[Federal Register Volume 75, Number 67 (Thursday, April 8, 2010)]
[Rules and Regulations]
[Pages 17857-17859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-7792]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AN56


Removal of Obsolete References to Herbicides Containing Dioxin

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans (VA) is amending its regulation 
concerning evaluation of studies relating to the health effects of 
exposure to herbicides containing dioxin and radiation to remove the 
obsolete references to herbicides containing dioxin. This final rule 
reflects changes made by the Agent Orange Act of 1991 in the procedures 
for VA's evaluation of the health effects of exposure to herbicides 
containing dioxin. This document makes non-substantive changes for the 
purpose of removing obsolete regulatory provisions.

DATES: Effective Date: This final rule is effective April 8, 2010.

FOR FURTHER INFORMATION CONTACT: Tracey P. Warren (022K), Attorney, 
Office of the General Counsel, Department of Veterans Affairs, 810 
Vermont Avenue, NW., Washington, DC 20420, (202) 461-7699. (This is not 
a toll-free number.)

SUPPLEMENTARY INFORMATION: In 1984, Congress enacted the Veterans' 
Dioxin

[[Page 17858]]

and Radiation Exposure Compensation Standards Act, Public Law 98-542 
(hereinafter ``1984 statute''), which required VA to prescribe 
regulations regarding the determination of service connection of 
disabilities of veterans who were exposed to herbicides containing 
dioxin during service in the Republic of Vietnam during the Vietnam era 
or were exposed during service to ionizing radiation from certain 
nuclear detonations. Section 6 of the statute established the Veterans' 
Advisory Committee on Environmental Hazards (hereinafter ``Advisory 
Committee'') and charged the Advisory Committee to provide VA with 
evaluations of pertinent scientific studies relating to possible 
adverse health effects of exposure to dioxin or ionizing radiation and 
with recommendations for legislative or administrative action. Section 
5(b) of the 1984 statute directed VA to issue regulations establishing 
guidelines ``governing the evaluation of the findings of scientific 
studies relating to the possible increased risk of adverse health 
effects of exposure to herbicides containing dioxin or of exposure to 
ionizing radiation.'' Section 5(b) further provided that the referenced 
evaluations of scientific studies would be made by the Administrator 
(now Secretary) of Veterans Affairs after receiving the advice of the 
Advisory Committee established under section 6 of the 1984 statute. 
Finally, section 5(b) provided that, under the prescribed regulations, 
VA would make determinations as to whether, and in what circumstances, 
service connection would be granted for particular diseases based on a 
finding that a disease is associated with exposure to herbicides 
containing dioxin or to ionizing radiation.
    In August 1985, VA issued 38 CFR 1.17, 3.311a, and 3.311b to 
implement section 5(b) of the 1984 statute. 50 FR 34,452 (Aug. 26, 
1985). Sections 3.311a and 3.311b set forth criteria governing 
adjudication of claims for service connection of conditions claimed to 
be associated with exposure to herbicides containing dioxin and to 
ionizing radiation, respectively. As they do currently, Sec.  1.17(a) 
stated that VA will periodically publish notices in the Federal 
Register evaluating studies pertaining to the health effects of 
exposure to herbicides containing dioxin or to ionizing radiation, and 
Sec.  1.17(b) set forth the criteria to be used by VA to evaluate the 
studies. Section 1.17(c) was added in 1989, 54 FR 40,388 (Oct. 2, 
1989), stating that, if VA determines, based on evaluation of 
scientific or medical studies and after receiving the advice of the 
Advisory Committee, that there is a ``significant statistical 
association'' between any disease and exposure to herbicides containing 
dioxin or to ionizing radiation, VA will amend 38 CFR 3.311a or 3.311b 
to provide guidelines for establishing service connection for the 
disease.
    After VA issued those regulations, Congress enacted the Agent 
Orange Act of 1991, Public Law 102-4, which established an entirely new 
process for evaluating the health effects of exposure to herbicides 
containing dioxin and for establishing presumptions of service 
connection for diseases associated with such exposure. Section 3 of the 
Agent Orange Act directed VA to enter into an agreement with the 
National Academy of Sciences for periodic reviews of the scientific 
evidence concerning the health effects of exposure to herbicides. 
Section 2 of the Agent Orange Act, codified at 38 U.S.C. 1116, provides 
that, after receiving a report from the National Academy, VA must 
determine whether a presumption of service connection is warranted for 
any disease discussed in that report. The statute provides that VA will 
find a presumption to be warranted if there is a ``positive 
association'' between herbicide exposure and the disease, meaning that 
the credible evidence for an association is equal to or outweighs the 
credible evidence against an association. 38 U.S.C. 1116(b). The 
statute further specifies the criteria VA must use in evaluating 
scientific studies for purposes of that determination. 38 U.S.C. 
1116(b)(2). The Agent Orange Act also directs VA to issue regulations 
establishing presumptions of service connection, when warranted, and to 
publish notices in the Federal Register explaining the basis for any 
decision not to establish a presumption. 38 U.S.C. 1116(c).
    Section 10 of the Agent Orange Act amended the 1984 statute to 
remove all references to herbicides containing dioxin. As a result, the 
provisions of the 1984 statute regarding recommendations by the 
Advisory Committee, VA's evaluation of scientific studies, and VA 
determinations with respect to specific diseases, are obsolete with 
regard to matters involving herbicide exposure, which are now governed 
by the comprehensive statutory scheme of the Agent Orange Act.
    In 1994, VA removed 38 CFR 3.311a, the dioxin regulation issued 
under the 1984 statute, 59 FR 5105 (Feb. 3, 1994), on the ground that 
it had been superseded by regulations implementing the Agent Orange Act 
of 1991. 58 FR 50,528, 50,529 (1993). However, VA did not amend 38 CFR 
1.17 at that time to remove the portions of Sec.  1.17 that pertain to 
determinations concerning exposure to herbicides containing dioxin. We 
are therefore amending Sec.  1.17 now to remove the obsolete provisions 
of that rule relating to herbicides containing dioxin. As explained 
above, the provisions of Sec.  1.17 relating to herbicides containing 
dioxin were based on provisions of the 1984 statute that have since 
been repealed. The Agent Orange Act of 1991 has supplanted the 
procedures described in Sec.  1.17 with different procedures in 38 
U.S.C. 1116 governing VA's receipt and review of scientific evidence, 
determinations with respect to diseases, issuance of regulations, and 
publication of notices in the Federal Register. Accordingly, all of the 
references to herbicides containing dioxin in Sec.  1.17 are outdated 
and have no further effect. We are therefore removing them as obsolete.
    Nothing in this rule is intended to limit or alter VA's duty under 
the Agent Orange Act of 1991, codified at 38 U.S.C. 1116, to review 
scientific and medical evidence concerning the health effects of 
herbicide exposure and to publish notices in the Federal Register of 
VA's determinations on such matters.

Administrative Procedure Act

    These amendments merely reflect statutory changes and remove 
provisions that have become obsolete. Accordingly, this final rule is 
exempt from the prior notice-and-comment and delayed-effective-date 
requirements of 5 U.S.C. 553.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any year. This amendment would have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This document contains no collections of information under the 
Paperwork Reduction Act (44 U.S.C. 3501-3521).

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential

[[Page 17859]]

economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity). The Executive Order 
classifies as 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 the Executive 
Order.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this final rule and has concluded that it is not 
a significant regulatory action under Executive Order 12866.

Regulatory Flexibility Act

    The initial and final regulatory flexibility analyses requirements 
of section 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-
612, are not applicable to this rule because a notice of proposed 
rulemaking is not required for this rule. Even so, the Secretary of 
Veterans Affairs hereby certifies that this 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. Therefore, this 
final rule is also exempt pursuant to 5 U.S.C. 605(b) from the initial 
and final regulatory flexibility analysis requirements of sections 603 
and 604.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.109, Veterans 
Compensation for Service-Connected Disability; and 64.110, Veterans 
Dependency and Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 1

    Administrative practice and procedure, Archives and records, 
Cemeteries, Claims, Courts, Crime, Flags, Freedom of information, 
Government contracts, Government employees, Government property, 
Infants and children, Inventions and patents, Parking, Penalties, 
Privacy, Reporting and recordkeeping requirements, Seals and insignia, 
Security measures, Wages.

    Approved: February 16, 2010.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

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For the reasons set forth in the preamble, VA amends 38 CFR part 1 as 
follows:

PART 1--GENERAL PROVISIONS

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

    Authority: 38 U.S.C. 501(a), and as noted in specific sections.


0
2. Amend Sec.  1.17 by:
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a. Revising the section heading;
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b. In paragraph (a), removing ``exposure to an herbicide containing 2, 
3, 7, 8 tetrachlorodibenzo-p-dioxin (dioxin) and/or'';
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c. In paragraph (c), removing ``exposure to an herbicide containing 
dioxin or'' and by removing, ``Sec.  3.311a or Sec.  3.311b of this 
title, as appropriate,'' and adding, in its place, ``Sec.  3.311 of 
this chapter'';
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d. In paragraphs (d)(1) and (d)(4), removing ``a particular type of 
exposure'' and adding, in its place, ``exposure to ionizing 
radiation'';
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e. In paragraph (f), removing ``a particular exposure'' and adding, in 
its place, ``exposure to ionizing radiation''; and
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f. Revising the authority citation at the end of the section.
    The revisions read as follows:


Sec.  1.17  Evaluation of studies relating to health effects of 
radiation exposure.

* * * * *
(Authority: 38 U.S.C. 501; Pub. L. 98-542, as amended by Pub. L. 
102-4)

[FR Doc. 2010-7792 Filed 4-7-10; 8:45 am]
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