80 FR 35246 - Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide
DEPARTMENT OF VETERANS AFFAIRS Federal Register Volume 80, Issue 118 (June 19, 2015)
Federal Register Volume 80, Issue 118 (June 19, 2015)
| Page Range | 35246-35249 | |
| FR Document | 2015-14995 |
[Federal Register Volume 80, Number 118 (Friday, June 19, 2015)] [Rules and Regulations] [Pages 35246-35249] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2015-14995] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900-AP43 Presumption of Herbicide Exposure and Presumption of Disability During Service for Reservists Presumed Exposed to Herbicide AGENCY: Department of Veterans Affairs. ACTION: Interim final rule. ----------------------------------------------------------------------- SUMMARY: The Department of Veterans Affairs (VA) is amending its regulation governing individuals presumed to have been exposed to certain herbicides. Specifically, VA is expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (``Agent Orange'') during the Vietnam era. In addition, the regulation will establish a presumption that members of this group who later develop an Agent Orange presumptive condition were disabled during the relevant period of service, thus establishing that this service constituted ``active, naval, military or air service.'' The effect of this action is to presume herbicide exposure for these individuals and to allow individuals who were exposed to herbicides during reserve service to establish veteran status for VA purposes and eligibility for some VA benefits. The need for this action results from a recent decision by the Secretary of Veterans Affairs to acknowledge that individuals who had regular and repeated exposure to C-123 aircraft that the United States Air Force used to spray the herbicides in Vietnam during Operation Ranch Hand were exposed to Agent Orange. DATES: Effective Date: This interim final rule is effective on June 19, 2015. Applicability Dates: This interim final rule is applicable to any claim for service connection for an Agent Orange presumptive condition filed by a covered individual that is pending on or after June 19, 2015. Comment date: Comments must be received on or before August 18, 2015. FOR FURTHER INFORMATION CONTACT: Stephanie Li, Chief, Regulations Staff, Compensation Service (21C), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 20420, (202) 461-9700 (this is not a toll-free number). SUPPLEMENTARY INFORMATION: In 2014, VA commissioned the National Academy of Sciences' Institute of Medicine (IOM) to conduct a consensus study of all available scientific literature and knowledge on the subject of residual exposure to Agent Orange from service on aircraft formerly used during Operation Ranch Hand in Vietnam. VA commissioned this study to get a better understanding of the potential harmful exposures and health effects involved in serving on these aircraft after the conclusion of herbicide spraying operations in Vietnam. Specifically, VA requested that the IOM ``determine whether there had been exposures that could lead to excess risk of adverse health outcomes among [Air Force] Reserve personnel who flew in and/or maintained C-123 aircraft (outside of Vietnam) that had previously been used to spray Agent Orange.'' See Institute of Medicine, National Academy of Sciences, Post-Vietnam Dioxin Exposure in Agent Orange- Contaminated C-123 Aircraft 10 (2015), available at http://www.publichealth.va.gov/exposures/agentorange/publications/institute-of-medicine.asp. According to the IOM's 2015 report on C-123 exposures, from 1972 to 1982, approximately 1,500 to 2,100 Air Force Reserve personnel trained and worked on C-123 aircraft, of which approximately 30 had formally been used to spray herbicides in Vietnam. Id. at 9. The report noted that the aircraft had been assigned to a few Air Force Reserve units where they were used for military airlift, medical transport, and cargo transport operations in the United States and internationally. Id. at 26. Regarding the potential for harmful exposures, the IOM found that Reservists who served as flight crew (pilot, navigator, flight engineer, and loadmaster), ground maintenance crew, and aero-medical personnel had regular and repeated contact with the aircraft. Id. at 26-27. The report identified the specific aircraft and the Reserve units to which they were assigned, and concluded, ``it is probable that the [herbicide] exposures of at least some [Air Force] Reservists exceeded levels equivalent to some guidelines established for office workers in enclosed settings.'' Id. at 62. The IOM determined that it is ``plausible that the C-123s did contribute to some adverse health consequences among [Air Force] Reservists who worked in [Operation Ranch Hand] C-123s after the planes returned from Vietnam.'' Id. at 62- 63. Based upon the IOM report, the Secretary of Veterans Affairs has decided that VA will acknowledge exposure to Agent Orange for approximately 1,500 to 2,100 Air Force and Air Force Reserve personnel whose military service involved regular and repeated contact with the contaminated C-123 aircraft. Therefore, this interim final rule establishes a presumption of exposure to herbicides for individuals who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era. However, most individuals with such service were members of the Air Force Reserve at the time. Basic eligibility for VA benefits requires that an individual be a ``veteran'' as that term is defined in 38 U.S.C. 101(2): ``The term `veteran' means a person who served in the active military, naval, or air service, and who was discharged or [[Page 35247]] released therefrom under conditions other than dishonorable.'' Service as a member of a reserve component during a period of active duty for training or inactive duty training does not qualify an individual as a ``veteran'' because it does not constitute ``active military, naval or air service'' unless the individual is disabled or dies during that period of service as provided under 38 U.S.C. 101(24)(B) and (C). Pursuant to the Secretary's general rulemaking authority under 38 U.S.C. 501(a), VA has provided presumptions of service connection for diseases associated with exposure to an herbicide agent. 38 CFR 3.309(e). These presumptions of service connection are consistent with the disease-based presumptions under 38 U.S.C. 1116 for Vietnam Veterans with service in the Republic of Vietnam who are presumed by law to have been exposed to an herbicide agent during such service. Because an individual must quality as a ``veteran'' before they are eligible for presumptions of service connection, see Smith v. Shinseki, 24 Vet. App. 40, 44 (2010) (noting ``[t]he Court has held that, without previously established veteran status, the presumptions of service connection . . . are inapplicable''), VA estimates that most of the servicemembers addressed by the IOM report are not presently eligible for the regulatory disease-based presumptions of service connection. This interim final rule establishes factual presumptions that will allow Air Force Reservists who are presumed under this interim final rule to have been exposed to herbicide during their reserve service to establish veteran status as a result of that service. Although section 101(24) requires a period of active duty for training or inactive duty training ``during which the individual concerned was disabled or died'' for a period of active duty for training or inactive duty training to constitute ``active military, naval, or air service,'' the latent effects of herbicide exposure were unrecognized when section 101(24) was enacted in 1958. Operation Ranch Hand spraying commenced in 1962 and concluded in 1971, and Congress recognized the need for presumptions of service connection for Agent Orange-related conditions and regular evaluation of the science related to such conditions in the Agent Orange Act of 1991, Public Law 102-4. Pursuant to this law, the IOM in 1992 entered into an agreement with VA to review and summarize scientific evidence concerning the association between herbicide exposure during Vietnam service and conditions that might be associated with such exposure. It issued its first report on the subject in 1994. See Institute of Medicine, National Academy of Sciences, Veterans and Agent Orange: Health Effects of Herbicides Used in Vietnam (1994), available at http://www.publichealth.va.gov/exposures/agentorange/publications/institute-of-medicine.asp. Thus, in enacting section 101(24), Congress was necessarily unaware of later scientific understanding of the potential latent effects of herbicide exposure. Indeed, Congress was necessarily informed by the science that existed at the time of enactment in 1958. The legislative history regarding the enactment of section 101(24) does not specifically explain Congress' intent in requiring that the individual ``was disabled or died'' during the period of service. It is probable that Congress required a reserve component member to have been disabled ``during'' training because the medical science of the time understood that, if an in-service injury were to result in disability, at least some aspect of that disability generally would be manifest contemporaneous with the injury. However, subsequent developments with regard to herbicide use in Vietnam and advancements in medical understanding of the health effects of herbicide exposure raise a question regarding the application of section 101(24) to disability associated with such exposure. Viewing the generally beneficial purpose of section 101(24) in light of the evolved medical understanding, we believe it is reasonable to create a factual presumption that disability occurred during the period of service as required under section 101(24) when an individual has a present disability now scientifically associated with exposure to an herbicide agent. Specifically, the existing herbicide-related disease presumptions enumerated in 38 CFR 3.309(e), coupled with the potential for clinical uncertainty regarding when such diseases first manifested, provide a reasonable basis for presuming that disability occurred during a period of reserve service for purposes of satisfying the requirements under section 101(24)(B) or (C) in order to ensure compensation and health care for reservists disabled as a result of herbicide exposure on reserve duty. For the above reasons, we are amending 38 CFR 3.307 regarding disease associated with exposure to certain herbicide agents to add new paragraph (a)(6)(v). As amended, Sec. 3.307 will presume exposure to herbicide for ``[a]n individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era.'' Further, in consideration of the reserve component members with such service, VA will consider this presumed herbicide exposure to be an ``injury'' under section 101(24)(B) and (C). In turn, if such individual develops a presumptive disease listed in 38 CFR 3.309(e), as specified in 38 CFR 3.307(a)(6)(ii), ``it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service.'' VA will make the factual presumption that the individual concerned was disabled during the qualifying service so that such individual's service will constitute ``active, military, naval, or air service.'' As explained, we believe this is consistent with section 101(24) because herbicide exposure has uniquely latent effects which were largely unrecognized in 1958. Covered individuals may therefore establish veteran status for purposes of VA's disability compensation, dependency and indemnity compensation, medical care, and burial benefits related to any Agent Orange-related presumptive condition. Administrative Procedure Act The Secretary of Veterans Affairs finds under 5 U.S.C. 553(b)(B) that there is good cause that advance notice and opportunity for public comment are impracticable, unnecessary, or contrary to the public interest and under 5 U.S.C. 553(d)(3) that there is good cause to publish this rule with an immediate effective date. This interim final rule provides a presumption of herbicide exposure for individuals who performed certain military service. This interim final rule also establishes a presumption that if such an individual develops a presumptive herbicide-related condition, the individual concerned became disabled during that service for purposes of establishing that the individual has active military, naval, or air service. These changes will make individuals who were exposed to herbicide during service eligible for some VA benefits for disabilities resulting from herbicide-related diseases. Based on the age of the individuals affected by this rule and the potential severity of the disabilities associated with their herbicide exposure, it is likely that affected individuals will have significant and urgent financial and medical needs. In order for these individuals to have [[Page 35248]] access to VA benefits to include VA health care, it is essential that these rules be made effective as soon as possible. For the above reasons, the Secretary issues this rule as an interim final rule. However, VA will consider and address comments that are received within 60 days of the date this interim final rule is published in the Federal Register. Paperwork Reduction Act This rule contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). Regulatory Flexibility Act Because no notice of proposed rulemaking is required in connection with the adoption of this interim final rule, no regulatory flexibility analysis is required under the Regulatory Flexibility Act, 5 U.S.C. 601-612. Even so, the Secretary of Veterans Affairs certifies that this interim final rule will not directly affect any small entities. It will directly affect only VA beneficiaries. Accordingly, this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act. Executive Order 12866 and 13563 Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a ``significant regulatory action,'' requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as ``any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.'' The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined that it is not an economically significant regulatory action under Executive Order 12866. VA's regulatory impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its regulatory impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for ``VA Regulations Published From FY 2004 Through Fiscal Year to Date.'' Unfunded Mandates The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector. Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death. Signing Authority The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, Department of Veterans Affairs, approved this document on May 11, 2015, for publication. List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam. Dated: June 15, 2015. William F. Russo, Acting Director, Office of Regulation Policy & Management, Office of the General Counsel, Department of Veterans Affairs. For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 3 to read as follows: PART 3--ADJUDICATION Subpart A--Pension, Compensation, and Dependency and Indemnity Compensation 0 1. The authority citation for part 3, subpart A, continues to read as follows: Authority: 38 U.S.C. 501(a), unless otherwise noted. 0 2. Amend Sec. 3.307 by adding paragraph (a)(6)(v) immediately after paragraph (a)(6)(iv) and revising the authority citation at the end of the section to read as follows: Sec. 3.307 Presumptive service connection for chronic, tropical or prisoner-of-war related disease, or disease associated with exposure to certain herbicide agents; wartime and service on or after January 1, 1947. (a) * * * (6) * * * (v) An individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent. For purposes of this paragraph, ``regularly and repeatedly operated, maintained, or served onboard C-123 aircraft'' means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code indicating duties as a flight, ground maintenance, or medical crew member on such aircraft. Such exposure constitutes an injury under 38 [[Page 35249]] U.S.C. 101(24)(B) and (C). If an individual described in this paragraph develops a disease listed in 38 CFR 3.309(e) as specified in paragraph (a)(6)(ii) of this section, it will be presumed that the individual concerned became disabled during that service for purposes of establishing that the individual served in the active military, naval, or air service. * * * * * (Authority: 38 U.S.C. 101(24), 501(a), 1116(a)(3), and 1821) [FR Doc. 2015-14995 Filed 6-18-15; 8:45 am] BILLING CODE 8320-01-P
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circle with a 280 foot radius at position Air Force Reserve under circumstances Medicine, National Academy of
47°07′22″ N, 088°35′39″ W. in which they had regular and repeated Sciences, Post-Vietnam Dioxin Exposure
(b) Effective period. This safety zone contact with C–123 aircraft known to in Agent Orange-Contaminated C–123
is effective from 10 p.m. to 11 p.m. on have been used to spray an herbicide Aircraft 10 (2015), available at http://
June 20, 2015. agent (‘‘Agent Orange’’) during the www.publichealth.va.gov/exposures/
(c) Regulations. (1) In accordance with Vietnam era. In addition, the regulation agentorange/publications/institute-of-
the general regulations in § 165.23 of will establish a presumption that medicine.asp.
this part, entry into, transiting, or members of this group who later According to the IOM’s 2015 report
anchoring within this safety zone is develop an Agent Orange presumptive on C–123 exposures, from 1972 to 1982,
prohibited unless authorized by the condition were disabled during the approximately 1,500 to 2,100 Air Force
Captain of the Port Duluth, or his relevant period of service, thus Reserve personnel trained and worked
designated on-scene representative. establishing that this service constituted on C–123 aircraft, of which
(2) This safety zone is closed to all ‘‘active, naval, military or air service.’’ approximately 30 had formally been
vessel traffic, except as may be The effect of this action is to presume used to spray herbicides in Vietnam. Id.
permitted by the Captain of the Port herbicide exposure for these individuals at 9. The report noted that the aircraft
Duluth or his designated on-scene and to allow individuals who were had been assigned to a few Air Force
representative. exposed to herbicides during reserve Reserve units where they were used for
(3) The ‘‘on-scene representative’’ of service to establish veteran status for VA military airlift, medical transport, and
the Captain of the Port is any Coast purposes and eligibility for some VA cargo transport operations in the United
Guard commissioned, warrant, or petty benefits. The need for this action results States and internationally. Id. at 26.
officer who has been designated by the from a recent decision by the Secretary Regarding the potential for harmful
Captain of the Port to act on his behalf. of Veterans Affairs to acknowledge that exposures, the IOM found that
The on-scene representative of the individuals who had regular and Reservists who served as flight crew
Captain of the Port will be aboard either repeated exposure to C–123 aircraft that (pilot, navigator, flight engineer, and
a Coast Guard or Coast Guard Auxiliary the United States Air Force used to loadmaster), ground maintenance crew,
vessel. The Captain of the Port or his spray the herbicides in Vietnam during and aero-medical personnel had regular
designated on-scene representative may Operation Ranch Hand were exposed to and repeated contact with the aircraft.
be contacted via VHF Channel 16. Agent Orange. Id. at 26–27. The report identified the
(4) Vessel operators desiring to enter specific aircraft and the Reserve units to
DATES: Effective Date: This interim final
or operate within the safety zone shall which they were assigned, and
rule is effective on June 19, 2015.
contact the Captain of the Port Duluth Applicability Dates: This interim final concluded, ‘‘it is probable that the
or his on-scene representative to obtain rule is applicable to any claim for [herbicide] exposures of at least some
permission to do so. Vessel operators service connection for an Agent Orange [Air Force] Reservists exceeded levels
given permission to enter or operate in presumptive condition filed by a equivalent to some guidelines
the safety zone must comply with all established for office workers in
covered individual that is pending on or
directions given to them by the Captain enclosed settings.’’ Id. at 62. The IOM
after June 19, 2015.
of the Port Duluth or his on-scene Comment date: Comments must be determined that it is ‘‘plausible that the
representative. received on or before August 18, 2015. C–123s did contribute to some adverse
health consequences among [Air Force]
Dated: June 10, 2015. FOR FURTHER INFORMATION CONTACT:
Reservists who worked in [Operation
A.H. Moore, Jr., Stephanie Li, Chief, Regulations Staff, Ranch Hand] C–123s after the planes
Commander, U.S. Coast Guard, Captain of Compensation Service (21C), Veterans returned from Vietnam.’’ Id. at 62–63.
the Port Duluth. Benefits Administration, Department of Based upon the IOM report, the
[FR Doc. 2015–15188 Filed 6–18–15; 8:45 am]
Veterans Affairs, 810 Vermont Ave. Secretary of Veterans Affairs has
NW., Washington, DC 20420, (202) 461– decided that VA will acknowledge
BILLING CODE 9110–04–P
9700 (this is not a toll-free number). exposure to Agent Orange for
SUPPLEMENTARY INFORMATION: In 2014, approximately 1,500 to 2,100 Air Force
DEPARTMENT OF VETERANS VA commissioned the National and Air Force Reserve personnel whose
AFFAIRS Academy of Sciences’ Institute of military service involved regular and
Medicine (IOM) to conduct a consensus repeated contact with the contaminated
38 CFR Part 3 study of all available scientific literature C–123 aircraft. Therefore, this interim
and knowledge on the subject of final rule establishes a presumption of
RIN 2900–AP43 residual exposure to Agent Orange from exposure to herbicides for individuals
service on aircraft formerly used during who performed service in the Air Force
Presumption of Herbicide Exposure
Operation Ranch Hand in Vietnam. VA or Air Force Reserve under
and Presumption of Disability During
commissioned this study to get a better circumstances in which the individual
Service for Reservists Presumed
understanding of the potential harmful concerned regularly and repeatedly
Exposed to Herbicide
exposures and health effects involved in operated, maintained, or served onboard
AGENCY: Department of Veterans Affairs. serving on these aircraft after the C–123 aircraft known to have been used
ACTION: Interim final rule. conclusion of herbicide spraying to spray an herbicide agent during the
operations in Vietnam. Specifically, VA Vietnam era. However, most individuals
SUMMARY: The Department of Veterans requested that the IOM ‘‘determine with such service were members of the
Affairs (VA) is amending its regulation whether there had been exposures that
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Air Force Reserve at the time. Basic
governing individuals presumed to have could lead to excess risk of adverse eligibility for VA benefits requires that
been exposed to certain herbicides. health outcomes among [Air Force] an individual be a ‘‘veteran’’ as that
Specifically, VA is expanding the Reserve personnel who flew in and/or term is defined in 38 U.S.C. 101(2):
regulation to include an additional maintained C–123 aircraft (outside of ‘‘The term ‘veteran’ means a person who
group consisting of individuals who Vietnam) that had previously been used served in the active military, naval, or
performed service in the Air Force or to spray Agent Orange.’’ See Institute of air service, and who was discharged or
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released therefrom under conditions It issued its first report on the subject in individual concerned regularly and
other than dishonorable.’’ Service as a 1994. See Institute of Medicine, repeatedly operated, maintained, or
member of a reserve component during National Academy of Sciences, Veterans served onboard C–123 aircraft known to
a period of active duty for training or and Agent Orange: Health Effects of have been used to spray an herbicide
inactive duty training does not qualify Herbicides Used in Vietnam (1994), agent during the Vietnam era.’’ Further,
an individual as a ‘‘veteran’’ because it available at http:// in consideration of the reserve
does not constitute ‘‘active military, www.publichealth.va.gov/exposures/ component members with such service,
naval or air service’’ unless the agentorange/publications/institute-of- VA will consider this presumed
individual is disabled or dies during medicine.asp. Thus, in enacting section herbicide exposure to be an ‘‘injury’’
that period of service as provided under 101(24), Congress was necessarily under section 101(24)(B) and (C). In
38 U.S.C. 101(24)(B) and (C). unaware of later scientific turn, if such individual develops a
Pursuant to the Secretary’s general understanding of the potential latent presumptive disease listed in 38 CFR
rulemaking authority under 38 U.S.C. effects of herbicide exposure. Indeed, 3.309(e), as specified in 38 CFR
501(a), VA has provided presumptions Congress was necessarily informed by 3.307(a)(6)(ii), ‘‘it will be presumed that
of service connection for diseases the science that existed at the time of the individual concerned became
associated with exposure to an enactment in 1958. disabled during that service for
herbicide agent. 38 CFR 3.309(e). These The legislative history regarding the purposes of establishing that the
presumptions of service connection are enactment of section 101(24) does not individual has active military, naval, or
consistent with the disease-based specifically explain Congress’ intent in air service.’’ VA will make the factual
presumptions under 38 U.S.C. 1116 for requiring that the individual ‘‘was presumption that the individual
Vietnam Veterans with service in the disabled or died’’ during the period of concerned was disabled during the
Republic of Vietnam who are presumed service. It is probable that Congress qualifying service so that such
by law to have been exposed to an required a reserve component member individual’s service will constitute
herbicide agent during such service. to have been disabled ‘‘during’’ training ‘‘active, military, naval, or air service.’’
Because an individual must quality as a because the medical science of the time As explained, we believe this is
‘‘veteran’’ before they are eligible for understood that, if an in-service injury consistent with section 101(24) because
presumptions of service connection, see were to result in disability, at least some herbicide exposure has uniquely latent
Smith v. Shinseki, 24 Vet. App. 40, 44 aspect of that disability generally would effects which were largely unrecognized
(2010) (noting ‘‘[t]he Court has held be manifest contemporaneous with the in 1958. Covered individuals may
that, without previously established injury. However, subsequent therefore establish veteran status for
veteran status, the presumptions of developments with regard to herbicide purposes of VA’s disability
service connection . . . are use in Vietnam and advancements in compensation, dependency and
inapplicable’’), VA estimates that most medical understanding of the health indemnity compensation, medical care,
of the servicemembers addressed by the effects of herbicide exposure raise a and burial benefits related to any Agent
IOM report are not presently eligible for question regarding the application of Orange-related presumptive condition.
the regulatory disease-based section 101(24) to disability associated
presumptions of service connection. with such exposure. Viewing the Administrative Procedure Act
This interim final rule establishes generally beneficial purpose of section The Secretary of Veterans Affairs
factual presumptions that will allow Air 101(24) in light of the evolved medical finds under 5 U.S.C. 553(b)(B) that there
Force Reservists who are presumed understanding, we believe it is is good cause that advance notice and
under this interim final rule to have reasonable to create a factual opportunity for public comment are
been exposed to herbicide during their presumption that disability occurred impracticable, unnecessary, or contrary
reserve service to establish veteran during the period of service as required to the public interest and under 5 U.S.C.
status as a result of that service. under section 101(24) when an 553(d)(3) that there is good cause to
Although section 101(24) requires a individual has a present disability now publish this rule with an immediate
period of active duty for training or scientifically associated with exposure effective date. This interim final rule
inactive duty training ‘‘during which to an herbicide agent. Specifically, the provides a presumption of herbicide
the individual concerned was disabled existing herbicide-related disease exposure for individuals who performed
or died’’ for a period of active duty for presumptions enumerated in 38 CFR certain military service. This interim
training or inactive duty training to 3.309(e), coupled with the potential for final rule also establishes a presumption
constitute ‘‘active military, naval, or air clinical uncertainty regarding when that if such an individual develops a
service,’’ the latent effects of herbicide such diseases first manifested, provide a presumptive herbicide-related
exposure were unrecognized when reasonable basis for presuming that condition, the individual concerned
section 101(24) was enacted in 1958. disability occurred during a period of became disabled during that service for
Operation Ranch Hand spraying reserve service for purposes of satisfying purposes of establishing that the
commenced in 1962 and concluded in the requirements under section individual has active military, naval, or
1971, and Congress recognized the need 101(24)(B) or (C) in order to ensure air service. These changes will make
for presumptions of service connection compensation and health care for individuals who were exposed to
for Agent Orange-related conditions and reservists disabled as a result of herbicide during service eligible for
regular evaluation of the science related herbicide exposure on reserve duty. some VA benefits for disabilities
to such conditions in the Agent Orange For the above reasons, we are resulting from herbicide-related
Act of 1991, Public Law 102–4. amending 38 CFR 3.307 regarding diseases. Based on the age of the
individuals affected by this rule and the
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Pursuant to this law, the IOM in 1992 disease associated with exposure to
entered into an agreement with VA to certain herbicide agents to add new potential severity of the disabilities
review and summarize scientific paragraph (a)(6)(v). As amended, § 3.307 associated with their herbicide
evidence concerning the association will presume exposure to herbicide for exposure, it is likely that affected
between herbicide exposure during ‘‘[a]n individual who performed service individuals will have significant and
Vietnam service and conditions that in the Air Force or Air Force Reserve urgent financial and medical needs. In
might be associated with such exposure. under circumstances in which the order for these individuals to have
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U.S.C. 101(24)(B) and (C). If an DC 20460–0001; main telephone by docket ID number EPA–HQ–OPP–
individual described in this paragraph number: (703) 305–7090; email address: 2014–0249, by one of the following
develops a disease listed in 38 CFR RDFRNotices@epa.gov. methods:
3.309(e) as specified in paragraph SUPPLEMENTARY INFORMATION: • Federal eRulemaking Portal: http://
(a)(6)(ii) of this section, it will be www.regulations.gov. Follow the online
presumed that the individual concerned I. General Information instructions for submitting comments.
became disabled during that service for A. Does this action apply to me? Do not submit electronically any
purposes of establishing that the information you consider to be CBI or
You may be potentially affected by other information whose disclosure is
individual served in the active military,
this action if you are an agricultural restricted by statute.
naval, or air service.
producer, food manufacturer, or • Mail: OPP Docket, Environmental
* * * * * pesticide manufacturer. The following Protection Agency Docket Center (EPA/
(Authority: 38 U.S.C. 101(24), 501(a), list of North American Industrial DC), (28221T), 1200 Pennsylvania Ave.
1116(a)(3), and 1821) Classification System (NAICS) codes is NW., Washington, DC 20460–0001.
[FR Doc. 2015–14995 Filed 6–18–15; 8:45 am] not intended to be exhaustive, but rather • Hand Delivery: To make special
BILLING CODE 8320–01–P provides a guide to help readers arrangements for hand delivery or
determine whether this document delivery of boxed information, please
applies to them. Potentially affected follow the instructions at http://
ENVIRONMENTAL PROTECTION entities may include: www.epa.gov/dockets/contacts.html.
AGENCY • Crop production (NAICS code 111). Additional instructions on
• Animal production (NAICS code commenting or visiting the docket,
40 CFR Part 180 112). along with more information about
• Food manufacturing (NAICS code dockets generally, is available at http://
[EPA–HQ–OPP–2014–0249; FRL–9928–82]
311). www.epa.gov/dockets.
Thiram; Pesticide Tolerance • Pesticide manufacturing (NAICS
code 32532). II. Summary of Petitioned-For
AGENCY: Environmental Protection Tolerance
B. How can I get electronic access to
Agency (EPA). In the Federal Register of December
other related information?
ACTION: Final rule. 17, 2014 (79 FR 75107) (FRL–9918–90),
You may access a frequently updated EPA issued a document pursuant to
SUMMARY: This regulation establishes a electronic version of EPA’s tolerance FFDCA section 408(d)(3), 21 U.S.C.
tolerance for residues of thiram in or on regulations at 40 CFR part 180 through 346a(d)(3), announcing the filing of a
avocado. Taminco US, Inc. requested the Government Printing Office’s e-CFR pesticide petition (PP 4E8250) by
this tolerance under the Federal Food, site at http://www.ecfr.gov/cgi-bin/text- Taminco US, Inc., Two Windsor Plaza,
Drug, and Cosmetic Act (FFDCA). idx?&c=ecfr&tpl=/ecfrbrowse/Title40/ Suite 411, 7540 Windsor Drive,
DATES: This regulation is effective June 40tab_02.tpl. Allentown, PA 18195. The petition
19, 2015. Objections and requests for C. How can I file an objection or hearing requested that 40 CFR 180.132 be
hearings must be received on or before request? amended by establishing a tolerance for
August 18, 2015, and must be filed in residues of the fungicide thiram in or on
accordance with the instructions Under FFDCA section 408(g), 21 avocado at 8 parts per million (ppm).
provided in 40 CFR part 178 (see also U.S.C. 346a, any person may file an That document referenced a summary of
Unit I.C. of the SUPPLEMENTARY objection to any aspect of this regulation the petition prepared by Taminco US,
INFORMATION).
and may also request a hearing on those Inc, the petitioner, which is available in
objections. You must file your objection the docket, http://www.regulations.gov.
ADDRESSES: The docket for this action, or request a hearing on this regulation There were no comments received in
identified by docket identification (ID) in accordance with the instructions response to the notice of filing.
number EPA–HQ–OPP–2014–0249, is provided in 40 CFR part 178. To ensure For reasons that are discussed in Unit
available at http://www.regulations.gov proper receipt by EPA, you must IV.C., EPA is establishing a tolerance for
or at the Office of Pesticide Programs identify docket ID number EPA–HQ– avocado at 15 ppm.
Regulatory Public Docket (OPP Docket) OPP–2014–0249 in the subject line on
in the Environmental Protection Agency the first page of your submission. All III. Aggregate Risk Assessment and
Docket Center (EPA/DC), West William objections and requests for a hearing Determination of Safety
Jefferson Clinton Bldg., Rm. 3334, 1301 must be in writing, and must be Section 408(b)(2)(A)(i) of FFDCA
Constitution Ave. NW., Washington, DC received by the Hearing Clerk on or allows EPA to establish a tolerance (the
20460–0001. The Public Reading Room before August 18, 2015. Addresses for legal limit for a pesticide chemical
is open from 8:30 a.m. to 4:30 p.m., mail and hand delivery of objections residue in or on a food) only if EPA
Monday through Friday, excluding legal and hearing requests are provided in 40 determines that the tolerance is ‘‘safe.’’
holidays. The telephone number for the CFR 178.25(b). Section 408(b)(2)(A)(ii) of FFDCA
Public Reading Room is (202) 566–1744, In addition to filing an objection or defines ‘‘safe’’ to mean that ‘‘there is a
and the telephone number for the OPP hearing request with the Hearing Clerk reasonable certainty that no harm will
Docket is (703) 305–5805. Please review as described in 40 CFR part 178, please result from aggregate exposure to the
the visitor instructions and additional submit a copy of the filing (excluding pesticide chemical residue, including
information about the docket available any Confidential Business Information all anticipated dietary exposures and all
rmajette on DSK2TPTVN1PROD with RULES
at http://www.epa.gov/dockets. (CBI)) for inclusion in the public docket. other exposures for which there is
FOR FURTHER INFORMATION CONTACT: Information not marked confidential reliable information.’’ This includes
Susan Lewis, Registration Division pursuant to 40 CFR part 2 may be exposure through drinking water and in
(7505P), Office of Pesticide Programs, disclosed publicly by EPA without prior residential settings, but does not include
Environmental Protection Agency, 1200 notice. Submit the non-CBI copy of your occupational exposure. Section
Pennsylvania Ave. NW., Washington, objection or hearing request, identified 408(b)(2)(C) of FFDCA requires EPA to
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Document Created: 2018-02-22 11:10:11
Document Modified: 2018-02-22 11:10:11
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim final rule. | |
| Dates | Effective Date: This interim final rule is effective on June 19, 2015. | |
| Contact | Stephanie Li, Chief, Regulations Staff, Compensation Service (21C), Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 20420, (202) 461-9700 (this is not a toll-free number). | |
| FR Citation | 80 FR 35246 | |
| RIN Number | 2900-AP43 | |
| CFR Associated | Administrative Practice and Procedure; Claims; Disability Benefits; Health Care; Pensions; Radioactive Materials; Veterans and Vietnam |
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