71772 Federal Register / Vol. 70, No. 229 / Wednesday, November 30, 2005 / Rules and Regulations 

create a safe harbor for nonjurisdictional utilities that wish to 

interconnect new generation without 

jeopardizing their non-jurisdictional 

status. 

Request for Rehearing 

107. NRECA repeats here the same 

request it made in the Large Generator 

Interconnection proceeding that the 

Commission create a safe harbor to 

allow non-jurisdictional utilities to 

avoid the sometimes cumbersome 

process of interconnecting new 

generators under FPA sections 210, 211, 

and 212. NRECA also points out that 

many cooperatives are not ‘‘transmitting 

utilities’’ as defined in the FPA and that 

section 211 only applies to 

interconnections with ‘‘transmitting 

utilities.’’ Specifically, NRECA asks the 

Commission to clarify that a cooperative 

may settle a section 211 case and agree 

to provide wheeling services without 

that settlement being considered a 

‘‘voluntary’’ service offering. 

Commission Conclusion 

108. As the Commission stated in 

Order No. 2006, FPA section 211 

already allows a non-public utility to 

safeguard its non-jurisdictional status. 

We see no need to create a second 

method of doing the same thing. NRECA 

also asks whether a cooperative may 

settle a section 211 case and agree to 

provide wheeling services without that 

settlement being considered a 

‘‘voluntary’’ service offering. That issue 

is outside the scope of this rulemaking. 

In this rulemaking proceeding, the 

Commission is acting under its FPA 

section 205 authority, and does not 

address obligations under sections 210, 

211, or 212. 

IV. Information Collection Statement 

109. Order No. 2006 contains 

information collection requirements for 

which the Commission obtained 

approval from the Office of Management 

and Budget (OMB). The OMB Control 

Number for this collection of 

information is 1902–0203. This order 

denies most rehearing requests, clarifies 

the provisions of Order No. 2006, and 

grants rehearing on only three minor 

issues. This order does not make 

substantive modifications to the 

Commission’s information collection 

requirements and, accordingly, OMB 

approval for this order is not necessary. 

However, the Commission will send a 

copy of this order to OMB for 

informational purposes. 

V. Document Availability 

110. In addition to publishing the full 

text of this document in the Federal 

Register, interested persons may obtain 

this document from the Commission’s 

Public Reference Room during normal 

business hours (8:30 a.m. to 5 p.m. 

Eastern Time) at 888 First Street, NE., 

Room 2A, Washington, DC. This 

document is also available 

electronically from the Commission’s 

eLibrary system (http://www.ferc.gov/ 

docs-filing/elibrary.asp) in PDF and 

Microsoft Word format. To access this 

document in eLibrary, type ‘‘RM02–

12–’’ in the docket number field and 

specify a date range that includes this 

document’s issuance date. User 

assistance is available for eLibrary and 

the Commission’s website during 

normal business hours from the 

Commission’s Help Line at 202–502–

8222 or the Public Reference Room at 

202–502–8371 Press 0, TTY 202–502–

8659. E-Mail the Public Reference Room 

at public.referenceroom@ferc.gov. 

VI. Effective Date 

111. Changes to Order No. 2006 made 

in this Order on Rehearing will become 

effective on December 30, 2005. 

List of Subjects in 18 CFR Part 35 

Electric power rates, Electric utilities, 

Reporting and recordkeeping 

requirements. 

By the Commission. 

Magalie R. Salas, 

Secretary. 

The Appendices will not be published in 

the Federal Register or the Code of Federal 

Regulations. 

[FR Doc. 05–23461 Filed 11–29–05; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AJ28 

Medical: Advance Health Care 

Planning 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document amends VA 

medical regulations to codify VA policy 

regarding advance health care planning. 

The final rule sets forth a mechanism for 

the use of written advance directives, 

i.e., a VA living will, a VA durable 

power of attorney for health care, and a 

State-authorized advance directive. The 

final rule also sets forth a mechanism 

for honoring verbal or non-verbal 

instructions from a patient when the 

patient is admitted to care when 

critically ill and loss of capacity may be 

imminent and the patient is not 

physically able to sign an advance 

directive form, or the appropriate form 

is not readily available. This is intended 

to help ensure that VA acts in 

compliance with patients’ wishes 

concerning future health care. 

DATES: Effective Date: December 30, 

2005. 

FOR FURTHER INFORMATION CONTACT: 

Ruth Cecire, Ph.D., Policy Analyst, 

Ethics Policy Service, National Center 

for Ethics in Health Care (10E), Veterans 

Health Administration, Department of 

Veterans Affairs, 810 Vermont Avenue, 

NW., Washington, DC 20420; 202–501–

0364 (this is not a toll-free number). 

SUPPLEMENTARY INFORMATION: In a 

document published in the Federal 

Register on November 2, 1998 (63 FR 

58677), the Department of Veterans 

Affairs (VA) proposed to amend its 

medical regulations (38 CFR part 17) to 

codify VA policy concerning advance 

health care planning. Advance health 

care planning provides an opportunity 

for patients to give guidance to their 

caregivers regarding their treatment 

preferences for the future should they 

become incapable of participating fully 

in the decision-making process. We 

requested comments for a 60-day period 

that ended January 4, 1999. We received 

three comments. Based on the rationale 

set forth in the proposed rule and this 

document, we are adopting the 

proposed rule as a final rule with the 

changes indicated below. 

This final rule sets forth a mechanism 

for the use of written advance 

directives, i.e., a VA living will, a VA 

durable power of attorney for health 

care, and a State-authorized advance 

directive. The rule also sets forth a 

mechanism for honoring verbal or nonverbal instructions from a patient when 

the patient is admitted to care when 

critically ill and loss of capacity may be 

imminent and the patient is not 

physically able to sign an advance 

directive form, or the appropriate form 

is not readily available. The advance 

health care planning discussion and 

completion of a written advance 

directive ideally would take place prior 

to a patient being admitted to care in a 

crisis situation. However, we recognize 

that this is not always the case. The 

mechanism for honoring the verbal and 

non-verbal instructions of patients in 

this circumstance enables such patients 

to communicate their preferences 

regarding their future health care and 

ensures this information will be 

carefully documented in the patient’s 

health record and available to guide 

caregivers should the patient lose 

capacity. The final rule also states that 

Federal Register / Vol. 70, No. 229 / Wednesday, November 30, 2005 / Rules and Regulations 71773 

a patient who has decision-making 

capacity may revoke an advance 

directive or instructions in a critical 

situation at any time by using any 

means expressing the intent to revoke. 

In addition, the final rule emphasizes 

the obligation of any surrogate, 

including a health care agent named in 

the advance directive, making decisions 

on behalf of a patient who lacks 

decision-making capacity, to act in 

compliance with the patient’s clearly 

expressed wishes. The term surrogate is 

defined in 38 CFR 17.32(a). Those 

authorized to act as surrogates under VA 

policy are identified in 38 CFR 17.32(e). 

One commenter requested 

clarification regarding proposed 

§ 17.32(h)(2), which describes 

‘‘Instructions in Critical Situations,’’

particularly with respect to the meaning 

of ‘‘non-verbal instructions.’’ The 

commenter suggests that ‘‘specific 

guidelines must be established’’ to 

define what would constitute acceptable 

instructions. We agree with the 

commenter’s point that this paragraph 

could be more explicit, but do not 

believe it would be possible, for 

example, to specify all of the possible 

variety and appearances in the way that 

a patient who is unable to speak or write 

might use to communicate. In the final 

rule we are modifying this paragraph to 

state more clearly the circumstances and 

types of instructions to which this 

paragraph would apply. Those changes 

include adding that the patient must 

have decision-making capacity and the 

patient’s verbal or non-verbal 

instructions must be unambiguous. 

A second commenter suggested that 

the language in proposed § 17.32(h)(1), 

which describes ‘‘Witnesses,’’ was 

overly restrictive, and could be 

interpreted to prevent appropriate 

individuals from serving as a witness. 

The commenter stated: ‘‘Since a 

witness’’ sole function is to attest to the 

fact that the witness saw the patient sign 

the VA Living Will or VA Durable 

Power of Attorney for Health Care, the 

general rule should be that a witness’

potential conflict of interest in making 

that attestation may be raised by any 

person seeking to challenge the validity 

and enforceability of the VA Living Will 

or VA Durable Power of Attorney for 

Health Care, as part of an attempt to 

discredit the truth of the witness’

attestation.’’ We agree and in the final 

rule are modifying this paragraph to 

make the requirements less restrictive. 

However, we continue to think it best, 

in order to avoid even the appearance of 

a conflict of interest, that persons 

named in the patient’s will, or as health 

care agent in the advance directive, or 

financially responsible for the patient’s 

care, should not sign as witnesses on the 

advance directive form. In the final rule 

we are removing the proposed rule’s 

requirement that the witness not be 

‘‘entitled to, or a claimant against, any 

portion of the patient’s estate; or be 

financially responsible for the patient’s 

care’’ and replacing it with the 

requirement that the witness not ‘‘to the 

witnesses’’ knowledge be named in the 

patient’s will, appointed as health care 

agent in the advance directive, or 

financially responsible for the patient’s 

care.’’ The VA Advance Directive: 

Living Will and Durable Power of 

Attorney for Health Care form expressly 

provides that by signing the form, the 

witness attests to the fact that he or she 

lacks such knowledge. In the final rule, 

we are also removing, because we have 

concluded that it is unnecessarily 

restrictive, the proposed rule’s 

requirement that VA employees of the 

Chaplain Service, Psychology Service, 

Social Work Service, or nonclinical 

employees (e.g., Medical Administration 

Service, Voluntary Service or 

Environmental Management Service) 

may serve as witnesses only ‘‘when 

other witnesses are not reasonably 

available.’’

The third commenter expressed 

concern that the proposed rule ‘‘is 

supposed to address VA employees’

responsibilities in following patient’s 

expressed desires in end-of-life 

decisions,’’ but did not go far enough to 

clarify the weight carried by the 

patient’s expressed desires, e.g., when 

there is a dispute about the legitimacy 

of a State-authorized advance directive. 

Such a dispute might occur, for 

example, if the veteran completed the 

State-authorized advance directive 

while living in one State and later 

relocated to another jurisdiction. It is 

our intention that the reference to 

‘‘applicable State law’’ in the definition 

of State-authorized advance directive be 

broadly interpreted for the convenience 

and benefit of VA patients. Indeed, the 

chief purpose of the rule is to assure 

that VA employees and surrogates 

comply with patients’ clearly expressed 

wishes to the greatest extent possible. 

We are therefore in the final rule 

specifying that, ‘‘[f]or the purposes of 

this paragraph and paragraph (h) of this 

section, ‘applicable State law’ means the 

law of the State where the advance 

directive was signed, the State where 

the patient resided when the advance 

directive was signed, the State where 

the patient now resides, or the State 

where the patient is receiving treatment. 

VA will resolve any conflict between 

those State laws regarding the validity 

of the advance directive by following 

the law of the State that gives effect to 

the expressed wishes in the advance 

directive.’’ We also are making changes 

in the opening paragraph of § 17.32(h) to 

clarify that ‘‘[a]n advance directive that 

is valid in one or more States under 

applicable State law, as defined in 

paragraph (a) of this section, will be 

recognized throughout the VA health 

care system.’’

We are also adding in the final rule 

nonsubstantive changes for purposes of 

clarification. These include adding a 

revision of the authority citation for 

§ 17.32 to reflect that this rule is issued 

under the authority of 38 U.S.C. 7331 

through 7334. 

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 an 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

given year. This rule would have no 

such effect on State, local, or tribal 

governments, or the private sector. 

Paperwork Reduction Act of 1995 

Two collection of information 

requirements that are related to 38 CFR 

17.32 are currently approved by the 

Office of Management and Budget 

(OMB) under the provisions of the 

Paperwork Reduction Act (44 U.S.C. 

3501–3521). OMB has approved 

collection of information requirements 

for § 17.32 under OMB control number 

2900–0583. In addition, OMB has 

approved the information collection 

requirements in VA Form 10–0137, VA 

Advance Directive: Living Will and 

Durable Power of Attorney for Health 

Care, under OMB control number 2900–

0556. The references in the final rule to 

a VA Living Will or to a VA Durable 

Power of Attorney for Health Care are to 

that form. No new collections of 

information are associated with this 

final rule. 

Executive Order 12866 

This document has been reviewed by 

the Office of Management and Budget 

under Executive Order 12866. 

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. The rule will 

affect only individuals and will not 

directly affect any small entities. 

71774 Federal Register / Vol. 70, No. 229 / Wednesday, November 30, 2005 / Rules and Regulations 

Therefore, pursuant to 5 U.S.C. 605(b), 

this rule is exempt from the initial and 

final regulatory flexibility analysis 

requirements of sections 603 and 604. 

Catalog of Federal Domestic Assistance 

There are no applicable Catalog of 

Federal Domestic Assistance program 

numbers. 

List of Subjects in 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, 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. 

Approved: July 15, 2005. 

R. James Nicholson, 

Secretary of Veterans Affairs. 

■ For the reasons set out above, 38 CFR 

part 17 is amended to read as follows: 

PART 17—MEDICAL 

■ 1. The authority citation for part 17 is 

revised to read as follows: 

Authority: 38 U.S.C. 501, 1721, and as 

stated in specific sections. 

■ 2. Section 17.32 is amended by: 

■ a. Revising the section heading and 

authority citation. 

■ b. In paragraph (a), adding a new 

definition in alphabetical order. 

■ c. Adding paragraph (h) immediately 

following paragraph (g)(4). 

The revisions and additions read as 

follows: 

§ 17.32 Informed consent and advance 

health care planning. 

(a) * * * 

Advance Directive. Specific written 

statements made by a patient who has 

decision-making capacity regarding 

future health care decisions in any of 

the following: 

(i) VA Living Will. A written statement 

made by a patient on an authorized VA 

form which sets forth the patient’s 

wishes regarding the patient’s health 

care treatment preferences including the 

withholding and withdrawal of lifesustaining treatment. 

(ii) VA Durable Power of Attorney for 

Health Care. A written instruction on a 

VA form which designates the patient’s 

choice of health care agent. 

(iii) State-Authorized Advance 

Directive. A non-VA living will, durable 

power of attorney for health care, or 

other advance health care planning 

document, the validity of which is 

determined pursuant to applicable State 

law. For the purposes of this paragraph 

and paragraph (h) of this section, 

‘‘applicable State law’’ means the law of 

the State where the advance directive 

was signed, the State where the patient 

resided when the advance directive was 

signed, the State where the patient now 

resides, or the State where the patient is 

receiving treatment. VA will resolve any 

conflict between those State laws 

regarding the validity of the advance 

directive by following the law of the 

State that gives effect to the expressed 

wishes in the advance directive. 

* * * * * 

(h) Advance health care planning. 

Subject to the provisions of paragraphs 

(h)(1) through (h)(4) of this section, VA 

will follow the wishes of a patient 

expressed in an Advance Directive 

when the attending physician 

determines and documents in the 

patient’s medical record that the patient 

lacks decision-making capacity and is 

not expected to regain it. An advance 

directive that is valid in one or more 

States under applicable State law, as 

defined in paragraph (a) of this section, 

will be recognized throughout the VA 

health care system. 

(1) Witnesses. A VA Advance 

Directive: Living Will and Durable 

Power of Attorney for Health Care must 

be signed by the patient in the presence 

of two witnesses. Neither witness may 

to the witness’ knowledge be named in 

the patient’s will, appointed as health 

care agent in the advance directive, or 

financially responsible for the patient’s 

care. VA employees of the Chaplain 

Service, Psychology Service, Social 

Work Service, or nonclinical employees 

(e.g., Medical Administration Service, 

Voluntary Service, or Environmental 

Management Service) may serve as 

witnesses. Other individuals employed 

by the VA facility in which the patient 

is being treated may not sign as 

witnesses to the advance directive. 

Witnesses are attesting only to the fact 

that they saw the patient sign the form. 

(2) Instructions in critical situations. 

VA will follow the unambiguous verbal 

or non-verbal instructions regarding 

future health care decisions of a patient 

who has decision-making capacity when 

the patient is admitted to care when 

critically ill and loss of capacity may be 

imminent and the patient is not 

physically able to sign an advance 

directive form, or the appropriate form 

is not readily available. The patient’s 

instructions must have been expressed 

to at least two members of the health 

care team. The substance of the patient’s 

instructions must be recorded in a 

progress note in the patient’s medical 

record and must be co-signed by at least 

two members of the health care team 

who were present and can attest to the 

wishes expressed by the patient. These 

instructions will be given effect only if 

the patient loses decision-making 

capacity during the presenting situation. 

(3) Revocation. A patient who has 

decision-making capacity may revoke an 

advance directive or instructions in a 

critical situation at any time by using 

any means expressing the intent to 

revoke. 

(4) VA policy and disputes. Neither 

the treatment team nor surrogate may 

override a patient’s clear instructions in 

an Advance Directive or in instructions 

in critical situations, except that those 

portions of an Advance Directive or 

instructions given in a critical situation 

that are not consistent with VA policy 

will not be given effect. 

* * * * * 

(Authority: 38 U.S.C. 7331 through 7334) 

[FR Doc. 05–23505 Filed 11–29–05; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[Region 2 Docket No. R02–OAR–2005–NJ–

0002, FRL–7999–8] 

Approval and Promulgation of 

Implementation Plans; New Jersey 

Architectural Coatings Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a revision to 

the New Jersey State Implementation 

Plan (SIP) for ozone concerning the 

control of volatile organic compounds. 

The SIP revision consists of 

amendments to Subchapter 23 

‘‘Prevention of Air Pollution From 

Architectural Coatings’’ of 7:27 of the 

New Jersey Administrative Code, which 

are needed to meet the shortfall in 

emissions reduction identified by EPA 

in New Jersey’s 1-hour ozone attainment 

demonstration SIP. The intended effect 

of this action is to approve a control 

strategy required by the Clean Air Act, 

which will result in emission reductions 

that will help achieve attainment of the 

national ambient air quality standard for 

ozone. 

DATES: Effective Date: This rule will be 

effective December 30, 2005.