Federal Register / Vol. 77, No. 86 / Thursday, May 3, 2012 / Rules and Regulations 26181 

proceeds from the refinancing of 

indebtedness or additional mortgages 

that are in excess of qualifying building 

costs are not considered cash available 

for distribution. 

(iii) Anti-abuse rule. The 

Commissioner will interpret and apply 

the rules in this paragraph (c)(6) as 

necessary and appropriate to prevent 

manipulation of the qualified contract 

amount. For example, cash distributions 

include payments to owners or persons 

whose relation to owners is described in 

section 267(b) or section 707(b) for any 

operating expenses in excess of amounts 

reasonable under the circumstances. 

(d) Administrative discretion and 

responsibilities of the Agency—(1) In 

general. An Agency may exercise 

administrative discretion in evaluating 

and acting upon an owner’s request to 

find a buyer to acquire the building. An 

Agency may establish reasonable 

requirements for written requests and 

may determine whether failure to follow 

one or more applicable requirements 

automatically prevents a purported 

written request from beginning the oneyear period described in section 

42(h)(6)(I). If the one-year-period has 

already begun, the Agency may 

determine whether failure to follow one 

or more requirements suspends the 

running of that period. Examples of 

Agency administrative discretion 

include, but are not limited to, the 

following: 

(i) Concluding that the owner’s 

request lacks essential information and 

denying the request until such 

information is provided. 

(ii) Refusing to consider an owner’s 

representations without substantiating 

documentation verified with the 

Agency’s records. 

(iii) Determining how many, if any, 

subsequent requests to find a buyer may 

be submitted if the owner has 

previously submitted a request for a 

qualified contract and then rejected or 

failed to act upon a qualified contract 

presented by the Agency. 

(iv) Assessing and charging the owner 

certain administrative fees for the 

performance of services in obtaining a 

qualified contract (for example, real 

estate appraiser costs). 

(v) Requiring all appraisers involved 

in the qualified contract process to be 

State certified general appraisers that 

are acceptable to the Agency. 

(vi) Specifying other conditions 

applicable to the qualified contract 

consistent with section 42 and this 

section. 

(2) Actual offer. Upon receipt of a 

written request from the owner to find 

a person to acquire the building, the 

Agency must offer the building for sale 

to the general public, based on 

reasonable efforts, at the determined 

qualified contract amount in order for 

the qualified contract to satisfy the 

requirements of this section unless the 

Agency has already identified a willing 

buyer who submitted a qualified 

contract to purchase the project. 

(3) Debarment of certain appraisers. 

Agencies shall not utilize any 

individual or organization as an 

appraiser if that individual or 

organization is currently on any list for 

active suspension or revocation for 

performing appraisals in any State or is 

listed on the Excluded Parties Lists 

System (EPLS) maintained by the 

General Services Administration for the 

United States Government found at 

www.epls.gov. 

(e) Effective date/applicability date. 

These regulations are applicable to 

owner requests to housing credit 

agencies on or after May 3, 2012 to 

obtain a qualified contract for the 

acquisition of a low-income housing 

credit building. 

PART 602—OMB CONTROL NUMBERS 

UNDER THE PAPERWORK 

REDUCTION ACT 

■ Par. 3. The authority citation for part 

602 continues to read as follows: 

Authority: 26 U.S.C. 7805. 

■ Par. 4. In § 602.101, paragraph (b) is 

amended by adding an entry to the table 

in numerical order to read, in part, as 

follows: 

§ 602.101 OMB Control numbers. 

* * * * * 

(b) * * * 

CFR part or section where 

identified and described 

Current OMB 

control No. 

* * * * * 

1.42–18 ................................. 1545–2088 

* * * * * 

Steven T. Miller, 

Deputy Commissioner for Services and 

Enforcement. 

Approved: April 24, 2012. 

Emily S. McMahon, 

Acting Assistant Secretary of the Treasury 

(Tax Policy). 

[FR Doc. 2012–10638 Filed 5–2–12; 8:45 am] 

BILLING CODE 4830–01–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 0 

[CIV Docket No. 152; AG Order No. 3330– 

2012] 

Authorization To Redelegate 

Settlement Authority for Claims 

Submitted Under the Federal Tort 

Claims Act 

AGENCY: Department of Justice. 

ACTION: Final rule. 

SUMMARY: The Department of Justice is 

amending its internal organizational 

regulations to clarify the authority of the 

respective agency heads of the Bureau of 

Prisons, the Federal Prison Industries, 

the United States Marshals Service, the 

Drug Enforcement Administration, the 

Federal Bureau of Investigation, and the 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives to settle claims under 

the Federal Tort Claims Act. 

DATES: This rule is effective June 4, 

2012. 

FOR FURTHER INFORMATION CONTACT: 

Phyllis J. Pyles, Director, Torts Branch, 

Civil Division, Department of Justice, 

1331 Pennsylvania Avenue NW., 

Washington, DC 20004; telephone: 202– 

616–4400. 

SUPPLEMENTARY INFORMATION: 

Background 

The Federal Tort Claims Act (FTCA), 

28 U.S.C. 1346(b), 2671–2680, provides 

a remedy for injury or loss of property, 

or personal injury or death caused by 

the negligent or wrongful act or 

omission of any employee of the 

Government while acting within the 

scope of his office or employment, 

under circumstances where the United 

States, if a private person, would be 

liable to the claimant in accordance 

with the law of the place where the act 

or omission occurred. Prior to filing 

suit, a claimant must file an 

administrative tort claim with the 

appropriate agency. 28 U.S.C. 2675. 

Pursuant to 28 U.S.C. 2672, the head of 

each Federal agency or his designee, in 

accordance with regulations prescribed 

by the Attorney General, may consider, 

ascertain, adjust, determine, 

compromise, and settle FTCA claims. 

In the present organizational 

regulations of the Department of Justice, 

the Attorney General delegated his 

authority to settle FTCA claims for 

amounts of $50,000 or less to the 

Director of the Bureau of Prisons, the 

Commissioner of Federal Prison 

Industries, the Commissioner of the 

Immigration and Naturalization Service 

(INS), the Director of the United States 


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26182 Federal Register / Vol. 77, No. 86 / Thursday, May 3, 2012 / Rules and Regulations 

Marshals Service, and the Administrator 

of the Drug Enforcement Administration 

(28 CFR 0.172), and to the Director of 

the Federal Bureau of Investigation (FBI) 

(28 CFR 0.89a) and the Director of the 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives (ATF) (28 CFR 0.132). 

The Director of the FBI is further 

authorized to redelegate this authority 

to the FBI General Counsel or his 

designee within the Office of the 

General Counsel or to the primary legal 

advisers of the FBI field offices. 

This rule amends §§ 0.89a, 0.132, and 

0.172 in order to ensure conformity 

across the different components of the 

Department of Justice, to update agency 

references, and to clarify the scope of 

the delegated FTCA settlement 

authority. In addition, the FTCA 

settlement authority of the Director of 

the FBI, currently contained in § 0.89a, 

and of the Director of ATF, currently 

contained in § 0.132, are being 

transferred by this rule to § 0.172, where 

the FTCA settlement authority of the 

other specified Department component 

heads is located. 

Section 0.172 is being amended to 

remove a reference to the Commissioner 

of the INS. Pursuant to the Homeland 

Security Act of 2002, the functions of 

the former INS were transferred to the 

Department of Homeland Security. 

Section 0.172 also is being amended to 

clarify that the approval of the Assistant 

Attorney General in charge of the Civil 

Division will be required if two or more 

claims arise from the same subject 

matter and the aggregate amount of the 

settlement would exceed $50,000. In 

addition, § 0.172 is being amended to 

clarify when proposed settlements, 

regardless of amount, should be referred 

to the Assistant Attorney General in 

charge of the Civil Division. In 

particular, § 0.172 is being amended to 

require the referral of settlements to the 

Assistant Attorney General in charge of 

the Civil Division or his delegee, if the 

settlement, as a practical matter, would 

or may control or adversely influence 

the disposition of other claims and the 

total settlement value of all claims 

would or may exceed $50,000; or if, in 

the opinion of the head of the referring 

component, the settlement presents a 

question of law or policy or other issue 

that should receive the personal 

attention of the Assistant Attorney 

General or his delegee. Section 0.172 

also is being amended to more closely 

conform to the language contained in 28 

U.S.C. 2672 by clarifying that the 

Attorney General’s delegees have the 

authority to consider or ascertain claims 

involving their respective agencies, in 

addition to their authority to adjust, 

determine, compromise, and settle such 

claims. 

Finally, § 0.132 is being amended to 

allow the Director of ATF to delegate 

this authority under § 0.172 to the 

agency’s Chief Counsel and to allow the 

Chief Counsel to redelegate this 

authority to attorneys within the Office 

of Chief Counsel, but not below the 

Associate Chief Counsel level, provided 

that the settlement of any one claim 

does not exceed $50,000. Without this 

provision for delegation and 

redelegation, the ATF Director must 

personally approve all submitted FTCA 

claims, regardless of size or merit. This 

rule provides flexibility to the Director 

of ATF and is consistent with the 

redelegation authority of the FBI 

Director under current § 0.89a(c) (which 

is being redesignated by this rule as 

§ 0.89a(b)). With this flexibility, the ATF 

can more efficiently process FTCA 

claims. 

The Attorney General believes that 

consolidating under § 0.172 the 

authority of heads of certain 

components within the Department of 

Justice to settle FTCA claims and 

ensuring uniform language across 

§§ 0.89a, 0.132, and 0.172 that is 

consistent with 28 U.S.C. 2672 will 

facilitate more consistent treatment of 

these claims. 

Administrative Procedure Act (APA) 

Notice and comment rulemaking is 

not required for this final rule. Under 

the APA, ‘‘rules of agency organization, 

procedure or practice,’’ 5 U.S.C. 

553(b)(A), that do not ‘‘affect[] 

individual rights and obligations,’’ 

Morton v. Ruiz, 415 U.S. 199, 232 

(1974), are exempt from the general 

notice and comment requirements of 

section 553. See JEM Broad. Co. v. FCC, 

22 F.3d 320, 326 (D.C. Cir. 1994) 

(holding that the procedural exception 

applies to ‘‘agency actions that do not 

themselves alter the rights or interests of 

parties, although [they] may alter the 

manner in which the parties present 

themselves or their viewpoints to the 

agency’’ (quoting Batterton v. Marshall, 

648 F.2d 694, 707 (D.C. Cir. 1980) 

(internal quotation marks omitted)). The 

revision to 28 CFR 0.89a, 0.132, and 

0.172 is purely a matter of agency 

organization, procedure, and practice. 

The final rule will not affect substantive 

rights or interests of persons presenting 

their FTCA claims to the relevant 

agencies of the Department of Justice. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act, 5 

U.S.C. 605(b), has reviewed this rule 

and, by approving it, certifies that it will 

not have a significant economic impact 

on a substantial number of small entities 

because it pertains to personnel and 

administrative matters affecting the 

Department. Further, a Regulatory 

Flexibility Analysis is not required for 

this final rule because the Department 

was not required to publish a general 

notice of proposed rulemaking for this 

matter. 

Executive Orders 12866 and 13563— 

Regulatory Review 

This rule has been drafted and 

reviewed in accordance with Executive 

Order 12866, Regulatory Planning and 

Review, section 1(b), Principles of 

Regulation, and in accordance with 

Executive Order 13563, Improving 

Regulation and Regulatory Review, 

section 1(b), General Principles of 

Regulation. This rule is limited to 

agency organization, management, or 

personnel matters as described by 

Executive Order 12866, section 3(d)(3), 

and therefore is not a ‘‘regulation’’ or 

‘‘rule’’ as defined by Executive Order 

12866. Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The 

Department has assessed the costs and 

benefits of this rule and believes that the 

regulatory approach selected maximizes 

net benefits. 

Executive Order 12988 

This regulation meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform. 

Executive Order 13132 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

Federalism, the Department has 

determined that this rule does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1501 et seq. 


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Federal Register / Vol. 77, No. 86 / Thursday, May 3, 2012 / Rules and Regulations 26183 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA), 5 U.S.C. 

804. This rule will not result in an 

annual effect on the economy of $100 

million or more; a major increase in 

costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

Congressional Review Act 

This action pertains to agency 

management, personnel, and 

organization and does not substantially 

affect the rights or obligations of nonagency parties. Accordingly, it is not a 

‘‘rule’’ for purposes of the reporting 

requirement of 5 U.S.C. 801. 

List of Subjects in 28 CFR Part 0 

Authority delegations (Government 

agencies), Government employees, 

Organization and functions 

(Government agencies), Privacy, 

Reporting and recordkeeping 

requirements, Whistleblowing. 

Authority and Issuance 

Accordingly, by virtue of the 

authority vested in me as Attorney 

General, including 5 U.S.C. 301, and 28 

U.S.C. 509, 510, and for the reasons set 

forth in the preamble, part 0 of title 28 

of the Code of Federal Regulations is 

amended as follows: 

PART 0—ORGANIZATION OF THE 

DEPARTMENT OF JUSTICE 

■ 1. The authority citation for 28 CFR 

Part 0 continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510, 515–519. 

§ 0.89a [Amended] 

■ 2. Section 0.89a is amended by— 

■ a. Removing paragraph (a); 

■ b. Redesignating paragraphs (b) and 

(c) as paragraphs (a) and (b), 

respectively; 

■ c. Removing the word ‘‘further’’ from 

newly redesignated paragraph (a); 

■ d. Adding a comma after the 

parenthetical ‘‘(31 U.S.C. 3274)’’ in 

newly redesignated paragraph (a); and 

■ e. Removing the words ‘‘by 

paragraphs (a) and (b) of this section’’ 

from newly redesignated paragraph (b) 

and adding in their place the words ‘‘by 

paragraph (a) of this section and by 28 

CFR 0.172’’. 

§ 0.132 [Amended] 

■ 3. Section 0.132 is amended by— 

■ a. Removing paragraph (a); 

■ b. Redesignating paragraphs (b) and 

(c) as paragraphs (a) and (b), 

respectively; 

■ c. Adding a comma after the word 

‘‘personnel’’ in newly redesignated 

paragraph (a); and 

■ d. Removing the words ‘‘in paragraph 

(b) of this section’’ from newly 

redesignated paragraph (b) and adding 

in their place the words ‘‘by paragraph 

(a) of this section and by 28 CFR 0.172’’. 

■ 4. Section 0.172 is revised to read as 

follows: 

§ 0.172 Authority: Federal tort claims. 

(a) Delegation of authority. Subject to 

the limitations set forth in paragraph (b) 

of this section, the Director of the 

Bureau of Prisons, the Commissioner of 

Federal Prison Industries, the Director 

of the United States Marshals Service, 

the Administrator of the Drug 

Enforcement Administration, the 

Director of the Federal Bureau of 

Investigation, and the Director of the 

Bureau of Alcohol, Tobacco, Firearms, 

and Explosives shall have authority 

under section 2672 of title 28, United 

States Code, relating to the 

administrative settlement of Federal tort 

claims, to consider, ascertain, adjust, 

determine, compromise, and settle any 

claim involving their respective 

components, provided that any award, 

compromise, or settlement shall not 

exceed $50,000. 

(b) Limitations on authority. Any 

proposed award, compromise, or 

settlement under section 2672 of title 

28, United States Code, must be referred 

to the Assistant Attorney General in 

charge of the Civil Division, or his 

delegee, when— 

(1) Because a significant question of 

law or policy is presented, or for any 

other reason, the head of the referring 

component is of the opinion that the 

proposed award, compromise, or 

settlement should receive the personal 

attention of the Assistant Attorney 

General or his delegee; 

(2) Two or more claims arise from the 

same subject matter and the total 

amount of any award, compromise, or 

settlement of all claims will or may 

exceed $50,000; or 

(3) The award, compromise, or 

settlement of a particular claim, as a 

practical matter, will or may control or 

adversely influence the disposition of 

other claims and the total settlement 

value of all claims will or may exceed 

$50,000. 

(c) Subject to the provisions of 

§ 0.160, the Assistant Attorney General 

in charge of the Civil Division shall 

have authority to consider, ascertain, 

adjust, determine, compromise, and 

settle any other claim involving the 

Department under section 2672, of title 

28, U.S. Code, relating to the 

administrative settlement of Federal tort 

claims. 

Dated: April 27, 2012. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2012–10641 Filed 5–2–12; 8:45 am] 

BILLING CODE 4410–12–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 51 

RIN 2900–AO02 

Technical Revisions To Update 

Reference to the Required Assessment 

Tool for State Nursing Homes 

Receiving Per Diem Payments From 

VA 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This rule updates the 

reference to the required resident 

assessment tool for State homes that 

receive per diem from VA for providing 

nursing home care to veterans. It 

requires State nursing homes receiving 

per diem from VA to use the most recent 

version of the Centers for Medicare and 

Medicaid Services (CMS) Resident 

Assessment Instrument/Minimum Data 

Set (MDS), which is version 3.0. This 

will ensure that the standard used to 

assess veterans is the same as the 

standard applicable to Medicare and 

Medicaid beneficiaries. 

DATES: This final rule is effective June 

4, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Nancy Quest, Director, Home and 

Community Based Services, Geriatrics 

and Extended Care Services (10P4G), 

Veterans Health Administration, 

Department of Veterans Affairs, 810 

Vermont Avenue NW., Washington, DC 

20420, (202) 461–6064. (This is not a 

toll free number.) 

SUPPLEMENTARY INFORMATION: This 

document adopts as a final rule without 

change a proposed rule amending the 

Department of Veterans Affairs (VA) 

regulations. On November 10, 2011, VA 

published in the Federal Register (76 

FR 70076) a proposal to amend VA 

regulations to update the reference to 

the required resident assessment tool for 

State homes providing nursing home 

care, CMS Resident Assessment 


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