[Federal Register Volume 69, Number 110 (Tuesday, June 8, 2004)]
[Rules and Regulations]
[Pages 31882-31883]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12828]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AL93


Change of Effective Date of Rule Adding a Disease Associated With 
Exposure to Certain Herbicide Agents: Type 2 Diabetes

AGENCY: Department of Veterans Affairs.

ACTION: Final rule; change of effective date.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans' Affairs (VA) is changing the 
effective date of a final rule published on May 8, 2001, titled 
``Disease Associated With Exposure to Certain Herbicide Agents: Type 2 
Diabetes.'' This action is necessary to conform to the decision of the 
United States Court of Appeals for the Federal Circuit in Liesegang v. 
Secretary of Veterans Affairs, which determined that the correct 
effective date of the amendment was May 8, 2001. The effect of this 
Notice is to insure that the effective date conforms to the decision of 
the United States Court of Appeals for the Federal Circuit and current 
VA practice.

DATES: Effective Date: May 8, 2001.

FOR FURTHER INFORMATION CONTACT: Randy A. McKevitt, Regulations Staff, 
Compensation and Pension Service (211A), Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, telephone (202) 273-7211.

SUPPLEMENTARY INFORMATION: The Department of Veterans' Affairs (VA) is 
amending the effective date of a previously published final rule. On 
May 8, 2001, VA published in the Federal Register (66 FR 23166) a final 
rule titled ``Disease Associated With Exposure to Certain Herbicide 
Agents: Type 2 Diabetes,'' which added Diabetes Mellitus Type 2 to the 
list of diseases in 38 CFR 3.309(e) that are presumed to be due to 
exposure to herbicides used in the Republic of Vietnam. VA determined 
that the effective date of the amendment should be July 9, 2001, 60 
days after publication in the Federal Register, based on 38 U.S.C. 
1116(c)(2) and 5 U.S.C. 801 et. seq. VA published that date as the 
effective date in the final rule.
    On December 10, 2002, the United States Court of Appeals for the 
Federal Circuit decided Robert B. Liesegang, Sr., Roberto Sotelo and 
Paul L. Fletcher v. Secretary of Veterans Affairs (312 F.3d 1368 (Fed. 
Cir. 2002)). Petitioners challenged the effective date assigned to the 
regulation amendment. The Court found that the Congressional Review Act 
(section 251 of the Small Business Regulatory Enforcement Fairness Act 
of 1996, Pub. L. No. 104-121, tit. II. Sec.  251, 110 Stat. 868 (1996) 
(codified at 5 U.S.C. 801-808), (CRA)), could be read in harmony with 
the Agent Orange Act of 1991 (Pub. L. No. 102-4, 105 Stat. 11 (1991) 
(codified in part at 38 U.S.C. 1116)), so that the CRA does not change 
the date on which the regulation becomes effective; it only affects the 
date when the rule becomes operative. The CRA provides for a 60-day 
waiting period before an agency may enforce a major rule to allow 
Congress the opportunity to review the regulation. The Court found that 
the CRA delayed the date on which the Type-2 diabetes regulation became 
operative, and VA had to wait until July 9, 2001, to implement that 
rule. The Court found that once implemented, the correct effective date 
of the regulation is the date of publication in the Federal Register, 
May 8, 2001.
    Following the Court's decision, VA instructed the decision makers 
in the field to apply May 8, 2001, as the effective date for the 
regulation.
    For the reasons discussed above, VA is amending the effective date 
of the amendment to 38 CFR 3.309(e), which added diabetes mellitus 
Type-2 to the list of diseases presumed to be due to exposure to 
herbicides used in the Republic of Vietnam, to May 8, 2001.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any given year. This amendment will have no such 
effect on state, local, or tribal governments, or private sector.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment will 
not have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The reason for this certification is that these 
amendments would not directly affect any small entities. Only VA 
beneficiaries could be directly affected.

[[Page 31883]]

Therefore, under 5 U.S.C. 605(b), these amendments are exempt from the 
initial and final regulatory flexibility analysis requirements of 5 
U.S.C. 603 and 604.

Catalog of Federal Domestic Assistance Program Numbers

    The Catalog of Federal Domestic Assistance program numbers are 
64.100, 64.101, 64.104, 64.105, 64.106, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Veterans, Vietnam.

    Approved: May 27, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.
[FR Doc. 04-12828 Filed 6-7-04; 8:45 am]
BILLING CODE 8320-01-P