32 CFR Final Rule 16Nov2010

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69871Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010/ Rules and Regulations

from the requirements of notice andcomment and a delayed effective date,5 U.S.C. 553(b), (d), and is madeeffective upon issuance; (2) theDepartment certifies under 5 U.S.C.605(b) that this rule will not have asignificant economic impact on asubstantial number of small entities andfurther that no Regulatory Flexibility

Analysis was required to be prepared forthis final rule since the Department wasnot required to publish a general noticeof proposed rulemaking; and (3) thisaction is not a ‘‘regulation’’ or ‘‘rule’’ asdefined by Executive Order 12866,‘‘Regulatory Planning and Review,’’§ 3(d) and, therefore, this action has not

been reviewed by the Office of Management and Budget.

This rule will not have substantialdirect effects on the States, on therelationship between the nationalgovernment and the States, or ondistribution of power and

responsibilities among the variouslevels of government. Therefore, inaccordance with Executive Order 13132,‘‘Federalism,’’ it is determined that thisrule does not have sufficient federalismimplications to warrant the preparationof a Federalism Assessment. Thisregulation meets the applicablestandards set forth in Executive Order12988, ‘‘Civil Justice Reform.’’ This rulewill not result in the expenditure byState, local and tribal governments, inthe aggregate, or by the private sector, of $100,000,000 or more in any one year,and it will not significantly or uniquelyaffect small governments. Therefore, no

actions were deemed necessary underthe provisions of the UnfundedMandates Reform Act of 1995.

This action pertains to agencymanagement, personnel andorganization and does not substantiallyaffect the rights or obligations of non-agency parties and, accordingly, is nota ‘‘rule’’ as that term is used by theCongressional Review Act (Subtitle E of the Small Business RegulatoryEnforcement Fairness Act of 1996(SBREFA)). Therefore, the reportingrequirement of 5 U.S.C. 801 does notapply.

List of Subjects in 28 CFR Part 0Authority delegations (Government

agencies), Government employees,Organization and functions(Government agencies), Privacy,Reporting and recordkeepingrequirements, Whistleblowing.■ Accordingly, by virtue of the authorityvested in me as Attorney General,including 5 U.S.C. 301 and 28 U.S.C.509, 510, part 0 of title 28 of the Codeof Federal Regulations is amended asfollows:

PART 0—ORGANIZATION OF THEDEPARTMENT OF JUSTICE

■ 1. The authority for citation for part 0continues to read as follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509,510, 515–519.

Subpart J—Civil Rights Division

■ 2. Section 0.50 is amended by addinga new paragraph (n) to read as follows:

§ 0.50 General functions.

* * * * *(n) Upon request, certification under

18 U.S.C. 249, relating to hate crimes.

Subpart K—Criminal Division

■ 3. Section 0.55 is amended by addinga new paragraph (v) to read as follows:

§ 0.55 General functions.

* * * * *

(v) Upon request, certification under18 U.S.C. 249, relating to hate crimes, incases involving extraterritorial crimesthat also involve charges filed pursuantto the Military Extraterritorial

Jurisdiction Act (18 U.S.C. 3261 et seq.),or pursuant to chapters of the CriminalCode prohibiting genocide (18 U.S.C.1091), torture (18 U.S.C. 2340A), warcrimes (18 U.S.C. 2441), or recruitmentor use of child soldiers (18 U.S.C. 2442).

Dated: November 8, 2010.

Eric H. Holder, Jr.,

Attorney General.

[FR Doc. 2010–28725 Filed 11–15–10; 8:45 am]

BILLING CODE 4410–13–P

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 239

[DOD–2009–OS–0090; RIN 0790–AI58]

Homeowners Assistance Program—Application Processing

AGENCY: Under Secretary of Defense forAcquisition, Technology, and Logistics,

Office of the Deputy Under Secretary of Defense (Installations andEnvironment), DoD.

ACTION: Final rule.

SUMMARY: This part continues toauthorize the Homeowners AssistanceProgram (HAP) to financiallycompensate eligible military andcivilian Federal employee homeownerswhen the real estate market is adverselyaffected directly related to the closure orreduction-in-scope of operations due toBase Realignment and Closure (BRAC).

The American Recovery andReinvestment Act of 2009 (ARRA)expanded the HAP to provide assistanceto: Wounded members of the ArmedForces (30 percent or greater disability),surviving spouses of fallen warriors, andwounded Department of Defense (DoD)civilian homeowners reassigned infurtherance of medical treatment or

rehabilitation or due to medicalretirement in connection with theirdisability; Base Realignment andClosure (BRAC) 2005 impactedhomeowners relocating during themortgage crisis; and Service memberhomeowners undergoing PermanentChange of Station (PCS) moves duringthe mortgage crisis.

DATES: Effective Date: January 18, 2011.

FOR FURTHER INFORMATION CONTACT:Deanna Buchner, (703) 602–4353.SUPPLEMENTARY INFORMATION:

The prompt implementation of theFinal Rule is of critical importance inmeeting the goals of the Department of Defense to provide financial stabilityand increase quality of life for thoseimpacted by the mortgage crisis. TheDepartment of Defense will providefinancial assistance to offset financiallosses of homeowners who need to selltheir homes in conjunction with PCSmoves, base closures, combat injuries,or loss of spouse in the line of duty.

The Under Secretary of Defense forAcquisition, Technology, and Logisticshas overall responsibility and providesoversight for this program through theDeputy Under Secretary of Defense for

Installations and Environment(DUSD(I&E)). The Army, acting as theDoD Executive Agent for administeringthe HAP and Expanded HAP, uses theHeadquarters, U.S. Army Corps of Engineers (HQUSACE), to implementthe program.

Comments: The Interim Final Rulewas published in the Federal Registeron September 30, 2009 (74 FR 50109–50115). In response to the Interim FinalRule, the DoD received 56 commentsduring the 90-day comment period.While many comments crossed severalsubject areas, generally they can be

placed into three categories: Benefits,eligibility, or general.1. Benefit comments: There were 16

comments relating to benefits. Thesecomments concern: benefit percentage,government acquisition, short sale,closing costs, and applicationprocessing.

a. Benefit percentage. Threecomments received concerning therestriction of 90 percent of the primaryfair market value for Base Realignmentand Closure (BRAC) 2005 andPermanent Change of Station (PCS)

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69872 Federal Register / Vol. 75, No. 220 / Tuesday, November 16, 2010/ Rules and Regulations

applicants as opposed to the 95 percentoffered in the American Recovery andReinvestment Act (ARRA) legislation.Changing this restriction would increaseprogram costs by at least five percentoverall and place expanded programapplicants in the same benefit categoryas those where a DoD action (closing aninstallation) caused the market decline.

ARRA expansion of HAP is designed toassist eligible applicants fromcatastrophic financial loss, not protect ahomeowner’s investment in realproperty.

b. Government acquisition. Onecomment received. The commentconcerned providing private saleaugmentation at 100 percent of mortgage. Private Sale Augmentation isnot authorized by law.

c. Short sale. Two comments receivedconcerned applicants receiving benefitsafter being forgiven the outstandingmortgage by lender and with deficiency

being subtracted from the final amountdue. Changing the current requirementwould enable an applicant to profit byreceiving benefits for amounts forgiven

by lenders. The requirement is furtherclarified in § 239.5(c)(1).

d. Closing costs. Five comments werereceived regarding clarification of whatconstitutes closing costs. A definitionhas been added to § 239.4 (Definitions)that clarifies what is included in closingcosts.

e. Application processing. Fivecomments were received regarding howapplications are processed andapplicants subsequently notified of

eligibility. Clarification has been addedto §239.9 (Application ProcessingProcedures) to ensure applicantsunderstand that applications must bemailed or otherwise delivered to theCorps of Engineers district office.

2. Eligibility comments: There were 50comments relating to eligibility criteria.These comments concern: BRAC 2005purchase date, BRAC 2005 definition,Automated Valuation Model (AVM)methodology, Retiree and Reservisteligibility, Fannie Mae/Freddie Macconforming loan limit, PCS purchasedate, market decline, and Coast Guard

eligibility.a. BRAC 2005 purchase date. Sixcomments received suggesting changingthe requirement for the home to bepurchased as of the BRACannouncement date of May 13, 2005.This requirement remains unchanged.While language in the ARRA gives theSecretary of Defense the discretion toallow ownership until July 1, 2006, the

basic HAP law, Demonstration Citiesand Metropolitan Development Act of 1966, established that BRAC impactedindividuals should own homes prior to

announcement dates. For example, thetwo conventional homeownersassistance programs in effect under theprior law, which are now beingexecuted at Naval Air Station (NAS)Brunswick, Maine, and Fort Monmouth,New Jersey, require ownership by May13, 2005.

b. BRAC 2005 eligibility. Four

comments received. One requested thateligibility for BRAC 2005 include thosewho were assigned to a BRACinstallation but required to relocate forother than a BRAC action; one thatrecommended BRAC eligibility beexpanded to include other Federalagency employees; one requesting BRACeligibility include employees at non-BRAC sites but are affected by BRACunit relocations; and one requesting aclarification of who is eligible for BRAC2005 assistance. Current requirementremains unchanged. BRAC eligibilitywill continue to be only for those

assigned to BRAC organizations wheretheir positions are eliminated orrelocated.

c. AVM methodology and process.Ten comments received expressingconcern that the AVM does notrepresent current market conditions andrequesting an explanation of the processand data behind the AVM uses todetermine market value. The use of AVM to determine market value has

been eliminated from the rule by nolonger requiring owners to show a tenpercent market loss.

d. Retiree and Reservist eligibility.Three comments received; two

requesting voluntary retirement and onerequesting Reservists be included aseligible for benefits. The primary focusof the Expanded HAP is helping thosemembers where a DoD-ordered movecaused the financial distressexperienced by homeowners. Voluntaryretirement is not a DoD-ordered move.Involuntary retirement, however, is aDoD-ordered move. Reservists called toactive duty, who are not expected tomove their household goods, have anoption to remain in the areas where theylive and are generally not eligible for theHAP benefit.

e. FannieMae/FreddieMac (FM/FM)Conforming Loan Limit. Twelvecomments received. Some commentsrequested that this loan limit be lifted asan eligibility requirement because itdoes not capture what is occurring intoday’s market. Other commentsrequested that the focus of this limit beplaced on the loan as opposed topurchase price. § 239.6(3) has beenchanged to remove the requirement forthe Prior Fair Market Value (PFMV) orqualifying mortgage to be within theFM/FM conforming loan limit for

eligibility purposes. The Final Ruleremoves the FM/FM limit as aneligibility requirement and specifies acap on benefit payments. Benefitscannot exceed an amount equal to thehighest 2009 FM/FM conforming loanlimit (as amended by the ARRA of 2009), which is $729,750. For homepurchase prices or qualifying mortgages

that exceed this amount, the benefitcalculation will use $729,750 as thepurchase price or qualifying mortgageamount.

f. Permanent Change of Station home purchase date. Four comments receivedrequesting information on how the datewas chosen and/or requesting that thedate be changed. The requirement tohave purchased the home prior to July1, 2006, is based on market trendsdocumented by S&P/Case-Shiller HomePrice Indices, which indicates over tenpercent market decline through thesecond quarter of 2006 nationwide. The

July 1, 2006, date is a statutoryrequirement and remains unchanged.

g. Personal loss/Market lossrequirement. Nine comments receivedthat suggested the requirement to showa ten percent market loss is toorestrictive. The need to show a tenpercent county/parish/city marketdecline has been eliminated from therule; however, the requirement to showa ten percent decline in individualhome value remains.

h. Coast Guard eligibility. Twocomments received that expressedconcern that because of Coast Guard

PCS procedures, ending the PCSeligibility on December 31, 2009,unfairly excludes most Coast Guardapplicants from qualifying for the HAP

benefit. The end date for PCS eligibilityfor members of all services wasextended to September 30, 2010.

3. General comments: Received 12comments of a general nature in thefollowing categories: tax, marketing,definition of purchase date, rulemakingprocess, and the appeal process.

a. Tax. Four comments were receivedrequesting that tax implications beexplained more clearly. 26 U.S.C. 132(n)exempts HAP benefits from Federal tax.This change has been made in§ 239.5(d).

b. Marketing. Two comments werereceived requesting that the requirementto list houses on the market prior toobtaining HAP benefit be lifted. It isimportant to retain this requirement

because it helps establish a home’scurrent fair market value and willreduce the number of homes purchasedand held in the Government’s inventorywhich would increase program costssignificantly.





c. Purchase date definition. Fourcomments were received requestingclarity on what determines a purchasedate, e.g.., deed recording, signedcontract. The Final Rule has beenchanged to add a definition of the termpurchase. According to that definition,purchase occurs when the applicantenters into a contract for the purchase

of the home or, in the event there is nocontract for purchase, when theapplicant closes on the property.

d. Rulemaking process. One commentreceived suggesting that extensions topublic comment period be announced

by a press release. The Department of Defense published a notice in theFederal Register on November 16, 2009(74 FR 58846) extending the publiccomment period by an additional 60-days.

e. Appeal process. One commentreceived requesting information onappeal process. Section 239.11(Appeals) explains the appeal process.

a. Executive Order 12866, ‘‘RegulatoryPlanning and Review’’

Under Executive Order 12866,‘‘Regulatory Planning and Review,’’ 58FR 51735 (Oct. 4, 1993), a ‘‘significantregulatory action’’ is subject to Office of Management and Budget (OMB) reviewand the requirements of Executive Order12866. Section 3(f) of the ExecutiveOrder defines ‘‘significant regulatoryaction’’ as one that is likely to result ina rule that may:

(1) Have an annual effect on theeconomy of $100 million or more, ormay adversely affect in a material waythe economy; a sector of the economy;productivity; competition; jobs; theenvironment; public health or safety; orState, local, or tribal governments orcommunities;

(2) Create a serious inconsistency orotherwise interfere with an action takenor planned by another agency;

(3) Materially alter the budgetaryimpact of entitlements, grants, user fees,or loan programs, or the rights andobligations of recipients thereof; or

(4) Raise novel legal or policy issuesarising out of legal mandates, thePresident’s priorities, or the principlesset forth in the Executive Order.

This rule is an economicallysignificant regulatory action undersection 3(f) of Executive Order 12866

because it is expected to have an annualeffect on the economy of more than$100 million and materially alter the

budgetary impact of the HomeownersAssistance Program. Accordingly, OMBhas reviewed this rule.

b. Sec. 202, Public Law 104–4,‘‘Unfunded Mandates Reform Act’’

It has been certified by the DUSD(I&E)that 32 CFR part 239, does not containa Federal mandate that may result inexpenditure by State, local, and tribalgovernments, in aggregate, or by theprivate sector, of $100 million or morein any one year.

c. Public Law 96–354, ‘‘RegulatoryFlexibility Act’’ (5 U.S.C. 601)

It has been certified by the DUSD(I&E)that 32 CFR part 239, is not subject tothe Regulatory Flexibility Act (5 U.S.C.601) because it would not, if promulgated, have a significanteconomic impact on a substantialnumber of small entities.

d. Public Law 96–511, ‘‘PaperworkReduction Act’’ (44 U.S.C. Chapter 35)

It has been certified by the DUSD(I&E)that 32 CFR part 239, does impose

reporting or recordkeeping requirementsunder the Paperwork Reduction Act of 1995. These requirements have beenapproved by the Office of Managementand Budget under OMB Control Number0704–0463.

e. Executive Order 13132, ‘‘Federalism’’

It has been certified by the DUSD(I&E)that 32 CFR part 239, does not havefederalism implications, as set forth inExecutive Order 13132. This rule doesnot have substantial direct effects on:

(1) The States;(2) The relationship between the

Federal Government and the States; or(3) The distribution of power and

responsibilities among the variouslevels of Government.

List of Subjects in 32 CFR Part 239

Government employees; Grantprograms—housing and communitydevelopment; Housing; Militarypersonnel.

■ Accordingly, 32 CFR part 239, isrevised to read as follows:

PART 239—HOMEOWNERSASSISTANCE PROGRAM—APPLICATION PROCESSING

Sec.239.1 Purpose.239.2 Applicability and scope.239.3 Policy.239.4 Definitions.239.5 Benefit elections.239.6 Eligibility.239.7 Responsibilities.239.8 Funding.239.9 Application processing procedures.239.10 Management controls.239.11 Appeals.239.12 Tax documentation.239.13 Program performance reviews.

239.14 On-site inspections.239.15 List of HAP field offices.

Authority: 42 U.S.C. 3374, as amended bySection 1001, ARRA, Public Law 111–5.

§239.1. Purpose.

This part:(a) Continues to authorize the

Homeowners Assistance Program (HAP)

under Section 3374 of title 42, UnitedStates Code (U.S.C.), to assist eligiblemilitary and civilian Federal employeehomeowners when the real estatemarket is adversely affected directlyrelated to the closure or reduction-in-scope of operations due to BaseRealignment and Closure (BRAC).Additionally, in accordance withsection 1001, American Recovery andReinvestment Act of 2009 (ARRA),Public Law 111–5, this part temporarilyexpands authority provided in section3374, of title 42 U.S.C., to provideassistance to: Wounded, Injured, or Ill

members of the Armed Forces (30percent or greater disability), woundedDepartment of Defense (DoD) and CoastGuard civilian homeowners reassignedin furtherance of medical treatment orrehabilitation or due to medicalretirement in connection with theirdisability, surviving spouses of fallenwarriors, Base Realignment and Closure(BRAC) 2005 impacted homeownersrelocating during the mortgage crisis,and Service member homeownersundergoing Permanent Change of Station (PCS) moves during themortgage crisis. This authority isreferred to as ‘‘Expanded HAP.’’

(b) Establishes policy, authority, andresponsibilities for managing ExpandedHAP and defines eligibility for financialassistance.

(c) In accordance with this part, theUnder Secretary of Defense forAcquisition, Technology, and Logistics(USD(AT&L)) has overall responsibilityand, through the Deputy UnderSecretary of Defense for Installationsand Environment (DUSD(I&E)), providesoversight for this program. The Army,acting as the DoD Executive Agent foradministering the HAP, uses theHeadquarters, U.S. Army Corps of

Engineers (HQUSACE) to implement theprogram.

§ 239.2 Applicability and scope.

This part applies to the Office of theSecretary of Defense, the MilitaryDepartments (including the U.S. CoastGuard), the Chairman of the JointsChiefs of Staff, the CombatantCommands, the Inspector General of theDepartment of Defense, the DefenseAgencies, DoD Field Activities, and allother organizational entities within theDepartment of Defense (hereafter





referred to collectively as the ‘‘DoDComponents’’). This part for ExpandedHAP is applicable until September 30,2012, or as otherwise extended by law.

§239.3 Policy.

It is DoD policy, in implementingsection 3374 of title 42, United StatesCode, as amended by section 1001 of the

ARRA (Pub. L. 111–5), that thoseeligible (see section 239.6 of this part)to participate in the HAP and ExpandedHAP are treated fairly and receiveavailable benefit as quickly aspracticable.

§ 239.4 Definitions.

(a) Armed Forces. The Army, Navy,Air Force, Marine Corps, and CoastGuard (see section 101(a) of title 10,U.S.C., as stipulated in section 1001(p)of Public Law 111–5).

(b) Closing costs. Sellers’ closing coststypically include: loan payoff fees; thereal estate commission; title insurance;

all or part of transfer taxes and escrowfees, if there are any; attorney’s feeswhere applicable; and other fees set bylocal custom. HAP pays sellers’ closingcosts that are customary for the regionwhere the home is located. Applicant’srealtor or lender can provide theapplicant with the normal closing costsfor his/her region. HAP will reimbursethe seller for limited contributions madeto the buyer’s portion of closing costs,including appraisal cost and realtor fees.

(c) Deficiency judgment. Judicialrecognition of personal liability underapplicable state law against a Service

member whose property was foreclosedon or who otherwise passed title toanother person for a primary residencethrough a sale that realized less than thefull outstanding mortgage balance.

(d) Deployment. Performing service ina training exercise or operation at alocation or under circumstances thatmake it impossible or infeasible for themember to spend off-duty time in thehousing in which the member resideswhen on garrison or installation duty atthe member’s permanent duty station, orhome port, as the case may be.

(e) Eligible mortgage. A mortgage

secured by the primary residence thatwas incurred to acquire or improve theprimary residence. For a mortgagerefinancing the original mortgage(s) orfor a mortgage incurred subsequent topurchasing the property, funds from therefinanced or subsequent mortgagesmust be traced to the purchase of theprimary residence or have been used toimprove the primary residence. Homeimprovements that are documented(even if not financed through asubsequent mortgage or line of credit)may be added to the purchase price of

the primary residence. Funds from arefinanced or subsequent mortgage thatwere used for other purposes are noteligible and may not be considered.Benefits will be calculated using theamount of $729,750 for primaryresidences with an eligible mortgagethat exceeds $729,750. The total benefitpayable (excluding allowable closing

costs) shall not exceed $729,750. TheARRA expanded HAP calculates PFMVas the purchase price plusimprovements. Improvements areidentified in the Internal RevenuePublication #523 (http://www.irs.gov/

publications/p523/ar02.html ) whichoutlines items considered homeimprovements and distinguishesimprovements from repairs andmaintenance.

(f) Forward deployment. Performingservice in an area where the Secretaryof Defense or the Secretary’s designeehas determined that Service members

are subject to hostile fire or imminentdanger under section 310(a)(2) of title37, U.S.C.

(g) Primary residence. The one- ortwo-family dwelling from whichemployees or members regularlycommute (or commuted) to theirprimary place of duty. Under §239.6(a)and (b) of this part, the relevantproperty for which compensation might

be offered must have been the primaryresidence of the member or civilianemployee at the time of the relevantwound, injury, or illness. The first fieldgrade officer (or civilian equivalent) inthe member or employee’s chain of

command may certify primary residencestatus.

(h) Prior Fair Market Value (PFMV).The PFMV is the purchase price of theprimary residence. Benefits will becalculated using the amount of $729,750as the PFMV for primary residenceswith a PFMV that exceeds $729,750.

(i) Purchase. Purchase occurs whenthe applicant enters into a contract forthe purchase of the property. In theabsence of a contract for purchase, thepurchase occurs when the applicantcloses on the property.

(j) Reasonable effort to sell.Applicant’s primary residence must belisted, actively marketed, and availablefor purchase for a minimum of 120 days.With regard to marketing, applicantmust demonstrate that the asking pricewas within the current market value of the home as determined by theHQUSACE automated value model(AVM) for no less than 30 days. It is theapplicant’s responsibility to explainmarketing efforts by detailing how theasking price was gradually reduceduntil it reached the true current fairmarket value (e.g., maintaining a log

containing date and asking pricerecorded over period of time indicatingnumber of visits by prospective buyersand offers to purchase). If an applicantis unable to sell the primary residence,the HQUSACE will determine whetherefforts to sell were reasonable.

(k) Permanent Change of Station(PCS). The assignment or transfer of a

member to a different permanent dutystation (PDS), to include relocation toplace of retirement, when retirement ismandatory, under a competentauthorization/order that does notspecify the duty as temporary, providefor further assignment to a new PDS, ordirect the military service memberreturn to the old PDS.

§ 239.5 Benefit elections.

Section 3374 of title 42, U.S.C., asamended by section 1001 of the ARRA,Public Law 111–5, authorizes theSecretary of Defense, under specified

conditions, to acquire title to, hold,manage, and dispose of, or, in lieuthereof, to reimburse for certain lossesupon private sale of, or foreclosureagainst, any property improved with aone- or two-family dwelling owned bydesignated individuals.

(a) General benefits. (1) If an applicantis unable to sell the primary residenceafter demonstrating reasonable efforts tosell (see Definitions, §239.4(i) of thispart), the Government may purchase theprimary residence for the greater of:

(i) The applicable percentage(identified by applicant type in§ 239.5(a)(4) of this part) of the Prior

Fair Market Value (PFMV) of theprimary residence, or

(ii) The total amount of the eligiblemortgage(s) that remains outstanding;however, the benefit payable (excludingallowable closing costs) shall not exceed$729,750.

(2) If an applicant sells, has sold, orotherwise has transferred title of theprimary residence, the benefitcalculation shall be the amount of closing costs plus an amount not toexceed the difference between theapplicable percentage of the PFMV andthe sales price.

(3) If an applicant is foreclosed upon,the benefit will pay all legallyenforceable liabilities directlyassociated with the foreclosed mortgage(e.g., a deficiency judgment).

(4) Applicable percentages. (i) If anapplicant is eligible under §239.6(a)(1)or (2) of this part, and sells the primaryresidence, the applicable percentageshall be 95 percent of the PFMV. Inaddition, closing costs incurred on thesale may be reimbursed.

(ii) If an applicant is eligible under§ 239.6(a)(1) or (2) of this part, and is


http://www.irs.gov/publications/p523/ar02.html








unable to sell the primary residenceafter demonstrating reasonable efforts tosell, the applicable percentage shall be90 percent of the PFMV. Closing costsincurred on the sale may be reimbursed.

(iii) If an applicant is eligible under§ 239.6(a)(3) or (4) of this part and sellsthe primary residence, the applicablepercentage shall be 90 percent of the

PFMV. In addition, closing costsincurred on the sale may be reimbursed.

(iv) If an applicant is eligible under§ 239.6(a)(3) or (4) of this part and isunable to sell the primary residenceafter demonstrating reasonable efforts tosell, the applicable percentage shall be75 percent of the PFMV. As noted underparagraph (a)(1) of this section,however, the applicant may instead beeligible for payment of the eligiblemortgage outstanding.

(b) Rules applicable to all benefit calculations. (1) Prior to making anypayment, the Government mustdetermine that title to the property has

been transferred or will be transferred asthe result of making such payment. If the Government determines that makinga benefit payment will not result in thetransfer of title to the property, nopayment will be made.

(2) A short sale will be treated as aprivate sale. If an applicant remainspersonally liable for a deficiency

between the outstanding mortgage andthe sale price, the amount of thisdeficiency may be included in the

benefit, provided that the total amountof the benefit does not exceed thedifference between 90 percent of the

PFMV and the sales price.(c) Payment of benefits. (1) Privatesale: Where a benefit payment exceedsfunds required to clear the mortgage andpay closing costs, the amount exceedingthe mortgage and closing costs will bepaid directly to the applicant. In thecase of a short sale, if an applicantremains personally liable for adeficiency between the outstandingmortgage and the sale price, thatdeficiency shall be paid directly to thelender on behalf of the applicant. If theapplicant was fully released fromliability after a short sale, no benefit

shall be paid to either the applicant orlender.(2) Government purchase: Benefit is

paid directly to the lender in exchangefor government possession of theproperty. Since the benefit reimbursesthe applicant a percentage of theapplicant’s purchase price, if the benefitexceeds the mortgage payoff amount,the applicant will receive a benefitpayment for the difference between themortgage payoff and the total benefitpayment. If the applicant has a buyer forthe home, the payment of real estate

commissions when an applicant’smortgage exceeds the property’s currentfair market value (i.e., upside down)will be accomplished as follows:

(i) Commission will be at the normaland customary rate for the area(normally six percent) on the priceagreed upon by the applicant and the

buyer and to whom the Government

will then sell the home. While thecommission payment is theresponsibility of the applicant, theGovernment will make the commissionpayment for the applicant when thehome is sold by the Government to theapplicant’s buyer contingent upon boththe Government acquisition andGovernment sale contract transactions

being completed and recorded.Commissions will be paid to the brokerlisting the property. The allocation of dollars to real estate agents will be theresponsibility of the listing broker.

(ii) After Government acquisition, the

Government will then sell the propertyto the buyer found by the applicant.

(iii) No other payment of fees orcommissions will be made without theprior approval of HQUSACE.

(3) Foreclosure: In the case of aforeclosure, benefit is paid to lienholder for legally enforceable liabilities.

(d) Tax Implications. 26 U.S.C. 132(n)exempts Expanded HAP benefits fromFederal taxes and is not subject towithholding.

§ 239.6 Eligibility.

(a) Eligibility by Category. Those

eligible for benefits under the ExpandedHAP include the following categories of persons:

(1) Wounded, Injured, or Ill. (i)Members of the Armed Forces:

(A) Who receive a disability rating of 30% or more for an unfitting condition(using the Department of VeteransAffairs Schedule for RatingsDisabilities), or who are eligible forService member’s Group Life InsuranceTraumatic Injury Protection Program, orwhose treating physician (in a grade of at least captain in the Navy or CoastGuard or colonel in Army, MarineCorps, or Air Force) certifies that themember is likely, by a preponderance of the evidence, to receive a disabilityrating of 30 percent or more for anunfitting condition (using theDepartment of Veterans AffairsSchedule for Ratings Disabilities) forwounds, injuries, or illness incurred inthe line of duty while deployed, on orafter September 11, 2001, and

(B) Who are reassigned in furtheranceof medical treatment or rehabilitation,or due to retirement in connection withsuch disability, and

(C) Who need to market the primaryresidence for sale due to the wound,injury, or illness. (For example, the needto be closer to a hospital or a familymember caregiver or the need to findwork more accommodating to thedisability.)

(ii) Civilian employees of DoD or theUnited States Coast Guard (excluding

temporary employees or contractors, butincluding employees of non-appropriated fund instrumentalities):

(A) Who suffer a wound, injury, orillness (not due to own misconduct), onor after September 11, 2001, in theperformance of duties while forwarddeployed in support of the ArmedForces, whose treating physicianprovides written documentation that theindividual, by a preponderance of theevidence, meets the criteria for adisability rating of 30 percent or more.As described in paragraph (a)(1) of thissection, this documentation will be

certified by a physician in the grade of at least captain in the Navy or CoastGuard or colonel in Army, MarineCorps, or Air Force.

(B) Who relocate from their primaryresidence in furtherance of medicaltreatment, rehabilitation, or due tomedical retirement resulting from thewound, injury, or illness, and

(C) Who need to market the primaryresidence for sale due to the wound,injury, or illness. (For example, the needto be closer to a hospital or a familymember caregiver or the need to findwork more accommodating to the

disability.)(2) Surviving spouse. The survivingspouse of a Service member or of acivilian employee:

(i) Whose spouse dies as the result of a wound, injury, or illness incurred inthe line of duty while deployed (orforward deployed for civilianemployees) on or after September 11,2001, and

(ii) Who relocates from the member’sor civilian employee’s primaryresidence within two years of the deathof spouse.

(3) BRAC 2005 members and civilianemployees. Members of the ArmedForces and civilian employees of theDepartment of Defense and the UnitedStates Coast Guard (not includingtemporary employees or contractors)and employees of non-appropriatedfund instrumentalities meeting theassignment requirements of § 239.6(b)(4)(i)(A) of this part and whohave not previously received HAP

benefit payments:(i) Whose position is eliminated or

transferred because of the realignmentor closure; and





(ii) Who accepts employment or isrequired to relocate because of a transfer

beyond the normal commuting distancefrom the primary residence (50 miles).The new residence must be within 50miles of the new duty station.

(4) Permanently reassigned membersof the Armed Forces. Members whohave not previously received HAP

benefit payments and who arereassigned under permanent PCS orders:

(i) Dated between February 1, 2006,and September 30, 2012 (subject toavailability of funds),

(ii) To a new duty station or homeport outside a 50-mile radius of themember’s former duty station or homeport.

(b) Eligibility based on economic impact, timing, price, orders, and submission of application. (1) Minimumeconomic impact. (i) BRAC 2005Members and Civilian Employees aswell as permanently reassigned

members of the Armed Forces whoseprimary residence have suffered at leasta 10 percent personal home value lossfrom the date of purchase to date of sale.Market value of the home will beverified by the USACE.

(ii) Applicants qualifying asWounded, Injured, or Ill or as survivingspouse do not need to show minimumeconomic impact.

(2) Timing of purchase and sale.(i) BRAC 2005 Members and CivilianEmployees must have been the owner-occupant of their primary residence

before May 13, 2005, the date of theBRAC 2005 announcement or have

vacated the owned residence as a resultof being ordered into on-post housingafter November 13, 2004. An owner-occupant is someone who has bothpurchased and resides in the residence.

(ii) Permanently reassigned membersof the Armed Forces must havepurchased their primary residence

before July 1, 2006.(iii) Wounded, injured, or ill members

and employees and Surviving Spousesare eligible for compensation withoutrespect to the date of purchase.

(iv) BRAC 2005 Members and Civilianemployees and permanently reassigned

members must have sold their primaryresidence between July 1, 2006 andSeptember 30, 2012.

(3) Maximum home prior fair market value and eligible mortgage. Whencalculating benefits, both the PFMV andthe eligible mortgage will be capped at$729,750.

(4) Date of assignment; report date; basis for relocation. (i) Date of assignment, report date. (A) BRAC 2005Members and Civilian Employees musthave been assigned to an installation orunit identified for closure or

realignment under the 2005 round of theBase Realignment and Closure Act of 1990 on May 13, 2005; transferred fromsuch an installation or unit, oremployment terminated as a result of areduction in force, after November 13,2004; or transferred from such aninstallation or activity on an overseastour after May 13, 2002. BRAC 2005

Members transferred from such aninstallation or activity after May 13,2005, are also eligible if, in connectionwith that transfer the member wasinformed of a future, programmedreassignment to the installation.

(B) For initial implementation,permanently reassigned members of theArmed Forces must have receivedqualifying orders to relocate dated

between February 1, 2006, andSeptember 30, 2010. These dates may beextended to September 30, 2012, at thediscretion of the DUSD(I&E) based onavailability of funds.

(ii) Basis for relocation: Permanentlyreassigned members of the ArmedForces who are reassigned or whootherwise relocate for the followingreasons are not eligible for ExpandedHAP benefits:

(A) Members who voluntarily retireprior to reaching their mandatoryretirement date.

(B) Members who are a new accessioninto the Armed Forces or who areotherwise entering active duty.

(C) Members who are voluntarilyseparated or discharged.

(D) Members whose separation or

discharge is characterized as less thanhonorable.(E) Members who request and receive

voluntary release from active duty(REFRAD).

(F) Members who are REFRAD formisconduct or poor performance.

(c) Applications will be processed according to eligibility category in the

following order: (1) Wounded, injured,and ill. Within this category,applications will generally be processedin chronological order of the wound,injury, or illness.

(2) Surviving spouses. Within thiscategory, applications will generally beprocessed in chronological order of thedate of death of the member oremployee.

(3) BRAC 2005 members and civilianemployees. Within this category,applications will generally be processedin chronological order of the date of jobelimination.

(4) Permanently reassigned membersof the Armed Forces. Within thiscategory, applications will generally beprocessed beginning with the earliestreport-not-later-than date of PCS orders.

§ 239.7 Responsibilities.

(a) The DUSD(I&E), under theauthority, direction, and control of theUSD(AT&L), shall, in relation to theExpanded HAP:

(1) Prescribe and monitoradministrative and operational policiesand procedures.

(2) Determine applicable personnel

benefits and policies, in coordinationwith the Under Secretary of Defense(Comptroller) and the Under Secretaryof Defense for Personnel and Readiness.

(3) Serve as senior appeals authorityfor appeals submitted by applicants.

(b) The Under Secretary of Defense(Comptroller) shall, in relation to theExpanded HAP:

(1) Implement policies and prescribeprocedures for financial operations.

(2) Review and approve financialplans and budgets.

(3) Issue financing and obligationauthorities.

(4) Administer the DoD Homeowners

Assistance Fund.(c) The Deputy Assistant Secretary of

the Army for Installations and Housing(DASA(I&H)), subject to review by theDUSD(I&E), as the DoD Executive Agentfor administering, managing, andexecuting the HAP, shall:

(1) Establish detailed policies andprocedures for execution of theprogram.

(2) Maintain necessary records,prepare reports, and conduct audits.

(3) Publish regulations and forms.(4) Disseminate information on the

program.(5) Forward copies of completed

responses to congressional inquiries andappeals to the DUSD(I&E) forinformation.

(6) Serve as the initial approvalauthority for HAP appeals. TheDASA(I&H) may approve appeals andshall forward recommendations forExpanded HAP denial to the DUSD(I&E)for decision.

(d) The Heads of the DoD Componentsand the Commandant of the CoastGuard, by agreement of the Secretary of Homeland Security, shall:

(1) Designate at least onerepresentative at the headquarters level

to work with DASA(I&H) andHQUSACE HAP offices.(2) Require each installation to

establish a liaison with the nearest HAPfield office to obtain guidance orassistance on the HAP.

(3) Supply the HQUSACE HAP officea copy of any internal regulation,instruction, or guidance publishedrelative to the Expanded HAP program.

(4) Disseminate information on theExpanded HAP and, upon request,supply HAP field offices with datapertaining to the Expanded HAP.





(e) HQUSACE. (1) Real EstateCommunity of Practice (CEMP–CR). TheDirector of Real Estate, acting for theChief of Engineers, has been delegatedauthority and responsibility for theexecution of HAP. CEMP–CR, as thecentral office for HAP, is responsible forthe following:

(i) Supervision, interagency

coordination, development of procedures, policy guidance, andprocessing of appeals forwarded fromthe districts and HQUSACE MajorSubordinate Commands (MSC).

(ii) Maintaining an Expanded HAPcentral office and Expanded HAP fieldoffices.

(iii) Processing appeals from the MSCwhere applicant agreement cannot bereached. Such appeals will beforwarded, in turn, to DASA(I&H) forconsideration.

(2) Districts. Districts designated bythe Director of Real Estate, and their

Chiefs of Real Estate, have beendelegated the authority to administer,manage, and execute the HAP on behalf of all applicants. Districts (as identifiedin § 239.9 of this part) are responsiblefor the following:

(i) Accepting applications (DD Form1607) for HAP and Expanded HAP

benefits.(ii) Determining the eligibility of each

applicant for Expanded HAP assistanceusing the criterion established by theDUSD(I&E).

(iii) Determining and advising eachapplicant on the most appropriate typeof assistance.

(iv) Determining amounts to be paid,consistent with DoD policy, and makingpayments or authorizing and arrangingfor acquisition or transfer of theapplicant’s property.

(v) Maintaining, managing, anddisposing of acquired properties orcontracting for such services withprivate contractors.

(vi) Processing all appeals, exceptwhere applicant agreement cannot bereached. Such appeal cases will beforwarded, in turn, to the MSC, CEMP–CR, and DASA(I&H) for consideration.

(3) HQUSACE Major Subordinate

Commands (MSC). MSCs have beendelegated the authority to performoversight and review of district programmanagement and based upon thatreview, or in response to specificrequests, to provide local policyguidance to the districts andrecommend program changes or forwardappeals to CEMP–CR for consideration.

§239.8 Funding.

(a) Revolving fund account. Therevolving fund account contains moneyappropriated in accordance with the

ARRA, and receipts from themanagement, rental, or sale of theproperties acquired.

(b) Appropriation, receipts, and allocation. Funds required foradministration of the program will bemade available by DoD to theHQUSACE. Funds provided will beused for purchase or reimbursement as

provided herein and to defray expensesconnected with the acquisition,management, and disposal of acquiredproperties, including payment of mortgages or other indebtedness, as wellas the cost of staff services, contractservices, Title Insurance, and otherindemnities.

(c) Obligation of funds. Forgovernment acquisition of homes underthe authority of this Rule, funds will becommitted prior to the Government’soffer to purchase is conveyed to theapplicant. The obligation will occurupon timely receipt of the accepted offer

returned by the applicant.§ 239.9 Application processingprocedures.

(a) Acceptance of applications. Thedistrict will accept applications (DDForm 1607) for HAP and Expanded HAP

benefits submitted through the U.S.Mail or other delivery system direct tothe appropriate district office. See§ 239.15 of this part for a list of Districtfield offices.

(b) Application Form (DD Form 1607).Should the DD form 1607 not provideall the information required to processExpanded HAP applications, Districts

must provide applicants appropriatesupplemental instructions.

(c) Assignment of applicationnumbers. (1) Assignment of applicationnumbers. When a District receives anapplication, it will assign theapplication number and develop andmaintain an individual file for eachproperty. Applications for programslocated in another District will not beassigned a number, but will beforwarded immediately to the Districthaving jurisdiction. An applicationnumber, once assigned, will not bereassigned regardless of the disposition

of the original application. Reactivationor reopening of a withdrawn applicationdoes not require a new application orapplication number.

(2) Method of assignment. Anapplication will be numbered in thefollowing manner:

(i) Agency code. Code to indicate theFederal agency accountable forinstallation being closed or applicantsupport:

(A) 1—Army(B) 2—Air Force(C) 3—Navy

(D) 4—Marine Corps(E) 5—Defense Agencies(F) 6—Non-Defense Agencies(G) 7—U.S. Coast Guard(ii) District code.(A) Sacramento: L2(B) Savannah: K6(C) Fort Worth: M2(iii) Applicant category code

(military/civilian/wounded/survivingspouse/PCS):

(A) 1 = Civilian (BRAC)(B) 2 = Military (BRAC)(C) 3 = Non-appropriated Fund

Instrumentalities(D) 4 = Military Wounded(E) 5 = Civilian Wounded(F) 6 = Surviving Spouse (military

deceased)(G) 7 = Surviving Spouse (civilian

employee deceased)(H) 8 = Military PCS(iv) State: State abbreviation.(v) Installation number: The five digit

ZIP Code of the applicant’s present(former, if they have already moved)installation, offices, or unit address.Examples are:

(A) For a BRAC 05 applicant movingfrom the closing Saint Louis, Missouri,DFAS office to Minneapolis, Minnesota,use the ZIP Code of the city from whichhe or she is moving, e.g., 63101, for St.Louis, Missouri.

(B) For wounded warrior or survivingspouse who moved from primaryresidence, use present installation orhome town.

(C) For Service members who are

eligible based on PCS criteria, use ZIPCode of installation from which theydepart.

(vi) Application Number: Sequential beginning with 0001.

Example 1: 2 K6 2 NH0 3 8 0 30 0 0 1Air Force-SAS Dist.-Mil BRAC-NH-

Pease AFB-Applicant #

Example 2: 1–K 6– 4– NY–1 3 6 0 2–0 0 0 2Army-SAS Dist-Mil Wounded-NY-Ft

Drum-Applicant #

(d) Real Estate Values. (1) Because the

PFMV is the purchase price forExpanded HAP, no appraisal of theproperty is required. Supportingdocumentation to establish purchaseprice must be furnished by theapplicant. Generally, Form HUD–1 willsuffice.

(2) Districts are responsible forensuring primary residence values areappropriate and applicants receivedeserved benefit payments. Districtswill use the CoreLogic AVM todetermine the valuation of individualprimary residences.





§ 239.10 Management controls.

(a) Management systems.Headquarters, USACE has an existinginformation management system thatmanages all information related to theHAP program.

(1) HAPMIS. The HomeownersAssistance Program ManagementInformation System (HAPMIS) provides

program management assistance to fieldoffices and indicators to managers atfield offices, regional headquarters andHQUSACE at the Service Member levelof detail. The Privacy Act applies to thisprogram and the managementinformation system to protect theprivacy of Expanded HAP applicantinformation.

(2) CEFMS. The Corps of EngineersFinancial Management System (CEFMS)provides detailed funds execution andtracking, to include:

(i) Funds issued to field offices forexecution accountability.

(ii) Funds committed and obligated byapplicant category, installation, stateand county.

(b) System of Records Notice (SORN).The Privacy Act limits agencies tomaintaining ‘‘only such information

about an individual as is relevant andnecessary to accomplish a purpose of the agency required to be accomplished

by statute or Executive order of thePresident.’’ 5 U.S.C. 552a(e)(1). TheSORN for the Homeowners AssistanceProgram can be found at http:// www.defenselink.mil/privacy/notices/ army/A0405-10q _CE.shtml. The Privacy

Impact Assessment for the system can be reviewed at: http://www.army.mil/ ciog6/privacy.html. Individuals seekingto determine whether information aboutthem is contained in this system shouldaddress written inquiries to the Chief of Engineers, Headquarters U.S. ArmyCorps of Engineers, Attn: CERE–R, 441G Street, NW., Washington, DC 20314–1000.

§239.11 Appeals.

Applicant appeals will be processedat the district level and forwardedthrough HQUSACE for review. The

HQUSACE may approve an appeal butmust forward any recommendation fordenial to the DASA(I&H) for review andconsideration. DASA(I&H) may approvean appeal but must forwardrecommendations for denial to the

DUSD(I&E) for decision. The DUSD(I&E)is the senior appeals authority forappeals submitted by applicants.

§ 239.12 Tax documentation.

For disbursed funds, tax documents(if necessary) will be certified byHQUSACE Finance Center anddistributed to applicants and the

Internal Revenue Service (IRS) annually.

§ 239.13 Program performance reviews.

HQUSACE will prepare monthlyprogram performance reviews using theHAPMIS; HQUSACE AnnualManagement Command Plan andManagement Control Checklist. Inaddition, program monitoring will also

be conducted (through HAPMIS andCEFMS reports) at the HeadquartersDepartment of the Army and at theDUSD(I&E) levels.

§ 239.14 On-site inspections.

The HQUSACE and its majorsubordinate commands may conductperiodic on-site inspections of districtoffices and monitor program executionthrough HAPMIS and CEFMS reports.

§ 239.15 List of HAP field offices.

Field office For installations located in:

U.S. Army Engineer District, Sacramento, CESPK, 1325 J Street, Sac-ramento, CA 95814–2922, (916) 557–6850 OR, 1–800–811–5532,Internet Address: http://www.spk.usace.army.mil .

Alaska, Arizona, California, Nevada, Utah, Idaho, Oregon, Washington,Montana, Pacific Ocean Rim, and Hawaii.

U.S. Army Engineer District, Savannah, CESAS, Attn: RE–AH, P.O.Box 889, Savannah, GA 31402–0889, 1–800-861–8144, Internet Ad- dress: http://www.sas.usace.army.mil .

Alabama, Georgia, North Carolina, South Carolina, Florida, Ohio, Illi-nois, Indiana, Maryland, Delaware, Michigan, Kentucky, District ofColumbia, Virginia, Pennsylvania, Tennessee, New Hampshire,Rhode Island, New York, Vermont, Mississippi, Massachusetts, Con-

necticut, Maine, New Jersey, West Virginia and Europe.U.S. Army Engineer District, Fort Worth, CESWF, P.O. Box 17300, FortWorth, TX 76102–0300, (817) 886–1112, 1–888–231–7751, Internet Address: http://www.swf.usace.army.mil .

Arkansas, Louisiana, Oklahoma, Texas, New Mexico, Colorado, Iowa,Nebraska, Michigan, Minnesota, North and South Dakota, Wisconsin,Wyoming, Kansas, and Missouri.

HAP CENTRAL OFFICE,Homeowners Assistance Program, HQ U.S. Army Corps of Engineers RealEstate Directorate, Military Division,441 G Street, NW., Washington, DC20314–1000.

Dated: November 10, 2010.

Morgan F. Park,

Alternate OSD Federal Register Liaison

Officer, Department of Defense.[FR Doc. 2010–28756 Filed 11–15–10; 8:45 am]

BILLING CODE 5001–06–P

DEPARTMENT OF HOMELANDSECURITY

Coast Guard

33 CFR Part 117

[Docket No. USCG–2010–1006]

Drawbridge Operation Regulation;

Neuse River, New Bern, NC

AGENCY: Coast Guard, DHS.

ACTION: Notice of temporary deviationfrom regulations.

SUMMARY: The Commander, Fifth CoastGuard District, has issued a temporarydeviation from the regulationsgoverning the operation of the NeuseRiver Railroad Bridge across NeuseRiver, mile 34.2, at New Bern, NC. Thisclosure is necessary to facilitatemechanical repairs.

DATES: This deviation is effective from8 a.m. on November 16, 2010 through 8a.m. on November 18, 2010.ADDRESSES: Documents mentioned inthis preamble as being available in thedocket are part of docket USCG–2010–1006 and are available online by goingto http://www.regulations.gov, insertingUSCG–2010–1006 in the ‘‘Keyword’’ boxand then clicking ‘‘Search.’’ They arealso available for inspection or copyingat the Docket Management Facility (M–30), U.S. Department of Transportation,West Building Ground Floor, RoomW12–140, 1200 New Jersey Avenue, SE.,Washington, DC 20590, between 9 a.m.and 5 p.m., Monday through Friday,except Federal holidays.FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call ore-mail Waverly W. Gregory, Jr., BridgeAdministrator, Fifth Coast GuardDistrict; telephone 757–398–6222, e-


http://www.defenselink.mil/privacy/notices/army/A0405-10q_CE.shtml





http://www.army.mil/ciog6/privacy.html


http://www.spk.usace.army.mil/


http://www.sas.usace.army.mil/


http://www.swf.usace.army.mil/


http://www.regulations.gov/

http://www.regulations.gov/







