Unknown. Final rule

6,703 words·~30 min read·/register/2021/10/14/2021-22282

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

--- schema: federal-register doc_type: fedreg source_file: FR-2021-10-14.xml --- 86 196 Thursday, October 14, 2021 Contents Agriculture Agriculture Department See Forest Service See Rural Utilities Service Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57128-57129 2021-22323 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57149-57154 2021-22444 2021-22448 Commerce Commerce Department See Foreign-Trade Zones Board See International Trade Administration See National Oceanic and Atmospheric Administration See Patent and Trademark Office Community Development Community Development Financial Institutions Fund NOTICES Funding Opportunity:

Bank Enterprise Award Program; FY 2021 Funding Round, 57253-57266 2021-22450 Defense Department Defense Department See Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57129 2021-22322 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Study to Inform the 21st Century Community Learning Centers Program, 57129-57130 2021-22325 Employee Benefits Employee Benefits Security Administration PROPOSED RULES Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, 57272-57304 2021-22263 NOTICES Meetings:

Advisory Council on Employee Welfare and Pension Benefit Plans, 57200-57201 2021-22297 Energy Department Energy Department See Federal Energy Regulatory Commission Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Rhode Island; Infrastructure State Implementation Plan Requirements for the 2015 Ozone Standard, 57058-57060 2021-22232 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

NESHAP for Primary Lead Smelting, 57142-57143 2021-22305 NESHAP for the Secondary Lead Smelter Industry, 57138 2021-22301 NESHAP for Vinyl Chloride, 57139-57140 2021-22299 NESHAP for Wood Furniture Manufacturing Operations, 57138-57139 2021-22300 Clean Air Act Operating Permit Program: Petitions for Objection to State Operating Permit for Phillips 66 Co., Borger Refinery, Hutchinson County, TX, 57140 2021-22284 Determination to Grant or Partially Grant Certain Petitions Submitted under the American Innovation and Manufacturing Act of 2020, 57141-57142 2021-22318 Export Import Export-Import Bank NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 57143-57145 2021-22270 2021-22271 2021-22272 2021-22273 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus SAS Airplanes, 57025-57030 2021-22225 2021-22293 Bombardier, Inc., Airplanes, 57033-57035 2021-22295 Dassault Aviation Airplanes, 57022-57024 2021-22294 De Havilland Aircraft of Canada Limited (Type Certificate Previously Held by Bombardier, Inc.) Airplanes, 57030-57033 2021-22292 PROPOSED RULES Airspace Designations and Reporting Points:

Covington, GA, 57083-57084 2021-22289 Airworthiness Directives: The Boeing Company Airplanes, 57078-57083 2021-22251 2021-22252 NOTICES Meetings: Women in Aviation Advisory Board, 57244-57245 2021-22326 Petition for Exemption; Summary: The Boeing Co., 57245-57246 2021-22445 2021-22446 Federal Communications Federal Communications Commission PROPOSED RULES Schools and Libraries Universal Support Mechanism, 57097-57102 2021-22102 Federal Emergency Federal Emergency Management Agency NOTICES Emergency and Related Determinations:

California, 57180 2021-22350 Connecticut, 57189-57190 2021-22347 Florida, 57193 2021-22339 Louisiana, 57183, 57196 2021-22338 2021-22360 Mashpee Wampanoag Tribe, 57170 2021-22358 Mississippi, 57167-57168 2021-22342 New Jersey, 57180-57181 2021-22357 New York, 57175-57176, 57191 2021-22352 2021-22353 Rhode Island, 57170-57171 2021-22343 Vermont, 57185 2021-22336 Emergency Declaration: Connecticut; Amendment No. 1, 57168 2021-22349 Florida; Amendment No. 1, 57170 2021-22341 Florida;

Amendment No. 2, 57192 2021-22335 Florida; Amendment No. 3, 57182 2021-22337 Louisiana; Amendment No. 1, 57169, 57174 2021-22333 2021-22340 Mississippi; Amendment No. 1, 57189 2021-22344 Mississippi; Amendment No. 2, 57190 2021-22346 Mississippi; Amendment No. 3, 57192 2021-22348 New Jersey; Amendment No. 1, 57178 2021-22359 New York; Amendment No. 1, 57177-57178, 57190 2021-22354 2021-22355 New York; Amendment No. 2, 57187 2021-22356 Rhode Island; Amendment No. 1, 57177 2021-22345 Rhode Island;

Amendment No. 2, 57192-57193 2021-22334 Major Disaster and Related Determinations: Arizona, 57177 2021-22433 California, 57178-57179, 57187 2021-22394 2021-22432 Louisiana, 57187-57188, 57195 2021-22369 2021-22401 Michigan, 57172 2021-22380 Missouri, 57166-57167 2021-22407 Montana, 57169-57170 2021-22384 New Jersey, 57188-57189 2021-22413 New York, 57196-57197 2021-22423 North Carolina, 57165 2021-22429 North Dakota, 57178 2021-22409 Pennsylvania, 57181-57182 2021-22430 Tennessee, 57179-57180 2021-22386 Major Disaster Declaration:

Alabama; Amendment No. 2, 57164 2021-22363 Alabama; Amendment No. 3, 57189 2021-22410 Alabama; Amendment No. 6, 57196 2021-22408 Alaska; Amendment No. 1, 57195-57196 2021-22414 California; Amendment No. 1, 57168 2021-22396 California; Amendment No. 2, 57173 2021-22399 Colorado; Amendment No. 5, 57163 2021-22379 Idaho; Amendment No. 1, 57181 2021-22422 Illinois, 57172 2021-22366 Indiana; Amendment No. 6, 57194 2021-22389 Louisiana, 57194 2021-22371 Louisiana; Amendment No. 1, 57176-57177 2021-22403 Louisiana;

Amendment No. 2, 57188 2021-22405 Michigan; Amendment No. 1, 57193 2021-22382 Michigan; Amendment No. 5, 57176 2021-22370 Minnesota; Amendment No. 6, 57184 2021-22400 Montana; Amendment No. 5, 57184 2021-22383 New Jersey; Amendment No. 1, 57184-57185 2021-22415 New Jersey; Amendment No. 2, 57167 2021-22417 New Jersey; Amendment No. 3, 57186 2021-22421 New Jersey; Amendment No. 7, 57163 2021-22364 New York; Amendment No. 1, 57182 2021-22425 New York; Amendment No. 2, 57186 2021-22426 New York;

Amendment No. 3, 57165 2021-22427 New York; Amendment No. 7, 57167 2021-22362 North Dakota; Amendment No. 1, 57179 2021-22411 North Dakota; Amendment No. 5, 57175 2021-22385 Ohio; Amendment No. 6, 57183-57184 2021-22381 Oregon; Amendment No. 1, 57173 2021-22365 Oregon; Amendment No. 2, 57176 2021-22391 Oregon; Amendment No. 7, 57186 2021-22406 Pennsylvania; Amendment No. 1, 57171-57172 2021-22431 Ponca Tribe of Nebraska; Amendment No. 2, 57166 2021-22361 Puerto Rico; Amendment No. 8, 57165-57166 2021-22368 South Dakota;

Amendment No. 5, 57169 2021-22397 Tennessee; Amendment No. 1, 57191-57192 2021-22388 Tennessee; Amendment No. 2, 57185 2021-22390 Tennessee; Amendment No. 3, 57164 2021-22392 Texas; Amendment No. 5, 57174-57175 2021-22416 Utah; Amendment No. 5, 57183 2021-22395 Virgin Islands; Amendment No. 8, 57171 2021-22387 Virginia; Amendment No. 2, 57173-57174 2021-22367 Washington; Amendment No. 1, 57191 2021-22404 Washington; Amendment No. 2, 57174, 57197 2021-22412 2021-22424 Wisconsin;

Amendment No. 6, 57194 2021-22393 Wyoming; Amendment No. 5, 57164 2021-22402 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 57134, 57136-57138 2021-22374 2021-22376 Environmental Impact Statements; Availability, etc.: Texas Gas Transmission, LLC; Henderson County Expansion Project, 57130-57133 2021-22378 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Gridflex Generation, LLC, 57134 2021-22373 Parkway Generation Essex, LLC, 57134-57135 2021-22372 Institution of Section 206 Proceeding and Refund Effective Date:

Panther Creek Power Operating, LLC, 57133 2021-22398 Request under Blanket Authorization: Florida Gas Transmission Co., LLC, 57135-57136 2021-22377 Federal Motor Federal Motor Carrier Safety Administration RULES Federal Motor Carrier Safety Regulations; General Technical, Organizational, Conforming, and Correcting Amendments, 57060-57077 2021-21228 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Electronic Logging Device Vendor Registration, 57249-57250 2021-22287 Medical Qualification Requirements, 57246-57249 2021-22285 Qualification of Drivers;

Exemption Applications: Hearing, 57250-57253 2021-22314 2021-22315 2021-22316 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Savings and Loan Holding Companies, 57145 2021-22454 Federal Trade Federal Trade Commission NOTICES Proposed Consent Agreement: Board of Dental Examiners of Alabama, 57145-57147 2021-22443 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Endangered Species Status for Bog Buck Moth, 57104-57122 2021-21856 Food and Drug Food and Drug Administration NOTICES Guidance:

Q13 Continuous Manufacturing of Drug Substances and Drug Products; International Council for Harmonisation, 57159-57161 2021-22451 Select Updates for Unique Device Identification: Policy Regarding Global Unique Device Identification Database Requirements for Certain Devices, 57154-57156 2021-22308 Voluntary Sodium Reduction Goals: Target Mean and Upper Bound Concentrations for Sodium in Commercially Processed, Packaged, and Prepared Foods, 57156-57159 2021-22453 Foreign Trade Foreign-Trade Zones Board NOTICES Authorization of Production Activity:

Mercedes-Benz U.S. International, Inc., Foreign-Trade Zone 98, Birmingham, AL, 57125-57126 2021-22331 Forest Forest Service NOTICES Meetings: Prince William Sound Resource Advisory Committee, 57125 2021-22435 Shasta County Resource Advisory Committee, 57123-57124 2021-22419 Siskiyou County Resource Advisory Committee, 57123 2021-22420 Trinity County Resource Advisory Committee, 57124-57125 2021-22434 General Services General Services Administration NOTICES Request for Information:

On Behalf of the Federal Chief Data Officers Council, 57147-57149 2021-22267 Health and Human Health and Human Services Department See Centers for Medicare & Medicaid Services See Food and Drug Administration See National Institutes of Health PROPOSED RULES Acquisition Regulation: Electronic Submission and Processing of Payment Requests, 57102-57104 2021-21931 NOTICES Meetings: COVID-19 Health Equity Task Force, 57161 2021-22330 Secretary's Advisory Committee on Human Research Protections, 57161-57162 2021-22351 Homeland Homeland Security Department See Federal Emergency Management Agency See Transportation Security Administration Interior Interior Department See Fish and Wildlife Service Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 57267-57268 2021-22309 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Regulation Project, 57266-57267 2021-22310 2021-22311 International Trade Adm International Trade Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Interim Procedures for Considering Requests under the Commercial Availability Provision of the United States-Colombia Trade Promotion Agreement, 57126 2021-22306 Antidumping or Countervailing Duty Investigations, Orders, or Reviews:

Glycine from Japan; Correction, 57127 2021-22447 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Electronic Stud Finders, Metal Detectors and Electrical Scanners, 57199-57200 2021-22288 Justice Department Justice Department See Justice Programs Office Justice Programs Justice Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 57200 2021-22442 Labor Department Labor Department See Employee Benefits Security Administration See Labor Statistics Bureau Labor Statistics Labor Statistics Bureau NOTICES Meetings:

Data Users Advisory Committee, 57201 2021-22296 Millenium Millennium Challenge Corporation NOTICES First Amendment to Compact with the Kingdom of Morocco, 57201-57203 2021-22278 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: The NASA Guest Operations VIP Bus Escort and Site Lead Team Application Form, 57203-57204 2021-22307 National Institute National Institutes of Health NOTICES Meetings:

Center for Scientific Review, 57162 2021-22327 National Institute of Allergy and Infectious Diseases, 57163 2021-22324 National Oceanic National Oceanic and Atmospheric Administration NOTICES General Provisions for Domestic Fisheries: Application for Exempted Fishing Permit, 57127-57128 2021-22290 Patent Patent and Trademark Office RULES Electronic Submission of a Sequence Listing, a Large Table, or a Computer Program Listing Appendix in Patent Applications, 57035-57058 2021-22217 Personnel Personnel Management Office RULES Representative Payees under the Civil Service Retirement System and Federal Employees' Retirement System, 57011-57015 2021-22282 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Product, 57204-57205 2021-22291 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances:

Columbus Day (Proc. 10281), 57007-57008 2021-22514 General Pulaski Memorial Day (Proc. 10282), 57009-57010 2021-22522 Indigenous Peoples' Day (Proc. 10283), 57305-57308 2021-22583 International Day of the Girl (Proc. 10284), 57309-57311 2021-22584 Leif Erikson Day (Proc. 10280), 57005-57006 2021-22513 National School Lunch Week (Proc. 10279), 57003-57004 2021-22511 EXECUTIVE ORDERS Native Americans, White House Initiative on Advancing Educational Equity, Excellence, and Economic Opportunity and Strengthening Tribal Colleges and Universities;

Establishment (EO 14049), 57313-57318 2021-22588 ADMINISTRATIVE ORDERS Colombia; Continuation of National Emergency With Respect to Significant Narcotics Traffickers (Notice of October 12, 2021), 57319 2021-22597 PBRB Public Buildings Reform Board NOTICES Meetings, 57204 2021-22328 Rural Utilities Rural Utilities Service RULES Standards and Specifications for Timber Products Acceptable for Use by Rural Utilities Service Electric and Telecommunications Borrowers, 57015-57022 2021-22255 Securities Securities and Exchange Commission NOTICES Meetings;

Sunshine Act: Cancellation, 57216 2021-22536 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 57205-57208, 57237-57242 2021-22275 2021-22276 Cboe C2 Exchange, Inc., 57234-57237 2021-22274 Cboe EDGA Exchange, Inc., 57226-57227 2021-22277 Cboe EDGX Exchange, Inc., 57213-57216, 57219-57221 2021-22269 2021-22436 Depository Trust Co., 57221-57226 2021-22439 Fixed Income Clearing Corp., 57208-57213 2021-22440 Nasdaq PHLX, LLC, 57216-57219 2021-22441 National Securities Clearing Corp., 57229-57234 2021-22438 The Nasdaq Stock Market, LLC, 57227-57229 2021-22437 Small Business Small Business Administration NOTICES Agency Information Collection Activities;

Proposals, Submissions, and Approvals, 57243 2021-22319 Senior Executive Service and Senior Level Performance Review Board Members, 57242 2021-22298 Susquehanna Susquehanna River Basin Commission NOTICES Public Hearing, 57243-57244 2021-22265 Transportation Department Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration Security Transportation Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals:

Critical Facility Information of the Top 100 Most Critical Pipelines, 57197-57198 2021-22329 Pipeline Operator Security Information, 57198-57199 2021-22332 Treasury Treasury Department See Community Development Financial Institutions Fund See Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Employer's Annual Information Return of Tip Income and Allocated Tips, 57268 2021-22455 Unified Unified Carrier Registration Plan NOTICES Meetings;

Sunshine Act, 57268-57269 2021-22502 Veteran Affairs Veterans Affairs Department PROPOSED RULES Apportionments, 57084-57094 2021-21816 State Approving Agency Jurisdiction Rule, 57094-57097 2021-21496 Separate Parts In This Issue Part II Labor Department, Employee Benefits Security Administration, 57272-57304 2021-22263 Part III Presidential Documents, 57305-57311, 57313-57319 2021-22583 2021-22584 2021-22588 2021-22597 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription. 86 196 Thursday, October 14, 2021 Rules and Regulations OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 849 RIN 3206-AO08 Representative Payees Under the Civil Service Retirement System and Federal Employees' Retirement System AGENCY:

Office of Personnel Management. ACTION: Final rule. SUMMARY: The Office of Personnel Management

(OPM)is issuing this final rule to promulgate regulations which administer the representative payee program authorized by statute. This final rule is necessary to ensure proper procedures for annuity payments due minors or individuals who are mentally incompetent or under other legal disability and are unable to manage their respective payments. DATES: This rule is effective October 14, 2021. FOR FURTHER INFORMATION CONTACT: Michael Shipley,

(202)606-0299. Email: *Comboxinternet@opm.gov.* Include the RIN in the subject line of the email. SUPPLEMENTARY INFORMATION: On March 8, 2021, OPM issued a proposed rule at 86 FR 13217 for the purpose of promulgating regulations to administer the representative payee program under the Civil Service Retirement System

(CSRS)and the Federal Employees' Retirement System (FERS). Under CSRS, the provisions of Public Law 89-554, Sept. 6, 1966, 80 Stat. 582 authorized the United States Civil Service Commission, precursor to the United States Office of Personnel Management (OPM), to make payments due a minor or an individual mentally incompetent, or under other legal disability, to a person who is constituted guardian or other fiduciary by the law of the State of residence of the claimant or any person, who in the judgment of the Commission, is responsible for the care of the claimant. Similarly, the FERS Act of 1986, Public Law 99-335, Title I, section 101(a), June 6, 1986, 100 Stat. 575, authorized OPM to make the same payments under FERS. According to these statutes, OPM has historically authorized these payments to individuals, and in some instances, organizations on behalf of the annuitant as representative payees. On March 18, 2020, Congress enacted Public Law 116-126, 134 Stat. 174-177 (2020), the Representative Payee Fraud Prevention Act of 2019 (the Act), which made numerous changes to existing statutes regarding representative payees. First the Act officially defined the term representative payee under both CSRS and FERS as the “person (including an organization) designated . . . to receive payment on behalf of a minor or an individual mentally incompetent or under other legal disability” at 5 U.S.C. 8331(33) and 5 U.S.C. 8401(39), respectively. Ensuring that organization was added to the definition recognizes that other entities, such as agencies, institutions, nursing homes, et al., may serve as representative payees. Congress also enacted 5 U.S.C. 8345a and 8466a to address the embezzlement or conversion of payments. Congress made it unlawful for a representative payee to use the funds received as a representative payee for any use other than the use and benefit of the individual on whose behalf the payments were received. OPM was given the authority to revoke certification as a representative payee, if we determine that a representative payee has embezzled or converted the annuity payments, and to certify payments to another representative payee or directly to the annuitant. Congress set forth the penalty for misuse of benefits by a representative payee, under title 18 U.S.C., as a fine, imprisonment for not more than 5 years, or both. Furthermore, in selecting a representative payee, OPM was granted authority to defer or suspend the annuity payment until a representative payee is located, if we determine that paying the annuitant directly would cause substantial harm to the annuitant. Substantial harm exists if both of the following conditions exist:

(1)Direct payment of benefits can be expected to cause serious physical or mental injury to the individual; and

(2)The potential effect of the injury outweighs the effect of having no income to meet the basic needs of the individual. We have included this language concerning substantial harm to the proposed regulations. Finally, the Act created limitations on who can be appointed as a representative payee. Individuals that have been convicted of a violation of:

(1)5 U.S.C. 8345a or 8466a;

(2)section 208 or 1632 of the Social Security Act (42 U.S.C. 408, 1383a); or

(3)section 6101 of title 38, are barred from serving as a representative payee. OPM is promulgating these regulations to fully implement and administer the representative payee program for CSRS and FERS. The regulations are required to prevent misuse and fraud by representative payees. The public comment period on the proposed rule ended May 7, 2021. OPM received four substantive comments. Three of the comments voiced general support for the proposed rule in protecting vulnerable individuals from potential misuse by the representative payee. OPM received one comment from the American Association of Nurse Practitioners (AANP). The AANP suggested amending the language in 5 CFR 849.203 from “medical professional” to “licensed health practitioner.” In addition, the AANP suggested amending 5 CFR 849.602 to include the language “or other licensed health practitioner's” when identifying statements that are acceptable to stop representative payments. The AANP reasoned that the term licensed health practitioner is already defined under 5 CFR 339.104, and that these changes more closely align with other regulations at 5 CFR 831.1202 and 844.102 that OPM uses to administer annuity benefits under CSRS and FERS. OPM agrees and has adopted the AANP's recommendations by amending 5 CFR 849.203 and 849.602, to include “licensed health practitioner” as appropriate. OPM has also amended 5 CFR 849.102 to include the definition for physicians and practitioners. Regulatory Impact Analysis OPM has examined the impact of this proposed rule as required by Executive Order 12866 and Executive Order 13563, which directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not a “significant regulatory action,” under Executive Order 12866 and was not reviewed by the Office of Management and Budget (OMB). Regulatory Flexibility Act The Office of Personnel Management certifies that this rule will not have a significant economic impact on a substantial number of small entities. Federalism We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments. Civil Justice Reform This regulation meets the applicable standard set forth in Executive Order 12988. 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 year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Congressional Review Act The Congressional Review Act (5 U.S.C. 801 *et seq.* ) requires rules (as defined in 5 U.S.C. 804) to be submitted to Congress before taking effect. OPM will submit to Congress and the Comptroller General of the United States a report regarding the issuance of this action before its effective date, as required by 5 U.S.C. 801. This is not a “major rule” as defined by the Congressional Review Act (5 U.S.C. 804(2)). Paperwork Reduction Act Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) (PRA), unless that collection of information displays a currently valid OMB Control Number. Two currently approved collections are associated with this rulemaking. • 3206-0140 Representative Payee Application/Information Necessary for a Competency Determination which is comprised of 2 forms—an application form and a separate form for a competency determination. OPM is requesting, for OMB has approval, a change to the competency determination form to add “other licensed health practitioner” when identifying the medical information required for the competency determination. An Emergency request will be published shortly after this rule. • 3206-0208—Representative Payee Survey This information collection will not be impacted due to the changes in this rule. The systems of record notice for both collections is: *https://www.opm.gov/information-management/privacy-policy/sorn/opm-sorn-central-1-civil-service-retirement-and-insurance-records.pdf.* List of Subjects in 5 CFR Part 849 Claims, Disability benefits, Fraud, Pensions, Retirement. Office of Personnel Management. Alexys Stanley, Regulatory Affairs Analyst. For the reasons stated in the preamble, the Office of Personnel Management adds 5 CFR part 849 to read as follows: PART 849—REPRESENTATIVE PAYEES Subpart A—General Provisions Sec. 849.101 Applicability and purpose. 849.102 Definitions. 849.103 Implementing directives. Subpart B—Determining Whether or Not Representative Payment Is Appropriate 849.201 When to make payment to a representative payee. 849.202 Payment of annuity while finding a suitable representative payee. 849.203 Information considered in determining whether to appoint a representative payee. Subpart C—Selection of a Representative Payee 849.301 Information considered in selecting a representative payee. 849.302 Order of preference in selecting a representative payee. 849.303 Individuals who may not serve as a representative payee. 849.304 Selecting a representative payee. 849.305 Notice of determination to select a representative payee. Subpart D—Responsibility and Accountability of a Representative Payee 849.401 Responsibilities of a representative payee. 849.402 Use of payments. 849.403 Accountability of a representative payee. Subpart E—Misuse of Annuity by a Representative Payee 849.501 Misuse of benefits by a representative payee. 849.502 Liability for misused funds. Subpart F—Changes to the Representative Payee 849.601 When a new representative payee will be selected. 849.602 When representative payments will be stopped. 849.603 Transfer of conserved or accumulated funds. Authority: 5 U.S.C. 8331; 5 U.S.C. 8345(e)-(f); 5 U.S.C. 8345a; 5 U.S.C. 8401; 5 U.S.C. 8461; 5 U.S.C. 8466(c)-(d); 5 U.S.C. 8466a. Subpart A—General Provisions § 849.101 Applicability and purpose. This part contains regulations of the Office of Personnel Management

(OPM)to implement the provisions 5 U.S.C. 8345(e)-(f), 8345a, 8466(c)-(d), and 8466a regarding payment of an annuity to a representative payee. This part establishes the criteria OPM uses to determine if representative payments are appropriate, the information OPM uses to select a representative payee, the responsibilities of a representative payee, the accountability of a representative payee, the limitations on the appointment of a representative payee, and the definition of and penalty for misuse of benefits by the representative payee. § 849.102 Definitions. As used in this part: *Agency* means the Office of Personnel Management (OPM). *CSRS* means the Civil Service Retirement System as described in subchapter III of chapter 83 of title 5, United States Code. *FERS* means the Federal Employees' Retirement System as described in chapter 84 of title 5, United States Code. *Misuse of benefits* means the embezzlement or conversion of all or any part of the amount received by the representative payee for a use other than for the use and benefit of the minor or individual on whose behalf such payments were received. *Physician* and *practitioner* have the same meaning given these terms in § 339.104 of this chapter. *Representative payee* means a person, who is at least 18 years of age, or an organization designated to receive annuity payments on behalf of a minor or an individual mentally incompetent or under other legal disability. § 849.103 Implementing directives. The Director may prescribe, in the form he or she deems appropriate, such detailed procedures as are necessary to carry out the purpose of this part. Subpart B—Determining Whether or Not Representative Payment is Appropriate § 849.201 When to make payment to a representative payee. The agency will make payment to a representative payee—

(a)If payments are due to a minor under the age of 18; or

(b)If payments are due to an annuitant or survivor who is mentally incompetent or under other legal disability; or

(c)If payments are due to an annuitant when the annuitant is physically or mentally incapable of managing or directing the management of his or her benefit. § 849.202 Payment of annuity while finding a suitable representative payee.

(a)Annuity payments will be made directly to the annuitant or survivor annuitant while a suitable representative payee is located, unless the agency determines that direct payment would cause substantial harm to the individual.

(b)Substantial harm exists if both of the following conditions exist:

(1)Direct payment of benefits can be expected to cause serious physical or mental injury to the individual; and

(2)The potential effect of the injury outweighs the effect of having no income to meet the basic needs of the individual.

(c)If the agency determines that direct payment of benefits would cause substantial harm to the annuitant, annuity payments may be deferred (in the case of initial entitlement to benefits) or suspended (in the case of existing entitlement to benefits) until such time as a representative payee is appointed.

(d)Annuity payments will commence or resume as soon as practicable and will include all retroactive payments due to be paid. § 849.203 Information considered in determining whether to appoint a representative payee. In determining whether to appoint a representative payee, the agency will consider the following information:

(a)*Evidence of legal guardianship or other court determinations.* Evidence of the appointment of a legal guardian or other person legally vested with the care of the individual or estate of an incompetent or a minor shall be a certified copy of the court's determination.

(b)*Medical evidence.* The agency will use medical evidence to help determine whether an annuitant is capable of managing or directing the management of benefit payments. For example, a statement by a physician or other licensed health practitioner, based upon his or her recent examination of the annuitant and his or her knowledge of the annuitant's present condition, will be used in the agency's determination, if it includes information concerning the nature of the annuitant's illness or disability, the annuitant's chances for recovery, and the opinion of the physician or other licensed health practitioner as to whether the annuitant is able to manage or direct the management of benefit payments.

(c)*Other evidence.* The agency may also require statements of relatives, friends, or other people in a position to know and observe the annuitant, which contain information helpful to the agency in deciding whether the annuitant is able to manage or direct the management of benefit payments. Subpart C—Selection of a Representative Payee § 849.301 Information considered in selecting a representative payee. The goal in selecting a payee is to select the person, organization, or institution that will best serve the interest of the annuitant. In making the selection, the agency considers—

(a)The age of the representative payee applicant. An individual must be over the age of 18 to serve as a representative payee, except as listed in § 849.303(a);

(b)The relationship of the person, organization, or institution to the annuitant;

(c)Legal authority, in the form of conservatorship or guardianship, that the person, organization, or institution has to act on behalf of the annuitant;

(d)The amount of concern that the person or organization shows in the annuitant;

(e)Whether the potential payee has custody of the annuitant;

(f)Whether the potential payee is in a position to know of and look after the needs of the annuitant;

(g)Whether the representative payee applicant is currently serving, or has previously served, as a representative payee for other annuitants; and

(h)The potential representative payee's criminal history. § 849.302 Order of preference in selecting a representative payee. As a guide in selecting a representative payee, categories of preferred payees are set out in paragraphs

(a)through

(e)of this section. The primary concern of the agency is to select the payee who will best serve the annuitant's interest. The preferences, in descending order of importance, are:

(a)A legal conservator, guardian, spouse, or other relative who has custody or guardianship of the annuitant or who demonstrates strong concern for the personal welfare of the annuitant;

(b)A friend or neighbor who has custody or guardianship of the annuitant or demonstrates strong concern for the personal welfare of the annuitant;

(c)A public or nonprofit agency or institution having custody or guardianship of the annuitant;

(d)A private institution operated for profit and licensed under State law, which has custody or guardianship of the annuitant; and

(e)Persons other than those listed in paragraphs

(a)through

(d)of this section who are qualified to carry out the responsibilities of a representative payee and who are able and willing to serve as a payee for an annuitant; *e.g.,* members of community groups or organizations who volunteer to serve as representative payee for an annuitant. § 849.303 Individuals who may not serve as a representative payee. A representative payee applicant may not serve as a representative payee if he or she:

(a)Is under the age of 18, unless he or she is the custodial parent of the minor child applying for or receiving the annuity;

(b)Is found by a court to be incompetent or receives benefits under title II or title XVI of the Social Security Act through a representative payee or receives a retirement annuity pursuant to CSRS or FERS through a representative payee;

(c)Has previously served as a representative payee and has been found by a court of competent jurisdiction to have misused benefits;

(d)Has been convicted of a violation of:

(1)5 U.S.C. 8345a or 8466a;

(2)Section 208 or 1632 of the Social Security Act (42 U.S.C. 408, 1383a); or

(3)38 U.S.C 6101; or

(e)Has been convicted of an offense resulting in imprisonment for more than one year. The agency may make exception to the prohibition in this paragraph

(e)if the nature of the conviction is such that selection of the applicant poses no risk to the annuitant and the exception is in the best interest of the annuitant. § 849.304 Selecting a representative payee. Before selecting an individual or organization to serve as a representative payee, the agency will conduct an investigation. The investigation will:

(a)Require the applicant to submit documented proof of identity.

(b)Verify the applicant's social security number.

(c)Conduct a background check on the applicant to determine if the applicant has been convicted of any crimes as defined in § 849.303(d) or (e).

(d)Determine if the applicant has previously served as a representative payee and if any previous appointments as representative payee were revoked or terminated due to misuse. § 849.305 Notice of the determination to select a representative payee.

(a)If the agency determines that the annuitant requires a representative payee due to mental incompetence or other legal disability or is physically or mentally unable to manage or direct the management of his or her annuity payments, the agency will issue a written decision to the annuitant. The decision will include a statement of the findings and determinations; specifically, the individual or organization named as the representative payee, and an explanation of the right to appeal the decision under §§ 831.110 and 841.307 of this chapter. If the annuitant appeals the decision, the agency will continue to make direct payments to the annuitant until the due process rights have been exhausted.

(b)A decision by the agency to *not* select an individual or organization as a representative payee is not subject to the due process procedures described in 5 U.S.C. 8347(d) and 8461(e). Subpart D—Responsibility and Accountability of a Representative Payee § 849.401 Responsibilities of a representative payee.

(a)A representative payee shall, subject to review by the agency and subject to such requirements as it may periodically prescribe, apply the payments made on behalf of the annuitant only for the use and benefit of such annuitant, and in a manner or purpose that is in the best interest of the annuitant.

(b)A representative payee shall notify the agency of any event that will affect the amount of benefits the annuitant receives or the right of the annuitant to receive benefits.

(c)A representative payee shall notify the agency of any change in circumstances that would affect performance of the payee's responsibilities.

(d)A representative payee shall keep the annuity paid to him or her on behalf of the annuitant separate from his or her own money in an account that shows that the annuitant is still the owner of the funds. The applicant must show proof of this account when applying to be the representative payee and use this account for direct deposit. Exceptions to this paragraph

(d)are joint accounts for spouses, when one spouse applies to be representative payee for the other spouse and they already have an existing joint account.

(e)Any interest earned on the annuity will be the annuitant's property.

(f)A representative payee shall respond to requests, regarding the use of annuity payments, from OPM within a specified period of time. § 849.402 Use of payments.

(a)*Current maintenance.* Payments certified to a representative payee on behalf of an annuitant shall be considered as having been applied for the use and benefit of the annuitant when they are used for the annuitant's current maintenance. Current maintenance includes costs incurred in obtaining food, shelter, clothing, medical care, and personal comfort items.

(b)*Institutional care.* If an annuitant is receiving care in a Federal, state, or private institution because of mental or physical incapacity, current maintenance includes the customary charges made by the institution in providing care and maintenance, as well as expenditures for those items which will aid in the annuitant's recovery or release from the institution or expenses for personal needs which will improve the annuitant's conditions while in the institution.

(c)*Support of legal dependents.* If the current maintenance needs of the annuitant are met, the representative payee may use part of the payments for the support of the annuitant's legally dependent spouse, child, and/or parent.

(d)*Claims of creditors.* A representative payee may satisfy debts to creditors out of present benefit payments only if the current and reasonably foreseeable needs of the annuitant are met.

(e)*Conservation and investment.* After the representative payee has used the annuity payments consistent with the rules in paragraphs

(a)through

(d)of this section, any remaining annuity shall be conserved or invested on behalf of the annuitant. Any investment must show clearly that the representative payee holds the property in trust for the annuitant. § 849.403 Accountability of a representative payee.

(a)An individual, or institution, to whom payments are made as representative payee on behalf of an annuitant is accountable for the use of the payments and shall submit a written report in such form and at such times as the agency may require, accounting for the payments certified to him or her on behalf of the annuitant.

(b)If, however, such payee is a court-appointed fiduciary and, as such, is required to make an annual accounting to the court, a true copy of each such account filed with the court may be submitted in lieu of the accounting form prescribed by the agency.

(c)If any representative payee fails to submit the required accounting within the specified period of time after it is requested, no further payments shall be made to the representative payee on behalf of the annuitant unless for good cause shown, the default of the representative payee is excused by the agency and the required accounting is thereafter submitted.

(d)At any time after the agency has selected a representative payee, the agency may ask such payee to submit information showing a continuing relationship to the annuitant and a continuing responsibility for the care of the annuitant. If the representative payee does not give the agency the requested information within the specified period of time, the agency may stop paying such payee unless the agency determines that the payee had a good reason for not complying with the request, and the agency receives the information requested. Subpart E—Misuse of Annuity by a Representative Payee § 849.501 Misuse of benefits by a representative payee.

(a)It is unlawful for a representative payee to misuse the payments received on behalf of an annuitant. For purposes of this subpart, misuse of benefits by a representative payee occurs in any case in which the representative payee receives payment on behalf of an annuitant and embezzles or converts such payment, or any part thereof, to a use other than for the use and benefit of the annuitant.

(b)The penalty for a representative payee found to be in violation of paragraph

(a)of this section is a fine, imprisonment for not more than 5 years, or both.

(c)If the agency determines that a representative payee has misused any payments as described in paragraph

(a)of this section, the agency will promptly revoke the certification for payment of benefits to the representative payee, and will make payment to an alternative representative payee or, if the interest of the annuitant would be served thereby, to the annuitant.

(d)The agency will make the annuitant whole by repaying any annuity that was misused by the representative payee once the misused benefits have been repaid to the agency by the representative payee. § 849.502 Liability for misused funds.

(a)A representative payee who misuses benefits, as determined in § 849.501(a), is responsible for repayment of the misused benefits.

(b)OPM will seek restitution from the former representative payee. Subpart F—Changes of the Representative Payee § 849.601 When a new representative payee will be selected.

(a)When the agency learns that the interests of the annuitant are not served by continuing payment to the present representative payee or that the present representative payee is no longer able or willing to carry out the payee responsibilities, the agency will undertake to find a new representative payee.

(b)The agency will select a new representative payee if the agency finds a preferred payee or if the present payee:

(1)Has been found by the agency or a court of competent jurisdiction to have misused the benefits;

(2)Has not used the benefit payments on the annuitant's behalf in accordance with the rules in this part;

(3)Has not carried out the other responsibilities described in this subpart;

(4)Dies;

(5)No longer wishes to be the representative payee;

(6)Is unable to manage the benefit payments; or

(7)Fails to cooperate, within a reasonable time, in providing evidence, accounting, or other information requested by the agency.

(c)The agency may suspend payment as explained in § 849.202(c) if we determine that making direct payment to the annuitant would cause substantial harm. Payments, including all retroactive amounts due, will resume once a representative payee is located. § 849.602 When representative payments will be stopped. If an annuitant demonstrates that he or she is mentally and physically able to manage or direct the management of benefit payments, the agency will make direct payment to the annuitant. Information which the annuitant may give to the agency to support his or her request for direct payment includes, but is not limited to, the following:

(a)A physician's or other licensed health practitioner's statement regarding the annuitant's condition, or a statement by a medical officer of the institution where the annuitant is or was confined, showing that the annuitant is able to manage or direct the management of his or her funds;

(b)A certified copy of a court order restoring the annuitant's rights in a case where an annuitant was adjudged legally incompetent; or

(c)Other evidence which establishes the annuitant's ability to manage or direct the management of benefits. § 849.603 Transfer of conserved or accumulated funds. A representative payee who has conserved or invested annuity payments shall transfer these funds and any interest earned from the invested funds to either a successor payee, to the annuitant, or to the agency as we will specify. If the funds and the earned interest are returned to the agency, we will recertify them to the successor representative payee or to the annuitant. [FR Doc. 2021-22282 Filed 10-13-21; 8:45 am]

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