Federal Register / Vol. 74, No. 184 / Thursday, September 24, 2009 / Rules and Regulations 48657 

Taking of Private Property 

This rule will not effect a taking of 

private property or otherwise have 

taking implications under Executive 

Order 12630, Governmental Actions and 

Interference with Constitutionally 

Protected Property Rights. 

Civil Justice Reform 

This rule meets applicable standards 

in sections 3(a) and 3(b)(2) of Executive 

Order 12988, Civil Justice Reform, to 

minimize litigation, eliminate 

ambiguity, and reduce burden. 

Protection of Children 

We have analyzed this rule under 

Executive Order 13045, Protection of 

Children from Environmental Health 

Risks and Safety Risks. This rule is not 

an economically significant rule and 

does not create an environmental risk to 

health or risk to safety that may 

disproportionately affect children. 

Indian Tribal Governments 

This rule does not have Tribal 

implications under Executive Order 

13175, Consultation and Coordination 

with Indian Tribal Governments, 

because it does not have a substantial 

direct effect on one or more Indian 

Tribes, on the relationship between the 

Federal Government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

Energy Effects 

We have analyzed this rule under 

Executive Order 13211, Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use. We have 

determined that it is not a ‘‘significant 

energy action’’ under that order because 

it is not a ‘‘significant regulatory action’’ 

under Executive Order 12866 and is not 

likely to have a significant adverse effect 

on the supply, distribution, or use of 

energy. The Administrator of the Office 

of Information and Regulatory Affairs 

has not designated it as a significant 

energy action. Therefore, it does not 

require a Statement of Energy Effects 

under Executive Order 13211. 

Technical Standards 

The National Technology Transfer 

and Advancement Act (NTTAA) (15 

U.S.C. 272 note) directs agencies to use 

voluntary consensus standards in their 

regulatory activities unless the agency 

provides Congress, through the Office of 

Management and Budget, with an 

explanation of why using these 

standards would be inconsistent with 

applicable law or otherwise impractical. 

Voluntary consensus standards are 

technical standards (e.g., specifications 

of materials, performance, design, or 

operation; test methods; sampling 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 023–01 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

establishes a safety zone and therefore 

falls under the categorical exclusion in 

paragraph (34)(g). An environmental 

analysis checklist and a categorical 

exclusion determination are available in 

the docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; 

Pub. L. 107–295, 116 Stat. 2064; Department 

of Homeland Security Delegation No. 0170.1. 

■ 2. Add § 165.T01–0755 to read as 

follows: 

§ 165.T01–0755 Safety Zone: Robert 

Moses Causeway Bridge State Boat 

Channel, Captree, New York. 

(a) Location. The following area is a 

safety zone: All navigable waters of the 

Federal channel on the State Boat 

Channel in Captree, NY, from surface to 

bottom, within 100 yards to either side 

of the Robert Moses Causeway Bridge. 

(b) Definitions. The following 

definition applies to this section: 

Designated on-scene patrol personnel, 

means any commissioned, warrant and 

petty officers of the U.S. Coast Guard 

operating Coast Guard vessels who have 

been authorized to act on the behalf of 

the Captain of the Port Long Island 

Sound. 

(c) Regulations. (1) The general 

regulations contained in 33 CFR 165.23 

apply. 

(2) In accordance with the general 

regulations in § 165.23 of this part, entry 

into or movement within this zone is 

prohibited unless authorized by the 

Captain of the Port Long Island Sound. 

(3) All persons and vessels must 

comply with the Coast Guard Captain of 

the Port or the designated on-scene 

patrol personnel. 

(4) Upon being hailed by a U.S. Coast 

Guard vessel by siren, radio, flashing 

light or other means, the operator of the 

vessel must proceed as directed. 

(5) Persons and vessels may request 

permission to enter the zone on VHF– 

16 or via phone at (203) 468–4401. 

(d) Effective period. This rule is 

effective from September 8th, 2009, 

through May 28th, 2010, inclusive. 

Dated: September 4, 2009. 

Kevin C. Burke, 

Commander, U.S. Coast Guard, Acting 

Captain of the Port Long Island Sound. 

[FR Doc. E9–22981 Filed 9–23–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 36 

RIN 2900–AN26 

Loan Guaranty: Assistance to Eligible 

Individuals in Acquiring Specially 

Adapted Housing; Cost-ofConstruction Index 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document amends the 

Department of Veterans Affairs’ (VA’s) 

Loan Guaranty regulations concerning 

assistance to eligible individuals in 

acquiring specially adapted housing. 

This final rule implements provisions of 

the Housing and Economic Recovery 

Act of 2008, which authorized VA to 

provide for automatic annual increases 

in the dollar amounts available to 

certain Specially Adapted Housing grant 

recipients. 

DATES: Effective Date: October 26, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Katherine Faliski, Assistant Director for 

Loan Policy and Valuation, Loan 

Guaranty Service (26), Veterans Benefits 


cprice-sewell on DSK2BSOYB1PROD with RULES
48658 Federal Register / Vol. 74, No. 184 / Thursday, September 24, 2009 / Rules and Regulations 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420, (202) 461–9527. 

(This is not a toll-free telephone 

number.) 

SUPPLEMENTARY INFORMATION: In a 

document published in the Federal 

Register on May 12, 2009 (74 FR 22145), 

VA proposed to amend the Specially 

Adapted Housing (SAH) regulations (38 

CFR part 36, subpart C) to implement 

provisions of Public Law 110–289, the 

Housing and Economic Recovery Act of 

2008. Section 2605 of the law directed 

the Secretary of Veterans Affairs to 

establish a residential home cost-ofconstruction index for the purpose of 

increasing certain SAH grant amounts. It 

also authorized the Secretary to ‘‘use an 

index developed in the private sector 

that the Secretary determines is 

appropriate for [this purpose].’’ 

The comment period ended June 11, 

2009, and VA received only one 

response, which was from an 

association representing homebuilders. 

This commenter indicated its support 

for the proposed rule with regard to 

VA’s plan to implement ‘‘much needed 

increases in grant amounts that are 

provided to severely disabled Veterans’’ 

through the SAH program. However, the 

commenter disagreed with VA’s choice 

of index. 

VA proposed the Turner Building 

Cost Index (TBCI) for increasing the 

amounts of SAH grant assistance 

available. We based the choice mainly 

on the fact that the TBCI emphasizes the 

costs of labor and materials, rather than 

property values or sales prices. Since 

property values do not necessarily 

reflect the expense a Veteran or 

servicemember might have to incur 

when adapting a home, we believed the 

TBCI to be the best-suited index for the 

SAH program. 

The commenter pointed out that, in 

its opinion, the TBCI is not appropriate, 

because the TBCI measures primarily 

non-residential building construction 

costs. Instead, the commenter 

recommended that VA adopt an index 

like the U.S. Census Bureau’s Price 

Deflator Index of New One-Family 

Houses Under Construction (‘‘Fisher 

Index’’). The commenter stated that the 

Census Bureau’s Index is preferable to 

the TBCI because it tracks new homes 

under construction as opposed to nonresidential buildings. It also pointed out 

that the Fisher Index is developed by a 

Government organization whose 

methodology is readily available. 

Due to the commenter’s position, VA 

further researched the methodologies 

used to develop the various indices. VA 

discussed with representatives from 

Turner and the U.S. Census Bureau the 

strengths and weaknesses of applying 

each of their respective indices (the 

TBCI, the Fisher Index, and the 

Laspeyres Price Index) to the SAH 

program and determined that, at this 

time, the TBCI is the most appropriate 

for calculating the annual SAH 

increases. VA concurs with the 

commenter’s preference for a cost index 

that is maintained by a Government 

organization. However, VA points out 

that the indices produced by the U.S. 

Census Bureau are primarily valuedriven, as they are derived by 

subtracting the cost of land and ‘‘other 

costs not related to construction’’ from 

the value of the home. 

VA believes that, for the purposes of 

the SAH program, an index based on 

actual cost of materials and labor is 

more suitable than one based on the 

value of homes. The SAH authorizing 

statutes expressly require payment of 

SAH assistance based on ‘‘costs’’ to the 

individual. Section 2605 of the Housing 

and Economic Recovery Act of 2008 

also refers expressly to costs, not value. 

Additionally, VA has determined that, 

at least for the first year of 

implementation, the TBCI will afford 

Veterans more purchasing power when 

constructing or adapting a home than 

the Fisher or Laspeyres indices. 

Admittedly, the TBCI is not perfectly 

tailored for the SAH program. The 

commenter is correct in that the TBCI is 

mainly driven by commercial 

construction costs and that the statute 

refers to a residential index. 

VA has determined, however, that 

although the TBCI may not be intended 

for estimating residential construction 

costs in general, it is a reliable indicator 

for the types of residential costs unique 

to the SAH program. For instance, many 

Veterans need SAH assistance to 

reinforce their homes with steel piers, 

purchase wheelchair lifts, and pay 

engineering fees—all types of expenses 

not generally associated with residential 

construction, yet very relevant to 

Veterans who participate in the SAH 

program. Furthermore, VA analyzed 

data from the last forty years and saw 

that, had SAH assistance been tied to 

the TBCI during that time, today’s grant 

amount would be about $6,000 higher 

than had it been tied to the Fisher or 

Laspeyres. Given that the TBCI is costbased; the types of adaptations in the 

SAH program are not ‘‘typical’’ 

residential costs; the difference in the 

indices over four decades is relatively 

small; and the advantages of the TBCI 

weigh in a Veteran’s favor, we have 

decided to adopt the TBCI as the costof-construction index for determining 

fiscal year 2010 grant amounts. 

For the above reasons, we will not 

make any changes to the proposed rule 

based upon the comment we received. 

However, we will monitor the cost 

indices available in the marketplace and 

propose changes to VA’s Loan Guaranty 

regulations if we determine that 

increases in SAH grant amounts should 

be based upon an alternative cost-ofconstruction index. 

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 would have no such 

effect on State, local, and tribal 

governments, or on the private sector. 

Paperwork Reduction Act 

This document contains no provisions 

constituting collections of information. 

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 regulatory 

action as a ‘‘significant regulatory 

action,’’ requiring review by the Office 

of Management and Budget (OMB) 

unless OMB waives such a review, if it 

is a 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. 

The economic, interagency, 

budgetary, legal, and policy 

implications of this final rule have been 

examined, and it has been determined 


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Federal Register / Vol. 74, No. 184 / Thursday, September 24, 2009 / Rules and Regulations 48659 

not to be a significant regulatory action 

under Executive Order 12866. 

Regulatory Flexibility Act 

The Secretary hereby certifies that the 

adoption of the 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 et seq. This 

final rule will directly affect only 

individuals and will not directly affect 

small entities. Therefore, pursuant to 5 

U.S.C. 605(b), the rule is 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 

64.106, Specially Adapted Housing for 

Disabled Veterans; and 64.118, Veterans 

Housing—Direct Loans for Certain 

Disabled Veterans. 

Lists of Subjects in 38 CFR Part 36 

Condominiums, Housing, Indians, 

Individuals with disabilities, Loan 

programs—housing and community 

development, Loan programs—Indians, 

Loan programs—veterans, Manufactured 

homes, Mortgage insurance, Reporting 

and recordkeeping requirements, 

Veterans. 

Approved: September 15, 2009. 

John R. Gingrich, 

Chief of Staff, Department of Veterans Affairs. 

■ For the reasons set out in the 

preamble, VA amends 38 CFR part 36 

(Subpart C) as set forth below. 

PART 36—LOAN GUARANTY 

■ 1. The authority citation for part 36 

continues to read as follows: 

Authority: 38 U.S.C. 501 and as otherwise 

noted. 

Subpart C—Assistance to Certain 

Disabled Veterans in Acquiring 

Specially Adapted Housing 

■ 2. Add § 36.4412 to read as follows: 

§ 36.4412 Annual adjustments to the 

aggregate amount of assistance available. 

(a) On October 1 of each year, the 

Secretary will increase the aggregate 

amounts of assistance available for 

grants authorized under 38 U.S.C. 

2101(a) and 2101(b). Such increase will 

be equal to the percentage by which the 

Turner Building Cost Index for the most 

recent calendar year exceeds that of the 

next preceding calendar year. 

(b) Notwithstanding paragraph (a) of 

this section, if the Turner Building Cost 

Index for the most recent full calendar 

year is equal to or less than the next 

preceding calendar year, the percentage 

increase will be zero. 

(c) No later than September 30 of each 

year, the Secretary will publish in the 

Federal Register the aggregate amounts 

of assistance available for the upcoming 

fiscal year. 

(Authority: 38 U.S.C. 2102(e)) 

[FR Doc. E9–23022 Filed 9–23–09; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R05–OAR–2009–0293; FRL–8961–6] 

Approval and Promulgation of Air 

Quality Implementation Plans; Indiana; 

Lead (Pb) Maintenance Plan Update for 

Marion County 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is approving a request 

submitted by the Indiana Department of 

Environmental Management (IDEM) on 

April 1, 2009, to revise the Indiana State 

Implementation Plan (SIP) for lead (Pb). 

The State has submitted an update to its 

Pb maintenance plan for Marion County 

for continued attainment of the 1.5 

micrograms per cubic meter (μg/m3) 

National Ambient Air Quality Standard 

(NAAQS) promulgated in 1978. This 

update satisfies section 175A of the 

Clean Air Act (CAA), and is in 

accordance with EPA’s May 10, 2000, 

approval of the State’s Redesignation 

Request and Maintenance Plan for the 

Marion County Pb nonattainment areas. 

Additionally, this Pb maintenance plan 

satisfies the requirements for 

maintenance plans contained in the 

September 4, 1992, EPA memorandum 

entitled ‘‘Procedures for Processing 

Requests to Redesignate Areas to 

Attainment.’’ 

DATES: This direct final will be effective 

November 23, 2009, unless EPA receives 

adverse comments by October 26, 2009. 

If adverse comments are received, EPA 

will publish a timely withdrawal of the 

direct final rule in the Federal Register 

informing the public that the rule will 

not take effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R05– 

OAR–2009–0293, by one of the 

following methods: 

1. http://www.regulations.gov: Follow 

the on-line instructions for submitting 

comments. 

2. E-mail: mooney.john@epa.gov. 

3. Fax: (312) 692–2551. 

4. Mail: John M. Mooney, Chief, 

Criteria Pollutant Section, Air Programs 

Branch (AR–18J), U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, Chicago, Illinois 60604. 

5. Hand Delivery: John M. Mooney, 

Chief, Criteria Pollutant Section, Air 

Programs Branch (AR–18J), U.S. 

Environmental Protection Agency, 77 

West Jackson Boulevard, Chicago, 

Illinois 60604. Such deliveries are only 

accepted during the Regional Office 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. The 

Regional Office official hours of 

business are Monday through Friday, 

8:30 a.m. to 4:30 p.m., excluding 

Federal holidays. 

Instructions: Direct your comments to 

Docket ID No. EPA–R05–OAR–2009– 

0293. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 


cprice-sewell on DSK2BSOYB1PROD with RULES