Federal Register / Vol. 74, No. 135 / Thursday, July 16, 2009 / Rules and Regulations 34499 

1 74 FR 31160 (June 30, 2009). 

2 5 U.S.C. 553(b) and (d). 

3 12 U.S.C. 4802(b)(1). 

insignificant to the performance of the 

grant; and, 

(iii) Temporary personnel and 

consultants who are directly engaged in 

the performance of work under the grant 

and who are on the grantee’s payroll. 

(2) This definition does not include 

workers not on the payroll of the grantee 

(e.g., volunteers, even if used to meet a 

matching requirement; consultants or 

independent contractors not on the 

payroll; or employees of subrecipients 

or subcontractors in covered 

workplaces); 

* * * * * 

Person means any individual, 

corporation, partnership, association, 

unit of government or legal entity, 

however organized, except: foreign 

governments or foreign governmental 

entities, public international 

organizations, foreign government 

owned (in whole or in part) or 

controlled entities, and entities 

consisting wholly or partially of foreign 

governments or foreign governmental 

entities. 

* * * * * 

Suspension means an action taken by 

a suspending official in accordance with 

these regulations that immediately 

excludes a person from participating in 

covered transactions for a temporary 

period, pending completion of an 

investigation and such legal, debarment, 

or Program Fraud Civil Remedies Act 

proceedings as may ensue. A person so 

excluded is ‘‘suspended.’’ 

§ 17.610 [Amended] 

■ 7. In § 17.610(c), remove the words 

‘‘subparts A, B, C, D and E of this part’’, 

and add in their place the words ‘‘2 CFR 

part 3000’’; and remove the words ‘‘this 

part’’, and add in their place the words 

‘‘2 CFR part 3000’’. 

§ 17.615 [Amended] 

■ 8. In § 17.615— 

■ a. In paragraph (b)(1), remove the 

words ‘‘appendix C’’ and add, in their 

place, the word ‘‘appendix to part 17’’. 

■ b. In paragraph (c)(1), remove the 

words ‘‘appendix C’’ and add, in their 

place, the word ‘‘appendix to part 17’’. 

§ 17.620 [Amended] 

■ 9. In § 17.620— 

■ a. In paragraph (a)(3), remove the 

words ‘‘this part’’, and add in their 

place the words ‘‘2 CFR part 3000’’. 

■ b. In paragraph (b), remove the words 

‘‘this part’’, and add in their place the 

words ‘‘2 CFR part 3000’’; and remove 

the words ‘‘17.320(a)(2) of this part’’, 

and add in their place the words ‘‘2 CFR 

part 3000’’. 

§ 17.630 [Amended] 

■ 10. In § 17.630(a)(1), remove the 

words ‘‘appendix C’’ and add, in their 

place, the word ‘‘appendix to part 17’’. 

Appendix A to Part 17 [Removed] 

■ 11. In part 17, remove Appendix A. 

Appendix B to Part 17 [Removed] 

■ 12. In part 17, remove Appendix B. 

Appendix C to Part 17 [Redesignated as 

Appendix to Part 17] 

■ 13. In part 17, redesignate Appendix 

C as Appendix to Part 17. 

Van Pace, 

Director, Office of Grant Policy & Oversight, 

Department of Homeland Security. 

[FR Doc. E9–16429 Filed 7–15–09; 8:45 am] 

BILLING CODE 9110–9B–P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Part 3 

[Docket ID OCC–2009–0007] 

RIN 1557–AD25 

Risk-Based Capital Guidelines; Capital 

Adequacy Guidelines; Capital 

Maintenance; Capital—Residential 

Mortgage Loans Modified Pursuant to 

the Making Home Affordable Program; 

Correcting Amendment 

AGENCY: Office of the Comptroller of the 

Currency, Department of the Treasury. 

ACTION: Final rule; correcting 

amendment. 

SUMMARY: This final rule reinstates 

regulatory text that was inadvertently 

removed during the issuance of an 

interim final rule. 

DATES: Effective Date: July 16, 2009. 

FOR FURTHER INFORMATION CONTACT: Carl 

Kaminski, Senior Attorney, Legislative 

and Regulatory Activities Division, 

(202) 874–5090, Office of the 

Comptroller of the Currency, 250 E 

Street, SW., Washington, DC 20219. 

SUPPLEMENTARY INFORMATION: On June 

30, 2009, the Office of the Comptroller 

of the Currency (OCC), Board of 

Governors of the Federal Reserve 

System, Federal Deposit Insurance 

Corporation, and the Office of Thrift 

Supervision issued an interim final rule 

providing that mortgage loans modified 

under the Making Home Affordable 

Program (Program) will retain the risk 

weight assigned to the loan prior to the 

modification, so long as the loan 

continues to meet other applicable 

prudential criteria.1 Due to a drafting 

error, a portion of the OCC’s existing 

capital rule was inadvertently removed. 

This rule reinstates this text. 

Regulatory Analysis 

Administrative Procedure Act 

Pursuant to sections 553(b) and (d) of 

the Administrative Procedure Act,2 the 

OCC finds that there is good cause for 

issuing this final rule and making the 

rule effective immediately upon 

publication, and that it is impracticable, 

unnecessary, or contrary to the public 

interest to issue a notice of proposed 

rulemaking and provide an opportunity 

to comment before the effective date. 

The rule merely reinstates text that was 

unintentionally removed. 

Riegle Community Development and 

Regulatory Improvement Act 

Section 302 of Riegle Community 

Development and Regulatory 

Improvement Act generally requires that 

regulations that impose additional 

reporting, disclosure, or other 

requirements on insured depository 

institutions take effect on the first day 

of a calendar quarter unless the relevant 

agency finds good cause that the 

regulations should become effective 

sooner and publishes its finding with 

the rule.3 This provision does not apply 

because this rule imposes no additional 

requirements. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq. (RFA) applies only to 

rules for which an agency publishes a 

general notice of proposed rulemaking 

pursuant to 5 U.S.C. 553(b). Pursuant to 

the Administrative Procedure Act (APA) 

at 5 U.S.C. 553(b)(B), general notice and 

an opportunity for public comment are 

not required prior to the issuance of a 

final rule when an agency, for good 

cause, finds that ‘‘notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest.’’ 

As discussed above, the OCC has 

determined for good cause that the APA 

does not require general notice and 

public comment on this interim final 

rule and, therefore, we are not 

publishing a general notice of proposed 

rulemaking. Thus, the RFA, pursuant to 

5 U.S.C. 601(2), does not apply to this 

interim final rule. 


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34500 Federal Register / Vol. 74, No. 135 / Thursday, July 16, 2009 / Rules and Regulations 

Paperwork Reduction Act 

In accordance with the requirements 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3506), the agencies have 

reviewed the interim final rule to assess 

any information collections. There are 

no collections of information as defined 

by the Paperwork Reduction Act in the 

final rule. 

Executive Order 12866 

Executive Order 12866 requires 

federal agencies to prepare a regulatory 

impact analysis for agency actions that 

are found to be ‘‘significant regulatory 

actions.’’ Significant regulatory actions 

include, among other things, 

rulemakings that ‘‘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.’’ The OCC determined 

that the final rule is not a significant 

regulatory action under Executive Order 

12866. 

Unfunded Mandates Reform Act of 1995 

Determination 

The Unfunded Mandates Reform Act 

of 1995, Public Law 104–4, (2 U.S.C. 

1532) (UMRA) requires that an agency 

prepare a budgetary impact statement 

before promulgating a rule that includes 

a federal mandate that may result in the 

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 

one year. If a budgetary impact 

statement is required, section 205 of the 

UMRA also requires an agency to 

identify and consider a reasonable 

number of regulatory alternatives before 

promulgating a rule. The OCC has 

determined that the final rule will not 

result in expenditures by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more in any one year. Accordingly, 

the OCC has not prepared a budgetary 

impact statement or specifically 

addressed the regulatory alternatives 

considered. 

List of Subjects in 12 CFR Part 3 

Administrative practice and 

procedure, Banks, Banking, Capital, 

National banks, Reporting and 

recordkeeping requirements, Risk. 

Authority and Issuance 

■ For the reasons stated in the preamble, 

the Office of the Comptroller of the 

Currency amends Part 3 of chapter I of 

Title 12, Code of Federal Regulations as 

follows: 

PART 3—MINIMUM CAPITAL RATIOS; 

ISSUANCE OF DIRECTIVES 

■ 1. The authority citation for part 3 

continues to read as follows: 

Authority: 12 U.S.C. 93a, 161, 1818, 

1828(n), 1828 note, 1831n note, 1835, 3907, 

and 3909. 

■ 2. In appendix A to Part 3, in section 

3, add two sentences to the end of 

paragraph (a)(3)(iii) to read as follows: 

Appendix A to Part 3—Risk Based 

Capital Guidelines 

* * * * * 

Section 3. Risk Categories/Weights for OnBalance Sheet Assets and Off-Balance Sheet 

Items 

* * * * * 

(a) * * * 

(3) * * * 

(iii) * * * If a bank holds a first lien and 

junior lien on a one-to-four family residential 

property and no other party holds an 

intervening lien, the transaction is treated as 

a single loan secured by a first lien for the 

purposes of both determining the loan-tovalue ratio and assigning a risk weight to the 

transaction. Furthermore, residential 

property loans made for the purpose of 

construction financing are assigned to the 

100% risk category of section 3(a)(4) of this 

appendix A; however, these loans may be 

included in the 50% risk category of this 

section 3(a)(3) of this appendix A if they are 

the subject to a legally binding sales contract 

and satisfy the requirements of section 

3(a)(3)(iv) of this appendix A. 

* * * * * 

Dated: July 9, 2009. 

By the Office of the Comptroller of the 

Currency. 

Julie L. Williams, 

First Senior Deputy Comptroller and Chief 

Counsel. 

[FR Doc. E9–16882 Filed 7–15–09; 8:45 am] 

BILLING CODE 4810–33–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 17 

RIN 2900–AN20 

Elimination of Requirement for Prior 

Signature Consent and Pre- and PostTest Counseling for HIV Testing 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document adopts, 

without change, the proposed rule 

published in the Federal Register on 

December 29, 2008, updating informed 

consent requirements related to testing 

for the Human Immunodeficiency Virus 

(HIV) for Veterans receiving health care 

from the Department of Veterans Affairs 

(VA). This final rule is in accordance 

with related provisions of the Veteran’s 

Mental Health and Other Care 

Improvements Act of 2008. The final 

rule eliminates the regulatory 

requirement for written informed 

consent for HIV testing and specific preand post-test counseling of Veteran 

patients. VA will implement this rule 

through internal policy guidance 

specifying these requirements and how 

they apply to HIV testing. 

DATES: Effective Date: This final rule is 

effective August 17, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Ronald O. Valdiserri, MD, MPH, Chief 

Consultant (13B), Public Health 

Strategic Healthcare Group, Department 

of Veterans Affairs, 810 Vermont 

Avenue, NW., Washington, DC 20420, 

(202) 461–1040. (This is not a toll-free 

number.) 

SUPPLEMENTARY INFORMATION: On 

December 29, 2008, VA published a 

proposed rule in the Federal Register 

(73 FR 79428). We proposed to amend 

38 CFR 17.32(d), VA’s regulation 

concerning documentation of informed 

consent, and 38 CFR 17.32(g), VA’s 

regulation concerning special consent 

situations, by removing the requirement 

for written rather than oral informed 

consent for HIV testing and specific preand post-test counseling of Veteran 

patients related to HIV testing. However, 

nothing in this regulation changes 

existing statutory requirements for 

informed consent. These changes are in 

response to provisions included in 

section 124 of Public Law 100–322, the 

Veteran’s Mental Health and Other Care 

Improvement Act of 2008. VA provided 

a 30-day comment period, which ended 

on January 28, 2009. 

We received a number of comments 

that did not address the proposed 

amendments to § 17.32 and thus were 

outside the scope of this rulemaking 

proceeding. Although we appreciate 

those comments, we will not address 

them in this final rule. 

We received comments concerning 

the proposed amendments from 10 

organizations and 10 individuals. 

Sixteen commenters expressed support 

for the proposed rule. We received two 

comments opposing the rule, one of 

which was submitted jointly by four 

commenters, and will address each of 

those comments below. 

VA proposed to amend the Informed 

Consent regulation for HIV testing in the 

medical regulations in 38 CFR part 17 

to remove § 17.32(d)(1)(vi) and 

17.32(g)(4). Section 124 of Public Law 

100–322 (1988) (‘‘section 124’’) 

prohibited any VA program from 

widespread testing to identify HIV 


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