Presumptive Service Connection for Rare Respiratory Cancers Due to Exposure to Fine Particulate Matter, 75498-75500 [2023-24195]
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75498
Federal Register / Vol. 88, No. 212 / Friday, November 3, 2023 / Rules and Regulations
Dated: October 27, 2023.
J.A. Stockwell,
Captain, U.S. Coast Guard, Captain of the
Port, Sector Virginia.
[FR Doc. 2023–24304 Filed 11–2–23; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 3
RIN 2900–AR44
Presumptive Service Connection for
Rare Respiratory Cancers Due to
Exposure to Fine Particulate Matter
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
This rulemaking adopts as
final, without changes, an interim final
rule amending the Department of
Veterans Affairs (VA) adjudication
regulations to establish presumptive
service connection for nine rare
respiratory cancers in association with
presumed exposure to fine particulate
matter. These presumptions apply to
Veterans with a qualifying period of
service, i.e., who served on active
military, naval, or air service in the
Southwest Asia theater of operations
during the Persian Gulf War (hereinafter
Gulf War), from August 2, 1990,
onward, as well as in Afghanistan,
Syria, Djibouti, or Uzbekistan, on or
after September 19, 2001, during the
Gulf War. This rulemaking implements
a decision by the Secretary of Veterans
Affairs that determined there is
sufficient evidence to support these
cancers as presumptive based on
exposure to fine particulate matter
during service in the Southwest Asia
theater of operations, Afghanistan,
Syria, Djibouti, or Uzbekistan during
certain periods and the subsequent
development of the following rare
respiratory cancers: squamous cell
carcinoma (SCC) of the larynx, SCC of
the trachea, adenocarcinoma of the
trachea, salivary gland-type tumors of
the trachea, adenosquamous carcinoma
of the lung, large cell carcinoma of the
lung, salivary gland-type tumors of the
lung, sarcomatoid carcinoma of the
lung, and typical and atypical carcinoid
of the lung. The intended effect of this
rulemaking is to ease the evidentiary
burden of this population of Veterans
who file claims with VA for these nine
rare respiratory cancers.
DATES:
Effective date: This rule is effective
November 3, 2023.
Applicability date: The provisions of
this final rule shall apply to all
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SUMMARY:
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applications for service connection for
squamous cell carcinoma (SCC) of the
larynx, SCC of the trachea,
adenocarcinoma of the trachea, salivary
gland-type tumors of the trachea,
adenosquamous carcinoma of the lung,
large cell carcinoma of the lung, salivary
gland-type tumors of the lung,
sarcomatoid carcinoma of the lung, and
typical and atypical carcinoid of the
lung based on service in the Southwest
Asia theater of operations during the
Gulf War, from August 2, 1990, onward,
as well as Afghanistan, Syria, Djibouti,
or Uzbekistan, on or after September 19,
2001, during the Gulf War, received by
VA on or after April 26, 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 April
26, 2022.
FOR FURTHER INFORMATION CONTACT:
Bryant Coleman, Regulations Analyst;
Robert Parks, Chief, Regulations Staff
(211), Compensation Service (21C), 810
Vermont Avenue NW, Washington, DC,
(202) 461–9700. (This is not a toll-free
telephone number.)
SUPPLEMENTARY INFORMATION: On April
26, 2022, VA published an interim final
rule at 87 FR 24421, to amend its
adjudication regulations to establish
presumptive service connection for nine
rare respiratory cancers in association
with presumed exposure to fine
particulate matter. These presumptions
apply to Veterans with a qualifying
period of service, i.e., who served on
active military, naval, or air service in
the Southwest Asia theater of operations
during the Gulf War, from August 2,
1990, onward, as well as in Afghanistan,
Syria, Djibouti, or Uzbekistan, on or
after September 19, 2001, during the
Gulf War. The 60-day comment period
ended on June 27, 2022.
VA received nine comments from
interested individuals and
organizations. The comments are
discussed below under the appropriate
headings. VA made no changes based on
comments received. However, we note
that changes made to § 3.320 in the final
rule for RIN 2900–AR25 are carried
forward here and continue to remain in
effect. Based on the rationale set forth in
the interim final rule and in this final
rule, VA adopts the provisions of the
interim final rule as a final rule without
change.
Confusion Regarding Qualifying
Service Dates
VA received three comments that
expressed confusion regarding whether
service in the Southwest Asia theater of
operations during the first Gulf War is
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included under the definition of the
phrase qualifying period of service. VA
agrees with these comments that the
rulemaking could have caused some
confusion, and acknowledges that
additional clarity is needed. So, to
clarify, as currently written, the rule
applies to those who served in Desert
Shield or Desert Storm as part of the
Persian Gulf War from August 2,1990 to
February 28, 1991. We note that the
definition of qualifying period of service
contained in paragraph (a)(5)(i) refers to
§ 3.2(i), which defines ‘‘Persian Gulf
War’’ as: ‘‘August 2, 1990, through date
to be prescribed by Presidential
proclamation or law.’’ However, VA
makes no changes based on these
comments because this issue was
addressed in the final rule for RIN
2900–AR25, which changes have been
carried forward here and continue to
remain in effect.
General Comments
One commenter expressed general
support for the rulemaking. VA thanks
the commenter for their view. VA makes
no changes based on this comment.
VA received two comments that
addressed time frames and locations
that qualify for the presumption of
exposure contained in § 3.320. In
particular, one commenter stated that he
was on an aircraft carrier in the theater
of Southwest Asia in July of 1987. He
went on to state that ‘‘[a]ll Military
Service-members should qualify for all
exposures during active duty in this
theater of operations.’’ Another
commenter asked ‘‘is this related to
burn pits? If so, why are you just making
this available to only veterans who
served for that time period?’’ The
commenter went on to state that they
served in Beirut, Lebanon in 1982–1983
and were exposed to burning human
waste during that time. While VA
sympathizes with these commenters,
VA’s rulemaking establishes
presumptive service connection for nine
rare respiratory cancers in association
with presumed exposure to fine
particulate matter; it does not address
the locations or periods of service that
qualify for the presumption of exposure
to fine particulate matter. Thus, these
comments are outside the scope of the
present rulemaking.
Additionally, we note that the
Secretary has made the decision to limit
these presumptive conditions to a
timeframe and locations during which
VA has evidence of relevant levels of
fine particulate matter in the air. When
VA created the presumption of exposure
to fine particulate matter in 38 CFR
3.320, it was based on scientific and
medical studies that focused on the
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Federal Register / Vol. 88, No. 212 / Friday, November 3, 2023 / Rules and Regulations
respiratory effects of fine particulate
matter for Veterans who served in the
Southwest Asia theater of operations,
Afghanistan, Syria, Djibouti, and
Uzbekistan during the Gulf War.
Veterans began reporting a variety of
respiratory health issues during and
after the initial Gulf War conflict, and as
a result, Congress mandated that VA
study the health outcomes of veterans
deployed to the Southwest Asia theater
of operations. VA then requested the
National Academies of Sciences,
Engineering, and Medicine (NASEM) to
study the evidence regarding respiratory
health outcomes in veterans of the
Southwest Asia conflicts. The results of
that study formed the basis for this
rulemaking. As service prior to the Gulf
War was not considered in these
studies, it cannot be included as part of
the qualifying timeframe under 38 CFR
3.320.
While this rulemaking is based on
current medical and scientific evidence
related to the respiratory health effects
of fine particulate matter on Veterans
who served during the Gulf War, VA
will continue to review new scientific
evidence as it develops relating to other
exposures and to all health effects
resulting from exposure to fine
particulate matter. This rulemaking does
not limit the future establishment of
presumptive service connection for
conditions related to respiratory or other
body systems, or the establishment of
presumptions of exposure for service in
other locations or during other time
frames. Additionally, VA encourages all
Veterans who believe that they are
entitled to VA compensation to file a
claim with their local VA regional
office. VA makes no change to the final
rule based on the comment.
One commenter reported that they
had filed 3 intent letters and had not
received a response. The commenter
went on to report that they had been
turned down for compensation in the
past. VA’s rulemaking establishes
presumptive service connection for nine
rare respiratory cancers in association
with presumed exposure to fine
particulate matter. This comment,
which relates to an individual case, is
outside the scope of the present
rulemaking. However, VA encourages
all Veterans who believe that they are
entitled to VA compensation to file a
claim with their local VA regional
office. VA makes no change to the final
rule based on the comment.
One commenter stated that her
husband served in the US Army and
while serving he died of squamous cell
carcinoma of the larynx. While VA
sympathizes with this commenter, VA’s
rulemaking establishes presumptive
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service connection for nine rare
respiratory cancers in association with
presumed exposure to fine particulate
matter. This comment refers to a
specific case, which is outside the scope
of the present rulemaking. However, VA
encourages all Veterans and dependents
who believe that they are entitled to VA
compensation to file a claim with their
local VA regional office. VA makes no
change to the final rule based on the
comment.
Another commenter objected to the
rulemaking because it did not cover all
diseases and disabilities caused by open
air burn pits or the chemical
contamination in Gulf War I.
Additionally, the commenter stated that
the ‘‘interim final rule does not clearly
define the provisions attaching to Gulf
War I. Including coverage dates would
eliminate any possible confusion.’’ As
noted above, while this rulemaking is
based on current medical and scientific
evidence related to the respiratory
health effects of fine particulate matter
on Veterans who served during the Gulf
War, VA will continue to review new
scientific evidence as it develops
relating to other exposures and to all
health effects resulting from exposure to
fine particulate matter. This rulemaking
does not limit the future establishment
of presumptive service connection for
conditions related to respiratory or other
body systems, or the establishment of
presumptions of exposure for service in
other locations or during other time
frames. Also, the potential confusion
regarding service during the first Gulf
War was addressed in the final rule for
RIN 2900–AR25, which changes have
been carried forward here and continue
to remain in effect. VA makes no change
to the final rule based on the comment.
Further, we again note that changes
made to § 3.320 in the final rule for RIN
2900–AR25 are carried forward here and
continue to remain in effect.
Additionally, provisions of the Sergeant
First Class Heath Robinson Honoring
our Promise to Address Comprehensive
Toxics Act of 2022, Public Law 117–
168, relevant to this regulation will be
the subject of separate and future
rulemaking.
Administrative Procedure Act
This document affirms the
amendment made by the interim final
rule that is already in effect. The
Secretary concluded that, pursuant to 5
U.S.C. 553(b)(B) and (d)(3), there was
good cause to publish this rule without
prior opportunity for public comment
and good cause to publish this rule with
an immediate effective date. Delay in
the implementation of this rule would
have been impracticable, unnecessary,
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75499
and contrary to public interest,
particularly to Veterans.
Executive Orders 12866, 13563, and
14094
Executive Order 12866 (Regulatory
Planning and Review) directs 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. Executive Order
14094 (Executive Order on Modernizing
Regulatory Review) supplements and
reaffirms the principles, structures, and
definitions governing contemporary
regulatory review established in
Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review),
and Executive Order 13563 of January
18, 2011 (Improving Regulation and
Regulatory Review). The Office of
Information and Regulatory Affairs has
determined that this rulemaking is not
a significant regulatory action under
Executive Order 12866, as amended by
Executive Order 14094. The Regulatory
Impact Analysis associated with this
rulemaking can be found as a
supporting document at
www.regulations.gov.
Regulatory Flexibility Act
The Secretary hereby certifies that
this final rule 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 certification is
based on the fact that no small entities
or businesses determine service
connection or the rating criteria, or
assign evaluations for disability claims.
Therefore, pursuant to 5 U.S.C. 605(b),
the initial and final regulatory flexibility
analysis requirements of sections 603
and 604 do not apply.
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
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75500
Federal Register / Vol. 88, No. 212 / Friday, November 3, 2023 / Rules and Regulations
such effect on State, local, and tribal
governments, or on the private sector.
ENVIRONMENTAL PROTECTION
AGENCY
Paperwork Reduction Act (PRA)
40 CFR Part 52
This final rule contains no provisions
constituting a collection of information
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3521).
[EPA–R04–OAR–2022–0391; FRL–11368–
02–R4]
Assistance Listing
The Assistance Listing numbers and
titles for this rule are 64.101, Burial
Expenses Allowance for Veterans;
64.102, Compensation for ServiceConnected Deaths for Veterans’
Dependents; 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
Administrative practice and
procedure, Claims, Disability benefits,
Health care, Pensions, and Veterans.
Signing Authority
Denis McDonough, Secretary of
Veterans Affairs, signed and approved
this document on August 24, 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.
PART 3—ADJUDICATION
The interim final rule amending 38
CFR part 3 which was published at 87
FR 24421 on April 26, 2022, is adopted
as final without change.
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[FR Doc. 2023–24195 Filed 11–2–23; 8:45 am]
BILLING CODE 8320–01–P
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Air Plan Approval; North Carolina;
Revisions to Miscellaneous Particulate
Matter Rules
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving a State
Implementation Plan (SIP) revision
submitted by the State of North Carolina
through the North Carolina Division of
Air Quality (NCDAQ) via a letter dated
April 13, 2021. The SIP revision seeks
to modify the State’s emission control
standards by amending several air
quality rules and removing a redundant
rule for electric utility boilers. EPA is
approving these changes pursuant to the
Clean Air Act (CAA or Act).
DATES: This rule is effective December 4,
2023.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2022–0391. All documents in the docket
are listed on the www.regulations.gov
website. Although listed in the index,
some information may not be publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
Branch, Air and Radiation Division,
U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia 30303–8960. EPA requests that
if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your
inspection. The Regional Office’s
official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Pearlene Williams-Miles, Multi-Air
Pollutant Coordination Section, Air
Planning and Implementation Branch,
Air and Radiation Division, U.S.
Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
GA 30303–8960. The telephone number
SUMMARY:
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is (404) 562–9144. Ms. Williams-Miles
can also be reached via electronic mail
at WilliamsMiles.Pearlene@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Overview
EPA is approving a SIP revision
submitted by North Carolina on April
14, 2021,1 seeking to amend various air
quality rules and to remove one rule
from the North Carolina SIP.2
Specifically, the SIP revision addresses
State regulations amended in 15A North
Carolina Administrative Code (NCAC)
Subchapter 02D. The submission
includes changes to multiple rules in
Sections .0400 and .0500 of Subchapter
02D and the removal of Rule 02D .0536,
Particulate Emissions from Electric
Utility Boilers.3 To support the removal
of Rule 02D .0536 from the SIP, the
submission includes technical support
materials to demonstrate that the
removal of the rule would not interfere
with any applicable requirement
concerning attainment and reasonable
further progress (RFP) or any other
applicable requirement of the CAA.4
Through a notice of proposed
rulemaking (NPRM) published on
September 1, 2023 (88 FR 60424), EPA
proposed to approve the April 13, 2021,
submission. The details of North
Carolina’s submission, which amends
various air quality rules and removes
Rule 02D .0536 from North Carolina’s
SIP, as well as EPA’s rationale for
approving the changes, are described in
the September 1, 2023, NPRM.
Comments on the September 1, 2023,
NPRM were due on or before October 2,
2023. No comments were received on
the September 1, 2023, NPRM, adverse
or otherwise.
II. Incorporation by Reference
In this document, EPA is finalizing
regulatory text that includes
incorporation by reference. In
accordance with the requirements of 1
CFR 51.5, and as discussed in Section
I of this preamble, EPA is finalizing the
incorporation by reference of the
following air quality rules under 15A
1 EPA notes that the April 14, 2021, submission
was received under a cover letter dated April 13,
2021. For clarity, throughout this document EPA
will refer to the April 14, 2021, submission by its
cover letter date of April 13, 2021.
2 On April 13, 2021, North Carolina provided
multiple SIP revisions related to other North
Carolina SIP-approved rules. These SIP revisions
are not addressed in this document. EPA will act
or has acted on those SIP revisions in separate
rulemakings.
3 EPA will not act on Rule 02D .0503, Particulates
from Fuel Burning Indirect Heat Exchangers, since
this section was withdrawn from EPA consideration
in a letter dated January 17, 2023, which is in the
docket of this action.
4 See 42 U.S.C. 7410(l).
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