under E.O. 12866. Regulations Development Coordinator, Office veterans VA will pay per diem. Subparts of Regulation Policy & Management, Office D, E, and F set forth standards that any Unfunded Mandates of the Secretary, Department of Veterans State home seeking per diem payments The Unfunded Mandates Reform Act Affairs. for nursing home care (subpart D), of 1995 requires, at 2 U.S.C. 1532, that For the reasons stated in the preamble domiciliary care (subpart E), or adult agencies prepare an assessment of and under the authority of 38 U.S.C. day health care (subpart F) must meet. anticipated costs and benefits before 1741–1743 and 38 U.S.C. 1745, the § 51.2 Definitions. issuing any rule that may result in an Department of Veterans Affairs is expenditure by State, local, and tribal amending 38 CFR parts 17, 51, and 52 For the purposes of this part: governments, in the aggregate, or by the as follows: Activities of daily living (ADLs) means private sector, of $100 million or more the functions or tasks for self-care (adjusted annually for inflation) in any PART 17—MEDICAL usually performed in the normal course one year. This final rule will have no of a day, i.e., mobility, bathing, dressing, ■ such effect on State, local, and tribal 1. The authority citation for part 17 grooming, toileting, transferring, and governments, or on the private sector. continues to read as follows: eating. Authority: 38 U.S.C. 501, and as noted in Adult day health care means a Catalog of Federal Domestic Assistance specific sections. therapeutic outpatient care program that The Catalog of Federal Domestic includes one or more of the following Assistance numbers and titles for the § § 17.190–17.194 [Removed]. services, based on patient care needs: programs affected by this document are ■ 2. Remove the undesignated center Medical services, rehabilitation, 64.005, Grants to States for Construction heading ‘‘Aid to States for Care of therapeutic activities, socialization, and of State Home Facilities; 64.007, Blind Veterans in State Homes’’ and §§ 17.190 nutrition. Services are provided in a Rehabilitation Centers; 64.008, Veterans through 17.194. congregate setting.

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61272 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

Clinical nurse specialist means a Commission on Certification of (b) Survey and recommendation by licensed professional nurse with a Physician Assistants as a physician Director. (1) After receipt of a letter master’s degree in nursing and a major assistant, and has an individualized requesting recognition, VA will survey in a clinical nursing specialty from an written scope of practice that the home in accordance with § 51.31 to academic program accredited by the determines the authorization to write determine whether the facility and National League for Nursing. medical orders, to prescribe program of care meet the applicable Director means the Director of the VA medications, and to accomplish other requirements of subpart C and the medical center of jurisdiction, unless clinical tasks under appropriate applicable standards in subpart D, E, or the reference is specifically to another physician supervision. F of this part. For purposes of the type of director. Primary care physician means a recognition process including the Domiciliary care means the furnishing designated generalist physician survey, references to State homes in the of a home to a veteran, including the responsible for providing, directing, and standards apply to homes that are being furnishing of shelter, food, and other coordinating health care that is considered by VA for recognition as comforts of home, and necessary indicated for the residents or State homes. medical services as defined in this part. participants. (2) If the Director of the VA Medical For purposes of the definition of Program of care means any or all of Center of jurisdiction determines that ‘‘domiciliary care,’’ necessary medical the three levels of care for which VA the applicable requirements and services means the medical services may pay per diem under this part. standards are met, the Director will subpart E of this part requires the State Resident means an individual submit a written recommendation for home to provide. receiving nursing home or domiciliary recognition to the Under Secretary for Eligible veteran means a veteran care. Health. whose care in a State home may serve State means each of the several States, (3) If the Director does not as a basis for per diem payments to the the District of Columbia, the Virgin recommend recognition, the Director State. The requirements that an eligible Islands, the Commonwealth of Puerto will submit a written recommendation veteran must meet are set forth in Rico, Guam, the Commonwealth of the against recognition to the Under §§ 51.50 (nursing home care), 51.51 Northern Mariana Islands, and Secretary for Health and will notify in (domiciliary care), and 51.52 (adult day American Samoa. writing the State official who signed the health care). State home means a home recognized letter submitted under paragraph (a) of Licensed medical practitioner means a and, to the extent required by this part, this section and the State official nurse practitioner, physician, physician certified pursuant to this part that a authorized to oversee operations of the assistant, or primary care physician. State established primarily for veterans home. The notification will state the Nurse practitioner means a licensed disabled by age, disease, or otherwise, following: professional nurse who is currently who by reason of such disability are (i) The specific standard(s) not met; licensed to practice in a State; who incapable of earning a living. A State and meets that State’s requirements home must provide at least one program (ii) The State’s right to submit a governing the qualifications of nurse of care (i.e., domiciliary care, nursing response to the Under Secretary for practitioners; and who is currently home care, or adult day health care). Health, including any additional certified as an adult, family, or VA means the U.S. Department of evidence, no later than 30 calendar days gerontological nurse practitioner by a Veterans Affairs. after the date of the notification to the nationally recognized body that Veteran means a veteran under 38 State. provides such certification for nurse U.S.C. 101. (c) Decision by the Under Secretary practitioners, such as the American ■ 7. Revise subpart B, consisting of for Health. After receipt of a Nurses Credentialing Center or the §§ 51.20 and 51.30 through 51.32, to recommendation from the Director, and American Academy of Nurse read as follows: allowing 30 calendar days for the state Practitioners. to respond to a negative Nursing home care means the Subpart B—Obtaining Recognition and recommendation and to submit Certification for per Diem Payments accommodation of convalescents or evidence, the Under Secretary for other persons who are not acutely ill Sec. Health will award or deny recognition and not in need of hospital care, but 51.20 Recognition of a State home. based on all available evidence. The 51.30 Certification of a State home. applicant will be notified of the who require nursing care and related 51.31 Surveys for recognition and/or medical services, if such nursing care decision in writing. Adverse decisions certification. may be appealed to the Board of and medical services are prescribed by, 51.32 Terminating recognition. or are performed under the general Veterans’ Appeals (see 38 CFR part 20). direction of, persons duly licensed to Subpart B—Obtaining Recognition and (d) Effect of recognition. (1) provide such care. The term includes Certification for per Diem Payments Recognition of a State home means that, services furnished in skilled nursing at the time of recognition, the facility care facilities, in intermediate care § 51.20 Recognition of a State home. and its program of care meet the facilities, and in combined facilities. It (a) How to apply for recognition. To applicable requirements of this part. does not include domiciliary care. apply for recognition of a home for The State home must obtain Participant means an individual purposes of receiving per diem from certification after recognition in receiving adult day health care. VA, a State must submit a letter accordance with § 51.30. Physician means a doctor of medicine requesting recognition to the Office of (2) After a State home is recognized, or osteopathy legally authorized to Geriatrics and Extended Care in VA any new annex, new branch, or other practice medicine or surgery in the Central Office, 810 Vermont Avenue expansion in the size or capacity of a State. NW, Washington, DC 20420. The letter home or any relocation of the home to Physician assistant means a person must be signed by the State official a new facility must be separately who meets the applicable State authorized to make the request. The recognized. requirements for a physician assistant, letter will be reviewed by VA, in (The Office of Management and Budget has is currently certified by the National accordance with this section. approved the information collection

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61273

requirements in this section under control determines that a State home does not (The Office of Management and Budget has number 2900–0161.) meet the requirements of this part (i.e., approved the information collection requirements in this section under control § 51.30 Certification of a State home. denies certification). An appeal is not provided to a State for a State home that number 2900–0161) (a) General certification requirement. receives a provisional certification To be certified, the State home must § 51.31 Surveys for recognition and/or because, by providing the corrective certification. allow VA to survey the home in action plan necessary to receive a accordance with § 51.31. A State home (a) General. Both before and after a provisional certification, a State home is recognized and certified, VA must be certified no later than 450 demonstrates its acceptance of VA’s calendar days after the State home is may survey the home as necessary to determination that it does not meet the determine whether it complies with recognized. Certifications expire 600 VA standards for which the corrective calendar days after the date of their applicable regulations. VA will provide action plan was submitted. advance notice before a recognition issuance. (1) Notice of decision denying survey, but advance notice is not (b) Periodic certifications required. certification. The Director will issue in required before other surveys. A survey, The Director of the VA medical center writing a decision denying certification as necessary, may cover all parts of the of jurisdiction will certify a State home that sets forth the specific standard(s) home or only certain parts, and may based on a survey conducted at least not met. The Director will send a copy include review, audit, and production of once every 270–450 calendar days, at of this decision to the State official any records that have a bearing on VA’s discretion, and will notify the authorized to oversee operations of the compliance with the requirements of State official authorized to oversee State home, and notify that official of operations of the State home of the the State’s right to submit a written this part (including any reports from decision regarding certification. appeal to the Under Secretary for Health state or local entities), as well as the (c) Decreasing capacity for a program as stated in paragraph (e)(2) of this completion and submission to VA of all of care. The State must report any section. If the State home does not required forms. The Director will decreases in the capacity for a particular submit a timely written appeal, the designate the VA officials and/or program of care to the Office of Director’s decision becomes final and contractors to survey the home. Geriatrics and Extended Care in VA VA will not pay per diem for any care (b) Recognition surveys. VA will not Central Office, 810 Vermont Avenue provided on or after the 31st day after conduct a recognition survey unless the NW, Washington, DC 20420 no later the State’s receipt of the Director’s following minimum requirements are than 30 calendar days after such decision. met: decrease, and must provide an (2) Appeal of denial of certification. (1) For nursing homes and explanation for the decrease. The State must submit a written appeal domiciliaries, the home has at least 20 (d) Provisional certification—(1) no later than 30 calendar days after the residents or has a number of residents When issuance is required. After a VA date of the notice of the denial of consisting of at least 50 percent of the survey, the Director must issue a certification. The appeal must explain resident capacity of the home; provisional certification for the why the denial of certification is (2) For adult day health care programs surveyed State home if the Director inaccurate or incomplete and provide of care, the program has at least 10 determines that all of the following are any relevant information not considered participants or has a number of true: by the Director. Any appeal that does participants consisting of at least 50 (i) The State home does not meet one not identify a reason for disagreement percent of participant capacity of the or more of the applicable requirements will be returned to the sender without program. or standards in this part; further consideration. If the State home (c) Threats to public, resident, or (ii) None of these deficiencies submits a timely written appeal, the participant safety. If VA identifies a immediately jeopardize the health or Director’s decision will not take effect condition at the home that poses an safety of any resident or participant; and VA will continue to pay per diem immediate threat to public, resident or (iii) No later than 20 working days to the State home pending a decision by participant safety, or other information after receipt by the State home of the the Under Secretary for Health. indicating the existence of such a threat, survey report, the State submitted to the (3) Decision on appeal of a denial of the Director of the VA medical center of Director a written plan to remedy each certification. The Under Secretary for jurisdiction will immediately report this deficiency in a specified amount of Health will review the matter, including to the VA Network Director (10N1–22); time; and any relevant supporting documentation, the Office of Geriatrics and Extended (iv) The plan is reasonable and the and issue a written decision that affirms Care in VA Central Office; and the State Director has sent a written notice to the or reverses the Director’s decision. The official authorized to oversee operations appropriate person(s) at the State home State will be notified of the decision, of the home. informing him or her that the Director which may be appealed to the Board of (The Office of Management and Budget has agrees to the plan. Veterans’ Appeals (see 38 CFR part 20) approved the information collection (2) Surveys to continue while under if it results in a loss of per diem requirements in this section under control provisional certification. VA will payments to the State. VA will number 2900–0160.) continue to survey the State home while terminate recognition and certification § 51.32 Terminating recognition. it is under a provisional certification in and discontinue per diem payments for accordance with this section and care provided on and after the date of Once a home has achieved § 51.31. After such a survey, the Director the Under Secretary for Health’s recognition, the recognition will be will continue the provisional decision affirming a denial of terminated only if the State requests that certification if the Director determines certification or on a later date that must the recognition be terminated, or if VA that the four criteria listed in paragraphs be specified by the Under Secretary for makes a final decision that affirms the (c)(1)(i)–(iv) of this section are true. Health. Director’s decision not to certify the (e) Notice and the right to appeal a (f) Other appeals. Appeals of matters State home. denial of certification. A State home has not addressed in this section will be ■ 8. Revise the heading for subpart C to the right to appeal when the Director governed by 38 CFR part 20. read as follows:

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61274 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

Subpart C—Requirements Applicable hospital care at VA expense, but VA financial disclosure sections of VA Forms to Eligibility, Rates, and Payments will not pay per diem for any part of the 10–10EZ and 10–10EZR, and adult day absence if it continues for longer than health care applicants may be required to * * * * * 96 consecutive hours. Absences that are complete the financial disclosure sections of ■ these forms in order to enroll with VA. 9. Revise § 51.40 to read as follows: not interrupted by at least 24 hours of Although the nursing home applicants or continuous residence in the State home § 51.40 Basic per diem rates. residents or adult day health care are considered one continuous absence. participants do not complete the financial (a) Basic rate. Except as provided in (d) Determining whether a Veteran disclosure sections of VA Forms 10–10EZ § 51.41, VA will pay per diem for care spent a day receiving adult day health and 10–10EZR, an unsigned form is provided to an eligible veteran at a State care. Per diem will be paid for a day of incomplete, and VA will not accept the form. home at the lesser of the following rates: adult day health care. For purposes of (ii) A completed VA Form 10–10SH, (1) One-half of the daily cost of the this section a day of adult day health State Home Program Application for care for each day the veteran is in the care means: Care—Medical Certification. State home, as calculated under (1) Six hours or more in one calendar (2) Form required for monthly paragraph (b) of this section. day in which a veteran receives adult payments. Except as provided in (2) The basic per diem rate for each day health care; or paragraphs (b)(1) and (2) of this section, day the veteran is in the State home. (2) Any two periods of at least 3 hours VA pays per diem on a monthly basis The basic per diem rate is established by each but less than 6 hours each in any for care provided during the prior VA for each fiscal year in accordance 2 calendar days in the same calendar month. To receive payment, the State with 38 U.S.C. 1741(a) and (c). month in which the veteran receives must submit each month to the VA a Note to paragraph (a): To determine the adult day health care. completed VA Form 10–5588, State number of days that a veteran was in a State (3) Time during which the State home Home Report and Statement of Federal home, see paragraph (c) of this section. provides transportation between the Aid Claimed. (b) Commencement of payments—(1) (b) How to calculate the daily cost of veteran’s residence and the State home Per diem payments for a newly- a veteran’s care. The daily cost of care or to a health care visit, or provides staff recognized State home. No per diem consists of those direct and indirect to accompany a veteran during payments will be made until VA costs attributable to care at the State transportation or a health care visit, will recognizes the home and each veteran home, divided by the total number of be included as time the veteran receives resident for whom VA pays per diem is residents serviced by the program of adult day health care. verified as being eligible; however, per care. Cost principles are set forth in ■ 10. Revise § 51.42 to read as follows: diem payments will be made Office of Management and Budget retroactively for care that was provided (OMB) regulations. 2 CFR 200.400– § 51.42 Payment procedures. on and after the date of the completion 200.475. (a) Forms required—(1) Forms of the VA survey that provided the basis (c) Determining whether a veteran required at time of admission or for determining that the home met the spent a day receiving nursing home or enrollment. As a condition for receiving payment of per diem under this part, the standards of this part. domiciliary care—(1) Nursing homes. (2) Per diem payments for capacity VA will pay per diem for each day that State home must submit the forms identified in paragraphs (a)(1)(i) and (ii) certified under § 51.30(c). Per diem will the veteran is receiving nursing home be paid for the care of veterans in care and has an overnight stay at the of this section to the VA medical center of jurisdiction for each veteran at the capacity certified in accordance with State home. Per diem also will be paid § 51.30(c) retroactive to the date of the for a day when there is no overnight time of the veteran’s admission to or enrollment in a State home. If the home completion of the survey if the Director stay if the State home nursing home care certifies the capacity as a result of that program has an occupancy rate of 90 is not a recognized State home, the home must, after recognition, submit survey. percent or greater on that day. However, (3) Payments for eligible veterans. these payments will be made only for forms for Veterans who received care on and after the date of the completion of When a State home admits or enrolls an the first 10 consecutive days during eligible veteran, VA will pay per diem which the veteran is admitted as a the VA survey that provided the basis for determining that the home met the under this part from the date of receipt patient for any stay in a VA or other of the completed forms required by this hospital (a hospital stay could occur standards of this part. The State home must also submit the appropriate form section, except that VA will pay per more than once in a calendar year once diem from the date care began if the there is an overnight stay in the State with any request for a change in the type of per diem paid on behalf of a Director receives the completed forms home between hospital stays) and only no later than 10 calendar days after care for the first 12 days in a calendar year veteran as a result of a change in the veteran’s program of care or a change in began. VA will make retroactive during which the veteran is absent for payments of per diem under paragraphs purposes other than receiving hospital the veteran’s service-connected disability rating that makes the veteran’s (b)(1) and (2) of this section only if the care. Occupancy rate is calculated by Director receives the completed forms dividing the total number of residents care eligible for payment under § 51.41. Copies of VA Forms can be obtained that must be submitted under this (including nonveterans) in the nursing section. home on that day by the total from any VA Medical Center and are recognized nursing home capacity in available on our website at www.va.gov/ (The Office of Management and Budget has approved the information collection that State home. vaforms. The required forms are: (i) A completed VA Form 10–10EZ, requirements in this section under control (2) Domiciliaries. VA will pay per numbers 2900–0091 and 2900–0160.) Application for Medical Benefits (or VA diem for each day that the veteran is ■ 11. Revise § 51.43 to read as follows: receiving domiciliary care and has an Form 10–10EZR, Health Benefits overnight stay at the State home. VA Renewal Form, if a completed Form 10– § 51.43 Drugs and medicines for certain will also pay per diem during any 10EZ is already on file at VA). veterans. absence of 96 or fewer consecutive Note 1 to paragraph (a)(1)(i): Domiciliary (a) In addition to the per diem hours for purposes other than receiving applicants and residents must complete the payments under § 51.40 of this part, the

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61275

Secretary will furnish drugs and receiving care based on his or her dependency and indemnity medicines to a State home as may be service (see 38 U.S.C. 5303, 5303A), is compensation based on the character of ordered by prescription of a duly not barred from receiving VA pension, a discharge from military service (see 38 licensed physician as specific therapy in compensation or dependency and CFR 3.12), and the veteran is: the treatment of illness or injury for a indemnity compensation based on the (1) A veteran whose annual income veteran receiving nursing home care in character of a discharge from military does not exceed the maximum annual a State home if— service (see 38 CFR 3.12) and is within rate of pension payable to a veteran in (1) The veteran: one of the following categories: need of regular aid and attendance; or (i) Has a singular or combined rating (a) Veterans with service-connected (2) A veteran who VA determines has of less than 50 percent based on one or disabilities; no adequate means of support. The more service-connected disabilities and (b) Veterans who are former prisoners phrase ‘‘no adequate means of support’’ needs the drugs and medicines for a of war, who were awarded the Purple refers to an applicant for domiciliary service-connected disability; and Heart, or who were awarded the medal care whose annual income exceeds the (ii) Needs nursing home care for of honor under 10 U.S.C. 3741, 6241, or rate of pension described in paragraph reasons that do not include care for a 8741 or 14 U.S.C. 491; (a)(1) of this section, but who is able to VA adjudicated service-connected (c) Veterans who were discharged or demonstrate to competent VA medical disability; or released from active military service for authority, on the basis of objective (2) The veteran: a disability incurred or aggravated in the evidence, that deficits in health or (i) Has a singular or combined rating line of duty; functional status render the applicant of 50 or 60 percent based on one or (d) Veterans who receive disability incapable of pursuing substantially more service-connected disabilities and compensation under 38 U.S.C. 1151; gainful employment, as determined by needs the drugs and medicines; and (e) Veterans whose entitlement to the Chief of Staff of the VA medical (ii) Needs nursing home care for disability compensation is suspended center of jurisdiction, and who is reasons that do not include care for a because of the receipt of retired pay; otherwise without the means to provide VA adjudicated service-connected (f) Veterans whose entitlement to adequately for himself or herself, or be disability. disability compensation is suspended provided for in the community. (b) For purposes of this section, the (b) VA will also furnish drugs and pursuant to 38 U.S.C. 1151, but only to eligible veteran must be able to perform medicines to a State home for a veteran the extent that such veterans’ the following: receiving nursing home, domiciliary, or continuing eligibility for nursing home adult day health care in a State home (1) Daily ablutions, such as brushing care is provided for in the judgment or teeth, bathing, combing hair, and body pursuant to 38 U.S.C. 1712(d), as settlement described in 38 U.S.C. 1151; implemented by § 17.96 of this chapter, eliminations, without assistance. (g) Veterans who VA determines are (2) Dress himself or herself with a subject to the limitation in § 51.41(c)(2). unable to defray the expenses of (c) VA may furnish a drug or minimum of assistance. necessary care as specified under 38 medicine under paragraph (a) of this (3) Proceed to and return from the U.S.C. 1722(a); section and under § 17.96 of this chapter dining hall without aid. (h) Veterans solely seeking care for a only if the drug or medicine is included (4) Feed himself or herself. disorder associated with exposure to a on VA’s National Formulary, unless VA (5) Secure medical attention on an toxic substance or radiation, for a ambulatory basis or by use of a determines a non-Formulary drug or disorder associated with service in the personally propelled wheelchair. medicine is medically necessary. Southwest Asia theater of operations (6) Have voluntary control over body (d) VA may furnish a drug or during the Persian Gulf War, as eliminations or have control by use of medicine under this section and under provided in 38 U.S.C. 1710(e), or for any an appropriate prosthesis. § 17.96 of this chapter by having the illness associated with service in (7) Participate in some measure, drug or medicine delivered to the State combat in a war after the Gulf War or however slight, in work assignments home in which the veteran resides by during a period of hostility after that support the maintenance and mail or other means and packaged in a November 11, 1998, as provided and operation of the State home. form that is mutually acceptable to the limited in 38 U.S.C. 1710(e); (8) Make rational and competent State home and to VA set forth in a (i) Veterans who agree to pay to the decisions as to his or her desire to written agreement. remain in or leave the State home. (e) As a condition for receiving drugs United States the applicable co-payment ■ 14. Add § 51.52 to read as follows: or medicine under this section or under determined under 38 U.S.C. 1710(f) and 1710(g). § 17.96 of this chapter, the State must § 51.52 Eligible veterans—adult day health submit to the VA medical center of Note 1 to paragraph (i): Neither enrollment care. jurisdiction a completed VA Form 10– in the VA healthcare system nor eligibility to A veteran is an eligible veteran for 0460 with the corresponding enroll is required to be an eligible veteran for payment of per diem to a State for adult prescription(s) for each eligible veteran. the purposes of payment of per diem for nursing home care. day health care if VA determines that (The Office of Management and Budget has the veteran: approved the information collection ■ 13. Add § 51.51 to read as follows: (a) Is not barred from receiving VA requirements in this section under control pension, compensation or dependency number 2900–0160.) § 51.51 Eligible veterans—domiciliary and indemnity compensation based on care. ■ 12. Revise § 51.50 to read as follows: the character of a discharge from (a) A veteran is an eligible veteran for military service (see 38 CFR 3.12); § 51.50 Eligible veterans—nursing home the purposes of payment of per diem for (b) Is enrolled in the VA health care care. domiciliary care in a State home under system; A veteran is an eligible veteran for the this part if VA determines that the (c) Would otherwise require nursing purposes of payment of per diem for veteran is not barred from receiving care home care; and nursing home care under this part if VA based on his or her service (see 38 (d) Needs adult day health care determines that the veteran needs U.S.C. 5303, 5303A), is not barred from because the veteran meets any one of nursing home care; is not barred from receiving VA pension, compensation or the following conditions:

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61276 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

(1) The veteran has three or more calendar days for any eligible veteran any other provision of this part, VA will Activities of Daily Living (ADL) who resided in a State home, and for continue to pay per diem for a period dependencies. whom VA was paying per diem, if such not to exceed 30 calendar days for any (2) The veteran has significant veteran is evacuated during an eligible veteran who was receiving adult cognitive impairment. emergency into a facility other than a day health care, and for whom VA was (3) The veteran has two ADL VA nursing home, hospital, domiciliary, paying per diem, if the adult day health dependencies and two or more of the or other VA site of care if the State is care facility becomes temporarily following conditions: responsible for providing or paying for unavailable due to an emergency. (i) Seventy-five years old or older; the care. VA will not pay per diem Approval of a temporary program of (ii) High use of medical services, i.e., under this section for more than 30 care for such veteran is subject to three or more hospitalizations per calendar days of care provided in the paragraph (e) of this section. If after 30 calendar year, or 12 or more visits to an evacuation facility, unless the official calendar days the veteran cannot return outpatient clinic or to an emergency who approved the emergency response to the adult day health care program in evaluation unit per calendar year; under paragraph (e) of this section the State home, VA will discontinue per (iii) Diagnosis of clinical depression; determines that it is not reasonably diem payments unless the official who or possible to return the veteran to a State approved the emergency response under (iv) Living alone in the community. home within the 30-calendar-day paragraph (e) of this section determines (4) The veteran does not meet the period, in which case such official will that it is not reasonably possible to criteria in paragraph (d)(1), (2), or (3) of approve additional period(s) of no more provide care in the State home or to this section, but nevertheless a licensed than 30 calendar days in accordance relocate an eligible veteran to a different VA medical practitioner determines the with this section. VA will not pay per recognized or certified facility, in which veteran needs adult day health care diem if VA determines that a veteran is case such official will approve services. or has been placed in a facility that does additional period(s) of no more than 30 (Authority: 38 U.S.C. 501, 1720(f), 1741– not meet the standards set forth in calendar days at the temporary program 1743) paragraph (c)(1) of this section, and VA of care in accordance with this section. ■ 15. Add § 51.58 to read as follows: may recover all per diem paid for the VA will not pay per diem if VA care of the veteran in that facility. determines that a veteran was provided § 51.58 Requirements and Standards (c) Selection of evacuation facilities. adult day health care in a facility that applicable for payment of per diem. The following standards and procedures does not meet the standards set forth in A State home must meet the in paragraphs (c)(1) through (3) apply to paragraph (c)(1) of this section, and VA requirements in subpart C and the the selection of an evacuation facility in may recover all per diem paid for the standards in the applicable subpart to be order for VA to continue to pay per care of the veteran in that facility. recognized, certified, and receive per diem during an emergency. These (e) Approval of response. Per diem diem for that program of care: standards and procedures also apply to payments will not be made under this (a) For nursing home care, subpart D. evacuation facilities when veterans are section unless and until the Director of (b) For domiciliary care, subpart E. evacuated from a nursing home in the VA medical center of jurisdiction or (c) For adult day health care, subpart which care is being provided pursuant the director of the VISN in which the F. to a contract under 38 U.S.C. 1720. State home is located (if the VAMC ■ 16. Revise § 51.59 to read as follows: (1) Each veteran who is evacuated Director is not capable of doing so) determines, that an emergency exists § 51.59 Authority to continue payment of must be placed in a facility that, at a per diem when veterans are relocated due minimum, will meet the needs for food, and that the evacuation facility meets to emergency. shelter, toileting, and essential medical VA standards set forth in paragraph (a) Definition of emergency. For the care of that veteran. (c)(1) of this section. purposes of this section, emergency (2) For veterans evacuated from ■ 17. Revise the heading of subpart D to means an occasion or instance where all nursing homes, the following types of read as follows: facilities may meet the standards under of the following are true: Subpart D—Standards applicable to (1) It would be unsafe for veterans paragraph (c)(1) of this section: the payment of per diem for nursing receiving care at a State home to remain (i) VA Community Living Centers; home care. in that home. (ii) VA contract nursing homes; (iii) Centers for Medicare and (2) The State is not, or believes that * * * * * it will not be, able to provide care in the Medicaid Services certified facilities; State home on a temporary or long-term and § 51.120 [Amended] basis for any or all of its veteran (iv) Licensed nursing homes. ■ 18. Amend § 51.120 in paragraph residents due to a situation involving Note 1 to paragraph (c)(2): If none of the (a)(3) by removing ‘‘Chief Consultant, the State home, and not due to a above options are available, veterans may be Office of Geriatrics and Extended Care situation where a particular veteran’s evacuated temporarily to other facilities that (114)’’ and adding in its place ‘‘Office of medical condition requires that the meet the standards under paragraph (c)(1) of Geriatrics and Extended Care in VA this section. veteran be transferred to another Central Office’’. facility, such as for a period of (3) For veterans evacuated from hospitalization. domiciliaries, the following types of § 51.140 [Amended] (3) The State determines that the facilities may meet the standards in ■ 19. Amend § 51.140: veterans must be evacuated to another paragraph (c)(1) of this section: ■ a. In paragraph (a)(2), by removing facility or facilities. (i) Emergency evacuation facilities ‘‘American Dietetic Association’’ and (b) General authority to pay per diem identified by the city or State; adding in its place ‘‘Academy of during a relocation period. (ii) Assisted living facilities; and Nutrition and Dietetics’’; and Notwithstanding any other provision of (iii) Hotels. ■ b. In paragraph (d)(4), by removing this part, VA will continue to pay per (d) Applicability to adult day health ‘‘who refuse food served’’. diem for a period not to exceed 30 care programs of care. Notwithstanding ■ 20. Amend § 51.210:

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61277

■ a. In paragraph (b) introductory text, § 51.90; and § 51.100, except (2) The comprehensive care plan by removing ‘‘Chief Consultant, Office § 51.100(g)(2), (h), and (i)(5) through (7). described in § 51.310 specifies the of Geriatrics and Extended Care (114)’’ The State Home must have a written nature of the work performed and and adding in its place ‘‘Office of procedure for admissions, discharges, whether the work is unpaid or paid; Geriatrics and Extended Care’’; and and transfers. For purposes of this (3) Compensation for work for which ■ b. Revising paragraph (b)(2), section, the terms ‘‘nursing home’’ and the facility would pay a prevailing wage redesignating paragraph (b)(3) as (b)(4) ‘‘nursing facility’’ or ‘‘facility’’ in the if done by non-residents is paid at or and revising it, and adding new applicable provisions of the cited above prevailing wages for similar work paragraph (b)(3) and paragraph (h)(3). sections apply to a domiciliary. in the area where the facility is located; The revision and additions read as (a) Notice of rights and services— and follows: notification of changes. (1) Facility (4) The facility consulted with and the management must immediately inform § 51.210 Administration. resident agrees to the work arrangement the resident and consult with the described in the comprehensive care * * * * * primary care physician when there is plan. (b) * * * (i) An accident involving the resident (c) Married couples. The resident has (2) The State home administrator; that results in injury and has the the right, if space is available within the (3) The director of nursing services (or potential for requiring physician existing facility, to share a room with other individual in charge of nursing intervention; his or her spouse when married services); and (ii) A significant change in the residents live in the same facility and (4) The State employee responsible for resident’s physical, mental, or both spouses consent to the oversight of the State home if a psychosocial status (i.e., a deterioration arrangement. If the State home contractor operates the State home. in health, mental, or psychosocial status determines existing space is not in either life-threatening conditions or * * * * * available to allow married residents to clinical complications); (h) * * * share rooms, the State home will make (3) If a veteran requires health care (iii) A need to alter treatment significantly (i.e., a need to discontinue accommodations for the privacy of that the State home is not required to married residents. provide under this part, the State home an existing form of treatment due to adverse consequences, or to commence (d) Transfer and discharge—(1) may assist the veteran in obtaining that Definition: Transfer and discharge care from sources outside the State a new form of treatment); or (iv) A decision to transfer or discharge includes movement of a resident to a home, including the Veterans Health bed outside of the facility whether that Administration. If VA is contacted about the resident from the facility as specified in paragraph (d) of this bed is in the same physical plant or not. providing such care, VA will determine Transfer and discharge does not refer to the best option for obtaining the needed section. (2) The facility management must also movement of a resident to a bed within services and will notify the veteran or promptly notify the resident when there the same facility. the authorized representative of the is (2) Transfer and discharge veteran. (i) A change in room or roommate requirements. The facility management * * * * * assignment as specified in § 51.100(f)(2); must permit each resident to remain in ■ 21. Add subpart E, consisting of or the facility, and not transfer or discharge §§ 51.300 through 51.390, to read as (ii) A change in resident rights under the resident from the facility unless follows: Federal or State law or regulations as (i) The transfer or discharge is Subpart E—Standards Applicable to the specified in § 51.70(b)(1). necessary for the resident’s welfare, Payment of Per Diem for Domiciliary Care (3) The facility management must including because the domiciliary record and periodically update the resident’s health has improved Sec. address and phone number of the 51.300 Resident rights and behavior; State sufficiently so the resident no longer home practices; quality of life. resident’s legal representative or needs the services provided by the 51.310 Resident admission, assessment, interested family member, but the domiciliary; care plan, and discharge. resident has the right to decide whether (ii) The resident is in need of a higher 51.320 Quality of care. to have the State home notify his or her level of long term or acute care; 51.330 Nursing care. legal representative or interested family (iii) The safety of individuals in the 51.340 Physician and other licensed member of changes. facility is endangered; medical practitioner services. (b) Work. The resident must 51.350 Provision of certain specialized participate, based on his or her ability, (iv) The health of individuals in the services and environmental in some measure, however slight, in facility would otherwise be endangered; requirements. work assignments that support the (v) The resident has failed, after 51.390 Administration. maintenance and operation of the State reasonable and appropriate notice, to pay for a stay at the facility; Subpart E—Standards Applicable to home. The State Home management (vi) The domiciliary ceases to operate; the Payment of Per Diem for must create a written policy to or Domiciliary Care implement the work requirement. The resident is encouraged to participate in (vii) The resident ceases to meet any § 51.300 Resident rights and behavior; vocational and employment services, of the eligibility criteria of § 51.51. State home practices; quality of life. which are essential to meeting the (3) Documentation. When the facility The State home must protect and psychosocial needs of the resident. The transfers or discharges a resident under promote the rights and quality of life of resident must perform work for the any of the circumstances specified in each resident receiving domiciliary care, facility after the State home has paragraphs (a)(2)(i) through (vii) of this and otherwise comply with the accomplished the following: section, the primary care physician requirements in § 51.70, except (1) The facility has documented the must document the transfer and § 51.70(b)(9), (h)(1), and (m); § 51.80, resident’s need or desire to work in the circumstances in the resident’s clinical except § 51.80(a)(2) and (4) and (b); comprehensive care plan; record.

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61278 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

(4) Notice before transfer. Before a home notify his or her legal § 51.310 Resident admission, assessment, facility transfers or discharges a representative or interested family care plan, and discharge. resident, the facility must member of transfers. The State home must conduct (i) Notify the resident of the transfer (f) Resident activities. (1) The facility accurate, written, medical and or discharge and the reasons for the management must provide for an comprehensive assessments of each move in writing and in a language and ongoing program of activities designed resident’s medical and functional manner he or she understands. The to meet, in accordance with the capacity upon admission, annually, and resident has the right to decide whether comprehensive assessment, the interests as required by a change in the resident’s to have the State home notify his or her and the physical, mental, and condition. The comprehensive legal representative or interested family psychosocial well-being of each assessment will use information from member of changes. resident. the medical assessment, and both assessments will inform the (ii) Record the reasons in the (2) The activities program must be comprehensive care plan. The State resident’s clinical record; and directed by a qualified coordinator. (iii) Include in the notice the items home must have a written policy to described in paragraph (d)(6) of this (g) Social services. (1) The State home determine how to coordinate and section. must provide social work services to complete the comprehensive assessment (5) Timing of the notice. (i) The notice meet the social and emotional needs of process, including how it will review, of transfer or discharge required by residents to attain or maintain the and revise the comprehensive paragraph (d)(4) of this section must be highest practicable mental and assessment in implementing the made by the facility at least 30 calendar psychosocial well-being of each comprehensive care plan. The State days before the resident is transferred or resident. home must review comprehensive discharged, except when specified in (2) The State home must have a assessments annually, and promptly paragraph (d)(5)(ii) of this section, sufficient number of social workers to after every significant change in the (ii) Notice may be made as soon as meet residents’ needs. resident’s physical, mental, or social practicable before transfer or discharge (3) The State home must have a condition. when written policy on how it determines (a) Admission orders and medical (A) The safety of individuals in the qualifications of social workers. It is assessment. At the time each resident is facility would be endangered; highly recommended, but not required, admitted, the State home must have (B) The health of individuals in the that a qualified social worker is an physician orders for the resident’s facility would be otherwise endangered; individual with immediate care. A medical assessment, (C) The resident’s health improves (i) A bachelor’s degree in social work including a medical history and sufficiently so the resident no longer from a school accredited by the Council physical examination, must be needs the services provided by the of Social Work Education (Note: A performed by a physician, or other domiciliary; or master’s degree social worker with health care provider qualified under (D) The resident’s needs cannot be experience in long-term care is State law, and recorded in the medical met in the domiciliary. preferred), and record no later than 7 calendar days (6) Contents of the notice. The written after admission, unless one was (ii) A social work license from the notice specified in paragraph (d)(4) of performed no earlier than 5 calendar State in which the State home is this section must include the following: days before admission and the findings (i) The reason for transfer or located, if offered by the State, and were recorded in the medical record. discharge; (iii) A minimum of one year of The medical assessment will be part of (ii) The effective date of transfer or supervised social work experience in a the comprehensive assessment. discharge; health care setting working directly with (b) Comprehensive assessments. (1) (iii) The location to which the individuals. The state home must complete a resident is transferred or discharged; (4) The facility management must comprehensive assessment of each (iv) A statement that the resident has have sufficient support staff to meet resident no later than 14 calendar days the right to appeal the action to the State patients’ social services needs. after admission, annually, and as official designated by the State; and (5) Facilities for social services must required by a change in the resident’s (v) The name, address and telephone ensure privacy for interviews. condition. number of the State long term care (h) Environment. The facility (2) Each comprehensive assessment ombudsman. management must provide must be conducted or coordinated by a (7) Orientation for transfer or registered nurse with the participation (1) A safe, clean, comfortable, and discharge. The facility management of appropriate healthcare professionals, homelike environment, allowing the must provide sufficient preparation and including at least one physician, the resident to use his or her personal orientation to residents to ensure safe registered nurse, and one social worker. belongings to the extent possible; and orderly transfer or discharge from The registered nurse must sign and the facility. (2) Housekeeping and maintenance certify the assessment. The (e) Notice of bed-hold policy and services necessary to maintain a comprehensive assessment is to readmission—notice before transfer. sanitary, orderly, and comfortable determine the care, treatment, and The State home must have a written interior; services that will meet the resident’s bed-hold policy, including criteria for (3) Clean bed and bath linens that are initial and continuing needs. It is an return to the facility. The facility in good condition; and objective evaluation of a resident’s management must provide written (4) Private closet space in each health and functional status, describing information to the resident about the resident’s room, as specified in the resident’s capabilities and State home bed-hold policy upon § 51.200(d)(2)(iv). impairments in performing activities of enrollment, annually thereafter, and (The Office of Management and Budget has daily living, strengths, and needs. The before a State home transfers a resident approved the information collection assessment gathers information through to a hospital. A Resident has the right requirements in this section under control collection of data, observation, and to decide whether to have the State number 2900–0160.) examination.

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61279

(c) Comprehensive care plans. (1) The (ii) Be provided by qualified persons negative consequences to the injured State home must develop a in accordance with each resident’s individuals and the State home. comprehensive care plan for each written comprehensive care plan. (b) Activities of daily living. Based on resident based on the comprehensive (d) Discharge summary. (1) Prior to the comprehensive assessment of a assessment, and develop, review, and discharging a resident, the State home resident, the State home must ensure revise the comprehensive care plan must prepare a discharge summary that that a resident’s abilities in activities of following each comprehensive includes daily living do not diminish unless assessment. The comprehensive care (i) A summary of the resident’s stay, circumstances of the individual’s plan must include measurable the resident’s status at the time of the clinical condition demonstrate that objectives and timetables to address a discharge, and the resident’s progress on diminution was unavoidable, and the resident’s emotional, behavioral, social, the comprehensive care plan in resident is given appropriate treatment and physical needs, with emphasis on paragraph (b)(2) of this section; and and services to maintain or improve his assisting each patient to achieve and (ii) A post-discharge comprehensive activities of daily living. This includes maintain an optimal level of self-care care plan that is developed with the the resident’s ability to: and independence. The comprehensive participation of the resident. (1) Bathe, dress, and groom; care plan must describe the following, (2) A resident has the right to decide (2) Transfer and ambulate; as appropriate to the resident’s if he or she would like to involve his or (3) Toilet; circumstances: her legal representative or interested (4) Eat; and (i) The services that are to be family member in development of a (5) Talk or otherwise communicate. furnished to support the resident’s post-discharge plan. (c) Vision and hearing. To ensure that highest practicable emotional, (The Office of Management and Budget has residents receive proper treatment and behavioral, social rehabilitation, and approved the information collection assistive devices to maintain vision and physical well-being; requirements in this section under control hearing, the State home must, if number 2900–0160.) necessary, assist the resident: (ii) The specific work the resident (1) In making appointments; and agrees to do to share in the maintenance § 51.320 Quality of care. (2) By arranging for transportation to and operation of the State home upon The State home must provide each and from the office of a practitioner consultation with the interdisciplinary resident with the care described in this specializing in the treatment of vision or team, and whether that work is paid or subpart in accordance with the hearing impairment or the office of a unpaid; and assessment and comprehensive care professional specializing in the (iii) Any services that would plan. provision of vision or hearing assistive otherwise be required under § 51.350 (a) Reporting of sentinel events. (1) A devices. but are not provided due to the sentinel event is an adverse event that (d) Mental and psychosocial resident’s exercise of rights under results in the loss of life or limb or functioning. Based on the § 51.70, including the right in permanent loss of function. comprehensive assessment of a resident, § 51.70(b)(4) to refuse treatment. (2) Examples of sentinel events are as the State home must assist a resident (2) A comprehensive care plan must follows: who displays mental or psychosocial be: (i) Any resident death, paralysis, adjustment difficulty obtain appropriate (i) Developed no later than 21 coma or other major permanent loss of treatment and services to correct the calendar days after admission; and function associated with a medication assessed problem. (ii) Prepared by an interdisciplinary error; (e) Accidents. The State home must team of health professionals that may (ii) Any suicide of a resident; ensure that: include the primary care physician or a (iii) Assault, homicide or other crime (1) The resident environment remains Licensed Independent Practitioner (or resulting in resident death or major as free of accident hazards as possible; designated Physician’s Assistant or permanent loss of function; or and (iv) A resident fall that results in Nurse Practitioner), a social worker, and (2) Each resident receives adequate death or major permanent loss of a registered nurse who have supervision and assistive devices to function as a direct result of the injuries responsibility for the resident, and other prevent accidents. sustained in the fall. staff in appropriate disciplines as (f) Nutrition. The State home must (3) The State home must report determined by the resident’s needs, and, follow § 51.120(j) regarding nutrition in sentinel events to the Director no later to the extent practicable, the providing domiciliary care. than 24 hours after identification. The participation of the resident and the (g) Special needs. The State home VA medical center of jurisdiction must resident’s family (subject to the consent must provide residents with the report sentinel events by notifying the of the resident) or the resident’s legal following services, if needed: VA Network Director (10N1–10N22) and representative, if appropriate; (1) Injections; the Director, Office of Geriatrics and (2) Colostomy, ureterostomy, or (iii) Reviewed periodically and Extended Care—Operations (10NC4) no ileostomy care; revised consistent with the most recent later than 24 hours after notification. (3) Respiratory care; comprehensive assessment by a team of (4) The State home must establish a (4) Foot care; and qualified persons no less often than mechanism to review and analyze a (5) Non-customized or non- semi-annually; and sentinel event resulting in a written individualized prosthetic devices. (iv) Revised promptly after a report to be submitted to the VA (h) Unnecessary drugs. The State comprehensive assessment reveals a Medical Center of jurisdiction no later home must ensure that the standards set significant change in the resident’s than 10 working days following the forth in § 51.120(m) regarding condition. event. The purpose of the review and unnecessary drugs are followed in (3) The services provided by the analysis of a sentinel event is to prevent providing domiciliary care. facility must injuries to residents, visitors, and (i) Medication errors. The State home (i) Meet professional standards of personnel, and to manage those injuries must ensure that the standards set forth quality; and that do occur and to minimize the in § 51.120(n) regarding medication

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61280 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

errors are followed in providing (2) Write, sign, and date progress section to nursing home and nursing domiciliary care. notes; and home care refer to a domiciliary and (The Office of Management and Budget has (3) Sign and date all orders. domiciliary care. approved the information collection (d) Frequency of visits. The primary (The Office of Management and Budget has requirements in this section under control care physician or other licensed medical approved the information collection number 2900–0160.) practitioner must conduct an in-person requirements in this section under control medical assessment of the resident at number 2900–0160.) § 51.330 Nursing care. least once a calendar year, or more ■ 22. Add subpart F, consisting of The State home must provide an frequently based on the resident’s §§ 51.400 through 51.480, to read as organized nursing service with a condition. follows: sufficient number of qualified nursing (e) Availability of emergency care. personnel to meet the total nursing care The State home must assist residents in Subpart F—Standards Applicable to the needs of all residents within the facility, obtaining emergency care. Payment of per Diem for Adult Day Health Care 24 hours a day, 7 days a week, as determined by their comprehensive § 51.350 Provision of certain specialized Sec. services and environmental requirements. assessments and their comprehensive 51.400 Participant rights. The State home domiciliary care 51.405 Participant and family caregiver care plans. The nursing service must be responsibilities. under the direction of a full-time programs must comply with the requirements of § 51.140, except 51.410 Transfer and discharge. registered nurse who is currently 51.411 Program practices. licensed by the State and has, in § 51.140(f)(2) through (4) concerning 51.415 Restraints, abuse, and staff treatment writing, administrative authority, dietary services; § 51.170 concerning of participants. responsibility, and accountability for dental services; § 51.180, except 51.420 Quality of life. the functions, activities, and training of § 51.180(c) concerning pharmacy 51.425 Physician orders and participant the nursing service’s staff. services; § 51.190 concerning infection medical assessment. control; and § 51.200, except § 51.200(a), 51.430 Quality of care. § 51.340 Physician and other licensed (b), (d)(1)(ii) through (x), (f), and (h)(3) 51.435 Nursing services. medical practitioner services. concerning the physical environment. 51.440 Dietary services. 51.445 Physician services. The State home must provide its For purposes of this section, the 51.450 Specialized rehabilitative services. residents the primary care necessary to references to ‘‘facility’’ in the cited 51.455 Dental services. enable them to attain or maintain the sections also refer to a domiciliary. 51.460 Administration of drugs. highest practicable physical, mental, (a) Dietary services. (1) There must be 51.465 Infection control. and psychosocial well-being. When a no more than 14 hours between a 51.470 Physical environment. resident needs care other than the State substantial evening meal and the 51.475 Administration. home is required to provide under this availability of breakfast the following 51.480 Transportation. day, except as provided in (a)(3) of this subpart, the State home is responsible to Subpart F—Standards Applicable to section. assist the resident to obtain that care. the Payment of per Diem for Adult Day (2) The facility staff must offer snacks The State home must ensure that a Health Care physician personally approves in at bedtime daily. writing a recommendation that an (3) Sixteen hours may elapse between § 51.400 Participant rights. individual be admitted to a domiciliary. a substantial evening meal and breakfast The State home must protect and Each resident must remain at all times the following day when a nourishing promote the rights of a participant in an under the care of a licensed medical snack is offered at bedtime. adult day health care program, practitioner assigned by the State home. (b) Pharmacy services. (1) The drug including the rights set forth in § 51.70, The name of the practitioner will be regimen of each resident must be except for the right set forth in listed in the resident’s medical record. reviewed at least once every six months § 51.70(m). For purposes of this section, The State home must ensure that all of by a licensed pharmacist. the references to resident in the cited the following conditions in paragraphs (2) The pharmacist must report any section also refer to a participant in this (a) through (e) of this section are met: irregularities to the primary care section. physician and the director of nursing, (a) Supervision of medical (The Office of Management and Budget has practitioners. Any licensed medical and these reports must be acted upon. (c) Life safety from fire. The facility approved the information collection practitioner who is not a physician may requirements in this section under control provide medical care to a resident must meet the applicable requirements number 2900–0160.) within the practitioner’s scope of of the National Fire Protection Association’s NFPA 101, Life Safety § 51.405 Participant and family caregiver practice without physician supervision responsibilities. when permitted by State law. Code, as incorporated by reference in § 51.200. The State home must post a written (b) Availability of medical (d) Privacy. The facility must provide statement of participant and family practitioners. If the resident’s assigned the means for visual privacy for each caregiver responsibilities in a place licensed medical practitioner is resident. where participants in the adult day unavailable, another licensed medical (The Office of Management and Budget has health care program and their families practitioner must be available to provide will see it and must provide a copy to care for that resident. approved the information collection requirements in this section under control the participant and caregiver at or before (c) Visits. The primary care physician number 2900–0160.) the time of the intake screening. The or other licensed medical practitioner, statement of responsibilities must for each visit required by paragraph (d) § 51.390 Administration. include the following: of this section, must The State home must follow § 51.210 (a) Treat personnel with respect and (1) Review the resident’s total regarding administration in providing courtesy; program of care, including medications domiciliary care. For purposes of this (b) Communicate with staff to develop and treatments; section, the references in the cited a relationship of trust;

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61281

(c) Make appropriate choices and seek undertakes the transfer or discharge of transfer or discharge from the State appropriate care; a participant, the State home must: home. (d) Ask questions and confirm your (1) Notify the resident of the transfer (g) Written policy. The State home understanding of instructions; or discharge and the reasons for the must have in effect written transfer and (e) Share opinions, concerns, and move in writing and in a language and discharge procedures that reasonably complaints with the program director; manner he or she understands. The ensure that: (f) Communicate any changes in the resident has the right to decide whether (1) Participants will be given a participant’s condition; to have the State home notify his or her transfer or discharge from the adult day (g) Communicate to the program legal representative or interested family health care program to the hospital director about medications and member of changes; when transfer or discharge is medically remedies used by the participant; (2) Record the reasons in the appropriate as determined by a (h) Let the program director know if participant’s clinical record; and physician; and the participant decides not to follow any (3) Include in the notice the items (2) Medical and other information instructions or treatment; and described in paragraph (e) of this needed for care and treatment of (i) Communicate with the adult day section. participants will be exchanged between health care staff if the participant is (d) Timing of the notice. (1) The the facility and the hospital. unable to attend adult day health care. notice of transfer or discharge required (The Office of Management and Budget has (The Office of Management and Budget has under paragraph (c) of this section must approved the information collection approved the information collection be made by the State home at least 30 requirements in this section under control requirements in this section under control calendar days before the participant is number 2900–0160.) number 2900–0160.) given a transfer or discharge, except when specified in paragraph (d)(2) of § 51.411 Program practices. § 51.410 Transfer and discharge. this section. (a) Equal access to quality care. The (a) Definition. For purposes of this (2) Notice may be made as soon as State home must establish and maintain section, the term ‘‘transfer or discharge’’ practicable before a transfer or discharge identical policies and practices includes movement of a participant to a when regarding transfer and discharge under program outside of the adult day health (i) The safety of individuals in the § 51.410 and the provision of services care program whether or not the facility would be endangered; for all participants regardless of the program of care is in the same facility. (ii) The health of individuals in the source of payment. (b) Transfer and discharge facility would be otherwise endangered; (b) Admission policy. The State home requirements. At the time of intake (iii) The participant’s health improves must not require a third-party guarantee screening, the State home must discuss sufficiently that the participant no of payment as a condition of admission the possible reasons for transfer or longer needs the services provided by or expedited admission, or continued discharge with the participant and, to the adult day health care program of admission in the program of care. the extent practicable and appropriate, care; or However, the State home may require a with family members (subject to the (iv) The participant’s needs cannot be participant or an individual who has consent of the participant) or the met in the adult day health care legal access to a participant’s income or participant’s legal representatives. In the program of care. resources to pay for the care from the case of a transfer and discharge to a (e) Contents of the notice. The written participant’s income or resources, when hospital, the transfer and discharge notice specified in paragraph (c) of this available. must be to the hospital closest to the section must include the following: (c) Hours of operation. Each adult day adult day health care facility that can (1) The reason for the transfer or health care program must provide at provide the necessary care. The State discharge; least 8 hours of operation 5 days a week. home must permit each participant to (2) The effective date of the transfer or The hours of operation must be flexible remain in the program of care, and not discharge; and responsive to caregiver needs. transfer or discharge the participant (3) The location to which the from the program of care unless: participant is taken in accordance with § 51.415 Restraints, abuse, and staff (1) The transfer and discharge is the transfer or discharge, if any; treatment of participants. necessary for the participant’s welfare (4) A statement that the participant The State home must meet the and the participant’s needs cannot be has the right to appeal the action to the requirements regarding the use of met in the adult day health care setting; State official responsible for the restraints, abuse, and other matters (2) The transfer and discharge is oversight of State home programs; and concerning staff treatment of appropriate because the participant’s (5) The name, address and telephone participants set forth in § 51.90. For health has improved sufficiently so that number of the first listed of the purposes of this section, the references the participant no longer needs the following that exists in the State: in the cited section to resident refer to services provided in the adult day (i) The State long-term care a participant in this section. health care program; ombudsman, if the long-term care (The Office of Management and Budget has (3) The safety of individuals in the ombudsman serves adult day health approved the information collection facility is endangered; care facilities; or requirements in this section under control (4) The health of individuals in the (ii) Any State ombudsman or advocate number 2900–0160.) facility would otherwise be endangered; who serves adult day health care (5) The participant has failed, after participants; or § 51.420 Quality of life. reasonable and appropriate notice, to (iii) The State agency responsible for The State home must provide an pay for participation in the adult day oversight of State adult day care environment that supports the quality of health care program; or facilities. life of each participant by maximizing (6) The adult day health care program (f) Orientation for transfer and the participant’s potential strengths and ceases to operate. discharge. The State home must provide skills. (a) Dignity. The State home must (c) Notice before transfer or discharge. sufficient preparation and orientation to promote care for participants in a Before an adult day health care program participants to ensure safe and orderly manner and in an environment that

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61282 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

maintains or enhances each individualized comprehensive care (iv) Serve as an advocate for participant’s dignity and respect in full plan. A participant’s activity includes participants by asserting and recognition of his or her individuality. everything the individual experiences safeguarding the human and civil rights (b) Self-determination and during the day, not just arranged events. of the participants; participation. The State home must As part of effective therapeutic activity, (v) Assess signs of mental illness or ensure that the participant has the right the adult day health care program must: dementia and make appropriate to: (i) Provide direction and support for referrals; (1) Choose activities, schedules, and participants, including breaking down (vi) Provide information and referral health care consistent with his or her activities into small, discrete steps or for persons not appropriate for adult day interests, assessments, and plans of care; behaviors, if needed by a participant; health care; (2) Interact with members of the (ii) Have alternative programming (vii) Provide family conferences, and community both inside and outside the available for any participant unable or serve as liaison between participant, facility; and unwilling to take part in group activity; family/caregiver and program staff; (3) Make choices about aspects of his (iii) Design activities that promote (viii) Provide individual or group or her life in the facility that are personal growth and enhance the self- counseling and support to caregivers significant to the participant. image and/or improve or maintain the and participants; (c) Participant and family concerns. functioning level of participants to the (ix) Conduct support groups or The State home must document any extent possible; facilitate participant or family/caregiver concerns submitted to the management (iv) Provide opportunities for a variety participation in support groups; of the program by participants or their of involvements (social, intellectual, (x) Assist program staff in adapting to family members. cultural, economic, emotional, physical, changes in participants’ behavior; and (1) A participant’s family has the right and spiritual) at different levels, (xi) Provide or arrange for individual, to meet with families of other including community activities and group, or family psychotherapy for participants in the program. events; participants with significant (2) Staff or visitors may attend (v) Emphasize participants’ strengths psychosocial needs. meetings of participant or family groups and abilities rather than impairments, (5) Space for social services must be at the group’s invitation. and contribute to participants’ feelings adequate to ensure privacy for (3) The State home must respond to of competence and accomplishment; interviews. written requests that result from group and (g) Environment. The State home must meetings. (vi) Provide opportunities to provide: (4) The State home must listen to the voluntarily perform services for (1) A safe, clean, comfortable, and views of any participant or family group community groups and organizations. homelike environment, and support the and act upon the concerns of (f) Social services. (1) The State home participants’ ability to function as participants and families regarding must provide medically-related social independently as possible and to engage policy and operational decisions services to participants and their in program activities; affecting participant care in the families. (2) Housekeeping and maintenance program. (2) An adult day health care program services necessary to maintain a (d) Participation in other activities. must provide a qualified social worker sanitary, orderly, and comfortable The State home must ensure that a to furnish social services. interior; participant has the right to participate in (3) A qualified social worker is an (3) Private storage space for each social, religious, and community individual with: participant sufficient for a change of activities that do not interfere with the (i) A bachelor’s degree in social work clothes. Upon request of the participant, rights of other participants in the from a school accredited by the Council the State home must offer storage space program. of Social Work Education (Note: A that can be secured with a lock; (e) Therapeutic participant activities. master’s degree in social worker with (4) Interior signs to facilitate (1) The State home must provide for an experience in long-term care is participants’ ability to move about the ongoing program of activities designed preferred); facility independently and safely; to meet, in accordance with the (ii) A social work license from the (5) A clean bed or reclining chair comprehensive assessment, the interests State in which the State home is available for acute illness; and the physical, mental, and located, if that license is offered by the (6) A shower for participants; psychosocial well-being of each State; and (7) Adequate and comfortable lighting participant. (iii) A minimum of one year of levels in all areas; (2) The activities program must be supervised social work experience in a (8) Comfortable and safe temperature directed by a qualified professional who health care setting working directly with levels; and is a qualified therapeutic recreation individuals. (9) Comfortable sound levels. specialist or an activities professional (4) The State home must have (The Office of Management and Budget has who: sufficient social workers and support approved the information collection (i) Is licensed, if applicable, by the staff to meet participant and family requirements in this section under control State in which practicing; and social service needs. The adult day number 2900–0160.) (ii) Is certified as a therapeutic health care program must: recreation specialist or an activities (i) Provide counseling to participants § 51.425 Physician orders and participant professional by a recognized certifying and to families/caregivers; medical assessment. body. (ii) Facilitate the participant’s The State home must have a written (3) A critical role of adult day health adaptation to the adult day health care policy to determine how to coordinate care is to build relationships and create program and active involvement in the and complete the written initial and a culture that supports, involves, and comprehensive care plan, if appropriate; comprehensive assessment processes validates the participant. Therapeutic (iii) Arrange for services not provided upon admission, annually, and as activity refers to that supportive culture by adult day health care, and work with required by a change in the participant’s and is a significant aspect of the these resources to coordinate services; condition. The State home must also

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61283

outline in its policy how it will plan no later than 21 calendar days after to report sentinel events as set forth in complete, implement, review, and admission. A participant’s § 51.120(a)(3), except that the duty to revise the assessments. comprehensive care plan must be report applies only to a sentinel event (a) Admission. At the time each individualized and must include that occurs while the participant is participant is admitted, the State home measurable objectives and timetables to under the care of the State home, must have physician orders for the meet all physical, mental, and including while in State home-provided participant’s immediate care. An initial psychosocial needs identified in the transportation. medical assessment including a medical most recent assessment. The (3) Review and prevention of sentinel history and physical examination with comprehensive care plan must describe events. The State home must establish a documentation of tuberculosis screening the following: mechanism to review and analyze a must be completed by a physician or (i) The services that are to be provided sentinel event resulting in a written other health care provider qualified as part of the program of care and by report to be submitted to the VA under State law no earlier than 30 other sources to attain or maintain the Medical Center of jurisdiction no later calendar days before admission and no participant’s highest physical, mental, than 10 working days after the event. later than 7 calendar days after and psychosocial well-being as required The purpose of the review and analysis admission. The findings must be under § 51.430; of a sentinel event is to prevent future recorded in the participant’s medical (ii) Any services that would otherwise injuries to participants, visitors, and record. be required under § 51.430 but are not personnel. provided due to the participant’s (b) Comprehensive assessments. The (b) Activities of daily living. Based on exercise of rights under § 51.70, State home must complete the the comprehensive assessment of a comprehensive assessment no later than including the right to refuse treatment under § 51.70(b)(4); participant, the State home must ensure 14 calendar days after admission. The that: State home must develop a (iii) Type and scope of interventions to be provided in order to reach desired, (1) No diminution in activities of daily comprehensive care plan for each living. A participant’s abilities in participant based on his or her realistic outcomes; (iv) Roles of participant and family/ activities of daily living do not diminish comprehensive assessment. The State unless the circumstances of the home must review comprehensive caregiver; and (v) Discharge or transition plan, individual’s clinical condition assessments annually, as well as including specific criteria for discharge demonstrate that diminution was promptly after every significant change or transfer. unavoidable. This includes the in the participant’s physical, mental, or (2) The services provided or arranged participant’s ability to social condition. The State home must by the State home must (i) Bathe, dress, and groom; immediately change the participant’s (i) Meet professional standards of (ii) Transfer and ambulate; comprehensive care plan after a quality; and significant change is identified. At (ii) Be provided by qualified persons (iii) Toilet; and minimum, the written comprehensive in accordance with each participant’s (iv) Eat. assessment must address the following: comprehensive care plan. (2) Appropriate treatment and (1) Ability to ambulate, (e) Discharge summary. Prior to services given. A participant is given the (2) Ability to use bathroom facilities, discharging a participant, the State appropriate treatment and services to (3) Ability to eat and swallow, home must prepare a discharge maintain or improve his or her abilities (4) Ability to hear, summary that includes the following: specified in paragraph (b)(1) of this (5) Ability to see, (1) A summary of the participant’s section. (6) Ability to experience feeling and care; (3) Necessary services provided to movement, (2) A summary of the participant’s participant unable to carry out activities (7) Ability to communicate, status at the time of the discharge to of daily living. A participant who is (8) Risk of wandering, include items in paragraph (b) of this unable to carry out activities of daily (9) Risk of elopement, section; and living receives the necessary services to (10) Risk of suicide, (3) A discharge/transition plan related maintain good nutrition, hydration, (11) Risk of deficiencies regarding to changes in service needs and changes social interactions, and grooming, personal and oral hygiene, in functional status that prompted mobility, and bladder and bowel (12) Special needs (such as transition to another program of care. medication, diet, nutrition, hydration, elimination. or prosthetics). (The Office of Management and Budget has (c) Mental and psychosocial (c) Coordination of assessments. (1) approved the information collection functioning. The State home must make requirements in this section under control counseling and related psychosocial Each initial and subsequent number 2900–0160.) comprehensive assessment must be services available for improving mental conducted and coordinated with the § 51.430 Quality of care. and psychosocial functioning of participation of appropriate health Each participant must receive, and the participants with mental or professionals. State home must provide, the necessary psychosocial needs. The services (2) Each person who completes a care and services to attain or maintain available must include counseling and portion of an assessment must sign and the highest practicable physical, mental, psychosocial services provided by certify the accuracy of that portion of and psychosocial well-being, in licensed independent mental health the assessment. accordance with the comprehensive professionals. (3) The results of the assessments assessment and comprehensive care (d) Medication errors. The State home must be used to develop, review, and plan. must comply with § 51.120(n) with revise the participant’s individualized (a) Reporting of sentinel events—(1) respect to medication errors. comprehensive care plan. Definition. A ‘‘sentinel event’’ is defined (The Office of Management and Budget has (d) Comprehensive care plans. (1) The in § 51.120(a)(1). approved the information collection State home must ensure that each (2) Duty to report sentinel events. The requirements in this section under control participant has a comprehensive care State home must comply with the duties number 2900–0160.)

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61284 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

§ 51.435 Nursing services. (1) The medical care of each (1) Provide the required services; or The State home must provide an participant is supervised by a primary (2) Obtain the required services and organized nursing service with a care physician; and equipment from an outside resource, in sufficient number of qualified nursing (2) Another physician is available to accordance with § 51.210(h), from a personnel to meet the total nursing care supervise the medical care of provider of specialized rehabilitative needs, as determined by participant participants when their primary care services. assessments and individualized physician is unavailable. (b) Written order. Specialized comprehensive care plans, of all (b) Frequency of physician reviews. If rehabilitative services must be provided participants in the program. the adult day health care program offers under the written order of a physician medical supervision: by qualified personnel. (a) There must be at least one (1) The participant must be seen by registered nurse on duty each day of the primary care physician at least § 51.455 Dental services. operation of the adult day health care annually and as indicated by a change (a) If the adult day health care program. This nurse must be currently of condition. licensed by the State and must have, in program offers medical supervision, (2) The program management must program management must, if writing, administrative authority, have a policy to help ensure that responsibility, and accountability for necessary, assist the participant and adequate medical services are provided family/caregiver the functions, activities, and training of to the participant. (1) In making dental appointments; the nursing and program assistants. (3) At the option of the primary care and (b) The number and level of nursing physician, required reviews in the staff is determined by the authorized program after the initial review may (2) By arranging for transportation to capacity of participants and the nursing alternate between personal physician and from the dental services. care needs of the participants. reviews and reviews by a physician (b) If the adult day health care (c) Nurse staffing must be adequate for assistant, nurse practitioner, or clinical program offers medical supervision, meeting the standards of this part. nurse specialist in accordance with program management must promptly paragraph (e) of this section. assist and refer participants with lost or § 51.440 Dietary services. (c) Availability of acute care. If the damaged dentures to a dentist. The State home must comply with the adult day health care program offers § 51.460 Administration of drugs. requirements concerning the dietary medical supervision, the program services set forth in § 51.140, except management must provide or arrange for If the adult day health care program paragraph 51.140(f). For purposes of this the provision of acute care when it is offers medical supervision, the program section, the references in the cited indicated. management must assist participants section to resident refer to a participant (d) Availability of physicians for with the management of medication and in subpart F of this part. The State home emergency care. In case of an have a system for disseminating drug adult day health care program will emergency, the program management information to participants and program provide nourishment to participants on must ensure that participants are able to staff in accordance with this section. the following schedule: obtain necessary emergency care. (a) Procedures. The State home must (a) At regular times comparable to (e) Physician delegation of tasks. (1) A (1) Provide reminders or prompts to normal mealtimes in the community, primary care physician may delegate participants to initiate and follow each participant may receive and tasks to through with self-administration of program management must provide at (i) A certified physician assistant or a medications. least two meals daily for those veterans certified nurse practitioner, or (2) Establish a system of records to staying more than four hours and at (ii) A clinical nurse specialist who- document the administration of drugs least one meal for those staying less (A) Is acting within the scope of by participants and/or staff. than four hours. practice as defined by State law; and (3) Ensure that drugs and biologicals (B) Is under the supervision of the (b) The program management must used by participants are labeled in physician. offer snacks and fluids as appropriate to accordance with currently accepted (2) The primary care physician may professional principles, and include the meet the participants’ nutritional and not delegate a task when the provisions fluid needs. appropriate accessory and cautionary of this part specify that the primary care instructions, and the expiration dates § 51.445 Physician services. physician must perform it personally, or when applicable. when the delegation is prohibited under As a condition of enrollment in adult (4) Store all drugs, biologicals, and State law or by the State home’s day health care program, a participant controlled schedule II drugs listed in 21 policies. must have a written physician order for CFR 1308.12 in locked compartments admission. Each participant’s medical (The Office of Management and Budget has under proper temperature controls, record must contain the name of the approved the information collection permit only authorized personnel to participant’s primary care physician. If requirements in this section under control have access, and otherwise comply with number 2900–0160.) a participant’s medical needs require all applicable State and Federal laws. that the participant be placed in an § 51.450 Specialized rehabilitative (b) Service consultation. The State adult day health care program that offers services. home must provide the services of a medical supervision, the primary care (a) Provision of services. If specialized pharmacist licensed in the State in physician must state so in the order for rehabilitative services such as, but not which the program is located who admission. Each participant must limited to, physical therapy, speech provides consultation, as needed, on all remain under the care of a physician. therapy, occupational therapy, and the provision of drugs. (a) Physician supervision. If the adult mental health services for mental illness (The Office of Management and Budget has day health care program offers medical are required in the participant’s approved the information collection supervision, the program management comprehensive care plan, program requirements in this section under control must ensure that management must number 2900–0160.)

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations 61285

§ 51.465 Infection control. disruptive, or who require rest, privacy, § 51.475 Administration. The State home must meet the or observation. It should be separate For purposes of this section, the requirements concerning infection from activity areas, near a restroom, and references in the cited section to nursing control set forth in § 51.190. For supervised. home and nursing home care refer to (vi) Bathing facilities adequate to purposes of this section, the references adult day health care programs and facilitate bathing of participants with in the cited section to resident refer to adult day health care. The State home a participant in this section. functional impairments. (vii) Toilet facilities and bathrooms must comply with all administration § 51.470 Physical environment. easily accessible to people with mobility requirements set forth in § 51.210 except The State home must ensure that the problems, including participants in for the following if the adult day health physical environment is designed, wheelchairs. There must be at least one care program does not offer medical constructed, equipped, and maintained toilet for every eight participants. The supervision: to protect the health and safety of toilets must be equipped for use by (a) Medical director. State home adult participants, personnel, and the public. persons with limited mobility, easily day health care programs are not (a) Life safety from fire. The State accessible from all programs areas, i.e., required to designate a primary care home must meet the applicable preferably within 40 feet from that area, physician to serve as a medical director, requirements of National Fire Protection designed to allow assistance from one or and therefore are not required to comply Association’s NFPA 101, Life Safety two staff, and barrier-free. with § 51.210(i). from fire, as incorporated by reference (viii) Adequate storage space. There (b) Laboratory services, radiology, and in § 51.200. should be space to store arts and crafts other diagnostic services. State home (b) Space and equipment. (1) The materials, wheelchairs, chairs, adult day health care programs are not State home must— individual handiwork, and general required to provide the medical services (i) Provide sufficient space and supplies. Locked cabinets must be identified in § 51.210(m) and (n). equipment in dining, health services, provided for files, records, supplies, and recreation, and program areas to enable medications. (c) Quality assessment and assurance staff to provide participants with (ix) An individual room for committee. State home adult day health needed services as required by this counseling and interviewing care programs are not required to subpart F and as identified in each participants and family members. comply with § 51.210(p), regarding participant’s comprehensive care plan; (x) A reception area. quality assessment and assurance and (xi) An outside space that is used for committees consisting of specified (ii) Maintain all essential mechanical, outdoor activities that is safe, accessible medical providers and staff. electrical, and patient care equipment in to indoor areas, and accessible to those (The Office of Management and Budget has safe operating condition. with a disability. This space may approved the information collection (2) Each adult day health care include recreational space and garden requirements in this section under control program, when it is co-located in a area. It should be easily supervised by number 2900–0160.) nursing home, domiciliary, or other care staff. facility, must have its own separate (c) Furnishings. Furnishings must be § 51.480 Transportation. designated space during operational available for all participants. This must Transportation of participants to and hours. include functional furniture appropriate from the adult day health care facility (3) The indoor space for adult day to the participants’ needs. Furnishings must be a component of the overall health care must be at least 100 square must be attractive, comfortable, and program of care. feet per participant including office homelike, while being sturdy and safe. space for staff and must be 60 square (d) Participant call system. The (a)(1) Except as provided in paragraph feet per participant excluding office coordinator’s station must be equipped (a)(2) of this section, the State home space for staff. to receive participant calls through a must provide for transportation to (4) Each program of care will need to communication system from: enable participants, including persons design and partition its space to meet its (1) Clinic rooms; and with disabilities, to attend the program needs, but the following functional (2) Toilet and bathing facilities. and to participate in State home- areas must be available: (e) Other environmental conditions. sponsored outings. (i) A dividable multipurpose room or The State home must provide a safe, (2) The veteran or the family of a area for group activities, including functional, sanitary, and comfortable veteran may decline transportation dining, with adequate table-setting environment for the participants, staff offered by the adult day health care space. and the public. The facility management program and make their own (ii) Rehabilitation rooms or an area for must arrangements for transportation. individual and group treatments for (1) Establish procedures to ensure that (b) The State home must have a occupational therapy, physical therapy, water is available to essential areas if transportation policy that includes and other treatment modalities. there is a loss of normal water supply; (iii) A kitchen area for refrigerated (2) Have adequate outside ventilation procedures for routine and emergency food storage, the preparation of meals by means of windows, or mechanical transportation. All transportation and/or training participants in activities ventilation, or a combination of the two; (including that provided under contract) of daily living. (3) Equip corridors, when available, must be in compliance with such (iv) An examination and/or with firmly-secured handrails on each procedures. medication room. side; and (c) The State home must ensure that (v) A quiet room (with a bed or a (4) Maintain an effective pest control the transportation it provides is by reclining chair), which functions to program so that the facility is free of drivers who have access to a device for separate participants who become ill or pests and rodents. two-way communication.

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 E:\FR\FM\28NOR3.SGM 28NOR3 61286 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Rules and Regulations

(d) All systems and vehicles used by (e) The State home must ensure that PART 52—[REMOVED] the State home to comply with this the care needs of each participant are section must meet all applicable local, addressed during transportation ■ 23. Remove part 52, consisting of State and Federal regulations. furnished by the home. §§ 52.1 through 52.220. [FR Doc. 2018–25115 Filed 11–27–18; 8:45 am] BILLING CODE 8320–01–P

VerDate Sep<11>2014 16:49 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00038 Fmt 4701 Sfmt 9990 E:\FR\FM\28NOR3.SGM 28NOR3 Vol. 83 Wednesday, No. 229 November 28, 2018

Part IV

Department of the Interior

Fish and Wildlife Service 50 CFR Part 10 General Provisions; Revised List of Migratory Birds; Proposed Rules

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\28NOP2.SGM 28NOP2 61288 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

DEPARTMENT OF THE INTERIOR MS: BPHC, 5275 Leesburg Pike, Falls What is the purpose of this rulemaking? Church, VA 22041–3803. Our purpose is to inform the public of Fish and Wildlife Service We request that you send comments the species protected by the MBTA and only by the methods described above. its implementing regulations. These 50 CFR Part 10 We will post all comments on http:// regulations are found in Title 50, Code www.regulations.gov. This generally [Docket No. FWS–HQ–MB–2018–0047; of Federal Regulations (CFR), parts 10, FXMB 12320900000//189//FF09M29000] means that we will post any personal 20, and 21. We regulate the taking, information you provide us (see Public possession, transportation, sale, RIN 1018–BC67 Comments, below, for more purchase, barter, exportation, and information). importation of migratory birds. An General Provisions; Revised List of FOR FURTHER INFORMATION CONTACT: accurate and up-to-date list of species Migratory Birds Eric L. Kershner, Chief of the Branch of protected by the MBTA is essential for AGENCY: Fish and Wildlife Service, Conservation, Permits, and Regulations; notifying the public of regulatory Interior. Division of Migratory Bird Management; protections. ACTION: Proposed rule. U.S. Fish and Wildlife Service; MS: MB; Why is the amendment of the list of 5275 Leesburg Pike, Falls Church, VA migratory birds necessary? SUMMARY: We, the U.S. Fish and 22041–3803; (703) 358–2376. The amendments we are proposing Wildlife Service (Service), propose to SUPPLEMENTARY INFORMATION: revise the List of Migratory Birds are needed to: protected by the Migratory Bird Treaty What statutory authority does the (1) Add 17 species that qualify for Act (MBTA) by both adding and service have for this rulemaking? protection under the MBTA; (2) Correct the spelling of 3 species removing species. Reasons for the We have statutory authority and changes to the list include adding names on the alphabetized list; responsibility for enforcing the MBTA (3) Correct the spelling of 3 species species based on new taxonomy and (16 U.S.C. 703–712), the Fish and new evidence of natural occurrence in names on the taxonomic list; Wildlife Improvement Act of 1978 (16 (4) Add 22 species based on new the United States or U.S. territories, U.S.C. 742l), and the Fish and Wildlife removing species no longer known to distributional records documenting Act of 1956 (16 U.S.C. 742a–j). The their natural occurrence in the United occur within the United States or U.S. MBTA implements Conventions territories, and changing names to States or U.S. territories since 2010; between the United States and four (5) Add one species moved from a conform to accepted use. The net neighboring countries for the protection increase of 59 species (66 added and 7 family that was not protected to a family of migratory birds, as follows: now protected under the MBTA as a removed) would bring the total number (1) Canada: Convention between the of species protected by the MBTA to result of taxonomic changes; United States and Great Britain [on (6) Add 26 species newly recognized 1,085. We regulate the taking, behalf of Canada] for the Protection of possession, transportation, sale, as a result of recent taxonomic changes; Migratory Birds, August 16, 1916, 39 (7) Remove 7 species not known to purchase, barter, exportation, and Stat. 1702 (T.S. No. 628), as amended by importation of migratory birds. An occur within the boundaries of the Protocol between the Government of the United States or U.S. territories as a accurate and up-to-date list of species United States and the Government of protected by the MBTA is essential for result of recent taxonomic changes; Canada Amending the 1916 Convention (8) Change the common (English) public notification and regulatory between the United Kingdom and the purposes. names of 40 species to conform to United States of America for the accepted use; and DATES: We will accept comments Protection of Migratory Birds, Sen. (9) Change the scientific names of 114 received or postmarked on or before Treaty Doc. 104–28 (December 14, species to conform to accepted use. January 28, 2019. Comments submitted 1995); The List of Migratory Birds (50 CFR electronically using the Federal (2) Mexico: Convention between the 10.13) was last revised on November 1, eRulemaking Portal (see ADDRESSES, United States and Mexico for the 2013 (78 FR 65844). The amendments below) must be received by 11:59 p.m. Protection of Migratory Birds and Game proposed in this rule were necessitated Eastern Time on the closing date. Mammals, February 7, 1936, 50 Stat. by eight published supplements to the ADDRESSES: You may submit comments 1311 (T.S. No. 912), as amended by 7th (1998) edition of the American by one of the following methods: Protocol with Mexico amending Ornithologists’ Union (AOU, now (1) Electronically: Go to the Federal Convention for Protection of Migratory recognized as American Ornithological eRulemaking Portal: http:// Birds and Game Mammals, Sen. Treaty Society (AOS)) Check-list of North www.regulations.gov. In the Search box, Doc. 105–26 (May 5, 1997); American Birds (AOU 2011, AOU 2012, enter FWS–HQ–MB–2018–0047, which (3) Japan: Convention between the AOU 2013, AOU 2014, AOU 2015, AOU is the docket number for this Government of the United States of 2016, AOS 2017, and AOS 2018) and rulemaking. Then, click on the Search America and the Government of Japan the 2017 publication of the Clements button. On the resulting page, in the for the Protection of Migratory Birds and Checklist of Birds of the World Search panel on the left side of the Birds in Danger of Extinction, and Their (Clements et al. 2017). screen, under the Document Type Environment, March 4, 1972, 25 U.S.T. heading, click on the Proposed Rule box 3329 (T.I.A.S. No. 7990); and What scientific authorities are used to to locate this document. You may (4) Russia: Convention between the amend the list of migratory birds? submit a comment by clicking on United States of America and the Union Although bird names (common and ‘‘Comment Now!’’ of Soviet Socialist Republics Concerning scientific) are relatively stable, staying (2) By hard copy: Submit by U.S. mail the Conservation of Migratory Birds and current with standardized use is or hand-delivery to: Public Comments Their Environment (Russia), November necessary to avoid confusion in Processing, Attn: FWS–HQ–MB–2018– 19, 1976, 29 U.S.T. 4647 (T.I.A.S. No. communications. In making our 0047, U.S. Fish and Wildlife Service, 9073). determinations, we primarily relied on

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61289

the AOS’s Checklist of North American Clements checklist or peer-reviewed The Ptilogonatidae (silky-flycatchers) birds (AOU 1998), as amended annually literature), that species will still be was renamed to the Ptiliogonatidae. The (AOU 1999 through 2016, AOS 2017, included if either of the following Nesospingidae (Puerto Rican tanager) AOS 2018), on matters of taxonomy, criteria apply: and the Spindalidae (Spindalis genus) nomenclature, and the sequence of • The species resembles extant were split from the Thraupidae species and other higher taxonomic species included in the list that may be (tanagers). The yellow-breasted chat was categories (Orders, Families, affected by trade if the species is not split from the Parulidae (wood-warblers) Subfamilies) for species that occur in included; or and placed into Icteriidae (chats). North America. The AOS Checklist • Not including the species may Within the Scolopacidae (sandpipers, contains all bird species that have create difficulties implementing the phalaropes, and allies), new Subfamilies occurred in North America from the MBTA and its underlying Conventions. were created: The curlews were moved Arctic through Panama, including the (3) New evidence exists for its natural to Numeniinae; the godwits to West Indies and the Hawaiian Islands, occurrence in the United States or U.S. Limosinae; and small sandpipers to and includes distributional information territories resulting from new or natural Arenariinae and larger sandpipers to for each species, which specifies distributional changes and the species Tringinae, including phalaropes whose whether the species is known to occur occurs in a protected family. Records previous Subfamily Phalaropodinae was in the United States. For the species that must be documented, accepted, and removed. Within the Accipitridae occur outside the geographic area published by the AOS committee. For (hawks, eagles, and kites), new covered by the AOS Checklist, we relied the U.S. Pacific territories that fall Subfamilies were created: The white- on Clements et al. (2017) and peer- outside the geographic scope of the AOS tailed kite was move to Elaninae, hook- reviewed literature. Although we and for which there is no identified billed and swallow-tailed kite were primarily rely on the above sources, ornithological authority, new evidence moved to Gypaetinae, and all other when informed taxonomic opinion is of a species’ natural occurrence will be members of the family were moved to inconsistent or controversial, we based on the Clements checklist and Accipitrinae. Within the Icteridae evaluate available published and then published peer-reviewed literature, (blackbirds), new Subfamilies were unpublished information and come to in that order. created: Yellow-headed blackbird was our own conclusion regarding the In accordance with the Migratory Bird moved to Xanthocephalinae; bobolink validity of taxa. Treaty Reform Act of 2004 (MBTRA) was moved to Dolichonychinae; (Pub. L. 108–447, 118 Stat. 2809, 3071– meadowlarks were moved to What criteria are used to identify 72), we only include migratory bird Sturnellinae; orioles were moved to individual species protected by the species that are native to the United Icterinae; and blackbirds, cowbirds, and MBTA? States or U.S. territories. A native grackles were moved to Agelaiinae. In A species qualifies for protection migratory bird species is one that is the Falconidae (caracaras and falcons), under the MBTA by meeting one or present as a result of natural biological collared forest-falcon was moved into more of the following criteria: or ecological processes. The list at 50 the new Subfamily Herpetotherinae, and (1) It occurs in the United States or CFR 10.13 does not include nonnative the Subfamily Caracarinae was U.S. territories as the result of natural species that occur in the United States removed, with crested caracara moved biological or ecological processes and is or U.S. territories solely as a result of to the Subfamily Falconinae. In the currently, or was previously listed as, a intentional or unintentional human- Fringillidae (finches and allies), the species or part of a family protected by assisted introduction(s). Elsewhere in Hawaiian fringillids were moved from one of the four international treaties or today’s Federal Register, we publish a the Subfamily Drepanidinae to their amendments. Any species that notice of availability of the draft revised Carduelinae. The Old World flycatchers occurs in the United States or U.S. list of nonnative bird species that are in the Turdidae (thrushes) were moved territories solely as a result of not protected under the MBTA. to the Muscicapidae (Old World intentional or unintentional human- How would the proposed changes affect flycatchers). Bananaquit was moved assisted introduction does not qualify the list of migratory birds? from the Coerebidae (a family not for the MBTA list, regardless of whether protected by MBTA) to the Thraupidae the family the species belongs to is Several taxonomic changes were (tanagers and allies), which is a family listed in any of the treaties, unless: made at the Order and Family level by protected by the MBTA. All other the AOS since our 2013 publication of • tanagers were also moved from the It was native to the United States or its the list (78 FR 65844; November 1, territories and extant in 1918; Emberizidae (sparrows) to the • It was extirpated after 1918 throughout 2013). These changes affect the Thraupidae. Within Thraupidae, the its range in the United States and its inclusion and taxonomic order of seedeaters were moved into the territories; and species on this list. Specifically, the Subfamily Sporophilinae, and • After such extirpation, it was Order Cathartiformes (New World bananaquit, grassquits, and bullfinches reintroduced in the United States or its vultures) was split from the were moved into the Subfamily territories as part of a program carried out by Accipitriformes (diurnal birds of prey). Coerebinae. a Federal agency. Cathartiformes now includes the Family All species previously receiving (2) Revised taxonomy results in it Cathartidae (vultures and California protection under the MBTA that have being newly split from a species that condor). At the Family level, the been moved to newly created Families was previously on the list, and the new Oceanitidae (southern storm-petrels) continue to be protected under the species occurs in the United States or was split from the Hydrobatidae MBTA. U.S. territories as the result of natural (northern storm-petrels), the Tityridae The proposed amendments (66 biological or ecological processes. If a (becards and tityras) was split from the additions, 7 removals, and 154 name newly recognized native species is Tyrannidae (tyrant flycatchers), the changes) would affect a total of 204 considered extinct (following the Passerellidae (towhees, sparrows, and species and would result in a net classification of the American juncos) was split from the Emberizidae addition of 59 species to the List of Ornithological Society (AOS) or, for (buntings), the Megaluridae (Locustella Migratory Birds, increasing the number species not covered by the AOS, the warblers) was renamed to Locustellidae. of species on the list from 1,026 to

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61290 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

1,085. Of the 66 species that we would documenting their occurrence in the they are known. In each case, we add to the list, 26 were previously United States or U.S. territories. These reference the AOS or relevant covered under the MBTA as members of species belong to families covered by at publication supporting the change: the same species (conspecific) of listed least one of the four international Ridgway’s Rail, Rallus obsoletus—formerly species. These proposed amendments conventions, and all are considered to considered conspecific with Clapper Rail, can be logically arranged in the be of accidental or casual occurrence. Rallus longirostris (AOU 2014); following nine categories: For each species, we list the State in Common Gallinule, Gallinula galeata— (1) Add 17 species that qualify for which it has been recorded plus the formerly considered conspecific with protection by the MBTA but have not relevant publication: Common Moorhen, Gallinula chloropus been added previously. The addition of (AOU 2011); Common Scoter, Melanitta nigra—California Scripps’s Murrelet, Synthliboramphus these species is the result of either and Oregon (AOS 2017); scrippsi—formerly considered conspecific accepting AOS taxonomic updates that Amethyst-throated Hummingbird, Lampornis with Xantus’s Murrelet, Synthliboramphus were previously excluded or amethystinus—Texas (AOS 2018); hypoleucus (AOU 2012); determinations of documented natural Rufous-necked Wood-Rail, Aramides Salvin’s Albatross, Thalassarche salvini— occurrence in the United States or U.S. axillaris—New Mexico (AOU 2016); formerly considered conspecific with Shy territories. The species and relevant Solitary Snipe, Gallinago solitaria—Alaska Albatross, Thalassarche cauta (AOU 2014); publication(s) are: (AOU 2011); Trindade Petrel, Pterodroma arminjoniana Chatham Albatross, Thalassarche eremita— —formerly considered conspecific with Pink-footed Goose, Anser brachyrhynchus California (AOS 2017); Herald Petrel, Pterodroma heraldica (AOU (AOU 1983); Providence Petrel, Pterodroma solandri— 2015); Cackling Goose, Branta hutchinsii (AOU Alaska (AOU 2013); Newell’s Shearwater, Puffinus newelli— 2003); Fea’s Petrel, Pterodroma feae—North formerly considered conspecific with European Turtle-Dove, Streptopelia turtur Carolina, Georgia, Virginia (AOU 2013); Townsend’s Shearwater, Puffinus (AOU 2007); Zino’s Petrel, Pterodroma madeira—North auricularis (AOU 2015); Long-tailed Koel, Urodynamis taitensis Carolina, (AOU 2015); Barolo Shearwater, Puffinus baroli—formerly (Wiles 2005); White-chinned Petrel, Procellaria considered conspecific with Little White-tailed Nightjar, Hydropsalis aequinoctialis—Texas, California, Maine Shearwater, Puffinus assimilis (AOU 2013); cayennensis (AOU 1983); (AOU 2011); Townsend’s Storm-Petrel, Oceanodroma Vervain Hummingbird, Mellisuga minima Bryan’s Shearwater, Puffinus bryani—Hawaii socorroensis—formerly considered (AOU 1983); (AOU 2012); conspecific with Leach’s Storm-Petrel, Kentish Plover, Charadrius alexandrinus Bare-throated Tiger-Heron, Tigrisoma Oceanodroma leucorhoa (AOU 2016); (Enbring and Owen 1981); mexicanum—Texas (AOU 2011); Northern Boobook, Ninox japonica— Common Redshank, Tringa totanus (Wiles Double-toothed Kite, Harpagus bidentatus— formerly considered conspecific with 2005); Texas (AOU 2013); Brown Hawk-Owl, Ninox scutulata (AOU Nazca Booby, Sula granti (AOU 2000); Amazon Kingfisher, Chloroceryle amazona— 2014); Abbott’s Booby, Papasula abbotti (Pratt et al. Texas (AOU 2011); Pacific Kingfisher, Todiramphus sacer— 2009); Gray-collared Becard, Pachyramphus formerly considered conspecific with Rufous Night-Heron, Nycticorax caledonicus major—Arizona (AOU 2011); Collared Kingfisher, Todiramphus chloris (Glass et al. 1990); Pine Flycatcher, Empidonax affinis—Arizona (Clements et al. 2015); Gray-faced Buzzard, Butastur indicus (AOS 2018); Mariana Kingfisher, Todiramphus albicilla— (Stinson et al. 1997); Cuban Vireo, Vireo gundlachii—Florida formerly considered conspecific with Eastern Marsh-Harrier, Circus spilonotus (AOS 2018); Collared Kingfisher, Todiramphus chloris (Wiles et al. 2000); Common Chiffchaff, Phylloscopus collybita— (Clements et al. 2015); Amur Falcon, Falco amurensis (Stinson et al. Alaska (AOU 2014); Woodhouse’s Scrub-Jay, Aphelocoma 1991); Blyth’s Reed Warbler, Acrocephalus woodhouseii—formerly considered Eurasian Jackdaw, Corvus monedula (AOU dumetorum—Alaska (AOU 2017); conspecific with Western Scrub-Jay, 1998); Common Redstart, Phoenicurus Aphelocoma californica (AOU 2016); Redwing, Turdus iliacus (AOU 1983); phoenicurus—Alaska (AOU 2015); Kamchatka Leaf Warbler, Phylloscopus Common Kingfisher, Alcedo atthis (Wiles et Brown-backed Solitaire, Myadestes examinandus—formerly considered al. 1993). occidentalis—Arizona (AOU 2011); conspecific with Arctic Warbler, Asian Rosy-Finch, Leucosticte arctoa— Phylloscopus borealis (AOU 2014); (2) Correct the spelling of three Saipan Reed Warbler, Acrocephalus hiwae— common or scientific names on the Alaska (AOU 2013); Red-legged Honeycreeper, Cyanerpes formerly considered conspecific with Nightingale Reed Warbler, Acrocephalus alphabetized list: cyaneus—Texas (AOS 2017). Eared Quetzel, Euptilotis neoxenus, luscinius (Clements et al. 2013); becomes Eared Quetzal (5) Add one species because of recent Aguiguan Reed Warbler, Acrocephalus Red-footed falcon, Flaco vespertinus, taxonomic changes transferring a nijoi—formerly considered conspecific becomes Falco vespertinus species in a Family formerly not with Nightingale Reed Warbler, Piratic Flycatcher, Legatus leucophalus protected by the MBTA (Coerebidae) Acrocephalus luscinius (Clements et al. into a Family protected under the 2013); becomes Legatus leucophaius Pagan Reed Warbler, Acrocephalus (3) Correct the spelling of three MBTA (Thraupidae). We reference the yamashinae—formerly considered common or scientific names on the AOU publication supporting the change: conspecific with Nightingale Reed Warbler, taxonomic list: Bananaquit, Coereba flaveola, (AOU Acrocephalus luscinius (Clements et al. Eared Quetzel, Euptilotis neoxenus, 2015). 2013); becomes Eared Quetzal (6) Add 26 species because of recent Laysan Honeycreeper, Himatione fraithii— White-crested Eleania, Elaenia albiceps taxonomic changes in which taxa formerly considered conspecific with becomes White-crested Elaenia formerly treated as conspecific have Apapane, Himatione sanguinea (AOU Piratic Flycatcher, Legatus leucophalus been determined to be distinct species. 2015) Kauai Nukupu1u, Hemignathus hanapepe— becomes Legatus leucophaius Given that each of these species was formerly considered conspecific with (4) Add 22 species based on review formerly treated as conspecific with a Nukupuu, Hemignathus lucidus (AOU and acceptance by the AOS (since 2010) listed species, these additions would 2015); or by other appropriate ornithological not change the protective status of any Maui Nukupu1u, Hemignathus affins— authorities of new distributional records of these taxa, only the names by which formerly considered conspecific with

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61291

Nukupuu, Hemignathus lucidus (AOU classification of the AOS or, for species 2012, 2013, 2014, 2015, 2016, AOS 2015); not covered by the AOS, the Clements 2017, AOS 2018, and Clements et al. Kauai 1Akialoa, Akialoa stejnegeri—formerly checklist or peer-reviewed literature) (2017). Hawaiian species names are considered conspecific with Greater Akialoa, Hemignathus ellisianus (AOU unless any of the following criteria modified to official Hawaiian spelling, 2015); apply: It is protected under the following the Pukui-Elbert Hawaiian Maui Nui 1Akialoa, Akialoa lanaiensis— Endangered Species Act of 1973, as Dictionary, adding the diacritical marks formerly considered conspecific with amended (ESA; 16 U.S.C. 1531 et seq.), to the common names where applicable. Greater Akialoa, Hemignathus ellisianus or the Convention on International The Government Publishing Office Style (AOU 2015); Trade in Endangered Species of Wild Manual requires the words Hawaii and O1ahu 1Akepa, Loxops wolstenholmei— Fauna and Flora (CITES; 27 U.S.T. Kauai to be spelled without the formerly considered conspecific with 1087); it resembles extant species Akepa, Loxops coccineus (AOU 2015); diacritical mark. These revisions do not Maui 1Akepa, Loxops ochraceus—formerly included in the list that may be affected change the protective status of any of considered conspecific with Akepa, Loxops by its removal; or its removal would these taxa, only the names by which coccineus (AOU 2015); create difficulties implementing the they are known. In each case, the update Cassia Crossbill, Loxia sinesciuris—formerly MBTA and its underlying Conventions. is described in the table, below. considered conspecific with Red Crossbill, In each case, we reference the Loxia curvirostra (AOS 2017); publication supporting these changes: (9) Revise the scientific names of 114 Sagebrush Sparrow, Artemisiospiza species to conform to the most recent nevadensis—formerly considered Thayer’s Gull, Larus thayeri, now a nomenclatural treatment as described in conspecific with Sage Sparrow, subspecies of Iceland Gull, Larus AOU publications 2011, 2012, 2013, glaucoides (AOS 2017); Amphispiza belli (AOU 2013); 2014, 2015, 2016, AOS 2017, AOS 2018, Morelet’s Seedeater, Sporophila morelleti— Townsend’s Shearwater, Puffinus auricularis formerly considered conspecific with (AOU 2015); and Clements et al. (2017). These White-collared Seedeater, Sporophila Little Shearwater, Puffinus assimilis (AOU revisions do not change the protective torqueola (AOS 2018). 2015); status of any of these taxa, only the Brown Hawk-Owl, Ninox scutulata (AOU (7) Remove seven species based on names by which they are known. In 2014); each case, the update is described in the revised taxonomic treatments, either Caribbean Coot, Fulica caribaea (AOU 2016); because a species is taxonomically Collared Kingfisher, Todiramphus chloris table, below. merged with another species, either on (Clements et al. 2015); Table of Proposed Name Changes, as or off the list; a species previously on White-collared Seedeater, Sporophila described in categories 8 and 9, above. the list is taxonomically split into torqueola (AOS 2018). Table is organized following AOS (2017) multiple species and the new species is (8) Revise the common (English) taxonomic order. The relevant AOS not known to occur within the United names of 40 species to conform to the publication is provided. Hawaiian States or U.S. territories; or the species most recent nomenclatural treatment as common name changes are indicated is considered extinct (following the described in AOU publications 2011, with a (—).

Publication source and year Previous common name Current common name

AOU 2004...... Canada Goose (including Branta hutchinsii), Branta Canada Goose, Branta canadensis. canadensis. AOU 2016 ...... Green Violetear, Colibri thalassinus ...... Mexican Violetear, Colibri thalassinus. AOS 2017 ...... Magnificent hummingbird, Eugenes fulgens ...... Rivoli’s Hummingbird, Eugenes fulgens. AOU 2012 ...... Xantus’s Murrelet, Synthliboramphus hypoleucus ...... Guadalupe Murrelet, Synthliboramphus hypoleucus. AOU 2014 ...... Shy Albatross, Thalassarche cauta ...... White-capped Albatross, Thalassarche cauta. AOU 2015 ...... Herald Petrel, Pterodroma arminjoniana ...... Trindade Petrel, Pterodroma arminjoniana. Clements et al. 2000 Pacific Reef-Egret, Egretta sacra ...... Pacific Reef-Heron, Egretta sacra. AOU 2012 ...... Gray Frog-Hawk, Accipiter soloensis ...... Chinese Sparrowhawk, Accipiter soloensis. AOU 2014 ...... Common Black-Hawk, Buteogallus anthracinus ...... Common Black Hawk, Buteogallus anthracinus. AOS 2018 ...... Gray Jay, Perisoreus canadensis ...... Canada Jay, Perisoreus canadensis. AOU 2016 ...... Western Scrub-Jay, Aphelocoma californica ...... California Scrub-Jay, Aphelocoma californica. AOU 2016 ...... Eurasian Sky Lark, Alauda arvensis ...... Eurasian Skylark, Alauda arvensis. AOU 2014 ...... Pallas’s Leaf-Warbler, Phylloscopus proregulus ...... Pallas’s Leaf Warbler, Phylloscopus proregulus. — ...... Kamao, Myadestes myadestinus ...... Ka˜ma‘o, Myadestes myadestinus. — ...... Olomao, Myadestes lanaiensis ...... Oloma‘o, Myadestes lanaiensis. — ...... Omao, Myadestes obscurus ...... ‘O˜ ma’o, Myadestes obscurus. AOS 2017 ...... Le Conte’s Thrasher, Toxostoma lecontei ...... LeConte’s Thrasher, Toxostoma lecontei. AOU 2015 ...... Nukupuu, Hemignathus lucidus ...... O‘ahu Nukupu‘u, Hemignathus lucidus. — ...... Poo-uli, Melamprosops phaeosoma ...... Po‘ouli, Melamprosops phaeosoma. — ...... Akikiki, Oreomystis bairdi ...... ‘Akikiki, Oreomystis bairdi. — ...... Oahu Alauahio, Paroreomyza maculata ...... O‘ahu ‘Alauahio, Paroreomyza maculata. — ...... Kakawahie, Paroreomyza flammea ...... Ka˜ka˜wahie, Paroreomyza flammea. — ...... Maui Alauahio, Paroreomyza montana ...... Maui ‘Alauahio, Paroreomyza montana. — ...... Akohekohe, Palmeria dolei ...... ‘Akohekohe, Palmeria dolei. — ...... Apapane, Himatione sanguinea ...... ‘Apapane, Himatione sanguinea. — ...... Iiwi, Drepanis coccinea ...... ‘I‘iwi, Drepanis coccinea. — ...... Ou, Psittirostra psittacea ...... ‘O˜ ‘u˜, Psittirostra psittacea. — ...... Anianiau, Magumma parva ...... ‘Anianiau, Magumma parva. — ...... Akekee, Loxops caeruleirostris ...... ‘Akeke‘e, Loxops caeruleirostris. AOU 2015 ...... Akepa, Loxops coccineus ...... Hawaii ‘Akepa, Loxops coccineus. AOS 2017 ...... Le Conte’s Sparrow, Ammodramus leconteii ...... LeConte’s Sparrow, Ammodramus leconteii. AOS 2017 ...... Emperor Goose, Chen canagica ...... Emperor Goose, Anser canagicus. AOS 2017 ...... Snow Goose, Chen caerulescens ...... Snow Goose, Anser caerulescens.

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61292 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

Publication source and year Previous common name Current common name

AOS 2017 ...... Ross’s Goose, Chen rossii ...... Ross’s Goose, Anser rossii. AOS 2017 ...... Baikal Teal, Anas formosa ...... Baikal Teal, Sibirionetta formosa. AOS 2017 ...... Garganey, Anas querquedula ...... Garganey, Spatula querquedula. AOS 2017 ...... Blue-winged Teal, Anas discors ...... Blue-winged Teal, Spatula discors. AOS 2017 ...... Cinnamon Teal, Anas cyanoptera ...... Cinnamon Teal, Spatula cyanoptera. AOS 2017 ...... Northern Shoveler, Anas clypeata ...... Northern Shoveler, Spatula clypeata. AOS 2017 ...... Gadwall, Anas strepera ...... Gadwall, Mareca strepera. AOS 2017 ...... Falcated Duck, Anas falcata ...... Falcated Duck, Mareca falcata. AOS 2017 ...... Eurasian Wigeon, Anas penelope ...... Eurasian Wigeon, Mareca penelope. AOS 2017 ...... American Wigeon, Anas americana ...... American Wigeon, Mareca americana. Clements et al. 2017 White-throated Ground-Dove, Gallicolumba xanthonura ...... White-throated Ground-Dove, Alopecoenas xanthonura. Clements et al. 2010 Hodgson’s Hawk-Cuckoo, Cuculus fugax ...... Hodgson’s Hawk-Cuckoo, Hierococcyx nisicolor. AOU 2012 ...... Chuck-will’s-widow, Caprimulgus carolinensis ...... Chuck-will’s-widow, Antrostomus carolinensis. AOU 2012 ...... Buff-collared Nightjar, Caprimulgus ridgwayi ...... Buff-collared Nightjar, Antrostomus ridgwayi. AOU 2012 ...... Eastern Whip-poor-will, Caprimulgus vociferus ...... Eastern Whip-poor-will, Antrostomus vociferus. AOU 2012 ...... Mexican Whip-poor-will, Caprimulgus arizonae ...... Mexican Whip-poor-will, Antrostomus arizonae. AOU 2012 ...... Puerto Rican Nightjar, Caprimulgus noctitherus ...... Puerto Rican Nightjar, Antrostomus noctitherus. AOS 2018 ...... Gray Nightjar, Caprimulgus indicus ...... Gray Nightjar, Caprimulgus jotaka. AOU 2012 ...... Calliope Hummingbird, Stellula calliope ...... Calliope Hummingbird, Selasphorus calliope. AOU 2014 ...... Clapper Rail, Rallus longirostris ...... Clapper Rail, Rallus crepitans. AOU 2016 ...... Yellow-breasted Crake, Porzana flaviventer ...... Yellow-breasted Crake, Hapalocrex flaviventer. AOU 2012 ...... Purple Gallinule, Porphyrio martinica ...... Purple Gallinule, Porphyrio martinicus. AOU 2016 ...... Sandhill Crane, Grus canadensis ...... Sandhill Crane, Antigone canadensis. AOU 2011 ...... Snowy Plover, Charadrius alexandrinus ...... Snowy Plover, Charadrius nivosus. AOU 2013 ...... Surfbird, Aphriza virgata ...... Surfbird, Calidris virgata. AOU 2013 ...... Ruff, Philomachus pugnax ...... Ruff, Calidris pugnax. AOU 2013 ...... Broad-billed Sandpiper, Limicola falcinellus ...... Broad-billed Sandpiper, Calidris falcinellus. AOU 2013 ...... Spoon-billed Sandpiper, Eurynorhynchus pygmeus ...... Spoon-billed Sandpiper, Calidris pygmea. AOU 2013 ...... Buff-breasted Sandpiper, Tryngites subruficollis ...... Buff-breasted Sandpiper, Calidris subruficollis. AOS 2017 ...... Blue-gray Noddy, Procelsterna cerulea ...... Blue-gray Noddy, Anous ceruleus. AOU 2003 ...... Whiskered Tern, Chlidonias hybridus ...... Whiskered Tern, Chlidonias hybrida. AOS 2018 ...... Tahiti Petrel, Pterodroma rostrata ...... Tahiti Petrel, Pseudobulweria rostrata. AOU 2016 ...... Wedge-tailed Shearwater, Puffinus pacificus ...... Wedge-tailed Shearwater, Ardenna pacifica. AOU 2016 ...... Buller’s Shearwater, Puffinus bulleri ...... Buller’s Shearwater, Ardenna bulleri. AOU 2016 ...... Short-tailed Shearwater, Puffinus tenuirostris ...... Short-tailed Shearwater, Ardenna tenuirostris. AOU 2016 ...... Sooty Shearwater, Puffinus griseus ...... Sooty Shearwater, Ardenna grisea. AOU 2016 ...... Great Shearwater, Puffinus gravis ...... Great Shearwater, Ardenna gravis. AOU 2016 ...... Pink-footed Shearwater, Puffinus creatopus ...... Pink-footed Shearwater, Ardenna creatopus. AOU 2016 ...... Flesh-footed Shearwater, Puffinus carneipes ...... Flesh-footed Shearwater, Ardenna carneipes. AOS 2017 ...... Intermediate Egret, Mesophoyx intermedia ...... Intermediate Egret, Ardea intermedia. AOS 2017 ...... Northern Harrier, Circus cyaneus ...... Northern Harrier, Circus hudsonius. AOU 2015 ...... Roadside Hawk, Buteo magnirostris ...... Roadside Hawk, Rupornis magnirostris. AOU 2015 ...... White-tailed Hawk, Buteo albicaudatus ...... White-tailed Hawk, Geranoaetus albicaudatus. AOS 2018 ...... Downy Woodpecker, Picoides pubescens ...... Downy Woodpecker, Dryobates pubescens. AOS 2018 ...... Nuttall’s Woodpecker, Picoides nuttallii ...... Nuttall’s Woodpecker, Dryobates nuttallii. AOS 2018 ...... Ladder-backed Woodpecker, Picoides scalaris ...... Ladder-backed Woodpecker, Dryobates scalaris. AOS 2018 ...... Red-cockaded Woodpecker, Picoides borealis ...... Red-cockaded Woodpecker, Dryobates borealis. AOS 2018 ...... Hairy Woodpecker, Picoides villosus ...... Hairy Woodpecker, Dryobates villosus. AOS 2018 ...... White-headed Woodpecker, Picoides albolarvatus ...... White-headed Woodpecker, Dryobates albolarvatus. AOS 2018 ...... Arizona Woodpecker, Picoides arizonae ...... Arizona Woodpecker, Dryobates arizonae. AOU 2013 ...... Flammulated Owl, Otus flammeolus ...... Flammulated Owl, Psiloscops flammeolus. AOS 2017 ...... Northern Shrike, Lanius excubitor ...... Northern Shrike, Lanius borealis. AOU 2011 ...... Mexican Jay, Aphelocoma ultramarina ...... Mexican Jay, Aphelocoma wollweberi. AOU 2012 ...... Sinaloa Wren, Thryothorus sinaloa ...... Sinaloa Wren, Thryophilus sinaloa. AOS 2018 ...... Siberian Blue Robin, Luscinia cyane ...... Siberian Blue Robin, Larvivora cyane. AOS 2018 ...... Rufous-tailed Robin, Luscinia sibilans ...... Rufous-tailed Robin, Larvivora sibilans. AOS 2018 ...... Bluethroat, Luscinia svecica ...... Bluethroat, Cyanecula svecica. AOS 2018 ...... Siberian Rubythroat, Luscinia calliope ...... Siberian Rubythroat, Calliope calliope. Clements et al. 2015 Chestnut-cheeked Starling, Sturnus phillippensis ...... Chestnut-cheeked Starling, Agropsar philippensis. Clements et al. 2015 White-cheeked Starling, Sturnus cineraceus ...... White-cheeked Starling, Spodiopsar cineraceus. AOU 2013 ...... Gray Silky-flycatcher, Ptilogonys cinereus ...... Gray Silky-flycatcher, Ptiliogonys cinereus. AOU 2012 ...... House Finch, Carpodacus mexicanus ...... House Finch, Haemorhous mexicanus. AOU 2012 ...... Purple Finch, Carpodacus purpureus ...... Purple Finch, Haemorhous purpureus. AOU 2012 ...... Cassin’s Finch, Carpodacus cassinii ...... Cassin’s Finch, Haemorhous cassinii. AOU 2015 ...... American Tree Sparrow, Spizella arborea ...... American Tree Sparrow, Spizelloides arborea. AOS 2018 ...... Baird’s Sparrow, Ammodramus bairdii ...... Baird’s Sparrow, Centronyx bairdii. AOS 2018 ...... Henslow’s Sparrow, Ammodramus henslowii ...... Henslow’s Sparrow, Centronyx henslowii. AOS 2018 ...... LeConte’s Sparrow, Ammodramus leconteii ...... LeConte’s Sparrow, Ammospiza leconteii. AOS 2018 ...... Seaside Sparrow, Ammodramus maritima ...... Seaside Sparrow, Ammospiza maritima. AOS 2018 ...... Nelson’s Sparrow, Ammodramus nelsoni ...... Nelson’s Sparrow, Ammospiza nelsoni. AOS 2018 ...... Saltmarsh Sparrow, Ammodramus caudacuta ...... Saltmarsh Sparrow, Ammospiza caudacuta. AOU 2011 ...... MacGillivray’s Warbler, Oporornis tolmiei ...... MacGillivray’s Warbler, Geothlypis tolmiei. AOU 2011 ...... Mourning Warbler, Oporornis philadelphia ...... Mourning Warbler, Geothlypis philadelphia.

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61293

Publication source and year Previous common name Current common name

AOU 2011 ...... Kentucky Warbler, Oporornis formosus ...... Kentucky Warbler, Geothlypis formosa. AOU 2011 ...... Elfin-woods Warbler, Dendroica angelae ...... Elfin-woods Warbler, Setophaga angelae. AOU 2011 ...... Hooded Warbler, Wilsonia citrina ...... Hooded Warbler, Setophaga citrina. AOU 2011 ...... Kirtland’s Warbler, Dendroica kirtlandii ...... Kirtland’s Warbler, Setophaga kirtlandii. AOU 2011 ...... Cape May Warbler, Dendroica tigrina ...... Cape May Warbler, Setophaga tigrina. AOU 2011 ...... Cerulean Warbler, Dendroica cerulea ...... Cerulean Warbler, Setophaga cerulea. AOU 2011 ...... Northern Parula, Parula americana ...... Northern Parula, Setophaga americana. AOU 2011 ...... Tropical Parula, Parula pitiayumi ...... Tropical Parula, Setophaga pitiayumi. AOU 2011 ...... Magnolia Warbler, Dendroica magnolia ...... Magnolia Warbler, Setophaga magnolia. AOU 2011 ...... Bay-breasted Warbler, Dendroica castanea ...... Bay-breasted Warbler, Setophaga castanea. AOU 2011 ...... Blackburnian Warbler, Dendroica fusca ...... Blackburnian Warbler, Setophaga fusca. AOU 2011 ...... Yellow Warbler, Dendroica petechia ...... Yellow Warbler, Setophaga petechia. AOU 2011 ...... Chestnut-sided Warbler, Dendroica pensylvanica ...... Chestnut-sided Warbler, Setophaga pensylvanica. AOU 2011 ...... Blackpoll Warbler, Dendroica striata ...... Blackpoll Warbler, Setophaga striata. AOU 2011 ...... Black-throated Blue Warbler, Dendroica caerulescens ...... Black-throated Blue Warbler, Setophaga caerulescens. AOU 2011 ...... Palm Warbler, Dendroica palmarum ...... Palm Warbler, Setophaga palmarum. AOU 2011 ...... Pine Warbler, Dendroica pinus ...... Pine Warbler, Setophaga pinus. AOU 2011 ...... Yellow-rumped Warbler, Dendroica coronata ...... Yellow-rumped Warbler, Setophaga coronata. AOU 2011 ...... Yellow-throated Warbler, Dendroica dominica ...... Yellow-throated Warbler, Setophaga dominica. AOU 2011 ...... Prairie Warbler, Dendroica discolor ...... Prairie Warbler, Setophaga discolor. AOU 2011 ...... Adelaide’s Warbler, Dendroica adelaidae ...... Adelaide’s Warbler, Setophaga adelaidae. AOU 2011 ...... Grace’s Warbler, Dendroica graciae ...... Grace’s Warbler, Setophaga graciae. AOU 2011 ...... Black-throated Gray Warbler, Dendroica nigrescens ...... Black-throated Gray Warbler, Setophaga nigrescens. AOU 2011 ...... Townsend’s Warbler, Dendroica townsendi ...... Townsend’s Warbler, Setophaga townsendi. AOU 2011 ...... Hermit Warbler, Dendroica occidentalis ...... Hermit Warbler, Setophaga occidentalis. AOU 2011 ...... Golden-cheeked Warbler, Dendroica chrysoparia ...... Golden-cheeked Warbler, Setophaga chrysoparia. AOU 2011 ...... Black-throated Green Warbler, Dendroica virens ...... Black-throated Green Warbler, Setophaga virens. AOU 2011 ...... Fan-tailed Warbler, Euthlypis lachrymosa ...... Fan-tailed Warbler, Basileuterus lachrymosus. AOU 2011 ...... Canada Warbler, Wilsonia canadensis ...... Canada Warbler, Cardellina canadensis. AOU 2011 ...... Wilson’s Warbler, Wilsonia pusilla ...... Wilson’s Warbler, Cardellina pusilla. Clements et al. 2017 Friendly Ground-Dove, Gallicolumba stairi ...... Shy Ground-Dove, Alopecoenas stairi. Clements et al. 2006 Micronesian Kingfisher, Todirhamphus cinnamominus ...... Guam Kingfisher, Todiramphus cinnamominus. Clements et al. Nightingale Reed-Warbler, Acrocephalus luscinia ...... Nightingale Reed Warbler, Acrocephalus luscinius. 2006, 2017. AOU 2015 ...... Akiapolaau, Hemignathus munroi ...... ‘Akiapola‘au, Hemignathus wilsoni. AOU 2015 ...... Greater Akialoa, Hemignathus ellisianus ...... O‘ahu ‘Akialoa, Akialoa ellisiana. AOU 2015 ...... Hawaii Amakihi, Hemignathus virens ...... Hawaii ‘Amakihi, Chlorodrepanis virens. AOU 2015 ...... Oahu Amakihi, Hemignathus flavus ...... O‘ahu ‘Amakihi, Chlorodrepanis flava. AOU 2015 ...... Kauai Amakihi, Hemignathus kauaiensis ...... Kauai ‘Amakihi, Chlorodrepanis stejnegeri. AOU 2012, 2013 ..... Sage Sparrow, Amphispiza belli ...... Bell’s Sparrow, Artemisiospiza belli.

How is the list of migratory birds (1) Nonnative species introduced into turkeys), Pteroclidae (sandgrouse), organized? the United States or U.S. territories by Heliornithidae (finfoots), Burhinidae The species are listed in two formats means of intentional or unintentional (thick-knees), Glareolidae (pratincoles), to suit the needs of different segments human assistance that belong to families Todidae (todies), Psittacidae (parrots), of the public: alphabetically in 50 CFR or groups covered by the Canadian, Psittaculidae (Old World parrots), 10.13(c)(1) and taxonomically in 50 CFR Mexican, or Russian Conventions. Meliphagidae (honeyeaters), Dicruridae 10.13(c)(2). In the alphabetical listing, Elsewhere in today’s Federal Register, (drongos), Monarchidae (monarchs), species are listed by common (English) we publish a notice of availability of the Pycnonotidae (bulbuls), Scotocercidae group names, with the scientific name draft revised list of nonnative bird (bush warblers and allies), Zosteropidae of each species following the English species that are not protected under the (white-eyes), Sturnidae (starlings, group name. This format, similar to that MBTA. Note, though, that native species except as listed in Japanese treaty), used in modern telephone directories, is that are introduced into parts of the Ploceidae (weavers), Estrildidae most useful to members of the lay United States where they are not native (estrildid finches), and Passeridae (Old public. In the taxonomic listing, species are still protected under the MBTA World sparrows, including house or are listed in phylogenetic sequence by regardless of where they occur in the English sparrow), as well as numerous scientific name, with the English name United States or U.S. territories. other families not represented in the following the scientific name. To help (2) Species native or nonnative to the United States or U.S. territories. clarify species relationships, we also list United States or U.S. territories that Public Comments the higher-level taxonomic categories of either belong to families or groups not Order, Family, and Subfamily. This referred to in the Canada, Mexico, and Any final action resulting from this format follows the sequence adopted by Russia Conventions or are not included proposed rule must be based on the best the AOS (1998, 2017) and is most useful by species name in the Japan scientific and commercial data available to ornithologists and other scientists. Convention. This includes the and be as accurate and as effective as Tinamidae (tinamous), Megapodiidae possible. We request comments or What species are not protected by the (megapodes), Cracidae (chachalacas), information from other concerned Migratory Bird Treaty Act? Odontophoridae (New World quail), governmental agencies, the scientific The MBTA does not apply to: Phasianidae (grouse, ptarmigan, and community, industry, or any other

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61294 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

interested parties concerning this this proposed rule in a manner competition, employment, investment, proposed rule. consistent with these requirements. productivity, innovation, or the ability of U.S.-based enterprises to compete Please include sufficient information Executive Order 13771—Reducing with foreign-based enterprises. with your submission (such as Regulation and Controlling Regulatory electronic copies of scientific journal Costs Unfunded Mandates Reform Act articles or other publications, preferably in English) to allow us to verify any This proposed rule is not an In accordance with the Unfunded scientific or commercial information Executive Order (E.O.) 13771 (82 FR Mandates Reform Act (2 U.S.C. 1501 et you include. 9339, February 3, 2017) regulatory seq.), we have determined the following: action because this proposed rule is not You may submit your comments and significant under E.O. 12866. a. This proposed rule would not materials concerning this proposed rule ‘‘significantly or uniquely’’ affect small by one of the methods listed in Regulatory Flexibility Act (5 U.S.C. 601 governments. A small government ADDRESSES. We request that you send et seq.) agency plan is not required. This comments only by the methods Under the Regulatory Flexibility Act proposed rule is an administrative described in ADDRESSES. (5 U.S.C. 601 et seq., as amended by the action to update the list of migratory If you submit information via http:// Small Business Regulatory Enforcement bird species protected under the www.regulations.gov, your entire Fairness Act (SBREFA) of 1996 (5 U.S.C. Conventions; it would not affect small submission—including any personal 804(2)), whenever an agency is required government activities in any significant identifying information—will be posted to publish a notice of rulemaking for way. on the website. If your submission is any proposed or final rule, it must b. This proposed rule would not made via a hardcopy that includes prepare and make available for public produce a Federal mandate of $100 personal identifying information, you comment a regulatory flexibility million or greater in any year; i.e., it is may request at the top of your document analysis that describes the effect of the not a ‘‘significant regulatory action’’ that we withhold this information from rule on small entities (i.e., small under the Unfunded Mandates Reform public review. However, we cannot businesses, small organizations, and Act. guarantee that we will be able to do so. small government jurisdictions). Takings We will post all hardcopy submissions However, no regulatory flexibility on http://www.regulations.gov. analysis is required if the head of an In accordance with Executive Order Comments and materials we receive, agency certifies the rule does not have 12630, this proposed rule does not have as well as supporting documentation we a significant economic impact on a significant takings implications. This used in preparing this proposed rule, substantial number of small entities. proposed rule does not contain a will be available for public inspection SBREFA amended the Regulatory provision for taking of private property. on http://www.regulations.gov, or by Flexibility Act to require Federal Therefore, a takings implication appointment, during normal business agencies to provide the statement of the assessment is not required. hours, at the U.S. Fish and Wildlife factual basis for certifying that a rule Service, Division of Migratory Bird will not have a significant economic Federalism Management (see FOR FURTHER impact on a substantial number of small This proposed rule does not have INFORMATION CONTACT). entities. We have examined this sufficient Federalism effects to warrant proposed rule’s potential effects on Required Determinations preparation of a federalism summary small entities as required by the impact statement under Executive Order Regulatory Planning and Review Regulatory Flexibility Act, and have 13132. It does not interfere with the determined that, if adopted as proposed, States’ ability to manage themselves or Executive Order (E.O.) 12866 provides this action would not have a significant that the Office of Information and their funds. No significant economic economic impact on a substantial impacts are expected to result from the Regulatory Affairs (OIRA) in the Office number of small entities. This rule is an of Management and Budget will review updating of the list of migratory bird administrative action to update the list species. all significant rules. OIRA has of migratory bird species protected determined that this proposed rule is under the Conventions. Consequently, Civil Justice Reform not significant. we certify that, if adopted as proposed, In accordance with Executive Order E.O. 13563 reaffirms the principles of this rule would not have a significant 12988, the Office of the Solicitor has E.O. 12866, while calling for economic impact on a substantial determined that this proposed rule does improvements in the nation’s regulatory number of small entities; therefore, a not unduly burden the judicial system system to promote predictability, to regulatory flexibility analysis is not and meets the requirements of sections reduce uncertainty, and to use the best, required. most innovative, and least burdensome This proposed rule is not a major rule 3(a) and 3(b)(2) of the Order. tools for achieving regulatory ends. E.O. under SBREFA (5 U.S.C. 804(2)). It Paperwork Reduction Act 13563 directs agencies to consider would not have a significant impact on regulatory approaches that reduce a substantial number of small entities. This proposed rule does not contain burdens and maintain flexibility and a. This proposed rule would not have information collection requirements, freedom of choice for the public where an annual effect on the economy of $100 and a submission to the Office of these approaches are relevant, feasible, million or more. Management and Budget (OMB) under and consistent with regulatory b. This proposed rule would not cause the Paperwork Reduction Act of 1995 objectives. E.O. 13563 emphasizes a major increase in costs or prices for (44 U.S.C. 3501 et seq.) is not required. further that regulations must be based consumers, individual industries, We may not conduct or sponsor and you on the best available science and that Federal, State, or local government are not required to respond to a the rulemaking process must allow for agencies, or geographic regions. collection of information unless it public participation and an open c. This proposed rule would not have displays a currently valid OMB control exchange of ideas. We have developed significant adverse effects on number.

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61295

National Environmental Policy Act language. This means that each rule we follow Clements Checklist of Birds of (NEPA) publish must: the World (Clements et al. 2017). (1) Be logically organized; (1) Alphabetical listing. Species are Given that the proposed revision of 50 (2) Use the active voice to address listed alphabetically by common CFR 10.13 is strictly administrative in readers directly; (English) group names, with the nature and will have no or minor (3) Use clear language rather than scientific name of each species environmental effects, it is categorically jargon; following the common name. excluded from further NEPA (4) Be divided into short sections and requirements (43 CFR 46.210(i)). ACCENTOR, Siberian, Prunella montanella sentences; and ‘AKEKE‘E, Loxops caeruleirostris Endangered Species Act (ESA) (5) Use lists and tables wherever ‘AKEPA, Hawaii, Loxops coccineus possible. Maui, Loxops ochraceus Of the species on the List of Migratory If you feel that we have not met these O‘ahu, Loxops wolstenholmei Birds, 84 species, subspecies, or distinct requirements, send us comments by one ‘AKIALOA, Kauai, Akialoa stejnegeri population segments are also listed as of the methods listed in ADDRESSES. To Maui Nui, Akialoa lanaiensis endangered or threatened under section better help us revise the rule, your O‘ahu, Akialoa ellisiana 4 of the ESA of 1973, as amended (16 comments should be as specific as ‘AKIAPOLA‘AU, Hemignathus wilsoni U.S.C. 1531 et seq.). No legal ‘AKIKIKI, Oreomystis bairdi possible. For example, you should tell ‘AKOHEKOHE, Palmeria dolei complications arise from the dual listing us the numbers of the sections or as the two lists are developed under ‘ALAUAHIO, Maui, Paroreomyza montana paragraphs that are unclearly written, O‘ahu, Paroreomyza maculata separate authorities and for different which sections or sentences are too ALBATROSS, Black-browed, Thalassarche purposes. Because this proposed rule is long, the sections where you feel lists or melanophris strictly administrative in nature, it has tables would be useful, etc. Black-footed, Phoebastria nigripes no effect on endangered or threatened Chatham, Thalassarche eremita species. Thus, it does not require References Cited Laysan, Phoebastria immutabilis consultation under section 7 of the ESA. A complete list of all references cited Light-mantled, Phoebetria palpebrata Salvin’s, Thalassarche salvini Government-to-Government is available on http:// Short-tailed, Phoebastria albatrus Relationship With Tribes www.regulations.gov under Docket No. Wandering, Diomedea exulans FWS–HQ–MB–2018–0047, and upon White-capped, Thalassarche cauta In accordance with the President’s request (see FOR FURTHER INFORMATION Yellow-nosed, Thalassarche memorandum of April 29, 1994, CONTACT, above). chlororhynchos ‘‘Government-to-Government Relations ‘AMAKIHI, Hawaii, Chlorodrepanis virens with Native American tribal List of Subjects in Part 10 Kauai, Chlorodrepanis stejnegeri Governments’’ (59 FR 22951), Executive Exports, Fish, Imports, Law O‘ahu, Chlorodrepanis flava Order 13175, and 512 DM 2, we have enforcement, Plants, Transportation, ANHINGA, Anhinga anhinga ANI, Groove-billed, Crotophaga sulcirostris evaluated potential effects on federally Wildlife. recognized Indian tribes and have Smooth-billed, Crotophaga ani Proposed Regulation Promulgation ‘ANIANIAU, Magumma parva determined that there are no potential ‘APAPANE, Himatione sanguinea effects. The proposed revisions to For the reasons discussed in the AUKLET, Cassin’s, Ptychoramphus aleuticus existing regulations in this rule are preamble, we propose to amend title 50, Crested, Aethia cristatella purely administrative in nature and do chapter I, subchapter B, part 10 of the Least, Aethia pusilla not interfere with the tribes’ ability to Code of Federal Regulations, as follows: Parakeet, Aethia psittacula manage themselves or their funds or to Rhinoceros, Cerorhinca monocerata regulate migratory bird activities on PART 10—GENERAL PROVISIONS Whiskered, Aethia pygmaea tribal lands. AVOCET, American, Recurvirostra ■ 1. The authority citation for part 10 americana Energy Supply, Distribution, or Use continues to read as follows: BANANAQUIT, Coereba flaveola (Executive Order 13211) BEAN–GOOSE, Taiga, Anser fabalis Authority: 16 U.S.C. 668a–d, 703–712, Tundra, Anser serrirostris On May 18, 2001, the President issued 742a–j–l, 1361–1384, 1401–1407, 1531–1543, BEARDLESS–TYRANNULET, Northern, Executive Order 13211 addressing 3371–3378; 18 U.S.C. 42; 19 U.S.C. 1202. Camptostoma imberbe regulations that significantly affect ■ 2. Amend § 10.13 by revising BECARD, Gray-collared, Pachyramphus energy supply, distribution, and use. paragraph (c) to read as follows: major Executive Order 13211 requires agencies Rose-throated, Pachyramphus aglaiae to prepare Statements of Energy Effects § 10.13 List of Migratory Birds. BITTERN, American, Botaurus lentiginosus when undertaking certain actions. * * * * * Black, Ixobrychus flavicollis Because this proposed rule would only (c) What species are protected as Least, Ixobrychus exilis Schrenck’s, Ixobrychus eurhythmus affect the listing of protected species in migratory birds? Species protected as Yellow, Ixobrychus sinensis the United States, it is not a significant migratory birds are listed in two formats BLACKBIRD, Brewer’s, Euphagus regulatory action under Executive Order to suit the varying needs of the user: cyanocephalus 12866, and does not significantly affect Alphabetically in paragraph (c)(1) of Red-winged, Agelaius phoeniceus energy supplies, distribution, or use. this section and taxonomically in Rusty, Euphagus carolinus Therefore, this action is not a significant paragraph (c)(2) of this section. Tawny-shouldered, Agelaius humeralis energy action and no Statement of Taxonomy and nomenclature generally Tricolored, Agelaius tricolor Energy Effects is required. follow the 7th edition of the American Yellow-headed, Xanthocephalus Ornithologists’ Union’s (AOU, now xanthocephalus Clarity of the Proposed Rule Yellow-shouldered, Agelaius xanthomus recognized as American Ornithological BLUEBIRD, Eastern, Sialia sialis We are required by Executive Orders Society (AOS)) Check-list of North Mountain, Sialia currucoides 12866 and 12988 and by the American birds (1998, as amended Western, Sialia mexicana Presidential Memorandum of June 1, through 2018). For species not treated BLUETAIL, Red-flanked, Tarsiger cyanurus 1998, to write all rules in plain by the AOS Check-list, we generally BLUETHROAT, Cyanecula svecica

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61296 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

BOBOLINK, Dolichonyx oryzivorus Whooping, Grus americana Peregrine, Falco peregrinus BOOBOOK, Northern, Ninox japonica CREEPER, Brown, Certhia americana Prairie, Falco mexicanus BOOBY, Abbott’s, Papasula abbotti Hawaii, Loxops mana Red-footed, Falco vespertinus Blue-footed, Sula nebouxii CROSSBILL, Cassia, Loxia sinesciuris FIELDFARE, Turdus pilaris Brown, Sula leucogaster Red, Loxia curvirostra FINCH, Cassin’s, Haemorhous cassinii Masked, Sula dactylatra White-winged, Loxia leucoptera House, Haemorhous mexicanus Nazca, Sula granti CROW, American, Corvus brachyrhynchos Laysan, Telespiza cantans Red-footed, Sula sula Fish, Corvus ossifragus Nihoa, Telespiza ultima BRAMBLING, Fringilla montifringilla Hawaiian, Corvus hawaiiensis Purple, Haemorhous purpureus BRANT, Branta bernicla Mariana, Corvus kubaryi FLAMINGO, American, Phoenicopterus BUFFLEHEAD, Bucephala albeola Northwestern, Corvus caurinus ruber BULLFINCH, Eurasian, Pyrrhula pyrrhula Tamaulipas, Corvus imparatus FLICKER, Gilded, Colaptes chrysoides Puerto Rican, Melopyrrha portoricensis White-necked, Corvus leucognaphalus Northern, Colaptes auratus BUNTING, Blue, Cyanocompsa parellina CUCKOO, Black-billed, Coccyzus FLYCATCHER, Acadian, Empidonax Gray, Emberiza variabilis erythropthalmus virescens Indigo, Passerina cyanea Common, Cuculus canorus Alder, Empidonax alnorum Lark, Calamospiza melanocorys Mangrove, Coccyzus minor Ash-throated, Myiarchus cinerascens Lazuli, Passerina amoena Oriental, Cuculus optatus Asian Brown, Muscicapa dauurica Little, Emberiza pusilla Yellow-billed, Coccyzus americanus Brown-crested, Myiarchus tyrannulus McKay’s, Plectrophenax hyperboreus CURLEW, Bristle-thighed, Numenius Buff-breasted, Empidonax fulvifrons Painted, Passerina ciris tahitiensis Cordilleran, Empidonax occidentalis Pallas’s, Emberiza pallasi Eskimo, Numenius borealis Crowned Slaty, Empidonomus Pine, Emberiza leucocephalos Eurasian, Numenius arquata aurantioatrocristatus Reed, Emberiza schoeniclus Far Eastern, Numenius madagascariensis Dark-sided, Muscicapa sibirica Rustic, Emberiza rustica Little, Numenius minutus Dusky, Empidonax oberholseri Snow, Plectrophenax nivalis Long-billed, Numenius americanus Dusky-capped, Myiarchus tuberculifer Varied, Passerina versicolor DICKCISSEL, Spiza americana Fork-tailed, Tyrannus savana Yellow-breasted, Emberiza aureola DIPPER, American, Cinclus mexicanus Gray, Empidonax wrightii Yellow-browed, Emberiza chrysophrys DOTTEREL, Eurasian, Charadrius morinellus Gray-streaked, Muscicapa griseisticta Yellow-throated, Emberiza elegans DOVE, Inca, Columbina inca Great Crested, Myiarchus crinitus BUSHTIT, Psaltriparus minimus Mourning, Zenaida macroura Hammond’s, Empidonax hammondii BUZZARD, Gray-faced, Butastur indicus White-tipped, Leptotila verreauxi La Sagra’s, Myiarchus sagrae CANVASBACK, Aythya valisineria White-winged, Zenaida asiatica Least, Empidonax minimus CARACARA, Crested, Caracara cheriway Zenaida, Zenaida aurita Mugimaki, Ficedula mugimaki CARDINAL, Northern, Cardinalis cardinalis DOVEKIE, Alle alle Narcissus, Ficedula narcissina CARIB, Green-throated, Eulampis DOWITCHER, Long-billed, Limnodromus Nutting’s, Myiarchus nuttingi holosericeus scolopaceus Olive-sided, Contopus cooperi Purple-throated, Eulampis jugularis Short-billed, Limnodromus griseus Pacific-slope, Empidonax difficilis CATBIRD, Black, Melanoptila glabrirostris DUCK, American Black, Anas rubripes Pine, Empidonax affinis Gray, Dumetella carolinensis Eastern Spot-billed, Anas zonorhyncha Piratic, Legatus leucophaius CHAFFINCH, Common, Fringilla coelebs Falcated, Mareca falcata Puerto Rican, Myiarchus antillarum CHAT, Yellow-breasted, Icteria virens Harlequin, Histrionicus histrionicus Scissor-tailed, Tyrannus forficatus CHICKADEE, Black-capped, Poecile Hawaiian, Anas wyvilliana Social, Myiozetetes similis atricapillus Laysan, Anas laysanensis Spotted, Muscicapa striata Boreal, Poecile hudsonicus Long-tailed, Clangula hyemalis Sulphur-bellied, Myiodynastes luteiventris Carolina, Poecile carolinensis Masked, Nomonyx dominicus Taiga, Ficedula albicilla Chestnut-backed, Poecile rufescens Mottled, Anas fulvigula Tufted, Mitrephanes phaeocercus Gray-headed, Poecile cinctus Muscovy, Cairina moschata Variegated, Empidonomus varius Mexican, Poecile sclateri Pacific Black, Anas superciliosa Vermilion, Pyrocephalus rubinus Mountain, Poecile gambeli Ring-necked, Aythya collaris Willow, Empidonax traillii CHIFFCHAFF, Common, Phylloscopus Ruddy, Oxyura jamaicensis Yellow-bellied, Empidonax flaviventris collybita Tufted, Aythya fuligula FOREST-FALCON, Collared, Micrastur CHUCK-WILL’S-WIDOW, Antrostomus Wood, Aix sponsa semitorquatus carolinensis DUNLIN, Calidris alpina FRIGATEBIRD, Great, Fregata minor CONDOR, California, Gymnogyps EAGLE, Bald, Haliaeetus leucocephalus Lesser, Fregata ariel californianus Golden, Aquila chrysaetos Magnificent, Fregata magnificens COOT, American, Fulica americana White-tailed, Haliaeetus albicilla FRUIT-DOVE, Crimson-crowned, Ptilinopus Eurasian, Fulica atra EGRET, Cattle, Bubulcus ibis porphyraceus Hawaiian, Fulica alai Chinese, Egretta eulophotes Many-colored, Ptilinopus perousii CORMORANT, Brandt’s, Phalacrocorax Great, Ardea alba Mariana, Ptilinopus roseicapilla penicillatus Intermediate, Ardea intermedia FULMAR, Northern, Fulmarus glacialis Double-crested, Phalacrocorax auritus Little, Egretta garzetta GADWALL, Mareca strepera Great, Phalacrocorax carbo Reddish, Egretta rufescens GALLINULE, Azure, Porphyrio flavirostris Little Pied, Phalacrocorax melanoleucos Snowy, Egretta thula Common, Gallinula galeata Neotropic, Phalacrocorax brasilianus EIDER, Common, Somateria mollissima Purple, Porphyrio martinicus Pelagic, Phalacrocorax pelagicus King, Somateria spectabilis GANNET, Northern, Morus bassanus Red-faced, Phalacrocorax urile Spectacled, Somateria fischeri GARGANEY, Spatula querquedula COWBIRD, Bronzed, Molothrus aeneus Steller’s, Polysticta stelleri GNATCATCHER, Black-capped, Polioptila Brown-headed, Molothrus ater ELAENIA, Caribbean, Elaenia martinica nigriceps Shiny, Molothrus bonariensis Greenish, Myiopagis viridicata Black-tailed, Polioptila melanura CRAKE, Corn, Crex crex White-crested, Elaenia albiceps Blue-Gray, Polioptila caerulea Paint-billed, Neocrex erythrops EMERALD, Puerto Rican, Chlorostilbon California, Polioptila californica Spotless, Porzana tabuensis maugaeus GODWIT, Bar-tailed, Limosa lapponica Yellow-breasted, Hapalocrex flaviventer EUPHONIA, Antillean, Euphonia musica Black-tailed, Limosa limosa CRANE, Common, Grus grus FALCON, Amur, Falco amurensis Hudsonian, Limosa haemastica Sandhill, Antigone canadensis Aplomado, Falco femoralis Marbled, Limosa fedoa

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61297

GOLDENEYE, Barrow’s, Bucephala islandica Slaty-backed, Larus schistisagus Canada, Perisoreus canadensis Common, Bucephala clangula Swallow-tailed, Creagrus furcatus Green, Cyanocorax yncas GOLDEN-PLOVER, American, Pluvialis Western, Larus occidentalis Mexican, Aphelocoma wollweberi dominica Yellow-footed, Larus livens Pinyon, Gymnorhinus cyanocephalus European, Pluvialis apricaria Yellow-legged, Larus michahellis Steller’s, Cyanocitta stelleri Pacific, Pluvialis fulva GYRFALCON, Falco rusticolus JUNCO, Dark-eyed, Junco hyemalis GOLDFINCH, American, Spinus tristis HARRIER, Northern, Circus hudsonius Yellow-eyed, Junco phaeonotus Lawrence’s, Spinus lawrencei HAWFINCH, Coccothraustes coccothraustes KA¯ KA¯ WAHIE, Paroreomyza flammea Lesser, Spinus psaltria HAWK, Broad-winged, Buteo platypterus KA¯ MA‘O, Myadestes myadestinus GOOSE, Barnacle, Branta leucopsis Common Black, Buteogallus anthracinus KESTREL, American, Falco sparverius Cackling, Branta hutchinsii Cooper’s, Accipiter cooperii Eurasian, Falco tinnunculus Canada, Branta canadensis Crane, Geranospiza caerulescens KILLDEER, Charadrius vociferus Emperor, Anser canagicus Ferruginous, Buteo regalis KINGBIRD, Cassin’s, Tyrannus vociferans Greater White-fronted, Anser albifrons Gray, Buteo plagiatus Couch’s, Tyrannus couchii Hawaiian, Branta sandvicensis Harris’s, Parabuteo unicinctus Eastern, Tyrannus tyrannus Lesser White-fronted, Anser erythropus Hawaiian, Buteo solitarius Gray, Tyrannus dominicensis Pink-footed, Anser brachyrhynchus Red-shouldered, Buteo lineatus Loggerhead, Tyrannus caudifasciatus Ross’s, Anser rossii Red-tailed, Buteo jamaicensis Thick-billed, Tyrannus crassirostris Snow, Anser caerulescens Roadside, Rupornis magnirostris Tropical, Tyrannus melancholicus GOSHAWK, Northern, Accipiter gentilis Rough-legged, Buteo lagopus Western, Tyrannus verticalis GRACKLE, Boat-tailed, Quiscalus major Sharp-shinned, Accipiter striatus KINGFISHER, Amazon, Chloroceryle Common, Quiscalus quiscula Short-tailed, Buteo brachyurus amazona Greater Antillean, Quiscalus niger Swainson’s, Buteo swainsoni Belted, Megaceryle alcyon Great-tailed, Quiscalus mexicanus White-tailed, Geranoaetus albicaudatus Common, Alcedo atthis GRASSHOPPER-WARBLER, Middendorff’s, Zone-tailed, Buteo albonotatus Green, Chloroceryle americana Locustella ochotensis HAWK-CUCKOO, Hodgson’s, Hierococcyx Guam, Todiramphus cinnamominus GRASSQUIT, Black-faced, Tiaris bicolor nisicolor Mariana, Todiramphus albicilla Yellow-faced, Tiaris olivaceus HERON, Gray, Ardea cinerea Pacific, Todiramphus sacer GREBE, Clark’s, Aechmophorus clarkii Great Blue, Ardea herodias Ringed, Megaceryle torquata Eared, Podiceps nigricollis Green, Butorides virescens KINGLET, Golden-crowned, Regulus satrapa Horned, Podiceps auritus Little Blue, Egretta caerulea Ruby-crowned, Regulus calendula Least, Tachybaptus dominicus Tricolored, Egretta tricolor KISKADEE, Great, Pitangus sulphuratus Pied-billed, Podilymbus podiceps HOBBY, Eurasian, Falco subbuteo KITE, Black, Milvus migrans Red-necked, Podiceps grisegena HONEYCREEPER, Laysan, Himatione fraithii Double-toothed, Harpagus bidentatus Western, Aechmophorus occidentalis Red-legged, Cyanerpes cyaneus Hook-billed, Chondrohierax uncinatus GREENFINCH, Oriental, Chloris sinica HOOPOE, Eurasian, Upupa epops Mississippi, Ictinia mississippiensis GREENSHANK, Common, Tringa nebularia HOUSE-MARTIN, Common, Delichon Snail, Rostrhamus sociabilis Nordmann’s, Tringa guttifer urbicum Swallow-tailed, Elanoides forficatus GROSBEAK, Black-headed, Pheucticus HUMMINGBIRD, Allen’s, Selasphorus sasin White-tailed, Elanus leucurus melanocephalus Amethyst-throated, Lampornis KITTIWAKE, Black-legged, Rissa tridactyla Blue, Passerina caerulea amethystinus Red-legged, Rissa brevirostris Crimson-collared, Rhodothraupis celaeno Anna’s, Calypte anna KNOT, Great, Calidris tenuirostris Evening, Coccothraustes vespertinus Antillean Crested, Orthorhyncus cristatus Red, Calidris canutus Pine, Pinicola enucleator Berylline, Amazilia beryllina KOEL, Long-tailed, Urodynamis taitensis Rose-breasted, Pheucticus ludovicianus Black-chinned, Archilochus alexandri LAPWING, Northern, Vanellus vanellus Yellow, Pheucticus chrysopeplus Blue-throated, Lampornis clemenciae LARK, Horned, Eremophila alpestris GROUND-DOVE, Common, Columbina Broad-billed, Cynanthus latirostris LIMPKIN, Aramus guarauna passerina Broad-tailed, Selasphorus platycercus LIZARD-CUCKOO, Puerto Rican, Coccyzus Ruddy, Columbina talpacoti Buff-bellied, Amazilia yucatanensis vieilloti Shy, Alopecoenas stairi Bumblebee, Atthis heloisa LONGSPUR, Chestnut-collared, Calcarius White-throated, Alopecoenas xanthonura Calliope, Selasphorus calliope ornatus GUILLEMOT, Black, Cepphus grylle Cinnamon, Amazilia rutila Lapland, Calcarius lapponicus Pigeon, Cepphus columba Costa’s, Calypte costae McCown’s, Rhynchophanes mccownii GULL, Belcher’s, Larus belcheri Lucifer, Calothorax lucifer Smith’s, Calcarius pictus Black-headed, Chroicocephalus ridibundus Rivoli’s, Eugenes fulgens LOON, Arctic, Gavia arctica Black-tailed, Larus crassirostris Ruby-throated, Archilochus colubris Common, Gavia immer Bonaparte’s, Chroicocephalus philadelphia Rufous, Selasphorus rufus Pacific, Gavia pacifica California, Larus californicus Vervain, Mellisuga minima Red-throated, Gavia stellata Franklin’s, Leucophaeus pipixcan Violet-crowned, Amazilia violiceps Yellow-billed, Gavia adamsii Glaucous, Larus hyperboreus White-eared, Hylocharis leucotis MAGPIE, Black-billed, Pica hudsonia Glaucous-winged, Larus glaucescens Xantus’s, Hylocharis xantusii Yellow-billed, Pica nuttalli Gray-hooded, Chroicocephalus IBIS, Glossy, Plegadis falcinellus MALLARD, Anas platyrhynchos cirrocephalus Scarlet, Eudocimus ruber MANGO, Antillean, Anthracothorax Great Black-backed, Larus marinus White, Eudocimus albus dominicus Heermann’s, Larus heermanni White-faced, Plegadis chihi Green, Anthracothorax viridis Herring, Larus argentatus ‘I‘IWI, Drepanis coccinea Green-breasted, Anthracothorax prevostii Iceland, Larus glaucoides IMPERIAL-PIGEON, Pacific, Ducula pacifica MARSH-HARRIER, Eastern, Circus Ivory, Pagophila eburnea JABIRU, Jabiru mycteria spilonotus Kelp, Larus dominicanus JACANA, Northern, Jacana spinosa MARTIN, Brown-chested, Progne tapera Laughing, Leucophaeus atricilla JACKDAW, Eurasian, Corvus monedula Caribbean, Progne dominicensis Lesser Black-backed, Larus fuscus JAEGER, Long-tailed, Stercorarius Cuban, Progne cryptoleuca Little, Hydrocoloeus minutus longicaudus Gray-breasted, Progne chalybea Mew, Larus canus Parasitic, Stercorarius parasiticus Purple, Progne subis Ring-billed, Larus delawarensis Pomarine, Stercorarius pomarinus Southern, Progne elegans Ross’s, Rhodostethia rosea JAY, Blue, Cyanocitta cristata MEADOWLARK, Eastern, Sturnella magna Sabine’s, Xema sabini Brown, Psilorhinus morio Western, Sturnella neglecta

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61298 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

MERGANSER, Common, Mergus merganser Northern Hawk, Surnia ulula Mountain, Charadrius montanus Hooded, Lophodytes cucullatus Northern Saw-whet, Aegolius acadicus Piping, Charadrius melodus Red-breasted, Mergus serrator Short-eared, Asio flammeus Semipalmated, Charadrius semipalmatus MERLIN, Falco columbarius Snowy, Bubo scandiacus Snowy, Charadrius nivosus MILLERBIRD, Acrocephalus familiaris Spotted, Strix occidentalis Wilson’s, Charadrius wilsonia MOCKINGBIRD, Bahama, Mimus gundlachii Stygian, Asio stygius POCHARD, Baer’s, Aythya baeri Blue, Melanotis caerulescens OYSTERCATCHER, American, Haematopus Common, Aythya ferina Northern, Mimus polyglottos palliatus POND-HERON, Chinese, Ardeola bacchus MOORHEN, Common, Gallinula chloropus Black, Haematopus bachmani POORWILL, Common, Phalaenoptilus MURRE, Common, Uria aalge Eurasian, Haematopus ostralegus nuttallii Thick-billed, Uria lomvia PALILA, Loxioides bailleui PO‘OULI, Melamprosops phaeosoma MURRELET, Ancient, Synthliboramphus PALM-SWIFT, Antillean, Tachornis PUAIOHI, Myadestes palmeri antiquus phoenicobia PUFFIN, Atlantic, Fratercula arctica Craveri’s, Synthliboramphus craveri PARROTBILL, Maui, Pseudonestor Horned, Fratercula corniculata Guadalupe, Synthliboramphus hypoleucus xanthophrys Tufted, Fratercula cirrhata Kittlitz’s, Brachyramphus brevirostris PARULA, Northern, Setophaga americana PYGMY-OWL, Ferruginous, Glaucidium Long-billed, Brachyramphus perdix Tropical, Setophaga pitiayumi brasilianum Marbled, Brachyramphus marmoratus PAURAQUE, Common, Nyctidromus Northern, Glaucidium gnoma Scripps’s, Synthliboramphus scrippsi albicollis PYRRHULOXIA, Cardinalis sinuatus NEEDLETAIL, White-throated, Hirundapus PELICAN, American White, Pelecanus QUAIL-DOVE, Bridled, Geotrygon mystacea caudacutus erythrorhynchos Key West, Geotrygon chrysia NIGHTHAWK, Antillean, Chordeiles Brown, Pelecanus occidentalis Ruddy, Geotrygon montana gundlachii PETREL, Bermuda, Pterodroma cahow QUETZAL, Eared, Euptilotis neoxenus Common, Chordeiles minor Black-capped, Pterodroma hasitata RAIL, Black, Laterallus jamaicensis Lesser, Chordeiles acutipennis Black-winged, Pterodroma nigripennis Buff-banded, Gallirallus philippensis NIGHT-HERON, Black-crowned, Nycticorax Bonin, Pterodroma hypoleuca Clapper, Rallus crepitans nycticorax Bulwer’s, Bulweria bulwerii Guam, Gallirallus owstoni Japanese, Gorsachius goisagi Cook’s, Pterodroma cookii King, Rallus elegans Malayan, Gorsachius melanolophus Fea’s, Pterodroma feae Ridgway’s, Rallus obsoletus Rufous, Nycticorax caledonicus Gould’s, Pterodroma leucoptera Spotted, Pardirallus maculatus Yellow-crowned, Nyctanassa violacea Great-winged, Pterodroma macroptera Virginia, Rallus limicola NIGHTINGALE-THRUSH, Black-headed, Hawaiian, Pterodroma sandwichensis Yellow, Coturnicops noveboracensis Catharus mexicanus Herald, Pterodroma heraldica RAVEN, Chihuahuan, Corvus cryptoleucus Orange-billed, Catharus aurantiirostris Jouanin’s, Bulweria fallax Common, Corvus corax NIGHTJAR, Buff-collared, Antrostomus Juan Fernandez, Pterodroma externa RAZORBILL, Alca torda ridgwayi Kermadec, Pterodroma neglecta REDHEAD, Aythya americana Gray, Caprimulgus jotaka Mottled, Pterodroma inexpectata REDPOLL, Common, Acanthis flammea Puerto Rican, Antrostomus noctitherus Murphy’s, Pterodroma ultima Hoary, Acanthis hornemanni White-tailed, Hydropsalis cayennensis Parkinson’s, Procellaria parkinsoni REDSHANK, Common, Tringa totanus NODDY, Black, Anous minutus Phoenix, Pterodroma alba Spotted, Tringa erythropus Blue-gray, Anous ceruleus Providence, Pterodroma solandri REDSTART, American, Setophaga ruticilla Brown, Anous stolidus Stejneger’s, Pterodroma longirostris Common, Phoenicurus phoenicurus NUKUPU‘U, Kauai, Hemignathus hanapepe Tahiti, Pseudobulweria rostrata Painted, Myioborus pictus Maui, Hemignathus affinis Trindade, Pterodroma arminjoniana Slate-throated, Myioborus miniatus O‘ahu, Hemignathus lucidus White-chinned, Procellaria aequinoctialis REDWING, Turdus iliacus NUTCRACKER, Clark’s, Nucifraga White-necked, Pterodroma cervicalis REEF-HERON, Pacific, Egretta sacra columbiana Zino’s, Pterodroma madeira Western, Egretta gularis NUTHATCH, Brown-headed, Sitta pusilla PEWEE, Cuban, Contopus caribaeus ROADRUNNER, Greater, Geococcyx Pygmy, Sitta pygmaea Greater, Contopus pertinax californianus Red-breasted, Sitta canadensis Hispaniolan, Contopus hispaniolensis ROBIN, American, Turdus migratorius White-breasted, Sitta carolinensis Lesser Antillean, Contopus latirostris Rufous-backed, Turdus rufopalliatus OLOMA‘O, Myadestes lanaiensis PHAINOPEPLA, Phainopepla nitens Rufous-tailed, Larvivora sibilans ‘O˜ MA’O, Myadestes obscurus PHALAROPE, Red, Phalaropus fulicarius Siberian Blue, Larvivora cyane ORIOLE, Altamira, Icterus gularis Red-necked, Phalaropus lobatus ROCK-THRUSH, Blue, Monticola solitarius Audubon’s, Icterus graduacauda Wilson’s, Phalaropus tricolor ROSEFINCH, Common, Carpodacus Baltimore, Icterus galbula PHOEBE, Black, Sayornis nigricans erythrinus Black-vented, Icterus wagleri Eastern, Sayornis phoebe ROSY-FINCH, Asian, Leucosticte arctoa Bullock’s, Icterus bullockii Say’s, Sayornis saya Black, Leucosticte atrata Hooded, Icterus cucullatus PIGEON, Band-tailed, Patagioenas fasciata Brown-capped, Leucosticte australis Orchard, Icterus spurius Plain, Patagioenas inornata Gray-crowned, Leucosticte tephrocotis Puerto Rican, Icterus portoricensis Red-billed, Patagioenas flavirostris RUBYTHROAT, Siberian, Calliope calliope Scott’s, Icterus parisorum Scaly-naped, Patagioenas squamosa RUFF, Calidris pugnax Streak-backed, Icterus pustulatus White-crowned, Patagioenas leucocephala SANDERLING, Calidris alba OSPREY, Pandion haliaetus PINTAIL, Northern, Anas acuta SANDPIPER, Baird’s, Calidris bairdii ‘O˜ ‘U˜ , Psittirostra psittacea White-cheeked, Anas bahamensis Broad-billed, Calidris falcinellus OVENBIRD, Seiurus aurocapilla PIPIT, American, Anthus rubescens Buff-breasted, Calidris subruficollis OWL, Barn, Tyto alba Olive-backed, Anthus hodgsoni Common, Actitis hypoleucos Barred, Strix varia Pechora, Anthus gustavi Curlew, Calidris ferruginea Boreal, Aegolius funereus Red-throated, Anthus cervinus Green, Tringa ochropus Burrowing, Athene cunicularia Sprague’s, Anthus spragueii Least, Calidris minutilla Elf, Micrathene whitneyi Tree, Anthus trivialis Marsh, Tringa stagnatilis Flammulated, Psiloscops flammeolus PLOVER, Black-bellied, Pluvialis squatarola Pectoral, Calidris melanotos Great Gray, Strix nebulosa Collared, Charadrius collaris Purple, Calidris maritima Great Horned, Bubo virginianus Common Ringed, Charadrius hiaticula Rock, Calidris ptilocnemis Long-eared, Asio otus Kentish, Charadrius alexandrinus Semipalmated, Calidris pusilla Mottled, Ciccaba virgata Little Ringed, Charadrius dubius Sharp-tailed, Calidris acuminata

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61299

Solitary, Tringa solitaria SPARROW, American Tree, Spizelloides SWALLOW, Bahama, Tachycineta Spoon-billed, Calidris pygmea arborea cyaneoviridis Spotted, Actitis macularius Bachman’s, Peucaea aestivalis Bank, Riparia riparia Stilt, Calidris himantopus Baird’s, Centronyx bairdii Barn, Hirundo rustica Terek, Xenus cinereus Bell’s, Artemisiospiza belli Cave, Petrochelidon fulva Upland, Bartramia longicauda Black-chinned, Spizella atrogularis Cliff, Petrochelidon pyrrhonota Western, Calidris mauri Black-throated, Amphispiza bilineata Mangrove, Tachycineta albilinea White-rumped, Calidris fuscicollis Botteri’s, Peucaea botterii Northern Rough-winged, Stelgidopteryx Wood, Tringa glareola Brewer’s, Spizella breweri serripennis SAND-PLOVER, Greater, Charadrius Cassin’s, Peucaea cassinii Tree, Tachycineta bicolor leschenaultii Chipping, Spizella passerina Violet-green, Tachycineta thalassina Lesser, Charadrius mongolus Clay-colored, Spizella pallida SWAMPHEN, Purple, Porphyrio porphyrio SAPSUCKER, Red-breasted, Sphyrapicus Field, Spizella pusilla SWAN, Trumpeter, Cygnus buccinator ruber Five-striped, Amphispiza quinquestriata Tundra, Cygnus columbianus Red-naped, Sphyrapicus nuchalis Fox, Passerella iliaca Whooper, Cygnus cygnus Williamson’s, Sphyrapicus thyroideus Golden-crowned, Zonotrichia atricapilla SWIFT, Alpine, Apus melba Yellow-bellied, Sphyrapicus varius Grasshopper, Ammodramus savannarum Black, Cypseloides niger SCAUP, Greater, Aythya marila Harris’s, Zonotrichia querula Chimney, Chaetura pelagica Lesser, Aythya affinis Henslow’s, Centronyx henslowii Common, Apus apus SCOPS-OWL, Oriental, Otus sunia Lark, Chondestes grammacus Fork-tailed, Apus pacificus SCOTER, Black, Melanitta americana LeConte’s, Ammospiza leconteii Short-tailed, Chaetura brachyura Common, Melanitta nigra Lincoln’s, Melospiza lincolnii Vaux’s, Chaetura vauxi Surf, Melanitta perspicillata Nelson’s, Ammospiza nelsoni White-collared, Streptoprocne zonaris White-winged, Melanitta fusca Olive, Arremonops rufivirgatus White-throated, Aeronautes saxatalis SCREECH-OWL, Eastern, Megascops asio Rufous-crowned, Aimophila ruficeps SWIFTLET, Mariana, Aerodramus bartschi Puerto Rican, Megascops nudipes Rufous-winged, Peucaea carpalis White-rumped, Aerodramus spodiopygius Western, Megascops kennicottii Sagebrush, Artemisiospiza nevadensis TANAGER, Flame-colored, Piranga bidentata Whiskered, Megascops trichopsis Saltmarsh, Ammospiza caudacuta Hepatic, Piranga flava SCRUB-JAY, California, Aphelocoma Savannah, Passerculus sandwichensis Puerto Rican, Nesospingus speculiferus californica Seaside, Ammospiza maritima Scarlet, Piranga olivacea Florida, Aphelocoma coerulescens Song, Melospiza melodia Summer, Piranga rubra Island, Aphelocoma insularis Swamp, Melospiza georgiana Western, Piranga ludoviciana Woodhouse’s, Aphelocoma woodhouseii Vesper, Pooecetes gramineus TATTLER, Gray-tailed, Tringa brevipes SEA-EAGLE, Steller’s, Haliaeetus pelagicus White-crowned, Zonotrichia leucophrys Wandering, Tringa incana SEEDEATER, Morelet’s, Sporophila morelleti White-throated, Zonotrichia albicollis TEAL, Baikal, Sibirionetta formosa SHEARWATER, Audubon’s, Puffinus Worthen’s, Spizella wortheni Blue-winged, Spatula discors lherminieri SPARROWHAWK, Chinese, Accipiter Cinnamon, Spatula cyanoptera Barolo, Puffinus baroli soloensis Green-winged, Anas crecca Black-vented, Puffinus opisthomelas Japanese, Accipiter gularis TERN, Aleutian, Onychoprion aleuticus Bryan’s, Puffinus bryani SPINDALIS, Puerto Rican, Spindalis Arctic, Sterna paradisaea Buller’s, Ardenna bulleri portoricensis Black, Chlidonias niger Cape Verde, Calonectris edwardsii Western, Spindalis zena Black-naped, Sterna sumatrana Christmas, Puffinus nativitatis SPOONBILL, Roseate, Platalea ajaja Bridled, Onychoprion anaethetus Cory’s, Calonectris diomedea STARLING, Chestnut-cheeked, Agropsar Caspian, Hydroprogne caspia Flesh-footed, Ardenna carneipes philippensis Common, Sterna hirundo Great, Ardenna gravis White-cheeked, Spodiopsar cineraceus Elegant, Thalasseus elegans Manx, Puffinus puffinus STARTHROAT, Plain-capped, Heliomaster Forster’s, Sterna forsteri Newell’s, Puffinus newelli constantii Gray-backed, Onychoprion lunatus Pink-footed, Ardenna creatopus STILT, Black-necked, Himantopus Great Crested, Thalasseus bergii Short-tailed, Ardenna tenuirostris mexicanus Gull-billed, Gelochelidon nilotica Sooty, Ardenna grisea Black-winged, Himantopus himantopus Large-billed, Phaetusa simplex Streaked, Calonectris leucomelas STINT, Little, Calidris minuta Least, Sternula antillarum Wedge-tailed, Ardenna pacifica Long-toed, Calidris subminuta Little, Sternula albifrons SHOVELER, Northern, Spatula clypeata Red-necked, Calidris ruficollis Roseate, Sterna dougallii SHRIKE, Brown, Lanius cristatus Temminck’s, Calidris temminckii Royal, Thalasseus maximus Loggerhead, Lanius ludovicianus STONECHAT, Saxicola torquatus Sandwich, Thalasseus sandvicensis Northern, Lanius borealis STORK, Wood, Mycteria americana Sooty, Onychoprion fuscatus SILKY-FLYCATCHER, Gray, Ptiliogonys STORM-PETREL, Ashy, Oceanodroma Whiskered, Chlidonias hybrida cinereus homochroa White, Gygis alba SISKIN, Eurasian, Spinus spinus Band-rumped, Oceanodroma castro White-winged, Chlidonias leucopterus Pine, Spinus pinus Black, Oceanodroma melania THRASHER, Bendire’s, Toxostoma bendirei SKIMMER, Black, Rynchops niger Black-bellied, Fregetta tropica Brown, Toxostoma rufum SKUA, Great, Stercorarius skua Fork-tailed, Oceanodroma furcata California, Toxostoma redivivum South Polar, Stercorarius maccormicki Leach’s, Oceanodroma leucorhoa Crissal, Toxostoma crissale SKYLARK, Eurasian, Alauda arvensis Least, Oceanodroma microsoma Curve-billed, Toxostoma curvirostre SMEW, Mergellus albellus Matsudaira’s, Oceanodroma matsudairae LeConte’s, Toxostoma lecontei SNIPE, Common, Gallinago gallinago Polynesian, Nesofregetta fuliginosa Long-billed, Toxostoma longirostre Jack, Lymnocryptes minimus Ringed, Oceanodroma hornbyi Pearly-eyed, Margarops fuscatus Pin-tailed, Gallinago stenura Swinhoe’s, Oceanodroma monorhis Sage, Oreoscoptes montanus Solitary, Gallinago solitaria Townsend’s, Oceanodroma socorroensis THRUSH, Aztec, Ridgwayia pinicola Swinhoe’s, Gallinago megala Tristram’s, Oceanodroma tristrami Bicknell’s, Catharus bicknelli Wilson’s, Gallinago delicata Wedge-rumped, Oceanodroma tethys Clay-colored, Turdus grayi SOLITAIRE, Brown-backed, Myadestes White-bellied, Fregetta grallaria Dusky, Turdus naumanni occidentalis White-faced, Pelagodroma marina Eyebrowed, Turdus obscurus Townsend’s, Myadestes townsendi Wilson’s, Oceanites oceanicus Gray-cheeked, Catharus minimus SORA, Porzana carolina SURFBIRD, Calidris virgata Hermit, Catharus guttatus

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61300 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

Red-legged, Turdus plumbeus Colima, Oreothlypis crissalis Hairy, Dryobates villosus Swainson’s, Catharus ustulatus Connecticut, Oporornis agilis Ivory-billed, Campephilus principalis Varied, Ixoreus naevius Crescent-chested, Oreothlypis superciliosa Ladder-backed, Dryobates scalaris White-throated, Turdus assimilis Dusky, Phylloscopus fuscatus Lewis’s, Melanerpes lewis Wood, Hylocichla mustelina Elfin-woods, Setophaga angelae Nuttall’s, Dryobates nuttallii TIGER-HERON, Bare-throated, Tigrisoma Fan-tailed, Basileuterus lachrymosus Pileated, Dryocopus pileatus mexicanum Golden-cheeked, Setophaga chrysoparia Puerto Rican, Melanerpes portoricensis TITMOUSE, Black-crested, Baeolophus Golden-crowned, Basileuterus culicivorus Red-bellied, Melanerpes carolinus atricristatus Golden-winged, Vermivora chrysoptera Red-cockaded, Dryobates borealis Bridled, Baeolophus wollweberi Grace’s, Setophaga graciae Red-headed, Melanerpes erythrocephalus Juniper, Baeolophus ridgwayi Hermit, Setophaga occidentalis White-headed, Dryobates albolarvatus Oak, Baeolophus inornatus Hooded, Setophaga citrina WOOD-PEWEE, Eastern, Contopus virens Tufted, Baeolophus bicolor Kamchatka Leaf, Phylloscopus Western, Contopus sordidulus TITYRA, Masked, Tityra semifasciata examinandus WOOD-RAIL, Rufous-necked, Aramides TOWHEE, Abert’s, Melozone aberti Kentucky, Geothlypis formosa axillaris California, Melozone crissalis Kirtland’s, Setophaga kirtlandii WOODSTAR, Bahama, Calliphlox evelynae Canyon, Melozone fusca Lanceolated, Locustella lanceolata WREN, Bewick’s, Thryomanes bewickii Eastern, Pipilo erythrophthalmus Lucy’s, Oreothlypis luciae Cactus, Campylorhynchus brunneicapillus Green-tailed, Pipilo chlorurus MacGillivray’s, Geothlypis tolmiei Canyon, Catherpes mexicanus Spotted, Pipilo maculatus Magnolia, Setophaga magnolia Carolina, Thryothorus ludovicianus TROGON, Elegant, Trogon elegans Mourning, Geothlypis philadelphia House, Troglodytes aedon TROPICBIRD, Red-billed, Phaethon Nashville, Oreothlypis ruficapilla Marsh, Cistothorus palustris aethereus Nightingale Reed, Acrocephalus luscinius Pacific, Troglodytes pacificus Red-tailed, Phaethon rubricauda Olive, Peucedramus taeniatus Rock, Salpinctes obsoletus White-tailed, Phaethon lepturus Orange-crowned, Oreothlypis celata Sedge, Cistothorus platensis TURNSTONE, Black, Arenaria Pagan Reed, Acrocephalus yamashinae Sinaloa, Thryophilus sinaloa melanocephala Pallas’s Leaf, Phylloscopus proregulus Winter, Troglodytes hiemalis Ruddy, Arenaria interpres Palm, Setophaga palmarum WRENTIT, Chamaea fasciata TURTLE-DOVE, European, Streptopelia Pine, Setophaga pinus WRYNECK, Eurasian, Jynx torquilla turtur Prairie, Setophaga discolor YELLOWLEGS, Greater, Tringa melanoleuca Oriental, Streptopelia orientalis Prothonotary, Protonotaria citrea Lesser, Tringa flavipes VEERY, Catharus fuscescens Red-faced, Cardellina rubrifrons YELLOWTHROAT, Common, Geothlypis VERDIN, Auriparus flaviceps Rufous-capped, Basileuterus rufifrons trichas VIOLETEAR, Mexican, Colibri thalassinus Saipan Reed, Acrocephalus hiwae Gray-crowned, Geothlypis poliocephala VIREO, Bell’s, Vireo bellii Sedge, Acrocephalus schoenobaenus (2) Taxonomic listing. Species are listed in Black-capped, Vireo atricapilla Swainson’s, Limnothlypis swainsonii phylogenetic sequence by scientific name, Black-whiskered, Vireo altiloquus Tennessee, Oreothlypis peregrina with the common (English) name following Blue-headed, Vireo solitarius Townsend’s, Setophaga townsendi the scientific name. To help clarify species Cassin’s, Vireo cassinii Virginia’s, Oreothlypis virginiae relationships, we also list the higher-level Cuban, Vireo gundlachii Willow, Phylloscopus trochilus taxonomic categories of Order, Family, and Gray, Vireo vicinior Wilson’s, Cardellina pusilla Subfamily. Hutton’s, Vireo huttoni Wood, Phylloscopus sibilatrix Order ANSERIFORMES Philadelphia, Vireo philadelphicus Worm-eating, Helmitheros vermivorum Family ANATIDAE Plumbeous, Vireo plumbeus Yellow, Setophaga petechia Subfamily DENDROCYGNINAE Puerto Rican, Vireo latimeri Yellow-browed, Phylloscopus inornatus Dendrocygna autumnalis, Black-bellied Red-eyed, Vireo olivaceus Yellow-rumped, Setophaga coronata Whistling-Duck Thick-billed, Vireo crassirostris Yellow-throated, Setophaga dominica Dendrocygna arborea, West Indian Warbling, Vireo gilvus WATERTHRUSH, Louisiana, Parkesia Whistling-Duck White-eyed, Vireo griseus motacilla Dendrocygna bicolor, Fulvous Whistling- Yellow-green, Vireo flavoviridis Northern, Parkesia noveboracensis Duck Yellow-throated, Vireo flavifrons WAXWING, Bohemian, Bombycilla garrulus Subfamily ANSERINAE Yucatan, Vireo magister Cedar, Bombycilla cedrorum Anser canagicus, Emperor Goose VULTURE, Black, Coragyps atratus WHEATEAR, Northern, Oenanthe oenanthe Anser caerulescens, Snow Goose Turkey, Cathartes aura WHIMBREL, Numenius phaeopus Anser rossii, Ross’s Goose WAGTAIL, Citrine, Motacilla citreola WHIP-POOR-WILL, Eastern, Antrostomus Anser albifrons, Greater White-fronted Eastern Yellow, Motacilla tschutschensis vociferus Goose Gray, Motacilla cinerea Mexican, Antrostomus arizonae Anser erythropus, Lesser White-fronted White, Motacilla alba WHISTLING-DUCK, Black-bellied, Goose WARBLER, Adelaide’s, Setophaga adelaidae Dendrocygna autumnalis Anser fabalis, Taiga Bean-Goose Aguiguan Reed, Acrocephalus nijoi Fulvous, Dendrocygna bicolor Anser serrirostris, Tundra Bean-Goose Arctic, Phylloscopus borealis West Indian, Dendrocygna arborea Anser brachyrhynchus, Pink-footed Goose Bachman’s, Vermivora bachmanii WHITETHROAT, Lesser, Sylvia curruca Branta bernicla, Brant Bay-breasted, Setophaga castanea WIGEON, American, Mareca americana Branta leucopsis, Barnacle Goose Black-and-white, Mniotilta varia Eurasian, Mareca penelope Branta hutchinsii, Cackling Goose Blackburnian, Setophaga fusca WILLET, Tringa semipalmata Branta canadensis, Canada Goose Blackpoll, Setophaga striata WOODCOCK, American, Scolopax minor Branta sandvicensis, Hawaiian Goose Black-throated Blue, Setophaga Eurasian, Scolopax rusticola Cygnus buccinator, Trumpeter Swan caerulescens WOODPECKER, Acorn, Melanerpes Cygnus columbianus, Tundra Swan Black-throated Gray, Setophaga nigrescens formicivorus Cygnus cygnus, Whooper Swan Black-throated Green, Setophaga virens American Three-toed, Picoides dorsalis Subfamily ANATINAE Blue-winged, Vermivora cyanoptera Arizona, Dryobates arizonae Cairina moschata, Muscovy Duck Blyth’s Reed, Acrocephalus dumetorum Black-backed, Picoides arcticus Aix sponsa, Wood Duck Canada, Cardellina canadensis Downy, Dryobates pubescens Sibirionetta formosa, Baikal Teal Cape May, Setophaga tigrina Gila, Melanerpes uropygialis Spatula querquedula, Garganey Cerulean, Setophaga cerulea Golden-fronted, Melanerpes aurifrons Spatula discors, Blue-winged Teal Chestnut-sided, Setophaga pensylvanica Great Spotted, Dendrocopos major Spatula cyanoptera, Cinnamon Teal

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61301

Spatula clypeata, Northern Shoveler Geotrygon chrysia, Key West Quail-Dove Tachornis phoenicobia, Antillean Palm- Mareca strepera, Gadwall Geotrygon mystacea, Bridled Quail-Dove Swift Mareca falcata, Falcated Duck Leptotila verreauxi, White-tipped Dove Family TROCHILIDAE Mareca penelope, Eurasian Wigeon Zenaida asiatica, White-winged Dove Subfamily TROCHILINAE Mareca americana, American Wigeon Zenaida aurita, Zenaida Dove Colibri thalassinus, Mexican Violetear Anas laysanensis, Laysan Duck Zenaida macroura, Mourning Dove Anthracothorax prevostii, Green-breasted Anas wyvilliana, Hawaiian Duck Ptilinopus perousii, Many-colored Fruit- Mango Anas zonorhyncha, Eastern Spot-billed Dove Anthracothorax dominicus, Antillean Duck Ptilinopus porphyraceus, Crimson- Mango Anas platyrhynchos, Mallard crowned Fruit-Dove Anthracothorax viridis, Green Mango Anas rubripes, American Black Duck Ptilinopus roseicapilla, Mariana Fruit-Dove Eulampis jugularis, Purple-throated Carib Anas fulvigula, Mottled Duck Ducula pacifica, Pacific Imperial-Pigeon Eulampis holosericeus, Green-throated Anas superciliosa, Pacific Black Duck Order CUCULIFORMES Carib Anas bahamensis, White-cheeked Pintail Family CUCULIDAE Eugenes fulgens, Rivoli’s Hummingbird Anas acuta, Northern Pintail Subfamily CUCULINAE Heliomaster constantii, Plain-capped Anas crecca, Green-winged Teal Urodynamis taitensis, Long-tailed Koel Starthroat Aythya valisineria, Canvasback Hierococcyx nisicolor, Hodgson’s Hawk- Lampornis amethystinus, Amethyst- Aythya americana, Redhead Cuckoo throated Hummingbird Aythya ferina, Common Pochard Cuculus canorus, Common Cuckoo Lampornis clemenciae, Blue-throated Aythya baeri, Baer’s Pochard Cuculus optatus, Oriental Cuckoo Hummingbird Aythya collaris, Ring-necked Duck Coccyzus americanus, Yellow-billed Calliphlox evelynae, Bahama Woodstar Aythya fuligula, Tufted Duck Cuckoo Calothorax lucifer, Lucifer Hummingbird Aythya marila, Greater Scaup Coccyzus minor, Mangrove Cuckoo Archilochus colubris, Ruby-throated Aythya affinis, Lesser Scaup Coccyzus erythropthalmus, Black-billed Hummingbird Polysticta stelleri, Steller’s Eider Cuckoo Archilochus alexandri, Black-chinned Somateria fischeri, Spectacled Eider Coccyzus vieilloti, Puerto Rican Lizard- Hummingbird Somateria spectabilis, King Eider Cuckoo Mellisuga minima, Vervain Hummingbird Somateria mollissima, Common Eider Subfamily NEOMORPHINAE Calypte anna, Anna’s Hummingbird Histrionicus histrionicus, Harlequin Duck Geococcyx californianus, Greater Calypte costae, Costa’s Hummingbird Melanitta perspicillata, Surf Scoter Roadrunner Atthis heloisa, Bumblebee Hummingbird Melanitta fusca, White-winged Scoter Subfamily CROTOPHAGINAE Selasphorus platycercus, Broad-tailed Melanitta nigra, Common Scoter Crotophaga ani, Smooth-billed Ani Hummingbird Melanitta americana, Black Scoter Crotophaga sulcirostris, Groove-billed Ani Selasphorus rufus, Rufous Hummingbird Clangula hyemalis, Long-tailed Duck Order CAPRIMULGIFORMES Selasphorus sasin, Allen’s Hummingbird Bucephala albeola, Bufflehead Family CAPRIMULGIDAE Selasphorus calliope, Calliope Bucephala clangula, Common Goldeneye Subfamily CHORDEILINAE Hummingbird Bucephala islandica, Barrow’s Goldeneye Chordeiles acutipennis, Lesser Nighthawk Chlorostilbon maugaeus, Puerto Rican Mergellus albellus, Smew Chordeiles minor, Common Nighthawk Emerald Lophodytes cucullatus, Hooded Merganser Chordeiles gundlachii, Antillean Cynanthus latirostris, Broad-billed Mergus merganser, Common Merganser Nighthawk Hummingbird Mergus serrator, Red-breasted Merganser Subfamily CAPRIMULGINAE Orthorhyncus cristatus, Antillean Crested Nomonyx dominicus, Masked Duck Nyctidromus albicollis, Common Pauraque Hummingbird Oxyura jamaicensis, Ruddy Duck Phalaenoptilus nuttallii, Common Poorwill Amazilia beryllina, Berylline Order PHOENICOPTERIFORMES Antrostomus carolinensis, Chuck-will’s- Hummingbird Family PHOENICOPTERIDAE widow Amazilia yucatanensis, Buff-bellied Phoenicopterus ruber, American Flamingo Antrostomus ridgwayi, Buff-collared Hummingbird Order PODICIPEDIFORMES Nightjar Amazilia rutila, Cinnamon Hummingbird Family PODICIPEDIDAE Antrostomus vociferus, Eastern Whip-poor- Amazilia violiceps, Violet-crowned Tachybaptus dominicus, Least Grebe will Hummingbird Podilymbus podiceps, Pied-billed Grebe Antrostomus arizonae, Mexican Whip- Hylocharis leucotis, White-eared Podiceps auritus, Horned Grebe poor-will Hummingbird Podiceps grisegena, Red-necked Grebe Antrostomus noctitherus, Puerto Rican Hylocharis xantusii, Xantus’s Podiceps nigricollis, Eared Grebe Nightjar Hummingbird Aechmophorus occidentalis, Western Hydropsalis cayennensis, White-tailed Order GRUIFORMES Grebe Nightjar Family RALLIDAE Aechmophorus clarkii, Clark’s Grebe Caprimulgus jotaka, Gray Nightjar Coturnicops noveboracensis, Yellow Rail Order COLUMBIFORMES Order APODIFORMES Laterallus jamaicensis, Black Rail Family COLUMBIDAE Family APODIDAE Gallirallus philippensis, Buff-banded Rail Patagioenas squamosa, Scaly-naped Subfamily CYPSELOIDINAE Gallirallus owstoni, Guam Rail Pigeon Cypseloides niger, Black Swift Crex crex, Corn Crake Patagioenas leucocephala, White-crowned Streptoprocne zonaris, White-collared Rallus obsoletus, Ridgway’s Rail Pigeon Swift Rallus crepitans, Clapper Rail Patagioenas flavirostris, Red-billed Pigeon Subfamily CHAETURINAE Rallus elegans, King Rail Patagioenas inornata, Plain Pigeon Chaetura pelagica, Chimney Swift Rallus limicola, Virginia Rail Patagioenas fasciata, Band-tailed Pigeon Chaetura vauxi, Vaux’s Swift Aramides axillaris, Rufous-necked Wood- Streptopelia orientalis, Oriental Turtle- Chaetura brachyura, Short-tailed Swift Rail Dove Hirundapus caudacutus, White-throated Porzana carolina, Sora Alopecoenas xanthonura, White-throated Needletail Porzana tabuensis, Spotless Crake Ground-Dove Aerodramus spodiopygius, White-rumped Hapalocrex flaviventer, Yellow-breasted Alopecoenas stairi, Shy Ground-Dove Swiftlet Crake Streptopelia turtur, European Turtle-Dove Aerodramus bartschi, Mariana Swiftlet Neocrex erythrops, Paint-billed Crake Columbina inca, Inca Dove Subfamily APODINAE Pardirallus maculatus, Spotted Rail Columbina passerina, Common Ground- Apus apus, Common Swift Porphyrio martinicus, Purple Gallinule Dove Apus pacificus, Fork-tailed Swift Porphyrio flavirostris, Azure Gallinule Columbina talpacoti, Ruddy Ground-Dove Apus melba, Alpine Swift Porphyrio porphyrio, Purple Swamphen Geotrygon montana, Ruddy Quail-Dove Aeronautes saxatalis, White-throated Swift Gallinula galeata, Common Gallinule

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61302 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

Gallinula chloropus, Common Moorhen Calidris falcinellus, Broad-billed Brachyramphus brevirostris, Kittlitz’s Fulica atra, Eurasian Coot Sandpiper Murrelet Fulica alai, Hawaiian Coot Calidris acuminata, Sharp-tailed Synthliboramphus scrippsi, Scripps’s Fulica americana, American Coot Sandpiper Murrelet Family ARAMIDAE Calidris himantopus, Stilt Sandpiper Synthliboramphus hypoleucus, Guadalupe Aramus guarauna, Limpkin Calidris ferruginea, Curlew Sandpiper Murrelet Family GRUIDAE Calidris temminckii, Temminck’s Stint Synthliboramphus craveri, Craveri’s Subfamily GRUINAE Calidris subminuta, Long-toed Stint Murrelet Antigone canadensis, Sandhill Crane Calidris pygmea, Spoon-billed Sandpiper Synthliboramphus antiquus, Ancient Grus grus, Common Crane Calidris ruficollis, Red-necked Stint Murrelet Grus americana, Whooping Crane Calidris alba, Sanderling Ptychoramphus aleuticus, Cassin’s Auklet Order CHARADRIIFORMES Calidris alpina, Dunlin Aethia psittacula, Parakeet Auklet Family RECURVIROSTRIDAE Calidris ptilocnemis, Rock Sandpiper Aethia pusilla, Least Auklet Himantopus himantopus, Black-winged Calidris maritima, Purple Sandpiper Aethia pygmaea, Whiskered Auklet Stilt Calidris bairdii, Baird’s Sandpiper Aethia cristatella, Crested Auklet Himantopus mexicanus, Black-necked Stilt Calidris minuta, Little Stint Cerorhinca monocerata, Rhinoceros Auklet Recurvirostra americana, American Avocet Calidris minutilla, Least Sandpiper Fratercula arctica, Atlantic Puffin Family HAEMATOPODIDAE Calidris fuscicollis, White-rumped Fratercula corniculata, Horned Puffin Haematopus ostralegus, Eurasian Sandpiper Fratercula cirrhata, Tufted Puffin Oystercatcher Calidris subruficollis, Buff-breasted Family LARIDAE Haematopus palliatus, American Sandpiper Subfamily LARINAE Oystercatcher Calidris melanotos, Pectoral Sandpiper Creagrus furcatus, Swallow-tailed Gull Haematopus bachmani, Black Calidris pusilla, Semipalmated Sandpiper Rissa tridactyla, Black-legged Kittiwake Oystercatcher Calidris mauri, Western Sandpiper Rissa brevirostris, Red-legged Kittiwake Family CHARADRIIDAE Subfamily SCOLOPACINAE Pagophila eburnea, Ivory Gull Subfamily VANELLINAE Limnodromus griseus, Short-billed Xema sabini, Sabine’s Gull Vanellus vanellus, Northern Lapwing Dowitcher Chroicocephalus philadelphia, Bonaparte’s Subfamily CHARADRIINAE Limnodromus scolopaceus, Long-billed Gull Pluvialis squatarola, Black-bellied Plover Dowitcher Chroicocephalus cirrocephalus, Gray- Pluvialis apricaria, European Golden- Lymnocryptes minimus, Jack Snipe hooded Gull Plover Scolopax rusticola, Eurasian Woodcock Chroicocephalus ridibundus, Black-headed Pluvialis dominica, American Golden- Scolopax minor, American Woodcock Gull Plover Gallinago solitaria, Solitary Snipe Hydrocoloeus minutus, Little Gull Pluvialis fulva, Pacific Golden-Plover Gallinago stenura, Pin-tailed Snipe Rhodostethia rosea, Ross’s Gull Charadrius mongolus, Lesser Sand-Plover Gallinago megala, Swinhoe’s Snipe Leucophaeus atricilla, Laughing Gull Charadrius leschenaultii, Greater Sand- Gallinago gallinago, Common Snipe Leucophaeus pipixcan, Franklin’s Gull Plover Gallinago delicata, Wilson’s Snipe Larus belcheri, Belcher’s Gull Charadrius collaris, Collared Plover Subfamily TRINGINAE Larus crassirostris, Black-tailed Gull Charadrius alexandrinus, Kentish Plover Xenus cinereus, Terek Sandpiper Larus heermanni, Heermann’s Gull Charadrius nivosus, Snowy Plover Actitis hypoleucos, Common Sandpiper Larus canus, Mew Gull Charadrius wilsonia, Wilson’s Plover Actitis macularius, Spotted Sandpiper Larus delawarensis, Ring-billed Gull Charadrius hiaticula, Common Ringed Tringa ochropus, Green Sandpiper Larus occidentalis, Western Gull Plover Tringa solitaria, Solitary Sandpiper Larus livens, Yellow-footed Gull Charadrius semipalmatus, Semipalmated Tringa brevipes, Gray-tailed Tattler Larus californicus, California Gull Plover Tringa incana, Wandering Tattler Larus argentatus, Herring Gull Charadrius melodus, Piping Plover Tringa flavipes, Lesser Yellowlegs Larus michahellis, Yellow-legged Gull Charadrius dubius, Little Ringed Plover Tringa semipalmata, Willet Larus glaucoides, Iceland Gull Charadrius vociferus, Killdeer Tringa erythropus, Spotted Redshank Larus fuscus, Lesser Black-backed Gull Charadrius montanus, Mountain Plover Tringa nebularia, Common Greenshank Larus schistisagus, Slaty-backed Gull Charadrius morinellus, Eurasian Dotterel Tringa guttifer, Nordmann’s Greenshank Larus glaucescens, Glaucous-winged Gull Family JACANIDAE Tringa melanoleuca, Greater Yellowlegs Larus hyperboreus, Glaucous Gull Jacana spinosa, Northern Jacana Tringa totanus, Common Redshank Larus marinus, Great Black-backed Gull Family SCOLOPACIDAE Tringa glareola, Wood Sandpiper Larus dominicanus, Kelp Gull Subfamily NUMENIINAE Tringa stagnatilis, Marsh Sandpiper Subfamily STERNINAE Bartramia longicauda, Upland Sandpiper Phalaropus tricolor, Wilson’s Phalarope Anous stolidus, Brown Noddy Numenius tahitiensis, Bristle-thighed Phalaropus lobatus, Red-necked Phalarope Anous minutus, Black Noddy Curlew Phalaropus fulicarius, Red Phalarope Anous ceruleus, Blue-gray Noddy Numenius phaeopus, Whimbrel Family STERCORARIIDAE Gygis alba, White Tern Numenius minutus, Little Curlew Stercorarius skua, Great Skua Onychoprion fuscatus, Sooty Tern Numenius borealis, Eskimo Curlew Stercorarius maccormicki, South Polar Onychoprion lunatus, Gray-backed Tern Numenius americanus, Long-billed Curlew Skua Onychoprion anaethetus, Bridled Tern Numenius madagascariensis, Far Eastern Stercorarius pomarinus, Pomarine Jaeger Onychoprion aleuticus, Aleutian Tern Curlew Stercorarius parasiticus, Parasitic Jaeger Sternula albifrons, Little Tern Numenius arquata, Eurasian Curlew Stercorarius longicaudus, Long-tailed Sternula antillarum, Least Tern Subfamily LIMOSINAE Jaeger Phaetusa simplex, Large-billed Tern Limosa lapponica, Bar-tailed Godwit Family ALCIDAE Gelochelidon nilotica, Gull-billed Tern Limosa limosa, Black-tailed Godwit Alle alle, Dovekie Hydroprogne caspia, Caspian Tern Limosa haemastica, Hudsonian Godwit Uria aalge, Common Murre Chlidonias niger, Black Tern Limosa fedoa, Marbled Godwit Uria lomvia, Thick-billed Murre Chlidonias leucopterus, White-winged Subfamily ARENARIINAE Alca torda, Razorbill Tern Arenaria interpres, Ruddy Turnstone Cepphus grylle, Black Guillemot Chlidonias hybrida, Whiskered Tern Arenaria melanocephala, Black Turnstone Cepphus columba, Pigeon Guillemot Sterna dougallii, Roseate Tern Calidris tenuirostris, Great Knot Brachyramphus perdix, Long-billed Sterna sumatrana, Black-naped Tern Calidris canutus, Red Knot Murrelet Sterna hirundo, Common Tern Calidris virgata, Surfbird Brachyramphus marmoratus, Marbled Sterna paradisaea, Arctic Tern Calidris pugnax, Ruff Murrelet Sterna forsteri, Forster’s Tern

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61303

Thalasseus maximus, Royal Tern Pterodroma neglecta, Kermadec Petrel Phalacrocorax auritus, Double-crested Thalasseus bergii, Great Crested Tern Pterodroma arminjoniana, Trindade Petrel Cormorant Thalasseus sandvicensis, Sandwich Tern Pterodroma heraldica, Herald Petrel Phalacrocorax carbo, Great Cormorant Thalasseus elegans, Elegant Tern Pterodroma ultima, Murphy’s Petrel Phalacrocorax urile, Red-faced Cormorant Subfamily RYNCHOPINAE Pterodroma inexpectata, Mottled Petrel Phalacrocorax pelagicus, Pelagic Rynchops niger, Black Skimmer Pterodroma cahow, Bermuda Petrel Cormorant Order PHAETHONTIFORMES Pterodroma hasitata, Black-capped Petrel Family ANHINGIDAE Family PHAETHONTIDAE Pterodroma externa, Juan Fernandez Petrel Anhinga anhinga, Anhinga Phaethon lepturus, White-tailed Tropicbird Pterodroma sandwichensis, Hawaiian Order PELECANIFORMES Phaethon aethereus, Red-billed Tropicbird Petrel Family PELECANIDAE Phaethon rubricauda, Red-tailed Pterodroma cervicalis, White-necked Petrel Pelecanus erythrorhynchos, American Tropicbird Pterodroma hypoleuca, Bonin Petrel White Pelican Order GAVIIFORMES Pterodroma nigripennis, Black-winged Pelecanus occidentalis, Brown Pelican Family GAVIIDAE Petrel Family ARDEIDAE Gavia stellata, Red-throated Loon Pterodroma feae, Fea’s Petrel Botaurus lentiginosus, American Bittern Gavia arctica, Arctic Loon Pterodroma madeira, Zino’s Petrel Ixobrychus sinensis, Yellow Bittern Gavia pacifica, Pacific Loon Pterodroma cookii, Cook’s Petrel Ixobrychus exilis, Least Bittern Gavia immer, Common Loon Pterodroma longirostris, Stejneger’s Petrel Ixobrychus eurhythmus, Schrenck’s Bittern Gavia adamsii, Yellow-billed Loon Pterodroma alba, Phoenix Petrel Ixobrychus flavicollis, Black Bittern Order PROCELLARIIFORMES Pterodroma leucoptera, Gould’s Petrel Tigrisoma mexicanum, Bare-throated Family DIOMEDEIDAE Pseudobulweria rostrata, Tahiti Petrel Tiger-Heron Thalassarche chlororhynchos, Yellow- Bulweria bulwerii, Bulwer’s Petrel Ardea herodias, Great Blue Heron nosed Albatross Bulweria fallax, Jouanin’s Petrel Ardea cinerea, Gray Heron Thalassarche cauta, White-capped Procellaria aequinoctialis, White-chinned Ardea alba, Great Egret Albatross Petrel Ardea intermedia, Intermediate Egret Thalassarche eremita, Chatham Albatross Procellaria parkinsoni, Parkinson’s Petrel Egretta eulophotes, Chinese Egret Thalassarche salvini, Salvin’s Albatross Calonectris leucomelas, Streaked Egretta garzetta, Little Egret Thalassarche melanophris, Black-browed Shearwater Egretta sacra, Pacific Reef-Heron Albatross Calonectris diomedea, Cory’s Shearwater Egretta gularis, Western Reef-Heron Phoebetria palpebrata, Light-mantled Calonectris edwardsii, Cape Verde Egretta thula, Snowy Egret Albatross Shearwater Egretta caerulea, Little Blue Heron Diomedea exulans, Wandering Albatross Ardenna pacifica, Wedge-tailed Egretta tricolor, Tricolored Heron Phoebastria immutabilis, Laysan Albatross Shearwater Egretta rufescens, Reddish Egret Phoebastria nigripes, Black-footed Ardenna bulleri, Buller’s Shearwater Bubulcus ibis, Cattle Egret Albatross Ardenna tenuirostris, Short-tailed Ardeola bacchus, Chinese Pond-Heron Phoebastria albatrus, Short-tailed Shearwater Butorides virescens, Green Heron Albatross Ardenna grisea, Sooty Shearwater Nycticorax nycticorax, Black-crowned Family OCEANITIDAE Ardenna gravis, Great Shearwater Night-Heron Oceanites oceanicus, Wilson’s Storm- Ardenna creatopus, Pink-footed Nycticorax caledonicus, Rufous Night- Petrel Shearwater Heron Pelagodroma marina, White-faced Storm- Ardenna carneipes, Flesh-footed Nyctanassa violacea, Yellow-crowned Petrel Shearwater Night-Heron Fregetta tropica, Black-bellied Storm-Petrel Puffinus nativitatis, Christmas Shearwater Gorsachius goisagi, Japanese Night-Heron Family HYDROBATIDAE Puffinus puffinus, Manx Shearwater Gorsachius melanolophus, Malayan Night- Fregetta grallaria, White-bellied Storm- Puffinus newelli, Newell’s Shearwater Heron Petrel Puffinus bryani, Bryan’s Shearwater Family THRESKIORNITHIDAE Nesofregetta fuliginosa, Polynesian Storm- Puffinus opisthomelas, Black-vented Subfamily THRESKIORNITHINAE Petrel Shearwater Eudocimus albus, White Ibis Oceanodroma furcata, Fork-tailed Storm- Puffinus lherminieri, Audubon’s Eudocimus ruber, Scarlet Ibis Petrel Shearwater Plegadis falcinellus, Glossy Ibis Oceanodroma hornbyi, Ringed Storm- Puffinus baroli, Barolo Shearwater Plegadis chihi, White-faced Ibis Petrel Order CICONIIFORMES Subfamily PLATALEINAE Oceanodroma monorhis, Swinhoe’s Storm- Family CICONIIDAE Platalea ajaja, Roseate Spoonbill Petrel Jabiru mycteria, Jabiru Order CARTHARTIFORMES Oceanodroma leucorhoa, Leach’s Storm- Mycteria americana, Wood Stork Family CATHARTIDAE Petrel Order SULIFORMES Coragyps atratus, Black Vulture Oceanodroma socorroensis, Townsend’s Family FREGATIDAE Cathartes aura, Turkey Vulture Storm-Petrel Fregata magnificens, Magnificent Gymnogyps californianus, California Oceanodroma homochroa, Ashy Storm- Frigatebird Condor Petrel Fregata minor, Great Frigatebird Order ACCIPITRIFORMES Oceanodroma castro, Band-rumped Storm- Fregata ariel, Lesser Frigatebird Family PANDIONIDAE Petrel Family SULIDAE Pandion haliaetus, Osprey Oceanodroma tethys, Wedge-rumped Sula dactylatra, Masked Booby Family ACCIPITRIDAE Storm-Petrel Sula granti, Nazca Booby Subfamily ELANINAE Oceanodroma matsudairae, Matsudaira’s Sula nebouxii, Blue-footed Booby Elanus leucurus, White-tailed Kite Storm-Petrel Sula leucogaster, Brown Booby Subfamily GYPAETINAE Oceanodroma melania, Black Storm-Petrel Sula sula, Red-footed Booby Chondrohierax uncinatus, Hook-billed Kite Oceanodroma tristrami, Tristram’s Storm- Papasula abbotti, Abbott’s Booby Elanoides forficatus, Swallow-tailed Kite Petrel Morus bassanus, Northern Gannet Subfamily ACCIPITRINAE Oceanodroma microsoma, Least Storm- Family PHALACROCORACIDAE Aquila chrysaetos, Golden Eagle Petrel Phalacrocorax melanoleucos, Little Pied Harpagus bidentatus, Double-toothed Kite Family PROCELLARIIDAE Cormorant Circus spilonotus, Eastern Marsh-Harrier Fulmarus glacialis, Northern Fulmar Phalacrocorax penicillatus, Brandt’s Circus hudsonius, Northern Harrier Pterodroma macroptera, Great-winged Cormorant Accipiter soloensis, Chinese Sparrowhawk Petrel Phalacrocorax brasilianus, Neotropic Accipiter gularis, Japanese Sparrowhawk Pterodroma solandri, Providence Petrel Cormorant Accipiter striatus, Sharp-shinned Hawk

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61304 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

Accipiter cooperii, Cooper’s Hawk Megaceryle torquata, Ringed Kingfisher Myiopagis viridicata, Greenish Elaenia Accipiter gentilis, Northern Goshawk Megaceryle alcyon, Belted Kingfisher Elaenia martinica, Caribbean Elaenia Milvus migrans, Black Kite Chloroceryle amazona, Amazon Kingfisher Elaenia albiceps, White-crested Elaenia Haliaeetus leucocephalus, Bald Eagle Chloroceryle americana, Green Kingfisher Subfamily FLUVICOLINAE Haliaeetus albicilla, White-tailed Eagle Order PICIFORMES Mitrephanes phaeocercus, Tufted Haliaeetus pelagicus, Steller’s Sea-Eagle Family PICIDAE Flycatcher Ictinia mississippiensis, Mississippi Kite Subfamily JYNGINAE Contopus cooperi, Olive-sided Flycatcher Butastur indicus, Gray-faced Buzzard Jynx torquilla, Eurasian Wryneck Contopus pertinax, Greater Pewee Geranospiza caerulescens, Crane Hawk Subfamily PICINAE Contopus sordidulus, Western Wood- Rostrhamus sociabilis, Snail Kite Melanerpes lewis, Lewis’s Woodpecker Pewee Buteogallus anthracinus, Common Black Melanerpes portoricensis, Puerto Rican Contopus virens, Eastern Wood-Pewee Hawk Woodpecker Contopus caribaeus, Cuban Pewee Rupornis magnirostris, Roadside Hawk Melanerpes erythrocephalus, Red-headed Contopus hispaniolensis, Hispaniolan Parabuteo unicinctus, Harris’s Hawk Woodpecker Pewee Geranoaetus albicaudatus, White-tailed Melanerpes formicivorus, Acorn Contopus latirostris, Lesser Antillean Hawk Woodpecker Pewee Buteo plagiatus, Gray Hawk Melanerpes uropygialis, Gila Woodpecker Empidonax flaviventris, Yellow-bellied Buteo lineatus, Red-shouldered Hawk Melanerpes aurifrons, Golden-fronted Flycatcher Buteo platypterus, Broad-winged Hawk Woodpecker Empidonax virescens, Acadian Flycatcher Buteo solitarius, Hawaiian Hawk Melanerpes carolinus, Red-bellied Empidonax alnorum, Alder Flycatcher Buteo brachyurus, Short-tailed Hawk Woodpecker Empidonax traillii, Willow Flycatcher Buteo swainsoni, Swainson’s Hawk Sphyrapicus thyroideus, Williamson’s Empidonax minimus, Least Flycatcher Buteo albonotatus, Zone-tailed Hawk Sapsucker Empidonax hammondii, Hammond’s Buteo jamaicensis, Red-tailed Hawk Sphyrapicus varius, Yellow-bellied Flycatcher Buteo lagopus, Rough-legged Hawk Sapsucker Empidonax wrightii, Gray Flycatcher Buteo regalis, Ferruginous Hawk Sphyrapicus nuchalis, Red-naped Empidonax oberholseri, Dusky Flycatcher Order STRIGIFORMES Sapsucker Empidonax affinis, Pine Flycatcher Family TYTONIDAE Sphyrapicus ruber, Red-breasted Sapsucker Empidonax difficilis, Pacific-slope Tyto alba, Barn Owl Picoides dorsalis, American Three-toed Flycatcher Family STRIGIDAE Woodpecker Empidonax occidentalis, Cordilleran Otus sunia, Oriental Scops-Owl Picoides arcticus, Black-backed Flycatcher Woodpecker Psiloscops flammeolus, Flammulated Owl Empidonax fulvifrons, Buff-breasted Dendrocopos major, Great Spotted Megascops kennicottii, Western Screech- Flycatcher Woodpecker Owl Sayornis nigricans, Black Phoebe Dryobates pubescens, Downy Woodpecker Megascops asio, Eastern Screech-Owl Sayornis phoebe, Eastern Phoebe Dryobates nuttallii, Nuttall’s Woodpecker Sayornis saya, Say’s Phoebe Megascops trichopsis, Whiskered Screech- Dryobates scalaris, Ladder-backed Pyrocephalus rubinus, Vermilion Owl Woodpecker Flycatcher Megascops nudipes, Puerto Rican Screech- Dryobates borealis, Red-cockaded Owl Woodpecker Subfamily TYRANNINAE Bubo virginianus, Great Horned Owl Dryobates villosus, Hairy Woodpecker Myiarchus tuberculifer, Dusky-capped Bubo scandiacus, Snowy Owl Dryobates albolarvatus, White-headed Flycatcher Surnia ulula, Northern Hawk Owl Woodpecker Myiarchus cinerascens, Ash-throated Glaucidium gnoma, Northern Pygmy-Owl Dryobates arizonae, Arizona Woodpecker Flycatcher Glaucidium brasilianum, Ferruginous Colaptes auratus, Northern Flicker Myiarchus nuttingi, Nutting’s Flycatcher Pygmy-Owl Colaptes chrysoides, Gilded Flicker Myiarchus crinitus, Great Crested Micrathene whitneyi, Elf Owl Dryocopus pileatus, Pileated Woodpecker Flycatcher Athene cunicularia, Burrowing Owl Campephilus principalis, Ivory-billed Myiarchus tyrannulus, Brown-crested Ciccaba virgata, Mottled Owl Woodpecker Flycatcher Strix occidentalis, Spotted Owl Order FALCONIFORMES Myiarchus sagrae, La Sagra’s Flycatcher Strix varia, Barred Owl Family FALCONIDAE Myiarchus antillarum, Puerto Rican Strix nebulosa, Great Gray Owl Subfamily HERPETOTHERINAE Flycatcher Asio otus, Long-eared Owl Micrastur semitorquatus, Collared Forest- Pitangus sulphuratus, Great Kiskadee Asio stygius, Stygian Owl Falcon Myiozetetes similis, Social Flycatcher Asio flammeus, Short-eared Owl Subfamily FALCONINAE Myiodynastes luteiventris, Sulphur-bellied Aegolius funereus, Boreal Owl Caracara cheriway, Crested Caracara Flycatcher Aegolius acadicus, Northern Saw-whet Falco tinnunculus, Eurasian Kestrel Legatus leucophaius, Piratic Flycatcher Owl Falco sparverius, American Kestrel Empidonomus varius, Variegated Ninox japonica, Northern Boobook Falco vespertinus, Red-footed Falcon Flycatcher Order TROGONIFORMES Falco amurensis, Amur Falcon Empidonomus aurantioatrocristatus, Family TROGONIDAE Falco columbarius, Merlin Crowned Slaty Flycatcher Subfamily TROGONINAE Falco subbuteo, Eurasian Hobby Tyrannus melancholicus, Tropical Trogon elegans, Elegant Trogon Falco femoralis, Aplomado Falcon Kingbird Euptilotis neoxenus, Eared Quetzal Falco rusticolus, Gyrfalcon Tyrannus couchii, Couch’s Kingbird Order UPUPIFORMES Falco peregrinus, Peregrine Falcon Tyrannus vociferans, Cassin’s Kingbird Family UPUPIDAE Falco mexicanus, Prairie Falcon Tyrannus crassirostris, Thick-billed Upupa epops, Eurasian Hoopoe Order PASSERIFORMES Kingbird Order CORACIIFORMES Family TITYRIDAE Tyrannus verticalis, Western Kingbird Family ALCEDINIDAE Tityra semifasciata, Masked Tityra Tyrannus tyrannus, Eastern Kingbird Subfamily ALCEDININAE Pachyramphus major, Gray-collared Tyrannus dominicensis, Gray Kingbird Alcedo atthis, Common Kingfisher Becard Tyrannus caudifasciatus, Loggerhead Subfamily HALCYONINAE Pachyramphus aglaiae, Rose-throated Kingbird Todiramphus sacer, Pacific Kingfisher Becard Tyrannus forficatus, Scissor-tailed Todiramphus cinnamominus, Guam Family TYRANNIDAE Flycatcher Kingfisher Subfamily ELAENIINAE Tyrannus savana, Fork-tailed Flycatcher Todiramphus albicilla, Mariana Kingfisher Camptostoma imberbe, Northern Family LANIIDAE Subfamily CERYLINAE Beardless-Tyrannulet Lanius cristatus, Brown Shrike

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61305

Lanius ludovicianus, Loggerhead Shrike Poecile atricapillus, Black-capped Acrocephalus familiaris, Millerbird Lanius borealis, Northern Shrike Chickadee Acrocephalus schoenobaenus, Sedge Family VIREONIDAE Poecile gambeli, Mountain Chickadee Warbler Vireo atricapilla, Black-capped Vireo Poecile sclateri, Mexican Chickadee Acrocephalus dumetorum, Blyth’s Reed Vireo griseus, White-eyed Vireo Poecile rufescens, Chestnut-backed Warbler Vireo crassirostris, Thick-billed Vireo Chickadee Family LOCUSTELLIDAE Vireo latimeri, Puerto Rican Vireo Poecile hudsonicus, Boreal Chickadee Locustella ochotensis, Middendorff’s Vireo gundlachii, Cuban Vireo Poecile cinctus, Gray-headed Chickadee Grasshopper-Warbler Vireo bellii, Bell’s Vireo Baeolophus wollweberi, Bridled Titmouse Locustella lanceolata, Lanceolated Warbler Vireo vicinior, Gray Vireo Baeolophus inornatus, Oak Titmouse Family MUSCICAPIDAE Vireo huttoni, Hutton’s Vireo Baeolophus ridgwayi, Juniper Titmouse Muscicapa griseisticta, Gray-streaked Vireo flavifrons, Yellow-throated Vireo Baeolophus bicolor, Tufted Titmouse Flycatcher Vireo cassinii, Cassin’s Vireo Baeolophus atricristatus, Black-crested Muscicapa dauurica, Asian Brown Vireo solitarius, Blue-headed Vireo Titmouse Flycatcher Vireo plumbeus, Plumbeous Vireo Family REMIZIDAE Muscicapa striata, Spotted Flycatcher Vireo philadelphicus, Philadelphia Vireo Auriparus flaviceps, Verdin Muscicapa sibirica, Dark-sided Flycatcher Vireo gilvus, Warbling Vireo Family AEGITHALIDAE Larvivora cyane, Siberian Blue Robin Vireo olivaceus, Red-eyed Vireo Psaltriparus minimus, Bushtit Larvivora sibilans, Rufous-tailed Robin Vireo flavoviridis, Yellow-green Vireo Family SITTIDAE Cyanecula svecica, Bluethroat Vireo altiloquus, Black-whiskered Vireo Subfamily SITTINAE Calliope calliope, Siberian Rubythroat Vireo magister, Yucatan Vireo Sitta canadensis, Red-breasted Nuthatch Tarsiger cyanurus, Red-flanked Bluetail Family CORVIDAE Sitta carolinensis, White-breasted Ficedula narcissina, Narcissus Flycatcher Perisoreus canadensis, Canada Jay Nuthatch Ficedula mugimaki, Mugimaki Flycatcher Psilorhinus morio, Brown Jay Sitta pygmaea, Pygmy Nuthatch Ficedula albicilla, Taiga Flycatcher Cyanocorax yncas, Green Jay Sitta pusilla, Brown-headed Nuthatch Phoenicurus phoenicurus, Common Gymnorhinus cyanocephalus, Pinyon Jay Family CERTHIIDAE Redstart Cyanocitta stelleri, Steller’s Jay Subfamily CERTHIINAE Saxicola torquatus, Stonechat Cyanocitta cristata, Blue Jay Certhia americana, Brown Creeper Oenanthe oenanthe, Northern Wheatear Aphelocoma coerulescens, Florida Scrub- Family TROGLODYTIDAE Family TURDIDAE Jay Salpinctes obsoletus, Rock Wren Monticola solitarius, Blue Rock-Thrush Aphelocoma insularis, Island Scrub-Jay Catherpes mexicanus, Canyon Wren Sialia sialis, Eastern Bluebird Troglodytes aedon, House Wren Aphelocoma californica, California Scrub- Sialia mexicana, Western Bluebird Troglodytes pacificus, Pacific Wren Jay Sialia currucoides, Mountain Bluebird Troglodytes hiemalis, Winter Wren Aphelocoma woodhouseii, Woodhouse’s Myadestes townsendi, Townsend’s Cistothorus platensis, Sedge Wren Scrub-Jay Solitaire Cistothorus palustris, Marsh Wren Myadestes occidentalis, Brown-backed Aphelocoma wollweberi, Mexican Jay Thryothorus ludovicianus, Carolina Wren Solitaire Nucifraga columbiana, Clark’s Nutcracker Thryomanes bewickii, Bewick’s Wren Myadestes myadestinus, Kcma‘o Pica hudsonia, Black-billed Magpie Campylorhynchus brunneicapillus, Cactus ¸ Pica nuttalli, Yellow-billed Magpie Wren Myadestes lanaiensis, Oloma‘o Corvus monedula, Eurasian Jackdaw Thryophilus sinaloa, Sinaloa Wren Myadestes obscurus, ‘Oc¸ma’o Corvus kubaryi, Mariana Crow Family POLIOPTILIDAE Myadestes palmeri, Puaiohi Corvus brachyrhynchos, American Crow Polioptila caerulea, Blue-Gray Gnatcatcher Catharus aurantiirostris, Orange-billed Corvus caurinus, Northwestern Crow Polioptila californica, California Nightingale-Thrush Corvus leucognaphalus, White-necked Gnatcatcher Catharus mexicanus, Black-headed Crow Polioptila melanura, Black-tailed Nightingale-Thrush Corvus imparatus, Tamaulipas Crow Gnatcatcher Catharus fuscescens, Veery Corvus ossifragus, Fish Crow Polioptila nigriceps, Black-capped Catharus minimus, Gray-cheeked Thrush Corvus hawaiiensis, Hawaiian Crow Gnatcatcher Catharus bicknelli, Bicknell’s Thrush Corvus cryptoleucus, Chihuahuan Raven Family CINCLIDAE Catharus ustulatus, Swainson’s Thrush Corvus corax, Common Raven Cinclus mexicanus, American Dipper Catharus guttatus, Hermit Thrush Family ALAUDIDAE Family REGULIDAE Hylocichla mustelina, Wood Thrush Alauda arvensis, Eurasian Skylark Regulus satrapa, Golden-crowned Kinglet Turdus obscurus, Eyebrowed Thrush Eremophila alpestris, Horned Lark Regulus calendula, Ruby-crowned Kinglet Turdus naumanni, Dusky Thrush Family HIRUNDINIDAE Family PHYLLOSCOPIDAE Turdus pilaris, Fieldfare Subfamily HIRUNDININAE Phylloscopus trochilus, Willow Warbler Turdus iliacus, Redwing Progne subis, Purple Martin Phylloscopus collybita, Common Chiffchaff Turdus grayi, Clay-colored Thrush Progne cryptoleuca, Cuban Martin Phylloscopus sibilatrix, Wood Warbler Turdus assimilis, White-throated Thrush Progne dominicensis, Caribbean Martin Phylloscopus fuscatus, Dusky Warbler Turdus rufopalliatus, Rufous-backed Robin Progne chalybea, Gray-breasted Martin Phylloscopus proregulus, Pallas’s Leaf Turdus migratorius, American Robin Progne elegans, Southern Martin Warbler Turdus plumbeus, Red-legged Thrush Progne tapera, Brown-chested Martin Phylloscopus inornatus, Yellow-browed Ixoreus naevius, Varied Thrush Tachycineta bicolor, Tree Swallow Warbler Ridgwayia pinicola, Aztec Thrush Tachycineta albilinea, Mangrove Swallow Phylloscopus borealis, Arctic Warbler Family MIMIDAE Tachycineta thalassina, Violet-green Phylloscopus examinandus, Kamchatka Melanotis caerulescens, Blue Mockingbird Swallow Leaf Warbler Melanoptila glabrirostris, Black Catbird Tachycineta cyaneoviridis, Bahama Family SYLVIIDAE Dumetella carolinensis, Gray Catbird Swallow Sylvia curruca, Lesser Whitethroat Margarops fuscatus, Pearly-eyed Thrasher Stelgidopteryx serripennis, Northern Chamaea fasciata, Wrentit Toxostoma curvirostre, Curve-billed Rough-winged Swallow Family ACROCEPHALIDAE Thrasher Riparia riparia, Bank Swallow Acrocephalus luscinius, Nightingale Reed Toxostoma rufum, Brown Thrasher Petrochelidon pyrrhonota, Cliff Swallow Warbler Toxostoma longirostre, Long-billed Petrochelidon fulva, Cave Swallow Acrocephalus hiwae, Saipan Reed warbler Thrasher Hirundo rustica, Barn Swallow Acrocephalus nijoi, Aguiguan Reed Toxostoma bendirei, Bendire’s Thrasher Delichon urbicum, Common House-Martin Warbler Toxostoma redivivum, California Thrasher Family PARIDAE Acrocephalus yamashinae, Pagan Reed Toxostoma lecontei, LeConte’s Thrasher Poecile carolinensis, Carolina Chickadee Warbler Toxostoma crissale, Crissal Thrasher

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 61306 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules

Oreoscoptes montanus, Sage Thrasher Leucosticte atrata, Black Rosy-Finch Centronyx bairdii, Baird’s Sparrow Mimus gundlachii, Bahama Mockingbird Leucosticte australis, Brown-capped Rosy- Centronyx henslowii, Henslow’s Sparrow Mimus polyglottos, Northern Mockingbird Finch Ammospiza leconteii, LeConte’s Sparrow Family STURNIDAE Haemorhous mexicanus, House Finch Ammospiza maritima, Seaside Sparrow Agropsar philippensis, Chestnut-cheeked Haemorhous purpureus, Purple Finch Ammospiza nelsoni, Nelson’s Sparrow Starling Haemorhous cassinii, Cassin’s Finch Ammospiza caudacuta, Saltmarsh Sparrow Spodiopsar cineraceus, White-cheeked Chloris sinica, Oriental Greenfinch Passerella iliaca, Fox Sparrow Starling Acanthis flammea, Common Redpoll Melospiza melodia, Song Sparrow Family BOMBYCILLIDAE Acanthis hornemanni, Hoary Redpoll Melospiza lincolnii, Lincoln’s Sparrow Bombycilla garrulus, Bohemian Waxwing Loxia curvirostra, Red Crossbill Melospiza georgiana, Swamp Sparrow Bombycilla cedrorum, Cedar Waxwing Loxia sinesciuris, Cassia Crossbill Zonotrichia albicollis, White-throated Family PTILIOGONATIDAE Loxia leucoptera, White-winged Crossbill Sparrow Ptiliogonys cinereus, Gray Silky-flycatcher Spinus spinus, Eurasian Siskin Zonotrichia querula, Harris’s Sparrow Phainopepla nitens, Phainopepla Spinus pinus, Pine Siskin Zonotrichia leucophrys, White-crowned Family PEUCEDRAMIDAE Spinus psaltria, Lesser Goldfinch Sparrow Peucedramus taeniatus, Olive Warbler Spinus lawrencei, Lawrence’s Goldfinch Zonotrichia atricapilla, Golden-crowned Family PRUNELLIDAE Spinus tristis, American Goldfinch Sparrow Prunella montanella, Siberian Accentor Family CALCARIIDAE Junco hyemalis, Dark-eyed Junco Family MOTACILLIDAE Calcarius lapponicus, Lapland Longspur Junco phaeonotus, Yellow-eyed Junco Motacilla tschutschensis, Eastern Yellow Calcarius ornatus, Chestnut-collared Family NESOSPINGIDAE Wagtail Longspur Nesospingus speculiferus, Puerto Rican Motacilla citreola, Citrine Wagtail Calcarius pictus, Smith’s Longspur Tanager Motacilla cinerea, Gray Wagtail Rhynchophanes mccownii, McCown’s Family SPINDALIDAE Motacilla alba, White Wagtail Longspur Spindalis zena, Western Spindalis Anthus trivialis, Tree Pipit Plectrophenax nivalis, Snow Bunting Spindalis portoricensis, Puerto Rican Anthus hodgsoni, Olive-backed Pipit Plectrophenax hyperboreus, McKay’s Spindalis Anthus gustavi, Pechora Pipit Bunting Family ICTERIIDAE Anthus cervinus, Red-throated Pipit Family EMBERIZIDAE Icteria virens, Yellow-breasted Chat Anthus rubescens, American Pipit Emberiza leucocephalos, Pine Bunting Family ICTERIDAE Anthus spragueii, Sprague’s Pipit Emberiza chrysophrys, Yellow-browed Subfamily XANTHOCEPHALINAE Family FRINGILLIDAE Bunting Xanthocephalus xanthocephalus, Yellow- Subfamily FRINGILLINAE Emberiza pusilla, Little Bunting headed Blackbird Fringilla coelebs, Common Chaffinch Emberiza rustica, Rustic Bunting Subfamily DOLICHONYCHINAE Fringilla montifringilla, Brambling Emberiza elegans, Yellow-throated Bunting Dolichonyx oryzivorus, Bobolink Subfamily EUPHONIINAE Emberiza aureola, Yellow-breasted Subfamily STURNELLINAE Euphonia musica, Antillean Euphonia Bunting Sturnella magna, Eastern Meadowlark Subfamily CARDUELINAE Emberiza variabilis, Gray Bunting Sturnella neglecta, Western Meadowlark Coccothraustes vespertinus, Evening Emberiza pallasi, Pallas’s Bunting Subfamily ICTERINAE Grosbeak Icterus portoricensis, Puerto Rican Oriole Coccothraustes coccothraustes, Hawfinch Emberiza schoeniclus, Reed Bunting Carpodacus erythrinus, Common Family PASSERELLIDAE Icterus wagleri, Black-vented Oriole Rosefinch Arremonops rufivirgatus, Olive Sparrow Icterus spurius, Orchard Oriole Melamprosops phaeosoma, Po‘ouli Pipilo chlorurus, Green-tailed Towhee Icterus cucullatus, Hooded Oriole Oreomystis bairdi, ‘Akikiki Pipilo maculatus, Spotted Towhee Icterus pustulatus, Streak-backed Oriole Paroreomyza maculata, O‘ahu ‘Alauahio Pipilo erythrophthalmus, Eastern Towhee Icterus bullockii, Bullock’s Oriole Paroreomyza flammea, Ka˜ka˜wahie Aimophila ruficeps, Rufous-crowned Icterus gularis, Altamira Oriole Paroreomyza montana, Maui ‘Alauahio Sparrow Icterus graduacauda, Audubon’s Oriole Loxioides bailleui, Palila Melozone fusca, Canyon Towhee Icterus galbula, Baltimore Oriole Telespiza cantans, Laysan Finch Melozone crissalis, California Towhee Icterus parisorum, Scott’s Oriole Telespiza ultima, Nihoa Finch Melozone aberti, Abert’s Towhee Subfamily AGELAIINAE Palmeria dolei, ‘Akohekohe Peucaea carpalis, Rufous-winged Sparrow Agelaius phoeniceus, Red-winged Himatione fraithii, Laysan Honeycreeper Peucaea botterii, Botteri’s Sparrow Blackbird Himatione sanguinea, ‘Apapane Peucaea cassinii, Cassin’s Sparrow Agelaius tricolor, Tricolored Blackbird Drepanis coccinea, ‘I‘iwi Peucaea aestivalis, Bachman’s Sparrow Agelaius humeralis, Tawny-shouldered Psittirostra psittacea, ‘O˜ ‘u˜ Spizelloides arborea, American Tree Blackbird Pseudonestor xanthophrys, Maui Parrotbill Sparrow Agelaius xanthomus, Yellow-shouldered Hemignathus hanapepe, Kauai Nukupu‘u Spizella passerina, Chipping Sparrow Blackbird Hemignathus lucidus, O‘ahu Nukupu‘u Spizella pallida, Clay-colored Sparrow Molothrus bonariensis, Shiny Cowbird Hemignathus affinis, Maui Nukupu‘u Spizella breweri, Brewer’s Sparrow Molothrus aeneus, Bronzed Cowbird Hemignathus wilsoni, ‘Akiapola‘au Spizella pusilla, Field Sparrow Molothrus ater, Brown-headed Cowbird Akialoa stejnegeri, Kauai ‘Akialoa Spizella wortheni, Worthen’s Sparrow Euphagus carolinus, Rusty Blackbird Akialoa ellisiana, O‘ahu ‘Akialoa Spizella atrogularis, Black-chinned Euphagus cyanocephalus, Brewer’s Akialoa lanaiensis, Maui Nui ‘Akialoa Sparrow Blackbird Magumma parva, ‘Anianiau Pooecetes gramineus, Vesper Sparrow Quiscalus quiscula, Common Grackle Chlorodrepanis virens, Hawaii ‘Amakihi Chondestes grammacus, Lark Sparrow Quiscalus major, Boat-tailed Grackle Chlorodrepanis flava, O‘ahu ‘Amakihi Amphispiza quinquestriata, Five-striped Quiscalus mexicanus, Great-tailed Grackle Chlorodrepanis stejnegeri, Kauai ‘Amakihi Sparrow Quiscalus niger, Greater Antillean Grackle Loxops mana, Hawaii Creeper Amphispiza bilineata, Black-throated Family PARULIDAE Loxops caeruleirostris, ‘Akeke‘e Sparrow Seiurus aurocapilla, Ovenbird Loxops wolstenholmei, O‘ahu ‘Akepa Artemisiospiza nevadensis, Sagebrush Helmitheros vermivorum, Worm-eating Loxops ochraceus, Maui ‘Akepa Sparrow Warbler Loxops coccineus, Hawaii ‘Akepa Artemisiospiza belli, Bell’s Sparrow Parkesia motacilla, Louisiana Waterthrush Pinicola enucleator, Pine Grosbeak Calamospiza melanocorys, Lark Bunting Parkesia noveboracensis, Northern Pyrrhula pyrrhula, Eurasian Bullfinch Passerculus sandwichensis, Savannah Waterthrush Leucosticte arctoa, Asian Rosy-Finch Sparrow Vermivora bachmanii, Bachman’s Warbler Leucosticte tephrocotis, Gray-crowned Ammodramus savannarum, Grasshopper Vermivora chrysoptera, Golden-winged Rosy-Finch Sparrow Warbler

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\28NOP2.SGM 28NOP2 Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Proposed Rules 61307

Vermivora cyanoptera, Blue-winged Setophaga caerulescens, Black-throated Cardinalis cardinalis, Northern Cardinal Warbler Blue Warbler Cardinalis sinuatus, Pyrrhuloxia Mniotilta varia, Black-and-white Warbler Setophaga palmarum, Palm Warbler Pheucticus chrysopeplus, Yellow Grosbeak Protonotaria citrea, Prothonotary Warbler Setophaga pinus, Pine Warbler Pheucticus ludovicianus, Rose-breasted Limnothlypis swainsonii, Swainson’s Setophaga coronata, Yellow-rumped Grosbeak Warbler Warbler Pheucticus melanocephalus, Black-headed Setophaga dominica, Yellow-throated Oreothlypis superciliosa, Crescent-chested Grosbeak Warbler Warbler Setophaga discolor, Prairie Warbler Cyanocompsa parellina, Blue Bunting Oreothlypis peregrina, Tennessee Warbler Passerina caerulea, Blue Grosbeak Oreothlypis celata, Orange-crowned Setophaga adelaidae, Adelaide’s Warbler Setophaga graciae, Grace’s Warbler Passerina amoena, Lazuli Bunting Warbler Passerina cyanea, Indigo Bunting Oreothlypis crissalis, Colima Warbler Setophaga nigrescens, Black-throated Gray Passerina versicolor, Varied Bunting Oreothlypis luciae, Lucy’s Warbler Warbler Passerina ciris, Painted Bunting Oreothlypis ruficapilla, Nashville Warbler Setophaga townsendi, Townsend’s Warbler Setophaga occidentalis, Hermit Warbler Spiza americana, Dickcissel Oreothlypis virginiae, Virginia’s Warbler Setophaga chrysoparia, Golden-cheeked Oporornis agilis, Connecticut Warbler Family THRAUPIDAE Warbler Geothlypis poliocephala, Gray-crowned Subfamily DACNINAE Setophaga virens, Black-throated Green Cyanerpes cyaneus, Red-legged Yellowthroat Warbler Geothlypis tolmiei, MacGillivray’s Warbler Honeycreeper Basileuterus lachrymosus, Fan-tailed Subfamily COEREBINAE Geothlypis philadelphia, Mourning Warbler Coereba flaveola, Bananaquit Warbler Basileuterus rufifrons, Rufous-capped Geothlypis formosa, Kentucky Warbler Warbler Tiaris olivaceus, Yellow-faced Grassquit Geothlypis trichas, Common Yellowthroat Basileuterus culicivorus, Golden-crowned Tiaris bicolor, Black-faced Grassquit Setophaga angelae, Elfin-woods Warbler Warbler Loxigilla portoricensis, Puerto Rican Setophaga citrina, Hooded Warbler Cardellina canadensis, Canada Warbler Bullfinch Setophaga ruticilla, American Redstart Cardellina pusilla, Wilson’s Warbler Subfamily SPOROPHILINAE Setophaga kirtlandii, Kirtland’s Warbler Cardellina rubrifrons, Red-faced Warbler Sporophila morelleti, Morelet’s Seedeater Setophaga tigrina, Cape May Warbler Myioborus pictus, Painted Redstart * * * * * Setophaga cerulea, Cerulean Warbler Myioborus miniatus, Slate-throated Setophaga americana, Northern Parula Redstart Dated: October 29, 2018. Setophaga pitiayumi, Tropical Parula Family CARDINALIDAE Andrea Travnicek, Setophaga magnolia, Magnolia Warbler Piranga flava, Hepatic Tanager Principal Deputy Assistant Secretary—Water Setophaga castanea, Bay-breasted Warbler Piranga rubra, Summer Tanager and Science, Exercising the Authority of the Setophaga fusca, Blackburnian Warbler Piranga olivacea, Scarlet Tanager Assistant Secretary for Fish and Wildlife and Setophaga petechia, Yellow Warbler Piranga ludoviciana, Western Tanager Parks. Setophaga pensylvanica, Chestnut-sided Piranga bidentata, Flame-colored Tanager Warbler Rhodothraupis celaeno, Crimson-collared [FR Doc. 2018–25634 Filed 11–27–18; 8:45 am] Setophaga striata, Blackpoll Warbler Grosbeak BILLING CODE 4333–15–P

VerDate Sep<11>2014 17:18 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00021 Fmt 4701 Sfmt 9990 E:\FR\FM\28NOP2.SGM 28NOP2 i

Reader Aids Federal Register Vol. 83, No. 229 Wednesday, November 29, 2018

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING NOVEMBER

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 8 CFR Executive orders and proclamations 741–6000 Executive Orders: 208...... 55934 The United States Government Manual 741–6000 13850...... 55243 1003...... 55934 1208...... 55934 Other Services Administrative Orders: Electronic and on-line services (voice) 741–6020 Memorandums: 10 CFR Memorandum of Privacy Act Compilation 741–6050 26...... 58463 October 26, 2018 ...... 57671 30...... 58463 Presidential 37...... 58721 ELECTRONIC RESEARCH Determinations: No. 40...... 58463, 58721 2019–04 of October World Wide Web 50...... 58463 31, 2018 ...... 57673 70...... 58463, 58721 Full text of the daily Federal Register, CFR and other publications Proclamations: 71...... 58721 is located at: www.govinfo.gov. 9814...... 55453 72...... 55601, 58721 9815...... 55455 Federal Register information and research tools, including Public 73...... 58463, 58721 9816...... 55457 Inspection List and electronic text are located at: 76...... 58721 9817...... 55459 www.federalregister.gov. 95...... 58721 9818...... 55461 110...... 58463 E-mail 9819...... 55463 Proposed Rules: 9820...... 57303 FEDREGTOC (Daily Federal Register Table of Contents Electronic 50...... 56156, 58509 9821...... 57305 72...... 55643 Mailing List) is an open e-mail service that provides subscribers 9822...... 57661 with a digital form of the Federal Register Table of Contents. The 170...... 55113 9823...... 57665 171...... 55113 digital form of the Federal Register Table of Contents includes 9824...... 57667 HTML and PDF links to the full text of each document. 430...... 54883, 56746 9825...... 57669 431...... 54883 To join or leave, go to https://public.govdelivery.com/accounts/ 9826...... 60331 USGPOOFR/subscriber/new, enter your email address, then 9827...... 61109 12 CFR follow the instructions to join, leave, or manage your Administrative Orders: 34...... 59272 subscription. Memorandums: 209...... 58466 PENS (Public Law Electronic Notification Service) is an e-mail Memorandum of 211...... 58724 service that notifies subscribers of recently enacted laws. October 29, 2018 ...... 56697 213...... 59274 Notices: 226...... 59272, 59276 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Notice of October 31, 238...... 58724 and select Join or leave the list (or change settings); then follow 2018 ...... 55239 303...... 60333 the instructions. Notice of November 8, 308...... 61111 FEDREGTOC and PENS are mailing lists only. We cannot 2018 ...... 56251 327...... 61111 respond to specific inquiries. Notice of November 8, 333...... 60333 Reference questions. Send questions and comments about the 2018 ...... 56253 390...... 60333 Federal Register system to: [email protected] Notice of November 652...... 55093 16, 2018 ...... 58461 700...... 55467 The Federal Register staff cannot interpret specific documents or Presidential 701...... 55467 regulations. Determinations: 702...... 55467 No. 2019–01 of 703...... 55467 FEDERAL REGISTER PAGES AND DATE, NOVEMBER October 4, 2018 ...... 55091 713...... 55467 723...... 55467 54861–55092...... 1 5 CFR 747...... 55467 55093–55246...... 2 250...... 55931 1013...... 59274 55247–55452...... 5 894...... 58175 1026...... 59272, 59276 55453–55600...... 6 Ch. XIV ...... 54862 1290...... 61186 55601–55812...... 7 Ch. CI ...... 54861 1291...... 61186 55813–55930...... 8 Proposed Rules: 7 CFR 55931–56254...... 9 Ch. II ...... 57351 56255–56698...... 13 906...... 55931 52...... 58432 56699–57306...... 14 927...... 56255 208...... 58432 57307–57670...... 15 1728...... 55465 268...... 57343 57671–58174...... 16 1787...... 60729 304...... 58432 58175–58462...... 19 1970...... 59269 701...... 56640 58463–58720...... 20 Proposed Rules: 704...... 59318 58721–59268...... 21 205...... 60373 713...... 59318 59269–60332...... 23 932...... 57691 1281...... 55114 60333–60728...... 26 981...... 56742 60729–61108...... 27 987...... 55111 13 CFR 61109–61308...... 28 1970...... 59318 120...... 55478

VerDate Sep 11 2014 19:37 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\28NOCU.LOC 28NOCU ii Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Reader Aids

Proposed Rules: 655...... 55977, 55985 Proposed Rules: 409...... 56406 103...... 57693 401...... 57366 111...... 55329 410...... 59452 120...... 57693 404...... 57368 411...... 59452 121...... 57693 416...... 57368 33 CFR 413...... 56922 100...... 55271, 55967 414...... 56922, 59452 14 CFR 21 CFR 117 ...... 55099, 55100, 55967, 415...... 59452 13...... 60732 73...... 54869, 56258 55969, 57689, 58185, 58745, 416...... 58818 25 ...... 55247, 58739, 58740 101...... 55266 59307, 59312 419...... 58818 39 ...... 55249, 55252, 55255, 862 (2 documents) ...... 54873, 147...... 55967 424...... 56406 55258, 55606, 55610, 55614, 54875 164...... 55272 425...... 59452 55617, 55619, 55813, 55816, Proposed Rules: 165 ...... 55101, 55282, 55284, 484...... 56406 55953, 56699, 56702, 56704, 15...... 55318 55488, 55967, 55969, 56258, 486...... 56406 56709, 57675, 58184, 59278, 50...... 57378 57318, 57319, 57321, 57322, 488...... 56406 59285, 59288, 59290, 60337, 101...... 55323 58186, 58501, 58504, 58745, 495...... 59452 60754, 60756, 60759, 60762, 112...... 54888 59312, 59314, 60360 Proposed Rules: 60764, 60767 175...... 56750 401...... 60732 10...... 55135 71 ...... 54864, 55479, 56711, 176...... 56750 Proposed Rules: 121...... 60804 58467, 58468, 58471, 58492, 177...... 56750 165 ...... 55332, 56768, 60802 422...... 54982 58742, 58743, 60339, 60340 178...... 56750 423...... 54982 91...... 55263 179...... 54891 34 CFR 438...... 54982, 57264 97 ...... 55818, 55821, 58473, 312...... 57378 86...... 61121 457...... 57264 58475 807...... 54891 668...... 61121 482...... 55105 383...... 60732 812...... 57378 484...... 55105 406...... 60732 1002...... 54891 37 CFR 485...... 55105 Proposed Rules: 1010...... 54891 1...... 55102 498...... 54982 39 ...... 55294, 55297, 55299, 1040...... 54891 380...... 61125 55303, 55496, 55498, 55502, 381...... 61126 44 CFR 55825, 55828, 55830, 55833, 23 CFR 384...... 60362 64...... 56269 57364, 58191, 58194, 58196, 625...... 54876 386...... 61126 45 CFR 58199, 59326, 59328, 60374, Proposed Rules: Proposed Rules: 60376 630...... 56758 201...... 57386 147...... 57336, 57592 71 ...... 55306, 55308, 55310, 635...... 56758 Ch. III...... 55334, 60384 Proposed Rules: 60378, 60380, 60786, 60788, 155...... 56015 60789 24 CFR 38 CFR 156...... 56015 73...... 60382 3282...... 57677 17...... 61250 1148...... 55504 93...... 55133, 55134 4...... 54881 25 CFR 46 CFR 15 CFR 51...... 61250 23...... 55267 52...... 61250 35...... 55272, 56271 740...... 55099 175...... 61116 Proposed Rules: 221...... 60733 742...... 55099 17...... 61137 307...... 60733 744...... 55099 26 CFR 340...... 60733 772...... 55099 1...... 55632, 58476 39 CFR 356...... 60733 774...... 55099 54...... 57336, 57592 Proposed Rules: Proposed Rules: 922...... 55956 Proposed Rules: 3010...... 60385 10...... 56272 Proposed Rules: 1 ...... 55324, 55646, 56763 744...... 58201 20...... 59343 40 CFR 47 CFR 16 CFR 53...... 55653 9...... 57689 1...... 61072 300...... 58202 51 ...... 56713, 57324, 58506, 76...... 61134 Proposed Rules: 61127 20...... 55106 609...... 57693 27 CFR 52 ...... 56734, 56736, 57324, 76...... 60733 90...... 61072 17 CFR Proposed Rules: 58188, 59315, 60363, 60769 4...... 60562 55...... 56259 Proposed Rules: 1...... 56666 5...... 60562 60 ...... 56713, 58506, 60696 1...... 56031 23...... 60341 7...... 60562 63 ...... 56713, 58506, 60696 61...... 58510 232...... 55264, 57677 14...... 60562 180 ...... 55491, 55970, 56262, 73 ...... 56031, 56038, 58513 240...... 55486, 58338 19...... 60562 57333, 58506, 60366 76...... 60804 242...... 58338 282...... 55286 249...... 56257 28 CFR 721...... 57689 48 CFR Proposed Rules: 2...... 58499, 58500 Proposed Rules: 509...... 56739 Ch. II ...... 60791 49...... 55994 Proposed Rules: 29 CFR 52 ...... 55335, 55338, 55656, 18 CFR 16...... 54901 1926...... 56198 55994, 56002, 56770, 56773, 52...... 54901 35...... 59295, 60347 2590...... 57336, 57592 56775, 56777, 56781, 57701, 501...... 55838, 60818 40...... 60347 4022...... 57307 57704, 58206, 59348, 60386 536...... 55838, 60818 101...... 59295 Proposed Rules: 60...... 56015, 57387 552...... 55838, 60818 154...... 59295 Ch. I ...... 55329 81...... 56781, 59350 201...... 59295 570...... 57386 86...... 55837 49 CFR 352...... 59295 158...... 60389 107...... 60733 Proposed Rules: 31 CFR 282...... 55340 171...... 55792, 60733 35...... 59331 App. A to Ch.V ...... 55269 355...... 56791 172...... 55792 547...... 57308 721...... 57634 173...... 55792 20 CFR 560...... 55269 770...... 54892 176...... 55792 418...... 55626 178...... 55792 Proposed Rules: 32 CFR 42 CFR 180...... 55792 620...... 55311 221...... 59303 405...... 59452 190...... 60733

VerDate Sep 11 2014 19:37 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\28NOCU.LOC 28NOCU Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Reader Aids iii

192...... 58694 230...... 60733 578...... 60733 622 ...... 55107, 55292, 55293, 209...... 60733 231...... 59182, 60733 Proposed Rules: 55975, 57339 213...... 60733 232...... 60733 171...... 60970 635 ...... 55108, 55638, 57340, 214...... 60733 233...... 60733 172...... 60970 60776, 60777 215...... 60733 234...... 60733 173...... 60970 648...... 55640, 60372 216...... 60733 235...... 60733 175...... 60970 665...... 55641 217...... 60733 236...... 59182 176...... 60970 679 ...... 54881, 55109, 55641, 218...... 60733 237...... 60733 178...... 60970 55823, 56740, 57341, 58754, 219...... 60733 238...... 59182, 60733 180...... 60970 60784 220...... 60733 239...... 60733 192...... 57388 Proposed Rules: 221...... 60733 240...... 60733 555...... 59353 10...... 61288 222...... 60733 241...... 60733 571...... 59353 17...... 55341, 59232 223...... 60733 242...... 60733 591...... 59353 253...... 55137 224...... 60733 243...... 60733 600...... 56039, 57705 225...... 60733 244...... 60733 50 CFR 622 ...... 55850, 56039, 58522 227...... 60733 270...... 60733 17...... 58747 648 ...... 54903, 55665, 57389, 228...... 60733 272...... 60733 218...... 57076 57395, 58219, 60818 229...... 59182, 60733 386...... 60733 300...... 55636 697...... 56039

VerDate Sep 11 2014 19:37 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4712 E:\FR\FM\28NOCU.LOC 28NOCU iv Federal Register / Vol. 83, No. 229 / Wednesday, November 28, 2018 / Reader Aids

Register but may be ordered H.R. 2615/P.L. 115–279 enacted public laws. To in ‘‘slip law’’ (individual Gulf Islands National subscribe, go to http:// LIST OF PUBLIC LAWS pamphlet) form from the Seashore Land Exchange Act listserv.gsa.gov/archives/ Superintendent of Documents, (Nov. 20, 2018; 132 Stat. publaws-l.html This is a continuing list of U.S. Government Publishing 4187) public bills from the current Office, Washington, DC 20402 Last List November 20, 2018 session of Congress which Note: This service is strictly have become Federal laws. (phone, 202–512–1808). The for E-mail notification of new This list is also available text will also be made Public Laws Electronic laws. The text of laws is not online at http:// available on the Internet from Notification Service available through this service. www.archives.gov/federal- GPO’s Federal Digital System (PENS) PENS cannot respond to register/laws. (FDsys) at http://www.gpo.gov/ specific inquiries sent to this fdsys. Some laws may not yet The text of laws is not PENS is a free electronic mail address. be available. published in the Federal notification service of newly

VerDate Sep 11 2014 19:37 Nov 27, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4712 Sfmt 4711 E:\FR\FM\28NOCU.LOC 28NOCU