[Federal Register Volume 75, Number 66 (Wednesday, April 7, 2010)]
[Proposed Rules]
[Pages 17641-17644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7810]
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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: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulations concerning community residential care facilities, contract
facilities for certain outpatient and residential services, and State
home facilities to update the standards for VA approval of such
facilities, including standards for fire safety and heating and cooling
systems. The proposed amendments would help ensure the safety of
veterans in the affected facilities.
DATES: Comments on the proposed rule must be received by VA on or
before June 7, 2010.
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 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: This document proposes to update VA's
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. Currently, 38 CFR
17.63(a)(2), 17.81(a)(1), 17.82(a)(1), and 59.130(d)(1) require
facilities to meet the requirements in certain provisions of specific
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. These publications are currently
incorporated by reference into Sec. Sec. 17.63, 17.81, 17.82, and
59.130. However, these sections need to be updated to reflect the
current editions of these publications. In addition, specific chapters
of NFPA 101 that are cited in
[[Page 17642]]
the regulations might not apply to all facilities within the programs.
The regulations that cite these chapters need to be broadened to
address all facilities.
Changes to 38 CFR Part 17
We propose to amend Sec. Sec. 17.63, 17.81, and 17.82 to refer to
the 2009 edition of NFPA 101 and the 2010 edition of NFPA 101A, which
are the current editions of these publications.
These regulations currently cite specific chapters of NFPA
publications. For example, Sec. 17.81(a)(1)(i) cites chapters 1-7, 22-
23, and 31, and Appendix A of the 1994 edition of NFPA 101. This can be
problematic if a cited chapter was intended by NFPA to apply only to
facilities of a specific type or size, e.g., a residential board and
care facility for four or more residents, but the VA regulation
addresses facilities of varying types or sizes. Reference to a specific
chapter has led to confusion as to whether VA requires smaller
facilities to meet the requirements in a chapter that NFPA intended
only to apply to larger facilities, or vice-versa. For example, the
occupancy chapters (chapters 22-23 of NFPA 101) cited in current Sec.
17.81(a)(1)(i) were not intended by NFPA to apply to a facility that
serves fewer than four residents, but VA recognizes facilities of such
size in contracts for certain residential services. The result has been
confusion as to whether the regulation requires those NFPA occupancy
chapters to apply to such small facilities. VA intends to apply the
NFPA occupancy chapters in the manner intended by NFPA. Where VA has
additional requirements, these requirements need to be identified in
the regulations.
This type of confusion has not been an issue for facilities covered
by 38 CFR part 59, largely because in current Sec. 59.130(d)(1) we
require facilities to ``meet the applicable provisions of'' NFPA 101.
Hence, we propose to amend part 17 to conform to the more general and
less ambiguous reference format used in part 59. This is not intended
to be a substantive change and should not create new responsibilities
for any facilities covered by part 17.
In addition, some of our regulations reference specific standards
that are subsumed by NFPA 101. For example, current Sec.
17.82(a)(1)(v) references NFPA 10, a specific standard related to fire
extinguishers. However, NFPA provides specific standards for many other
items related to fire safety, but our regulations do not reference
them. This has led to confusion as to whether we intended to exclude
those specific standards we do not reference in our regulations. This
was not our intent. NFPA 101 contains a chapter that lists other
publications and states that those publications shall be considered
part of the requirements of NFPA 101. Hence, by incorporating by
reference NFPA 101, we would also be incorporating the standards NFPA
101 relies upon and references.
Specific NFPA 101 provisions would lead the user to relevant
specific standards. Again using the example of Sec. 17.82(a)(1)(v)'s
current reference to NFPA 10, proposed Sec. 17.81(a)(1)(i) would
require the regulated facilities ``to meet the requirements in the
applicable provisions of'' NFPA 101, which would include chapters 7 and
23 of NFPA 101. NFPA 101 section 23-3.3.5.3, ``Portable Fire
Extinguishers,'' states that ``Portable fire extinguishers in
accordance with 7-7.4.1 shall be provided near hazardous areas.'' NFPA
101 section 7-7.4, ``Manual Extinguishing Equipment,'' states that
``[w]here required by the provisions of another section of this Code,
portable fire extinguishers shall be installed, inspected, and
maintained in accordance with NFPA 10.'' Thus, merely requiring
compliance with NFPA 101 would lead the user to the appropriate
specific published standards. We note as well that the reference to a
specific standard, such as NFPA 10, or a specific provision of NFPA 101
is necessary only if the applicable occupancy chapter in NFPA 101 does
not reference it. Thus, the reference to NFPA 10 would be added to
Sec. 17.63 and remain for Sec. 17.81 only for facilities that have
fewer than four residents, and would be removed from Sec. 17.82.
In order to clarify the applicability in part 17 of all standards
that are required by NFPA 101, we would state in our regulatory
references to NFPA 101 that we require regulated facilities to meet the
requirements in the applicable provisions of NFPA 101 and the other
publications referenced in those provisions. This is not intended to be
a substantive change and would not lead to stricter regulatory
enforcement. It would merely clarify our regulation.
Finally, we would continue to reference specifically NFPA 101A in
proposed Sec. 17.63 because NFPA 101A provides alternative approaches
to the requirements in NFPA 101. In practice, most facilities being
inspected would not utilize the alternatives in NFPA 101A; however, we
believe in some cases it would provide useful and viable alternatives.
Changes to 38 CFR Part 59
We propose to amend Sec. 59.130 to refer to the 2005 edition of
NFPA 99 and the 2009 edition of NFPA 101, which are the current
editions of these documents. This update is necessary to ensure that
State home facilities meet current industry-wide standards regarding
fire safety. With respect to State homes, we are not aware of any
significant changes from the editions referenced in current Sec.
59.130 to the 2005 edition of NFPA 99 and the 2009 edition of NFPA 101.
Approval of Incorporations by Reference
The Office of the Federal Register, in accordance with 5 U.S.C.
552(a) and 1 CFR part 51, approved our incorporation by reference of
previous editions of NFPA 99, 101, 101A into current regulations. We
propose to amend our regulations to require facilities seeking VA
approval to meet the applicable requirements of 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). These changes merely reflect updates to the standards
that are currently incorporated by reference. This action is necessary
to ensure that facilities meet current industry-wide standards
regarding fire safety. We are not aware of any significant changes from
the previous editions to the current editions. We will request that the
Office of the Federal Register approve our incorporation by reference
of updated NFPA 99, 101, and 101A.
These materials for which we are seeking incorporation by reference
are available for inspection at the Department of Veterans Affairs,
Office of Regulation Policy and Management (02REG), 810 Vermont Avenue,
NW., Room 1063B, Washington, DC 20420. Please call (202) 461-4902 for
an appointment. (This is not a toll-free number.) These materials are
also available at the National Archives and Records Administration
(NARA). For information on the availability of this material 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.)
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, and Tribal governments, in the aggregate, or by the
[[Page 17643]]
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, and Tribal governments, or on the private sector.
Paperwork Reduction Act
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 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 planned or taken 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 proposed rule have been examined, and it has been
determined not to be a significant regulatory action under Executive
Order 12866.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would 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 proposed rule would have an insignificant economic
impact on a few small entities. The changes to Sec. 17.63 would 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 proposed rule would
constitute an inconsequential amount of the operational costs of such
facilities. The changes to Sec. Sec. 17.81 and 17.82 would 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
would affect State homes. The State homes that would 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 would 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, Department of Veterans Affairs, approved this
document on March 1, 2010 for publication.
List of Subjects in 38 CFR Parts 17 and 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, 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.
Dated: April 1, 2010.
Robert C. McFetridge,
Director, Regulation Policy and Management.
For the reasons set out in the preamble, VA proposes to amend 38
CFR parts 17 and 59 as follows:
PART 17--MEDICAL
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.
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 publish notice of
change 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 101, Life Safety Code (2009 edition), Incorporation by
Reference (IBR) approved for Sec. Sec. 17.63, 17.81, 17.82.
(2) 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.
3. Amend Sec. 17.63 as follows:
a. Revise paragraph (a)(2); and
b. Add a new paragraph (a)(4).
The revision and addition read as follows:
[[Page 17644]]
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; and
(ii) The facility must meet the requirements in section 33.7 of
NFPA 101.
* * * * *
4. Amend Sec. 17.81(a)(1) as follows:
a. Revise paragraph (a)(1)(i);
b. Remove paragraphs (a)(1)(v) through (a)(1)(viii);
c. Add a new paragraph (a)(1)(v); and
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.
(B) The facility shall meet the requirements in section 33.7 of
NFPA 101.
* * * * *
5. Amend Sec. 17.82(a)(1) as follows:
a. Revise paragraph (a)(1)(i) and (iv);
b. Remove paragraphs (a)(1)(v) and (a)(1)(vi); and
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
6. The authority citation for part 59 continues to read as follows:
Authority: 38 U.S.C. 101, 501, 1710, 1742, 8105, 8131-8137.
Sec. 59.130 [Amended]
7. Amend Sec. 59.130 as follows:
a. Remove the phrase ``(2000 edition)'' and add, in its place,
``(2009 edition)''; and
b. Remove the phrase ``(1999 edition)'' and add, in its place,
``(2005 edition)''.
[FR Doc. 2010-7810 Filed 4-6-10; 8:45 am]
BILLING CODE 8320-01-P