[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Rules and Regulations]
[Pages 15277-15278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04514]



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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AR74


Updating Presumptive Radiation Locations Based on the PACT Act

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 add more presumptive 
exposure locations for radiation, as legislated in the Sergeant First 
Class Heath Robinson Honoring our Promise to Address Comprehensive 
Toxics Act of 2022 (the PACT Act). The PACT Act expands and extends 
eligibility for VA benefits for Veterans with toxic exposures, and 
Sections 401 and 402 specifically ease the evidentiary burden for 
Veterans who file claims with VA based on radiation exposure in certain 
locations. This final rule chronicles those sections of the PACT Act in 
VA regulations.

DATES: This final rule is effective March 13, 2023.
    Applicability Date: This final rule merely restates, in VA 
regulations, provisions of the PACT Act that took effect on August 10, 
2022. Pursuant to that statutory authority, the provisions restated in 
this final rule shall apply to all applications for benefits received 
by VA on or after August 10, 2022 or that were pending before VA, the 
United States Court of Appeals for Veterans Claims, or the United 
States Court of Appeals for the Federal Circuit on August 10, 2022.

FOR FURTHER INFORMATION CONTACT: Bryant Coleman, Regulations Analyst; 
Robert Parks, Chief, 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: 

I. PACT Act Background

    On August 10, 2022, President Biden signed into law the PACT Act, 
Public Law 117-168, to improve access to VA benefits for Veterans who 
were exposed to toxic substances during military service. Specifically, 
the PACT Act expands and extends eligibility for VA benefits for 
Veterans with certain toxic exposures. Based on the PACT Act, the 
following regulations will be updated.

II. Changes Based on Section 401

    Section 401 of the PACT Act amends 38 U.S.C. 1112(c)(3)(B) by 
adding a new clause (v), which adds the cleanup of Enewetak Atoll 
during the period beginning on January 1,1977, and ending on December 
31,1980, as a radiation-risk activity. To that effect, VA will add 38 
CFR 3.309(d)(3)(ii)(F) to cover the Veterans who participated in 
cleanup of Enewetak Atoll during this period as radiation exposed 
Veterans for purposes of presumptions of service connection of certain 
disabilities by VA. This addition makes VA regulation consistent with 
38 U.S.C. 1112(c)(3)(B)(v).

III. Changes Based on Section 402

    Section 402 of the PACT Act amends 38 U.S.C. 1112(c)(3)(B) by 
adding a new clause (vi), which adds participation in nuclear response 
efforts in the vicinity of Palomares, Spain, during the period 
beginning January 17,1966, and ending March 31,1967, as a radiation-
risk activity. To that effect, VA will add 38 CFR 3.309(d)(3)(ii)(G) to 
cover Veterans who participated in this nuclear response near 
Palomares, Spain, during this period as radiation exposed Veterans for 
purposes of presumptions of service connection of certain disabilities 
by VA. This addition makes VA regulation consistent with 38 U.S.C. 
1112(c)(3)(B)(vi).
    Additionally, Section 402 of the PACT Act adds a new clause (vii) 
to 38 U.S.C. 1112(c)(3)(B), which adds participation in nuclear 
response efforts in the vicinity of Thule Air Force Base, Greenland, 
during the period beginning January 21, 1968, and ending September 25, 
1968, as a radiation-risk activity. To that effect, VA will add 38 CFR 
3.309(d)(3)(ii)(H) to cover Veterans who participated in this nuclear 
response near Thule Air Force Base, Greenland, during this period as 
radiation exposed Veterans for purposes of presumptions of service 
connection of certain disabilities by VA. This addition makes VA 
regulation consistent with 38 U.S.C. 1112(c)(3)(B)(vii).

Administrative Procedure Act

    Because this rule merely restates statutory text enacted by 
Congress, the Administrative Procedure Act's requirements of notice and 
an opportunity for public comment, and of a delayed effective date, do 
not apply. See 5 U.S.C. 553(b)(A); id. 553(d)(2). To the extent that 
notice and comment and a delayed effective date would otherwise be 
required, the Secretary of Veterans Affairs finds 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. Pursuant to 5 U.S.C. 553(b)(B), notice and opportunity 
for public comment are not required with respect to a rulemaking when 
an agency finds good cause that notice and public procedure thereon are 
impracticable, unnecessary, or contrary to the public interest. Because 
this rule is limited to incorporating text already enacted by Congress, 
without change or addition, advance notice and public comment beyond 
that provided in the legislation itself is unnecessary. Similarly, 
because this rule merely chronicles in regulation what is already law, 
there is good cause for the rule to be effective immediately. 5 U.S.C. 
553(d)(3).

Executive Orders 12866 and 13563

    Executive Orders (E.O.) 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). E.O. 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 a significant regulatory action under E.O. 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

    Although this final rule contains collection of information under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521), there are no 
provisions associated with this

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rulemaking constituting any new collection of information or any 
revisions to the existing collection of information. Specifically, the 
information collection requirements associated with this final rule are 
related to the filing of disability benefits claims (VA Form 21-526EZ) 
as well as Disability Benefits Questionnaires (DBQs) (Groups 3 and 4) 
which enable claimants to gather the necessary information from 
treating physicians as to the current symptoms and severity of a 
disability. The collection of information for 38 CFR 3.309(d)(3)(ii) is 
currently approved by Office of Management and Budget (OMB) and has 
been assigned OMB control number 2900-0747.

Assistance Listing

    The Assistance Listing numbers and titles for this rule are 64.101, 
Burial Expenses Allowance for Veterans; 64.105, Pension to Veterans, 
Surviving Spouses, and Children; 64.109, Veterans Compensation for 
Service-Connected Disability; and 64.110, Veterans Dependency and 
Indemnity Compensation for Service-Connected Death.

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as 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

    Claims, disability benefits, health care, pensions, radioactive 
materials, Veterans, Vietnam.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on January 23, 2023, 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 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 subpart A continues to read as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.


0
2. Amend Sec.  3.309 by adding paragraphs (d)(3)(ii)(F) through (H) to 
read as follows:


Sec.  3.309  Disease subject to presumptive service connection.

* * * * *
    (d) * * *
    (3) * * *
    (ii) * * *
    (F) Cleanup of Enewetak Atoll during the period beginning on 
January 1,1977, and ending on December 31, 1980.
    (G) Onsite participation in the response effort following the 
collision of a United States Air Force B-52 bomber and refueling plane 
that caused the release of four thermonuclear weapons in the vicinity 
of Palomares, Spain, during the period beginning January 17, 1966, and 
ending March 31, 1967.
    (H) Onsite participation in the response effort following the on-
board fire and crash of a United States Air Force B-52 bomber that 
caused the release of four thermonuclear weapons in the vicinity of 
Thule Air Force Base, Greenland, during the period beginning January 
21, 1968, and ending September 25, 1968.
* * * * *
[FR Doc. 2023-04514 Filed 3-10-23; 8:45 am]
BILLING CODE 8320-01-P