[Federal Register Volume 76, Number 37 (Thursday, February 24, 2011)]
[Rules and Regulations]
[Pages 10246-10249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-3887]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 17 and 59

RIN 2900-AN57


Updating Fire Safety Standards

AGENCY: Department of Veterans Affairs.

ACTION: Final rule with request for comments.

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SUMMARY: This document adopts as a final rule, with changes, the 
proposed rule to amend the Department of Veterans Affairs (VA) 
regulations concerning community residential care facilities, contract 
facilities for certain outpatient and residential services, and State 
home facilities. The final rule will clarify current regulations and 
update the standards for VA approval of such facilities, including 
standards for fire safety and heating and cooling systems. The final 
rule will help ensure the safety of veterans in the affected 
facilities. This document also implements and seeks comments regarding 
a new interim final sprinkler system requirement for certain 
facilities.

DATES: Effective Date: This final rule is effective March 28, 2011.
    Comment Date: Comments on the interim final amendments to 38 CFR 
59.130 only must be received on or before April 25, 2011.
    The Director of the Federal Register approved the incorporation by 
reference of certain publications listed in this rule as of March 28, 
2011.

ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420; or by fax to 
(202) 273-9026. Comments should indicate that they are submitted in 
response to ``RIN 2900-AN57--Updating Fire Safety

[[Page 10247]]

Standards.'' Copies of comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday 
(except holidays). Please call (202) 461-4902 for an appointment. (This 
is not a toll-free number.) In addition, during the comment period, 
comments may be viewed online through the Federal Docket Management 
System (FDMS) at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Brian McCarthy, Office of Patient Care 
Services, Veterans Health Administration, Department of Veterans 
Affairs, 810 Vermont Ave., NW., Washington, DC 20420, 202-461-6759. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on April 7, 2010 (75 FR 17641), VA proposed to amend its 
regulations concerning the codes and standards applicable to community 
residential care facilities, contract facilities for outpatient and 
residential treatment services for veterans with alcohol or drug 
dependence or abuse disabilities, and State homes. We proposed to amend 
38 CFR 17.63, 17.81(a)(1), 17.82(a)(1), and 59.130(d)(1) to require 
facilities to meet the requirements in the applicable provisions of 
current editions of publications produced by the National Fire 
Protection Association (NFPA). These publications are: NFPA 10, 
Standard for Portable Fire Extinguishers; NFPA 99, Standard for Health 
Care Facilities; NFPA 101, Life Safety Code; and NFPA 101A, Guide on 
Alternative Approaches to Life Safety.
    We provided a 60-day comment period and received three comments. 
All three comments were entirely supportive. Two comments from the 
public noted the importance of requiring facilities to meet up-to-date 
safety standards. The third comment, from the NFPA, described in detail 
the improvements in the current editions of the codes that are 
referenced in this final rule. Although we noted in the proposed rule 
that we were not aware of any significant changes from the 2000 edition 
of NFPA 101 referenced in current Sec.  59.130 to the 2009 edition of 
NFPA 101, as the NFPA commented, a substantive revision in the 2009 
edition of NFPA 101 is the requirement that all existing nursing homes 
have automatic sprinklers. We are aware that not all existing State 
home facilities currently meet this requirement. Therefore, to give 
certain facilities that are not currently in compliance ample time to 
come into compliance with the sprinkler requirement, we are requiring 
certain existing nursing home facilities to comply with the automatic 
sprinkler requirement of the 2009 edition of NFPA 101 by February 24, 
2016.
    The Centers for Medicare & Medicaid Services (CMS) has determined 
that, after considering fire safety concerns and feasibility, 5 years 
is a reasonable amount of time to install sprinkler systems in existing 
nursing home facilities, see 73 FR 47081, as required by paragraph 
19.3.5.1 in the 2009 edition of NFPA 101, which specifically states 
that ``[b]uildings containing nursing homes shall be protected 
throughout by an approved, supervised automatic sprinkler system in 
accordance with Section 9.7, unless otherwise permitted by 19.3.5.5.'' 
We agree, and therefore based on the NFPA's comment we have included 
such a requirement in the final rule. The extended compliance date of 5 
years from the date of publication of this final rule does not apply to 
buildings with nursing home facilities that were newly constructed and 
in operation after June 25, 2001, because the 2000 edition of NFPA 101, 
which was incorporated by reference into 38 CFR 59.130 in 66 FR 33845 
as of June 26, 2001, required installment of automatic sprinklers in 
all newly constructed buildings with nursing home facilities. Thus, the 
extended compliance date applies only to ``existing buildings'' with 
nursing home facilities as of June 25, 2001, and is not intended to 
postpone enforcement of the existing requirement for sprinkler 
protection in all other buildings with nursing home facilities. See 
paragraph 3.3.32.5 in the 2009 edition of NFPA 101 (defining an 
``[e]xisting [b]uilding'' as ``[a] building erected or officially 
authorized prior to the effective date of the adoption of this edition 
of the Code by the agency or jurisdiction''). Accordingly, we have made 
interim final revisions to 38 CFR 59.130 to reflect this change. The 
public is invited to comment on the 5-year extended compliance period 
for existing buildings with nursing home facilities as of June 25, 
2001.
    We are also clarifying the second sentence in proposed 38 CFR 
17.1(a) to state the following: ``To enforce an edition of a 
publication other than that specified in this section, VA will provide 
notice of the change in a notice of proposed rulemaking in the Federal 
Register and the material will be made available to the public.'' We 
will thus provide notice of the adoption of an updated edition of a 
publication specified in Sec.  17.1 through the public notice-and-
comment process.
    This final rule amends parts 17 and 59 and incorporates by 
reference, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51, the 
following publications: NFPA 10, Standard for Portable Fire 
Extinguishers (2010 edition); NFPA 99, Standard for Health Care 
Facilities (2005 edition); NFPA 101, Life Safety Code (2009 edition); 
and NFPA 101A, Guide on Alternative Approaches to Life Safety (2010 
edition). In the proposed rule, we noted that facilities had to meet 
the requirements in certain provisions of specific editions of these 
NFPA publications. Regarding the NFPA 10 requirements, we proposed to 
require facilities to meet the standard for portable fire 
extinguishers. However, we did not propose to separately incorporate by 
reference NFPA 10 because we believed the applicable requirements in 
the updated version of that standard were subsumed in NFPA 101. The 
Office of the Federal Register recently informed us that we need to 
incorporate by reference NFPA 10 because our regulations refer to it 
directly and require its use. Accordingly, we are correcting the final 
rule to separately incorporate by reference NFPA 10. This correction is 
consistent with our proposal regarding compliance with the portable 
fire extinguisher standard.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in expenditure by 
State, local, and Tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This final rule will have no such effect on 
State, local, and Tribal governments, or on the private sector.

Paperwork Reduction Act of 1995

    This document contains no collections of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review,

[[Page 10248]]

as any regulatory action that is likely to result in a rule that may: 
(1) Have an annual effect on the economy of $100 million or more, or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this final rule and has concluded that it does 
not constitute a significant regulatory action under the Executive 
Order.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. In addition to having an effect on individuals (veterans), the 
final rule will have an insignificant economic impact on a few small 
entities.
    The changes to Sec.  17.63 will likely affect fewer than 100 of the 
2,800 community residential care facilities approved for referral of 
veterans under the regulations. Also, any additional costs for 
compliance with the final rule will constitute an inconsequential 
amount of the operational costs of such facilities.
    The changes to Sec. Sec.  17.81 and 17.82 will affect only small 
entities; however, most, if not all, of these entities are already in 
compliance with the current NFPA codes and therefore should not be 
significantly impacted by this rule.
    The changes to part 59 will affect State homes. The State homes 
that will be subject to this rulemaking are State government entities 
under the control of State governments. All State homes are owned, 
operated and managed by State governments except for a small number 
operated by entities under contract with State governments. These 
contractors are not small entities.
    Accordingly, pursuant to 5 U.S.C. 605(b), this rule will be exempt 
from the initial and final regulatory flexibility analysis requirements 
of sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.005, Grants to States for 
Construction of State Home Facilities; 64.007, Blind Rehabilitation 
Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical 
Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans 
Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans 
Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, 
Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 
64.018, Sharing Specialized Medical Resources; 64.019, Veterans 
Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based 
Primary Care.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, approved this document on December 10, 2010 
for publication.

List of Subjects

38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs--health, Grant programs--veterans, 
Health care, Health facilities, Health professions, Health records, 
Homeless, Incorporation by reference, Medical and dental schools, 
Medical devices, Medical research, Mental health programs, Nursing 
homes, Philippines, Reporting and recordkeeping requirements, 
Scholarships and fellowships, Travel and transportation expenses, 
Veterans.

38 CFR Part 59

    Administrative practice and procedure, Alcohol abuse, Alcoholism, 
Claims, Day care, Dental health, Drug abuse, Foreign relations, 
Government contracts, Grant programs--health, Grant programs--veterans, 
Health care, Health facilities, Health professions, Health records, 
Homeless, Incorporation by reference, Medical and dental schools, 
Medical devices, Medical research, Mental health programs, Nursing 
homes, Reporting and recordkeeping requirements, Travel and 
transportation expenses, Veterans.

    Dated: February 16, 2010.
Robert C. McFetridge,
Director, Regulations Policy and Management, Department of Veterans 
Affairs.

    For the reasons stated above, VA amends 38 CFR parts 17 and 59 as 
follows:

PART 17--MEDICAL

0
1. The authority citation for part 17 continues to read as follows:

    Authority: 38 U.S.C. 501, 1721, and as noted in specific 
sections.

0
2. Add Sec.  17.1 to part 17 to read as follows:


Sec.  17.1  Incorporation by reference.

    (a) Certain materials are incorporated by reference into this part 
with the approval of the Director of the Federal Register under 5 
U.S.C. 552(a) and 1 CFR part 51. To enforce an edition of a publication 
other than that specified in this section, VA will provide notice of 
the change in a notice of proposed rulemaking in the Federal Register 
and the material will be made available to the public. All approved 
materials are available for inspection at the Department of Veterans 
Affairs, Office of Regulation Policy and Management (02REG), 810 
Vermont Avenue, NW., Room 1068, Washington, DC 20420, or at the 
National Archives and Records Administration (NARA). For information on 
the availability of approved materials at NARA, call (202) 741-6030, or 
go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Copies may be obtained from the 
National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 
02269. (For ordering information, call toll-free 1-800-344-3555.)
    (b) The following materials are incorporated by reference into this 
part.
    (1) NFPA 10, Standard for Portable Fire Extinguishers (2010 
edition), Incorporation by Reference (IBR) approved for Sec. Sec.  
17.63 and 17.81.
    (2) NFPA 101, Life Safety Code (2009 edition), IBR approved for 
Sec. Sec.  17.63, 17.81, 17.82.
    (3) NFPA 101A, Guide on Alternative Approaches to Life Safety (2010 
edition), IBR approved for Sec.  17.63.

(Authority: 5 U.S.C. 552(a), 38 U.S.C. 501, 1721.)


0
3. Amend Sec.  17.63 as follows:
0
a. Revise paragraph (a)(2); and
0
b. Add a new paragraph (a)(4).
    The revision and addition read as follows:

[[Page 10249]]

Sec.  17.63  Approval of community residential care facilities.

* * * * *
    (a) * * *
    (2) Meet the requirements in the applicable provisions of NFPA 101 
and NFPA 101A (incorporated by reference, see Sec.  17.1) and the other 
publications referenced in those provisions. The institution shall 
provide sufficient staff to assist patients in the event of fire or 
other emergency. Any equivalencies or variances to VA requirements must 
be approved by the appropriate Veterans Health Administration Veterans 
Integrated Service Network (VISN) Director;
* * * * *
    (4) Meet the following additional requirements, if the provisions 
for One and Two-Family Dwellings, as defined in NFPA 101, are 
applicable to the facility:
    (i) Portable fire extinguishers must be installed, inspected, and 
maintained in accordance with NFPA 10 (incorporated by reference, see 
Sec.  17.1); and
    (ii) The facility must meet the requirements in section 33.7 of 
NFPA 101.
* * * * *

0
4. Amend Sec.  17.81(a)(1) as follows:
0
a. Revise paragraph (a)(1)(i);
0
b. Remove paragraphs (a)(1)(v) through (a)(1)(viii);
0
c. Add a new paragraph (a)(1)(v); and
0
d. Redesignate paragraph (a)(1)(ix) as paragraph (a)(1)(vi).
    The revision and addition read as follows:


Sec.  17.81  Contracts for residential treatment services for veterans 
with alcohol or drug dependence or abuse disabilities.

    (a) * * *
    (1) * * *
    (i) The building must meet the requirements in the applicable 
provisions of NFPA 101 (incorporated by reference, see Sec.  17.1) and 
the other publications referenced in those provisions. Any 
equivalencies or variances to VA requirements must be approved by the 
appropriate Veterans Health Administration Veterans Integrated Service 
Network (VISN) Director.
* * * * *
    (v) The facility must meet the following additional requirements, 
if the provisions for One and Two-Family Dwellings, as defined in NFPA 
101, are applicable to the facility:
    (A) Portable fire extinguishers shall be installed, inspected, and 
maintained in accordance with NFPA 10 (incorporated by reference, see 
Sec.  17.1).
    (B) The facility shall meet the requirements in section 33.7 of 
NFPA 101.
* * * * *
0
5. Amend Sec.  17.82(a)(1) as follows:
0
a. Revise paragraphs (a)(1)(i) and (iv);
0
b. Remove paragraphs (a)(1)(v) and (a)(1)(vi); and
0
c. Redesignate paragraph (a)(1)(vii) as (a)(1)(v).
    The revisions read as follows:


Sec.  17.82  Contracts for outpatient services for veterans with 
alcohol or drug dependence or abuse disabilities.

    (a) * * *
    (1) * * *
    (i) The building must meet the requirements in the applicable 
provisions of the NFPA 101 (incorporated by reference, see Sec.  17.1) 
and the other publications referenced in those provisions. Any 
equivalencies or variances to VA requirements must be approved by the 
appropriate Veterans Health Administration Veterans Integrated Service 
Network (VISN) Director.
* * * * *
    (iv) As a minimum, fire exit drills must be held at least 
quarterly, and a written plan for evacuation in the event of fire shall 
be developed and reviewed annually. The plan shall outline the duties, 
responsibilities and actions to be taken by the staff in the event of a 
fire emergency. This plan shall be implemented during fire exit drills.
* * * * *

PART 59--GRANTS TO STATES FOR CONSTRUCTION OR ACQUISITION OF STATE 
HOMES

0
6. The authority citation for part 59 continues to read as follows:

    Authority: 38 U.S.C. 101, 501, 1710, 1742, 8105, 8131-8137.


0
7. Amend Sec.  59.130(d)(1) as follows:
0
a. Remove the phrase ``(2000 edition)'' and add, in its place, ``(2009 
edition), except that the NFPA requirement in paragraph 19.3.5.1 for 
all buildings containing nursing homes to have an automatic sprinkler 
system is not applicable until February 24, 2016 for ``existing 
buildings'' with nursing home facilities as of June 25, 2001 (paragraph 
3.3.32.5 in the NFPA 101 defines an ``[e]xisting [b]uilding'' as ``[a] 
building erected or officially authorized prior to the effective date 
of the adoption of this edition of the Code by the agency or 
jurisdiction''),''; and
0
b. Remove the phrase ``(1999 edition)'' and add, in its place, ``(2005 
edition)''.
0
c. Remove ``Office of Regulations Management (02D), Room 1154'' and 
add, in its place, ``Office of Regulation Policy and Management 
(02REG), Room 1068''.

[FR Doc. 2011-3887 Filed 2-23-11; 8:45 am]
BILLING CODE 8320-01-P