[Federal Register Volume 87, Number 85 (Tuesday, May 3, 2022)]
[Rules and Regulations]
[Pages 26124-26126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-09481]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AR46


Inclusion of the Space Force as Part of the Armed Forces

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 adjudication regulations to implement the mandates of 
section 926 of the William M. (Mac) Thornberry National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2021, which authorized VA 
to furnish benefits based on Space Force service.

DATES: Effective Date: This rule is effective May 3, 2022.

FOR FURTHER INFORMATION CONTACT: Jane Allen, Policy Analyst, Part 3 
Regulations Staff (211), Compensation Service (21C), 810 Vermont Avenue 
NW, Washington, DC 20420, (202) 461-9602. (This is not a toll-free 
telephone number.) Robert Parks, Chief, Part 3 Regulations Staff (211), 
Compensation Service (21C), 810 Vermont Avenue NW, Washington, DC 
20420, (202) 461-9700. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: On December 20, 2019, Congress enacted the 
``United States Space Force Act'' (USSFA), which established the 
``United States Space Force as an armed force within the Department of 
the Air Force.'' USSFA, Public Law 116-92, sections 951-952, 133 Stat 
1198, 1561-62 (2019). Subsequently, Congress expanded the definition of 
``veteran'' and made other amendments to title 38 to require VA to 
furnish benefits and services on the basis of service in the Space 
Force. William M. (Mac) Thornberry NDAA for FY 2021, Public Law 116-
283, section 926, 134 Stat. 3388, 3829 (2021). To implement these 
changes, VA is amending 38 CFR part 3 to add the words ``Space Force'' 
in various sections that list the branches of the U.S. Armed Forces and 
to add reference to ``space service'' in references to ``active 
military, naval, or air service.'' VA is also amending 38 CFR 3.1(g)(3) 
to add the USSF as operating under the direction of the Secretary of 
the Air Force.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds that there is good cause 
under the Administrative Procedure Act (APA) to publish this rule 
without prior opportunity for public comment and with an immediate 
effective date. Pursuant to 5 U.S.C. 553(b)(B), general notice and 
opportunity for public comment are not required with respect to a 
rulemaking when an ``agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' The Secretary finds 
that it is unnecessary to delay issuance of this rule for the purpose 
of soliciting prior public comment. Where Congress has left a gap in a 
statute for an agency to fill, requiring notice and comment rulemaking 
secures public input and `` `promote[s] accountability among 
decisionmakers.' '' Himes v. Sullivan, 779 F. Supp. 258, 270 (W.D.N.Y. 
1991) (quoting Cal. Ass'n. of Bioanalysts v. Rank, 577 F. Supp. 1342, 
1348 (C.D. Cal. 1983)), aff'd by 956 F.2d 1159 (2d Cir. 1992). However, 
`` `[c]hanges mandated by a legislature have already gone through a 
public process, and, as a result, the objectives of the notice 
requirements . . . already have been satisfied in the legislative 
process.' '' Id. (quotation and citation omitted). This rulemaking 
presents the latter situation. By statute, Congress has required VA to 
furnish benefits on the basis of space service. VA does not have any 
discretion to deny benefits on the

[[Page 26125]]

basis that the claim is predicated on ``space service'' rather than 
``military, naval, or air service.'' See Cushman v. Shinseki, 576 F.3d 
1290, 1298 (Fed. Cir. 2009) (``Veteran's disability benefits are 
nondiscretionary, statutorily mandated benefits.''). VA's authority is 
limited to implementing the statutes as enacted by Congress. Therefore, 
additional public comment would be superfluous. See Rank, 577 F. Supp. 
at 1348. In addition, as this amendment solely identifies the USSF as a 
branch of the U.S. Armed Forces and expands regulatory references of 
``active military, naval, or air service'' to include ``space 
service,'' there is little or no room for substantive changes to the 
rule based on public comment.
    The APA also requires a 30-day delayed effective date, except for 
``(1) a substantive rule which grants or recognizes an exemption or 
relieves a restriction; (2) interpretative rules and statements of 
policy; or (3) as otherwise provided by the agency for good cause found 
and published with the rule.'' 5 U.S.C. 553(d). For the reasons stated 
above, the Secretary finds that there is also good cause for this rule 
to be effective immediately upon publication. Any delay in 
implementation would be unnecessary for purposes of 5 U.S.C. 553(d)(3).

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 will 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).

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs has 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, 
Health care, Pensions, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on April 27, 2022, 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.


Luvenia Potts,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.
    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 3 as set forth below:

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, unless otherwise noted.


Sec.  3.1  [Amended]

0
2. Amend Sec.  3.1 as follows:
0
a. Add ``Space Force,'' after ``Air Force,'' in paragraphs (a) and (b);
0
b. Remove ``or air service'' and add in its place ``air, or space 
service'' in paragraph (d) introductory text;
0
c. Remove ``or air service'' and add in its place ``, air, or space 
service'' in paragraph (d)(2);
0
d. Remove ``or air service'' and add in its place ``, air, or space 
service'' in paragraph (e);
0
e. Add ``or the Space Force'' after ``concerning the Air Force'' in 
paragraph (g)(3);
0
f. Remove ``or air service'' and add in its place ``air, or space 
service'' in paragraph (h);
0
g. Remove ``or air service'' and add in its place ``air, or space 
service'' in paragraphs (k), (l), and (m) introductory text;
0
h. Remove ``or air service'' and add in its place ``, air, or space 
service'' in paragraph (y) introductory text.


Sec.  3.3  [Amended]

0
3. Amend Sec.  3.3 by removing ``or air service'' each place it appears 
and adding in each place ``, air, or space service'' in paragraphs 
(a)(3)(i) through (iv).


Sec.  3.6  [Amended]

0
4. Amend Sec.  3.6 by removing ``and air service'' and adding in its 
place ``air, or space service'' in the paragraph (a) heading.


Sec.  3.7  [Amended]

0
5. Amend Sec.  3.7 by removing ``or air service'' and adding in its 
place ``air, or space service'' in the section heading, the 
introductory text, and paragraph (o)(1)(i).


Sec.  3.12  [Amended]

0
6. Amend Sec.  3.12 by removing ``or air service'' and adding in its 
place ``, air, or space service'' in paragraph (g)(2).


Sec.  3.13  [Amended]

0
7. Amend Sec.  3.13 by removing ``or air service'' and adding in its 
place ``, air, or space service'' in paragraphs (c) introductory text 
and (c)(1).


Sec.  3.159  [Amended]

0
8. Amend Sec.  3.159 by removing ``or air service'' and adding in its 
place ``, air, or space service'' in paragraph (c)(3).


Sec.  3.301  [Amended]

0
9. Amend Sec.  3.301 by removing ``or air service'' and adding in its 
place ``air, or space service'' in paragraph (d).


Sec.  3.306  [Amended]

0
10. Amend Sec.  3.306 by removing ``or air service'' and adding in its 
place ``air, or space service'' in paragraph (a).


Sec.  3.309  [Amended]

0
11. Amend Sec.  3.309 by removing ``or air service'' and adding in its 
place ``air,

[[Page 26126]]

or space service'' in paragraphs (c)(1) introductory text and 
(c)(2)(ii) introductory text.


Sec.  3.318  [Amended]

0
12. Amend Sec.  3.318 by removing ``or air service'' and adding in its 
place ``air, or space service'' in paragraph (a).


Sec.  3.807  [Amended]

0
13. Amend Sec.  3.807 by removing ``or air service'' and adding in its 
place ``air, or space service'' in paragraphs (a)(5)(ii) and (b).


Sec.  3.808  [Amended]

0
14. Amend Sec.  3.808 by removing ``or air service'' and adding in its 
place ``air, or space service'' in paragraph (a)(2).


Sec.  3.809  [Amended]

0
15. Amend Sec.  3.809 by removing ``or air service'' and adding in its 
place ``air, or space service'' in paragraph (a).


Sec.  3.809a  [Amended]

0
16. Amend Sec.  3.809a by removing ``or air service'' and adding in its 
place ``air, or space service'' in paragraph (b).


Sec.  3.903  [Amended]

0
17. Amend Sec.  3.903 by removing ``or air service'' and adding in its 
place ``air, or space service'' in paragraph (b)(1).


Sec.  3.1701  [Amended]

0
18. Amend Sec.  3.1701 by removing ``or air service'' and adding in its 
place ``air, or space service.''

[FR Doc. 2022-09481 Filed 5-2-22; 8:45 am]
BILLING CODE 8320-01-P