VA Adjudications Manual, M21-1; Rescission of Manual M21-1 Provisions Related To Exposure to Herbicides Based on Receipt of the Vietnam Service Medal, 66218-66219 [E7-22983]

Download as PDF 66218 Federal Register / Vol. 72, No. 227 / Tuesday, November 27, 2007 / Notices and estimated payments for FY 08 B. Retention of Net Power Proceeds and Nonpower Proceeds and Payments to the U.S. Treasury C. Customer issues i. Rate adjustment to the Fuel Cost Adjustment baseline ii. Market days option for 5-minute response interruptible product 3. Report of the Operations, Environment, and Safety Committee A. Gas capacity expansion B. Contracts with BHP Billiton and Areva for uranium fuel 4. Report of the Human Resources Committee A. Executive compensation approvals for FY 08 B. Amendments to the TVA Retirement System plans 5. Report of the Audit and Ethics Committee 6. Report of the Community Relations Committee 7. Report of the Corporate Governance Committee Please call Media Relations at (865) 632–6000, Knoxville, Tennessee. People who plan to attend the meeting and have special needs should call (865) 632–6000. 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The ICR describes the nature of the information collections VerDate Aug<31>2005 17:26 Nov 26, 2007 Jkt 214001 and their expected burden. The Federal Register Notice with a 60-day comment period was published on July 20, 2007 [72 FR 39889–39890]. DATES: Comments must be submitted on or before December 27, 2007. FOR FURTHER INFORMATION CONTACT: Hisham Mohamed at the National Highway Traffic Safety Administration, Office of International Policy, Fuel Economy and Consumer Programs (NVS–131), 1200 New Jersey Ave, SE., W43–437, Washington, DC 20590. Mr. Mohamed’s telephone number is (202) 366–0307. SUPPLEMENTARY INFORMATION: National Highway Traffic Safety Administration Title: 49 CFR Part 575.104; Uniform Tire Quality Grading Standard. OMB Number: 2127–0519. Type of Request: Extension of a currently approved information collection. Abstract: Part 575 requires tire manufacturers and tire brand owners to submit reports to NHTSA regarding the UTQGS grades of all passenger car tire lines they offer for sale in the United States. This information is used by consumers of passenger car tires to compare tire quality in making their purchase decisions. The information is provided in several different ways to insure that the consumer can readily see and understand the tire grades: (1) The grades are molded into the sidewall of the tire so that they can be reviewed on both the new and old tires; (2) a paper label is affixed to the tread face of the new tires that provides the grades of that particular tireline along with an explanation of the grading system; (3) the tire manufacturer or brand name owner provides prospective purchasers of tires the information for each tire offered for sale at the particular location; (4) vehicle manufacturers include in the owner’s manual of each vehicle the grade information for the tires with which the vehicle is equipped; (5) NHTSA compiles the grading information of all manufacturers’ tirelines into a booklet that is available to the public both in printed form and on NHTSA’s Web site. Affected Public: All passenger car tire manufacturers and brand name owners offering passenger car tires for sale in the United States. Estimated Total Annual Burden: NHTSA estimates that a cost of approximately $26 million to tire manufacturers is required to comply with this regulation. ADDRESSES: Send comments, within 30 days, to the Office of Information and PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 Regulatory Affairs, Office of Management and Budget, 725–17th Street, NW., Washington, DC 20503, Attention NHTSA Desk Officer. Comments are invited on: Whether the proposed collection of information is necessary for the proper performance of the functions of the Department, including whether the information will have practical utility; the accuracy of the Departments’ estimate of the burden of the proposed information collection; ways to enhance the quality, utility and clarity of the information to be collected; and ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology. A comment to OMB is most effective if OMB receives it within 30 days of publication. Issued on: November 21, 2007. Stephen R. Kratzke, Associate Administrator for Rulemaking. [FR Doc. E7–23045 Filed 11–26–07; 8:45 am] BILLING CODE 4910–59–P DEPARTMENT OF VETERANS AFFAIRS VA Adjudications Manual, M21–1; Rescission of Manual M21–1 Provisions Related To Exposure to Herbicides Based on Receipt of the Vietnam Service Medal Department of Veterans Affairs. Notice, with request for comments. AGENCY: ACTION: SUMMARY: The Department of Veterans Affairs (VA) proposes to rescind provisions of its Adjudication Procedures Manual, M21–1 (M21–1) that were found by the U.S. Court of Appeals for Veterans Claims (CAVC) not to have been properly rescinded. DATES: Comments must be received by VA on or before January 28, 2008. ADDRESSES: Written comments may be submitted through www.Regulations.gov; by mail or handdelivery to the Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 273–9026. Comments should indicate that they are submitted in response to ‘‘Rescission of Manual M21–1 Provisions Related to Exposure to Herbicides Based On Receipt of the Vietnam Service Medal.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the E:\FR\FM\27NON1.SGM 27NON1 Federal Register / Vol. 72, No. 227 / Tuesday, November 27, 2007 / Notices pwalker on PROD1PC71 with NOTICES hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please call (202) 273–9515 for an appointment. In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations Staff (211D), Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273–7210. SUPPLEMENTARY INFORMATION: This rulemaking is necessitated by the opinion rendered by the CAVC in Haas v. Nicholson, 20 Vet. App. 257 (2006), notice of appeal filed, No. 07–7037 (Oct. 26, 2006). In that opinion, the CAVC concluded that certain provisions of VA’s Adjudication Procedures Manual M21–1 (M21–1) were substantive provisions that had not been properly rescinded. Id. at 276–78. We have appealed Haas, and if we are successful on appeal, this rulemaking will be withdrawn. However, in the event that we do not prevail on appeal, we now take action to properly rescind the provisions. In Haas, the CAVC held that a 1991 M21–1 provision required VA to concede that Mr. Haas had served in Vietnam, and was presumed to have been exposed to herbicides during service, because he had received the Vietnam Service Medal (VSM). Haas, 20 Vet. App. at 270–72 (quoting in full and discussing M21–1, part III, para. 4.08(k)(1)–(2) (1991)). In 2002, VA had issued a new M21–1 provision that more clearly restated the 1991 provision, advising that receipt of the VSM could indicate service on land in Vietnam but, by itself, was not proof of such service. M21–1, pt. III, para. 4.24(e)(1)–(2), change 88 (Feb. 27, 2002). However, the CAVC held that VA’s 2002 revision of the M21–1 was ineffective because VA had not followed the notice and comment procedures of the VerDate Aug<31>2005 17:26 Nov 26, 2007 Jkt 214001 Administrative Procedure Act, 5 U.S.C. § 553(a). Haas, 270 Vet. App. at 275–78. As interpreted by the CAVC, the 1991 M21–1 provision requires VA, in at least some circumstances, to concede service in Vietnam, and thus herbicide exposure, based merely on the receipt of the VSM, even if all other evidence indicates that the veteran did not serve on land or on inland waterways in Vietnam and therefore was exceedingly unlikely to have been exposed to herbicides as a result of Vietnam service. VA revised the M21–1 in 2002 because, although receipt of the VSM is an indication of possible service in Vietnam, it is not definitive or conclusive evidence of such service. It is inappropriate to include receipt of the VSM as a sole criterion for the presumption of exposure to herbicide agents due to service in Vietnam because a veteran may have received this medal for service in locations other than Vietnam. (The VSM was awarded to all members of the Armed Forces who served between July 3, 1965, and March 28, 1973, either: (1) In Vietnam and contiguous waters and airspace thereover; or (2) in Thailand, Laos, or Cambodia, or airspace thereover, in direct support of operations in Vietnam. See Army Reg. 600–8–22, para. 2–13.) The 2002 revision was intended to clarify VA’s view that receipt of the VSM does not require or permit VA to ignore other evidence indicating that a veteran did not serve in the Republic of Vietnam. Because the CAVC’s interpretation of the 1991 M21–1 provision does not accord with VA’s intent in issuing that provision, we propose to rescind it. The M21–1 is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation. Neither the 1991 nor the 2002 M21–1 provision, nor any intervening revision to such provisions, was intended to establish a substantive rule. Further, the PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 66219 1991 provision was not intended to convey the rule the CAVC imputed to that provision, treating the VSM as conclusive evidence of service in Vietnam even if other evidence would support a finding that the veteran did not serve in Vietnam. However, because the CAVC held that the 1991 M21–1 provision established a substantive rule, and because that rule, as interpreted by the CAVC, is inconsistent with VA’s intent, we are proposing to rescind the M21–1 provision. We note as well that we will soon be revising § 3.307(a)(6)(iii) to clarify VA’s interpretation of the statutory authority governing service in Vietnam for purposes of the presumption of herbicide exposure. In view of the confusion created by the M21–1 provisions in the Haas case, we believe it is preferable to rescind the M21–1 provisions relating to proof of service in Vietnam, including the 1991 provision at issue in Haas, the 2002 clarifying revision to that provision, and intervening revisions. This will enable VA to clarify and ensure that its interpretation of the governing statutory provisions set forth in its regulation and to minimize the possibility of a perceived or unintended inconsistency based on VA’s internal manual. Hence, VA proposes to rescind the following manual provisions describing service in Vietnam for the purposes of the presumption of exposure to herbicides: M21–1, pt. III, para. 4.08(k)(1)–(2) (November 8, 1991); M21– 1, pt. III, para. 4.24(g)(1)–(2), change 23 (October 6, 1993); M21–1, pt. III, para. 4.24(g)(1)–(2), change 41 (July 12, 1995); M21–1, pt. III, para. 4.24(g)(1)–(2), change 76 (June 1, 1999); M21–1, pt. III, para. 4.24(e)(1)–(2), change 88 (February 27, 2002). Approved: November 19, 2007. Gordon H. Mansfield, Acting Secretary of Veterans Affairs. [FR Doc. E7–22983 Filed 11–26–07; 8:45 am] BILLING CODE 8320–01–P E:\FR\FM\27NON1.SGM 27NON1

Agencies

[Federal Register Volume 72, Number 227 (Tuesday, November 27, 2007)]
[Notices]
[Pages 66218-66219]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-22983]


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DEPARTMENT OF VETERANS AFFAIRS


VA Adjudications Manual, M21-1; Rescission of Manual M21-1 
Provisions Related To Exposure to Herbicides Based on Receipt of the 
Vietnam Service Medal

AGENCY: Department of Veterans Affairs.

ACTION: Notice, with request for comments.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to rescind 
provisions of its Adjudication Procedures Manual, M21-1 (M21-1) that 
were found by the U.S. Court of Appeals for Veterans Claims (CAVC) not 
to have been properly rescinded.

DATES: Comments must be received by VA on or before January 28, 2008.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``Rescission of Manual M21-1 Provisions Related to Exposure to 
Herbicides Based On Receipt of the Vietnam Service Medal.'' Copies of 
comments received will be available for public inspection in the Office 
of Regulation Policy and Management, Room 1063B, between the

[[Page 66219]]

hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays). 
Please call (202) 273-9515 for an appointment. In addition, during the 
comment period, comments may be viewed online through the Federal 
Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Rhonda F. Ford, Chief, Regulations 
Staff (211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 273-7210.

SUPPLEMENTARY INFORMATION: This rulemaking is necessitated by the 
opinion rendered by the CAVC in Haas v. Nicholson, 20 Vet. App. 257 
(2006), notice of appeal filed, No. 07-7037 (Oct. 26, 2006). In that 
opinion, the CAVC concluded that certain provisions of VA's 
Adjudication Procedures Manual M21-1 (M21-1) were substantive 
provisions that had not been properly rescinded. Id. at 276-78. We have 
appealed Haas, and if we are successful on appeal, this rulemaking will 
be withdrawn. However, in the event that we do not prevail on appeal, 
we now take action to properly rescind the provisions.
    In Haas, the CAVC held that a 1991 M21-1 provision required VA to 
concede that Mr. Haas had served in Vietnam, and was presumed to have 
been exposed to herbicides during service, because he had received the 
Vietnam Service Medal (VSM). Haas, 20 Vet. App. at 270-72 (quoting in 
full and discussing M21-1, part III, para. 4.08(k)(1)-(2) (1991)). In 
2002, VA had issued a new M21-1 provision that more clearly restated 
the 1991 provision, advising that receipt of the VSM could indicate 
service on land in Vietnam but, by itself, was not proof of such 
service. M21-1, pt. III, para. 4.24(e)(1)-(2), change 88 (Feb. 27, 
2002). However, the CAVC held that VA's 2002 revision of the M21-1 was 
ineffective because VA had not followed the notice and comment 
procedures of the Administrative Procedure Act, 5 U.S.C. Sec.  553(a). 
Haas, 270 Vet. App. at 275-78.
    As interpreted by the CAVC, the 1991 M21-1 provision requires VA, 
in at least some circumstances, to concede service in Vietnam, and thus 
herbicide exposure, based merely on the receipt of the VSM, even if all 
other evidence indicates that the veteran did not serve on land or on 
inland waterways in Vietnam and therefore was exceedingly unlikely to 
have been exposed to herbicides as a result of Vietnam service. VA 
revised the M21-1 in 2002 because, although receipt of the VSM is an 
indication of possible service in Vietnam, it is not definitive or 
conclusive evidence of such service. It is inappropriate to include 
receipt of the VSM as a sole criterion for the presumption of exposure 
to herbicide agents due to service in Vietnam because a veteran may 
have received this medal for service in locations other than Vietnam. 
(The VSM was awarded to all members of the Armed Forces who served 
between July 3, 1965, and March 28, 1973, either: (1) In Vietnam and 
contiguous waters and airspace thereover; or (2) in Thailand, Laos, or 
Cambodia, or airspace thereover, in direct support of operations in 
Vietnam. See Army Reg. 600-8-22, para. 2-13.) The 2002 revision was 
intended to clarify VA's view that receipt of the VSM does not require 
or permit VA to ignore other evidence indicating that a veteran did not 
serve in the Republic of Vietnam. Because the CAVC's interpretation of 
the 1991 M21-1 provision does not accord with VA's intent in issuing 
that provision, we propose to rescind it.
    The M21-1 is an internal manual used to convey guidance to VA 
adjudicators. It is not intended to establish substantive rules beyond 
those contained in statute and regulation. Neither the 1991 nor the 
2002 M21-1 provision, nor any intervening revision to such provisions, 
was intended to establish a substantive rule. Further, the 1991 
provision was not intended to convey the rule the CAVC imputed to that 
provision, treating the VSM as conclusive evidence of service in 
Vietnam even if other evidence would support a finding that the veteran 
did not serve in Vietnam. However, because the CAVC held that the 1991 
M21-1 provision established a substantive rule, and because that rule, 
as interpreted by the CAVC, is inconsistent with VA's intent, we are 
proposing to rescind the M21-1 provision.
    We note as well that we will soon be revising Sec.  
3.307(a)(6)(iii) to clarify VA's interpretation of the statutory 
authority governing service in Vietnam for purposes of the presumption 
of herbicide exposure. In view of the confusion created by the M21-1 
provisions in the Haas case, we believe it is preferable to rescind the 
M21-1 provisions relating to proof of service in Vietnam, including the 
1991 provision at issue in Haas, the 2002 clarifying revision to that 
provision, and intervening revisions. This will enable VA to clarify 
and ensure that its interpretation of the governing statutory 
provisions set forth in its regulation and to minimize the possibility 
of a perceived or unintended inconsistency based on VA's internal 
manual.
    Hence, VA proposes to rescind the following manual provisions 
describing service in Vietnam for the purposes of the presumption of 
exposure to herbicides: M21-1, pt. III, para. 4.08(k)(1)-(2) (November 
8, 1991); M21-1, pt. III, para. 4.24(g)(1)-(2), change 23 (October 6, 
1993); M21-1, pt. III, para. 4.24(g)(1)-(2), change 41 (July 12, 1995); 
M21-1, pt. III, para. 4.24(g)(1)-(2), change 76 (June 1, 1999); M21-1, 
pt. III, para. 4.24(e)(1)-(2), change 88 (February 27, 2002).

    Approved: November 19, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.
[FR Doc. E7-22983 Filed 11-26-07; 8:45 am]
BILLING CODE 8320-01-P