04-12828. 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 [phone].

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. § 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. 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.