[Federal Register Volume 86, Number 229 (Thursday, December 2, 2021)]
[Rules and Regulations]
[Pages 68409-68410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26084]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AR40


Awards Under the Nehmer Court Orders for Disability or Death 
Caused by a Condition Presumptively Associated With Herbicide Exposure; 
Implementing Court Order.

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is issuing this final 
rule to amend its regulation regarding the process for identifying and 
paying appropriate payees entitled to retroactive benefits. This 
amendment is necessary to implement a federal district court order 
directing the VA to remove certain regulatory text concerning 
subsequent release of compensation to a payee when the full amount of 
unpaid benefits has previously been released.

DATES: 
    Effective date: This final rule is effective December 2, 2021.
    Applicability date: The provisions of this final rule shall apply 
to circumstances in which VA has received information about a newly 
identified and eligible payee (hereafter ``new payee'') who has yet to 
receive the Nehmer-related benefits to which the new payee is entitled.

FOR FURTHER INFORMATION CONTACT: Christopher O. Adeloye, Staff 
Attorney, Benefits Law Group, Office of General Counsel (022), 810 
Vermont Avenue NW, Washington, DC 20420, (202) 461-7662. (This is not a 
toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

I. Background and Basis for Revision of Regulation

    In 1991, as part of the Nehmer litigation (Nehmer v. U.S. 
Department of Veterans Affairs, 712 F.Supp. 1404 (N.D. Cal. May 3, 
1989)) before the U.S. District Court for the Northern District of 
California, the parties entered into a

[[Page 68410]]

consent decree that required VA to readjudicate claims filed by a 
specific class of veterans who served in the Republic of Vietnam. In 
the event that VA's readjudication of a veteran's claim was favorable, 
VA would make payment of any past-due benefits to the veteran. However, 
as clarified by a subsequent court order, if VA's readjudication of a 
veteran's claim was favorable but the veteran was deceased, VA would 
pay the full amount of any past-due benefits to the first individual or 
entity listed, in this order: (1) The veteran's spouse; (2) the 
veteran's children in equal shares; (3) the veteran's parents in equal 
shares; and (4) the veteran's estate.
    On September 17, 2021, the plaintiffs in Nehmer filed a motion with 
the district court in which they sought to enforce the consent decree. 
As part of their motion, the plaintiffs requested that the court issue 
an order requiring VA to rescind the last sentence in section 
3.816(f)(3): ``If, following such efforts, VA releases the full amount 
of unpaid benefits to a payee, VA may not thereafter pay any portion of 
such benefits to any other individual, unless VA is able to recover the 
payment previously released.''
    On November 10, 2021, the court issued an order (Nehmer v. U.S. 
Department of Veterans Affairs, No. C86-06160 WHA, USDC N. District 
California, November 10, 2021) vacating the final sentence of section 
3.816(f)(3), directing VA to issue a rule rescinding that sentence, and 
requiring VA to publish that rule in the Federal Register. Consistent 
with that order, VA is issuing this rulemaking to remove the final 
sentence from section 3.816(f)(3).

Administrative Procedure Act

    The Secretary of Veterans Affairs finds that there is good cause 
under the provisions of 5 U.S.C. 553(b)(B) and (d)(3) to publish this 
rule without prior opportunity for public comment and with an immediate 
effective date. The good cause exception allows an agency to forego 
public notice and comment where it would be ``impracticable, 
unnecessary, or contrary to the public interest.'' See 5 U.S.C. 
553(b)(B). Similarly, under 5 U.S.C. 553(d)(3), an agency may forego 
the requirement for a delayed effective date ``for good cause found and 
published with the rule.'' This amendment to section 3.816(f)(3) is 
ministerial in that it simply implements the court's November 10, 2021, 
order. Furthermore, delay in publication of this notice could lead to 
confusion among the public, particularly among new payees who may 
otherwise lack notice that the final sentence in section 3.816(f)(3) 
has been vacated. As the court noted in its order, this presents a 
``serious risk'' to certain payees who may otherwise believe they are 
not entitled to their share of a Nehmer award. For these reasons, 
notice and comment and a delayed effective date are unnecessary, 
impracticable, and contrary to the public interest, and, consequently, 
VA has good cause under the Administrative Procedure Act to publish 
this rule without prior opportunity for public comment and with an 
immediate effective date.

Executive Orders 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. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable 
to this rulemaking because notice of proposed rulemaking is not 
required. 5 U.S.C. 601(2), 603(a), 604(a).

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 the 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 final rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Assistance Listing

    The Assistance Listing program numbers and titles for this rule are 
64.104 Pension for Non-Service-Connected Disability for Veterans; 
64.105 Pension to Veterans Surviving Spouses, and Children; 64.109 
Veterans Compensation for Service-Connected Disability; 64.110 Veterans 
Dependency and Indemnity Compensation for Service-Connected Death.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on November 24, 2021, 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, 38 CFR part 3 is amended 
as follows:

PART 3--ADJUDICATION

Subpart A--Special Benefits

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

    Authority: 38 U.S.C. 501.


Sec.  3.816   [Amended]

0
2. Amend Sec.  3.816 by removing the last sentence in paragraph (f)(3).

[FR Doc. 2021-26084 Filed 12-1-21; 8:45 am]
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