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Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.
U.S. Small Business Administration.
Correcting amendment.
This document corrects an error in the U.S. Small Business Administration's (SBA) interim final rule that appeared in the
Effective November 27, 2013, and applicable beginning October 1, 2012.
Khem Sharma, Chief, Office of Size Standards, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416.
This correction removes an errant typographical character, which inadvertently appeared before the NAICS 339910 entry in the table in § 121.201. This document also removes the entry for NAICS 315192 in its entirety. These corrections do not affect small business size standards.
In FR Doc. 2012–19973 appearing on page 49991 of the August 20, 2012 issue of the
In addition, the entry for NAICS 315192, Underwear and Nightwear Knitting Mills, should be deleted from the CFR. On page 49994 of the August 20, 2012 issue of the
The purpose of this action is to correct the CFR by removing an erroneous character from the entry for NAICS 339910.
This correction also removes the entire entry for NAICS 315192 from the “Small Business Size Standards by NAICS Industry” (13 CFR 121.201), because the industry does not exist in NAICS 2012. The activities that NAICS 2007 had included in NAICS 315192 are now in NAICS 315190.
Administrative practice and procedure, Government procurement, Government property, Grant programs—business, Individuals with disabilities, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
For the reasons set forth in the preamble, SBA amends 13 CFR part 121 by making the following correcting amendment:
15 U.S.C. 632, 634(b)(6), 662, 694a(9).
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Boeing Model 777–200, –300, and –300ER series airplanes. These airplanes, as modified by ARINC Aerospace Company, will have novel or unusual design features associated with Class 3 Electronic Flight Bags (EFB) and wireless local area data networks (LAN) associated with the EFB architecture and existing airplane network systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Varun Khanna, FAA, Airplane and Flight Crew Interface Branch, ANM–111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone 425–227–1298; facsimile 425–227–1149.
On August 21, 2012, ARINC Aerospace Company applied for a change to Type Certificate No. T00001SE Rev. 30 dated June 6, 2012 for installation of Class 3 EFBs and related LANs in the Boeing Model 777–200, –300, and –300ER Series Airplanes. The Boeing Model 777–200 airplanes are long-range, wide-body, twin-engine jet airplanes with a maximum capacity of 440 passengers. The Boeing Model 777–300 and 777–300ER series airplanes have a maximum capacity of 550 passengers. The Model 777–200, –300, and –300ER series airplanes have fly-by-wire controls, software-configurable avionics, and fiber-optic avionics networks.
The proposed Class 3 EFB architecture is novel or unusual for commercial transport airplanes by allowing connection to previously isolated data networks connected to systems that perform functions required for the safe operation of the airplane. This proposed data network and design integration may result in security vulnerabilities from intentional or unintentional corruption of data and systems critical to the safety and maintenance of the airplane. The existing regulations and guidance material did not anticipate this type of system architecture or electronic access to aircraft systems. Furthermore, regulations and current system safety assessment policy and techniques do not address potential security vulnerabilities, which could be caused by unauthorized access to aircraft data buses and servers.
Under Title 14, Code of Federal Regulations (14 CFR) 21.17, ARINC Aerospace Company must show that the Boeing Model 777–200, –300, and –300ER series airplanes meet the applicable provisions of 14 CFR part 25, as amended by the following for each model airplane:
For Model 777–200 airplanes—Title 14 CFR part 25, as amended by Amendment 25–1 through Amendment 25–82.
For Model 777–300 airplanes—Title 14 CFR part 25, as amended by Amendment 25–1 through Amendment 25–86.
For Model 777–300ER airplanes—Title 14 CFR part 25, as amended by Amendment 25–1 through Amendment 25–98.
In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions. Special conditions, as defined in Sec. 11.19, are issued in accordance with Sec. 11.38 and become part of the type certification basis in accordance with Sec. 21.101.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777–200, –300, and –300ER series airplanes because of a novel or unusual design feature, special conditions are prescribed under § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the proposed special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and proposed special conditions, the Boeing Model 777–200, –300, and –300ER series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36 and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92–574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, under § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).
The Boeing Model 777–200, –300, –300ER series airplanes will incorporate the following novel or unusual design features:
Multiple Electronic Flight Bags (EFBs) and several connected networks that will interface to existing aircraft systems. The proposed network architecture is used for a diverse set of functions, providing data connectivity between systems, including:
1. Flight-safety related control and navigation systems,
2. Operator business and administrative support (operator information services),
3. Passenger information systems, and,
4. Access by systems external to the airplane.
The architecture and network configuration in the Boeing Model 777–200, –300, and –300ER series airplanes may allow increased connectivity to, or access by, external airplane sources, airline operations, and maintenance systems to the aircraft control functions and airline information services. The aircraft control functions and airline information services perform functions required for the safe operation and maintenance of the airplane. Previously these functions and services had very limited connectivity with external sources. The architecture and network
For the reasons discussed above, these special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Boeing Model 777–200, –300, –300ER series airplanes. Should ARINC Aerospace Company apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Boeing Model 777–200, –300, –300ER series airplanes. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting these special conditions upon publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777–200, –300, –300ER series airplanes modified by ARINC Aerospace Company.
1. The applicant must ensure airplane electronic system security protection from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.
2. The applicant must ensure that electronic system security threats are identified and assessed, and that effective electronic system security protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.
3. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the aircraft is maintained, including all post Type Certification modifications that may have an impact on the approved electronic system security safeguards.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Boeing Model 777–200, –300, and –300ER series airplanes. These airplanes, as modified by ARINC Aerospace Company, will have novel or unusual design features associated with Class 3 Electronic Flight Bags (EFB) and wireless local area data networks (LAN) associated with the EFB architecture and existing airplane network systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Varun Khanna, FAA, Airplane and Flight Crew Interface Branch, ANM–111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone 425–227–1298; facsimile 425–227–1149.
On August 21, 2012, ARINC Aerospace Company applied for a change to Type Certificate No. T00001SE Rev. 30 dated June 6, 2012 for installation of Class 3 EFBs and related LANs in the Boeing Model 777–200, –300, and –300ER Series Airplanes. The Boeing Model 777–200 airplanes are long-range, wide-body, twin-engine jet airplanes with a maximum capacity of 440 passengers. The Boeing Model 777–300 and 777–300ER series airplanes have a maximum capacity of 550 passengers. The Model 777–200, –300, and –300ER series airplanes have fly-by-wire controls, software-configurable avionics, and fiber-optic avionics networks.
The proposed Class 3 EFB architecture is novel or unusual for commercial transport airplanes by allowing connection to previously isolated data networks connected to systems that perform functions required for the safe operation of the airplane. This proposed data network and design integration may result in security vulnerabilities from intentional or unintentional corruption of data and systems critical to the safety and maintenance of the airplane. The existing regulations and guidance material did not anticipate this type of system architecture or electronic access to aircraft systems. Furthermore, regulations and current system safety assessment policy and techniques do
Under Title 14, Code of Federal Regulations (14 CFR) 21.17, ARINC Aerospace Company must show that the Model 777–200, –300, and –300ER series airplanes meet the applicable provisions of 14 CFR part 25, as amended by the following for each model airplane:
For Model 777–200 airplanes—Title 14 CFR part 25, as amended by Amendment 25–1 through Amendment 25–82.
For Model 777–300 airplanes—Title 14 CFR part 25, as amended by Amendment 25–1 through Amendment 25–86.
For Model 777–300ER airplanes—Title 14 CFR part 25, as amended by Amendment 25–1 through Amendment 25–98.
In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
Special conditions, as defined in Sec. 11.19, are issued in accordance with Sec. 11.38 and become part of the type certification basis in accordance with Sec. 21.101.
If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777–200, –300, and –300ER series airplanes because of a novel or unusual design feature, special conditions are prescribed under § 21.16.
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, the proposed special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and proposed special conditions, the Boeing Model 777–200, –300, and –300ER series airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36 and the FAA must issue a finding of regulatory adequacy under § 611 of Public Law 92–574, the “Noise Control Act of 1972.”
The FAA issues special conditions, as defined in 14 CFR 11.19, under § 11.38, and they become part of the type-certification basis under § 21.17(a)(2).
The Boeing Model 777–200, –300, –300ER series airplanes will incorporate the following novel or unusual design features:
Multiple Electronic Flight Bags (EFBs) and several connected networks that will interface to existing aircraft systems. The proposed network architecture is used for a diverse set of functions, providing data connectivity between systems, including:
1. Flight-safety related control and navigation systems,
2. Operator business and administrative support (operator information services),
3. Passenger information systems, and,
4. Access by systems internal to the airplane.
The integrated network configurations in the Boeing Model 777–200, –300, and –300ER series airplanes may allow increased connectivity with external network sources and will have more interconnected networks and systems, such as passenger entertainment and information services than previous airplane models. This may allow the exploitation of network security vulnerabilities and increased risks potentially resulting in unsafe conditions for the airplanes and occupants. This potential exploitation of security vulnerabilities may result in intentional or unintentional destruction, disruption, degradation, or exploitation of data and systems critical to the safety and maintenance of the airplane. The existing regulations and guidance material did not anticipate these types of system architectures. Furthermore, 14 CFR regulations and current system safety assessment policy and techniques do not address potential security vulnerabilities which could be exploited by unauthorized access to airplane networks and servers. Therefore, these special conditions are being issued to ensure that the security (i.e., confidentiality, integrity, and availability) of airplane systems is not compromised by unauthorized wired or wireless electronic connections between airplane systems and the passenger entertainment services.
For the reasons discussed above, these special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the Boeing Model 777–200, –300, –300ER series airplanes. Should ARINC Aerospace Company apply at a later date for a change to the type certificate to include another model on the same type certificate incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on Boeing Model 777–200, –300, –300ER series airplanes. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting these special conditions upon publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777–200, –300, –300ER series airplanes modified by ARINC Aerospace Company.
1. The applicant must ensure that the design provides isolation from, or airplane electronic system security protection against, access by unauthorized sources internal to the airplane. The design must prevent inadvertent and malicious changes to, and all adverse impacts upon, airplane equipment, systems, networks, or other assets required for safe flight and operations.
2. The applicant must establish appropriate procedures to allow the
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
We are adopting a new airworthiness directive (AD) for The Boeing Company Model 747–8 and 747–8F series airplanes and Model 787–8 airplanes powered by GEnx engines. This AD requires revising the airplane flight manual to advise the flight crew of potential ice crystal icing (ICI) conditions at high altitudes, and to prohibit operation in moderate and severe ICI conditions. This AD also requires inspecting the engine after any ICI event is detected by the flight crew. This AD was prompted by reports of engine damage and thrust loss events as a result of flying in high altitude ICI conditions. We are issuing this AD to ensure that the flight crews have operating instructions to avoid flight into ICI conditions that can lead to engine damage and thrust loss events; unrecoverable thrust loss on multiple engines can lead to a forced landing.
This AD is effective November 27, 2013.
We must receive comments on this AD by January 13, 2014.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
You may examine the AD docket on the Internet at
Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6438; fax: 425–917–6590; email:
Over the past decade, we have been aware of temporary engine thrust loss, and other engine-related events that occurred in ice crystal icing (ICI) conditions at high altitudes. These events have prompted the release of ADs on various airplane models equipped with General Electric (GE) CF6–80 series engines. Each event was in or near convective weather conditions that included ice crystal icing.
This type of icing does not appear on radar due to its low reflectivity, and neither the airplane ice detector nor visual indications reliably indicate the presence of icing conditions. Therefore, it is often undetected by the flight crew. Flight in these conditions can cause ice crystals to accumulate in the core gas flow path of the engine. In the events leading to those prior ADs, the ice has shed during throttle transients and in the descent phase of flight, causing temporary thrust loss.
Since the beginning of 2013, similar events have now occurred on Model 747–8 and 747–8F series airplanes powered by GEnx-2B engines and Model 787–8 airplanes powered by GEnx-1B engines. The new events that prompted this AD, however, have occurred during the cruise phase of flight and caused permanent damage (beyond maintenance manual limits) to the engine compressor. In all thrust loss events, data indicate that ice crystals entered and collected in the initial stages of the compressor. Engine temperature data indicate small ice accretions were shed through the core of the engine.
All of these ICI events occurred during cruise at 33,000 feet or above, either within or after the airplane traversed a large Mesoscale Convective System (MCS). MCSs are areas where several thunderstorms have merged, with a continuous cloud larger than 100 kilometers (62 miles) across.
Within or near MCSs, ICI events have occurred where convective activity has driven a significant quantity of moisture, in the form of ice crystals, to altitudes at or above the tropopause. ICI events tend to occur in warm geographic locations.
As of the date of this AD, there have been nine events on Model 747–8 airplanes and Model 787–8 airplanes.
During two events on Model 747–8F airplanes, two engines experienced thrust losses during the cruise phase of flight. In one of these events, one of the engines recovered to idle but would not accelerate and was left at idle for the rest of the flight. The other engine recovered and operated normally for the rest of the flight. In both airplane events, subsequent inspections of all four engines revealed compressor damage on both of the event engines as well as damage to a third engine that had not experienced a thrust loss.
In four other events—one on a Model 787–8 airplane and three on Model 747–8 airplanes—uncommanded engine decelerations (i.e., thrust losses) of approximately 20 seconds in duration occurred. All engines automatically recovered commanded thrust without crew action and operated normally for the rest of the flight.
In three other events on Model 747–8 airplanes, at least one engine showed elevated vibrations on the low-speed engine spool (N1) while in ICI conditions. The vibrations stopped after the airplanes exited the weather system, and the engines operated normally for the rest of the flight.
Unrecoverable thrust loss on multiple engines, due to operation in high altitude clouds containing ice crystals, could lead to a forced landing.
We are issuing this AD because we evaluated all the relevant information
This AD requires revising the Certificate Limitations and Operating Procedures chapters of the AFM to advise the flight crew of potential ICI conditions at high altitudes, and to provide procedures to prohibit flight into those conditions.
This AD also requires engine inspections after any event where the flight crew reports the appearance of the “ENGINE THRUST” message on the engine indication and crew alert system (EICAS) for any engine. The intent of the inspection requirement is to verify the airworthiness of the airplane for future flights. Because of thrust requirements on the different airplane models, the inspection is required before further flight on a minimum of three engines on Model 747–8 and 747–8F series airplanes, and on both engines on Model 787–8 airplanes.
We consider this AD interim action. If final action is later identified, we might consider further rulemaking then.
An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because flight in potential ICI at high altitudes could result in engine damage and loss of thrust and consequent forced landing. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We estimate that this AD affects 14 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
We have received no definitive data that would enable us to provide cost estimates for the on-condition corrective actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 27, 2013.
None.
This AD applies to The Boeing Company airplanes, certificated in any category, identified in paragraphs (c)(1) and (c)(2) of this AD.
(1) Model 747–8 and 747–8F series airplanes powered by GEnx-2B67 or GEnx-2B67B engines.
(2) Model 787–8 airplanes powered by GEnx-1B64, GEnx-1B67, GEnx-1B70, GEnx-1B64/P1, GEnx-1B67/P1, GEnx-1B70/P1, or GEnx-1B70/75/P1 engines.
Air Transport Association (ATA) of America Code 71, Power plant.
This AD was prompted by reports of engine damage and thrust loss events as a result of flying in high altitude ice crystal icing (ICI) conditions. We are issuing this AD to ensure that the flight crews have operating instructions to avoid flight into ICI conditions that can lead to engine damage and thrust loss events. We are also issuing this AD to ensure the airplane has a minimum number of airworthy engines following a potential high altitude ICI encounter. Operation with more than one engine having icing damage can lead to a common cause loss of thrust on multiple engines, which can lead to a forced landing.
Comply with this AD within the compliance times specified, unless already done.
Within 7 days after the effective date of this AD, revise the Certificate Limitations chapter of the applicable Boeing AFM to include the statement provided in figure 1 to paragraph (g) of this AD. This may be done by inserting a copy of this AD into the AFM.
In order to prevent loss of thrust and engine damage due to ice crystal icing, for operations at or above 30,000 feet, when approaching, or in, instrument meteorological conditions or visible moisture:
The flight crew must comply with the Avoidance of Ice Crystal Icing procedure contained in the Operating Procedures chapter of this manual.
When following the Avoidance of Ice Crystal Icing procedure, flight is prohibited within 50NM of amber or red radar returns that are displayed below the airplane's flight path.
When statements identical to those in figures 1, 2, and 3 to paragraphs (g), (h), and (i) of this AD, respectively, have been included in the applicable chapters of the general revisions of the applicable AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM.
For Model 747–8 (Intercontinental) and 747–8F (Freighter) series airplanes: Within 7 days after the effective date of this AD, revise the Operating Procedures chapter of the Boeing 747–8 AFM to include the statement provided in figure 2 to paragraph (h) of this AD. This may be done by inserting a copy of this AD into the AFM.
This procedure is required by the AVOIDANCE OF ICE CRYSTAL ICING limitation contained in the Certificate Limitations chapter of this manual. The language below shall not be modified.
Operations in ice crystal icing can cause unrecoverable loss of thrust and engine damage due to ice crystal icing.
For operations at or above 30,000 feet, when approaching, or in, instrument meteorological conditions or visible moisture:
Operate weather radar in automatic mode and gain knob set to the 12 o'clock position, or if in manual mode adjust gain to maximum and set tilt between −1 and −3.
If areas of green, amber or red weather radar returns are observed along the flight path:
Use manual weather radar tilt control mode and vary the tilt between −3 and −5 degrees and set the gain knob to the 12 o'clock position to determine if amber or red returns are present below the airplane's flight path.
Flight is prohibited within 50NM of amber or red radar returns that are displayed below the airplane's flight path.
For Model 787–8 airplanes: Within 7 days after the effective date of this AD, revise the Operating Procedures chapter of the Boeing 787 AFM to include the statement provided in figure 3 to paragraph (i) of this AD. This may be done by inserting a copy of this AD into the AFM.
This procedure is required by the AVOIDANCE OF ICE CRYSTAL ICING limitation contained in the Certificate Limitations chapter of this manual. The language below shall not be modified.
Operations in ice crystal icing can cause unrecoverable loss of thrust and engine damage due to ice crystal icing.
For operations at or above 30,000 feet, when approaching, or in, instrument meteorological conditions or visible moisture:
Operate weather radar in automatic mode and 0 manual gain adjustment, or if in manual mode adjust gain to maximum and set tilt between −1 and −3.
If areas of green, amber or red weather radar returns are observed along the flight path:
Use manual weather radar tilt control mode and vary the tilt between −3 and −5 degrees and select 0 manual gain adjustment to determine if amber or red returns are present below the airplane's flight path.
Flight is prohibited within 50NM of amber or red radar returns that are displayed below the airplane's flight path.
After any flight crew report of the appearance of an engine indicating and crew alerting system (EICAS) message that displays “ENG THRUST (L,R)” (for Model 787–8 airplanes) or “ENG (1, 2, 3, or 4) THRUST” (for Model 747–8 and 747–8F airplanes) during operation at or above 30,000 feet pressure altitude: Do borescope inspections of the first stage blade of the high pressure compressor of the engines to detect damage, as specified in paragraph (j)(1) or (j)(2) of this AD, as applicable. Correct any damage before further flight.
(1) For Model 747–8 and 747–8F series airplanes: Before further flight, inspect each engine for which an EICAS ENGINE THRUST message was displayed. A minimum total of 3 engines must be inspected before further flight. Within 5 flight cycles after the EICAS message was displayed, inspect the fourth engine, unless already accomplished as specified in this paragraph.
(2) For Model 787–8 airplanes: Before further flight, inspect both engines.
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (k) of this AD. Information may be emailed to
(2) Before using any approved AMOC, notify your appropriate principal inspector,
(1) For more information about this AD, contact Sue Lucier, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, Washington 98057–3356; phone: 425–917–6438; fax: 425–917–6590; email:
(2) Refer to the applicable information specified in paragraph (l)(2)(i) or (l)(2)(ii) of this AD for guidance on inspecting the engine and correcting damage.
(i) For Model 747–8 and 747–8F series airplanes: Refer to Task 72–00–00–290–801–G00, High Pressure Compressor Section (with a Borescope) Detailed Inspection, of Subject 72–00–00, Engine—Inspection/Check, of Chapter 72, Engine, of the Boeing 747–8 Aircraft Maintenance Manual.
(ii) For Model 787–8 airplanes: Refer to Data Module DMC–B787–A–G72–00–00–06B–280C–A, High Pressure Compressor Section (with a Borescope)—Special Detailed Inspection, of the Boeing 787–8 Aircraft Maintenance Manual.
(3) For Boeing service information identified in this AD that is not incorporated by reference, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
None.
Federal Aviation Administration (FAA), DOT.
Final rule; technical amendment.
This action makes a minor correction to the longitude coordinate in the boundary of restricted area R–7201, Farallon De Medinilla Island, Mariana Islands, Guam. This change is due to the National Oceanic and Atmospheric Administration's (NOAA) adoption of a revised datum which resulted in a minor shift in the charted location of Farallon De Medinilla Island. This action adjusts the longitude coordinate of the restricted area to ensure that it is charted in the proper position over the Island.
Paul Gallant, Airspace Policy and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
Based on a NOAA survey in 2010, it was determined that Farallon De Medinilla Island (FDM) was not plotted properly on the NOAA charts. As a result, the datum for charting the FDM inset on NOAA Chart 81086 was corrected based on the survey findings. This requires a minor adjustment in the longitude coordinate for R–7201 to take into account the revised positioning of FDM on NOAA Chart 81086 and to ensure that the restricted area is centered over FDM on the current NOAA chart.
This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by making a minor correction to the longitude coordinate in the description of restricted area R–7201, Farallon De Medinilla Island, Mariana Islands, Guam. This action changes the longitude coordinate from “long. 146°04′39″ E.” to “long. 146°03′31″ E.”
This change does not affect the designated altitudes or activities conducted within the restricted area. Because this is a minor change that merely provides a more accurate plotting of the FDM Island and the overlying restricted airspace to match the amended NOAA chart datum, notice and public procedures under 5 U.S.C. 553(b) are unnecessary.
The FAA has determined that this action only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as amends the description of restricted area R–7201, Farallon De Medinilla Island, Mariana Islands.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, Environmental Impacts: Policies and Procedures, paragraph 311d. This action is an administrative change to the description of affected restricted area R–7201 to reflect a more accurate geographic coordinate. It does not alter the dimensions, altitudes, time of designation or use of the airspace; therefore, it is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.
Airspace, Prohibited areas, Restricted areas.
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73, as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
By removing the sentence under Boundaries and adding in their place:
Boundaries. The area within a 3-nautical mile radius of lat. 16°01′04″ N., long. 146°03′31″ E.
U.S. Customs and Border Protection, Department of Homeland Security, Department of the Treasury.
Final rule.
This document amends U.S. Customs and Border Protection (CBP) regulations to update the list of supervisors authorized to allow their employees to testify in state or local criminal proceedings in response to a demand of a court, administrative agency, or other authority. The applicable regulation was promulgated by the U.S. Customs Service prior to the creation of CBP as part of the Department of Homeland Security (DHS). The changes are necessary to more accurately reflect the current CBP organizational structure. This document also makes non-substantive editorial and nomenclature changes to reflect the transfer of the legacy U.S. Customs Service of the Department of the Treasury to DHS and the creation of U.S. Customs and Border Protection.
Howard Charles, Office of Chief Counsel, 202–344–2759,
Title 19, Code of Federal Regulations (19 CFR), Part 103, Subpart B, sets forth the procedures to be followed with respect to the production or disclosure of any information, including testimony, in all federal, state, local, and foreign proceedings when a demand of a court, administrative agency, or other authority is issued for such information. Although 19 CFR 103.22(a) generally requires prior written approval from the Chief Counsel of the former U.S. Customs Service, 19 CFR 103.26 allows certain agency supervisors to authorize their employees to testify, disclose, or produce certain information in state or local criminal cases when the demand is made by prosecutors. The listed agency supervisors include: port directors, special agents in charge, and chiefs of field laboratories.
The Department of Homeland Security (DHS) was established on January 24, 2003, pursuant to the Homeland Security Act of 2002.
The reorganization under DHS resulted in the consolidation of certain existing organizations as well as the creation of new divisions, or offices, within U.S. Customs and Border Protection (CBP). The Office of Field Operations (OFO), Office of Internal Affairs (IA), U.S. Border Patrol (USBP), Office of Air and Marine (OAM), and Laboratory and Scientific Services (LSS)
The list of agency supervisors contained in 19 CFR 103.26 who can authorize their employees to testify or provide information in state or local criminal cases has not been updated to reflect the organizational structure of CBP. As such, it does not include personnel from USBP or OAM and it includes LSS position titles that no longer exist in the CBP organization.
Therefore, it is necessary to amend 19 CFR 103.26 to include the appropriate officials within CBP, including USBP, OAM, and LSS personnel.
Under CBP's current organizational structure, “port directors,” “special agents in charge within the Office of Internal Affairs,” “chief patrol agents”, “directors within the Office of Air and Marine”, “directors of field laboratories”, and “any supervisor of such officials” are the appropriate officials within OFO, IA, USBP, OAM, and LSS, respectively, who are authorized to allow employees under their supervision to provide information and testify in state or local criminal proceedings.
For the reasons described above, and to more accurately reflect the current CBP organizational structure, this final rule amends 19 CFR 103.26 by adding “chief patrol agents”, “directors within the Office of Air and Marine”, and “any supervisor of such officials”; and by replacing “chiefs of field laboratories” with “directors of field laboratories” in the list of personnel authorized to allow employees under their supervision to testify, disclose, or produce certain information in state or local criminal proceedings.
This document also amends 19 CFR part 103, Subpart B to reflect the transfer of the legacy U.S. Customs Service of the Department of the Treasury to DHS and the subsequent renaming of the agency as U.S. Customs and Border Protection (CBP).
This amendment merely updates the regulations to reflect the current organizational structure of CBP as it relates to the supervisors authorized to allow employee testimony in state and local criminal proceedings and to reflect
Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply. This amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866, as supplemented by Executive Order 13563.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
The rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13123, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This document is limited to technical corrections of CBP regulations. Accordingly, it is being signed under the authority of 19 CFR 0.1(b).
Administrative practice and procedure, Confidential business information, Courts, Freedom of information, Law enforcement, Privacy, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, part 103 of title 19 of the Code of Federal Regulations (19 CFR Part 103) is amended as set forth below.
5 U.S.C. 301, 552, 552a; 19 U.S.C. 66, 1624; 31 U.S.C. 9701.
Internal Revenue Service (IRS), Treasury.
Final regulations and removal of temporary regulations.
This document contains final regulations that require information reporting by persons who receive mortgage insurance premiums, including prepaid premiums, aggregating $600 or more during any calendar year. The final regulations implement reporting requirements that result from the extension of the treatment of mortgage insurance premiums made by the American Taxpayer Relief Act of 2012. These regulations will affect any person who, in the course of a trade or business, receives from an individual mortgage insurance premiums that in the aggregate total $600 or more during a calendar year.
Janet Engel Kidd at (202) 317–6844 (not a toll-free number).
This document contains amendments to the Income Tax Regulations (26 CFR part 1) under section 6050H(h) of the Internal Revenue Code (Code) relating to reporting requirements for mortgage insurance premiums. Section 6050H(h)(1), enacted on December 20, 2006, by section 419(c) of the Tax Relief and Health Care Act of 2006, Public Law 109–432 (120 Stat. 2967), provides that the Secretary may, by regulations, require any person who, in the course of a trade or business, receives payments of mortgage insurance premiums from an individual aggregating $600 or more during any calendar year to file a return regarding those payments in the form, at the time, and containing the information prescribed by the Secretary. Under section 6050H(h)(2), on or before January 31 of the year following the year in which the premium is received, a person required to file an information return under section 6050H(h)(1) must send a written statement to the individual to whom the information return relates showing the information prescribed by the Secretary. Section 6050H(h)(3)(A) provides that rules similar to the rules in section 6050H(c), relating to the applicability of the section 6050H reporting requirements to governmental units, will apply with respect to mortgage insurance premiums. Section 6050H(h)(3)(B) defines the term “mortgage insurance” to mean mortgage insurance provided by the Veterans Administration (the predecessor to the Department of
In general, section 163(h)(3)(E) treats premiums paid for qualified mortgage insurance by a taxpayer during the taxable year in connection with acquisition indebtedness with respect to a qualified residence as qualified residence interest. Prior to amendment in 2013, section 163(h)(3)(E) was effective for amounts paid or accrued between January 1, 2007, and December 31, 2011, or properly allocable to any period ending on or before December 31, 2011, on mortgage insurance contracts issued on or after January 1, 2007. Section 204 of the American Taxpayer Relief Act of 2012 (ATRA), Public Law 112–240, 126 Stat. 2313, enacted on January 2, 2013, retroactively applied the tax treatment of qualified mortgage insurance premiums as qualified residence interest for 2012, and it extended that treatment to premiums paid or accrued on or before December 31, 2013, or properly allocable to any period ending on or before December 31, 2013, on mortgage insurance contracts issued on or after January 1, 2007. Unless extended or made permanent by further legislation, section 163(h)(3)(E) will not apply to amounts paid or accrued after 2013 or properly allocable to any period after 2013.
On May 7, 2009, the Treasury Department and the IRS published temporary regulations (TD 9449) under section 163 in the
On May 7, 2012, the Treasury Department and the IRS published final regulations (TD 9588) in the
The final regulations adopt the proposed regulations under § 1.6050H–3 with two minor revisions. The first is the addition of new paragraph (d), which cross-references § 1.6050H–2 regarding the time, form, and manner of reporting qualified mortgage interest. The addition of this cross-reference is intended to clarify that rules similar to the rules applicable to the time, form, and manner of reporting interest received on qualified mortgages apply to amounts required to be reported under § 1.6050H–3(a) . For instance, mortgage insurance premiums are reported on a Form 1098, “Mortgage Interest Statement,” if the premiums received from that individual in the aggregate total $600 or more.
The second revision relates to the effective date and applicability of these final regulations. On January 2, 2013, ATRA extended section 163(h) for premiums paid or accrued on or before December 31, 2013, or properly allocable to any period ending on or before December 31, 2013, on mortgage insurance contracts issued on or after January 1, 2007. In addition, ATRA extended section 163(h) retroactively for qualified mortgage insurance premiums paid or accrued during 2012. These final regulations under § 1.6050H–3 require information reporting for mortgage insurance premiums received on or after January 1, 2013, and during periods to which section 163(h)(3)(E) is applicable. However, there were no final or temporary regulations requiring information reporting with respect to qualified mortgage insurance premiums paid or accrued during 2012. Therefore, information reporting with respect to qualified mortgage insurance premiums was not required for premiums paid or accrued during 2012.
Because information reporting with respect to mortgage insurance premiums received during 2012 was not required, no penalty under section 6721 or section 6722 will apply with respect to the failure to report mortgage insurance premiums received during 2012.
Further, the fact that an individual did not receive a Form 1098 reporting the amount of mortgage insurance premiums paid for 2012 does not affect whether the individual satisfied the requirements under section 163(h) to treat qualified mortgage insurance premiums as qualified residence interest. Accordingly, any individual who paid or accrued qualified mortgage insurance premiums in the calendar year ending December 31, 2012, or properly allocated these premiums to the calendar year ending December 31, 2012, on mortgage insurance contracts issued on or after January 1, 2007, and who did not previously treat those amounts as qualified residence interest, may, within the applicable period of limitations, file a Form 1040X, “Amended U.S. Individual Income Tax Return,” for 2012 to claim a refund based on the treatment of those amounts as qualified residence interest.
It has been determined that this Treasury decision is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that this rule merely reinstates the mortgage insurance information reporting requirements on the Form 1098 that previously existed from 2007 through 2011. In addition, persons receiving mortgage insurance premiums already are required to file the Form 1098 to report interest received on qualified mortgages and completing the mortgage insurance premiums box imposes little or no incremental burden in time or expense. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. Chapter 6) is not required. Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for Advocacy of the
The principal author of these regulations is Janet Engel Kidd, Office of the Associate Chief Counsel, Procedure and Administration.
Income taxes, Reporting and recordkeeping requirements.
Accordingly, 26 CFR part 1 is amended as follows:
26 U.S.C. 7805 * * *
Section 1.6050H–3 is also issued under 26 U.S.C. 6050H(h). * * *
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Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing temporary safety zones around the following Pacific Northwest Grain Handlers Association facilities: The Columbia Grain facility on the Willamette River in Portland, OR, the United Grain Corporation facility on the Columbia River in Vancouver, WA, the Temco Irving facility on the Willamette River in Portland, OR, the Temco Kalama facility on the Columbia River in Kalama, WA, and the Louis Dreyfus Commodities facility on the Willamette River in Portland, OR. These safety zones extend approximately between the navigable channel and the shoreline of the facility described. These safety zones have been established to ensure that on-water protest activities near these facilities do not create hazardous navigation conditions for vessels protesting, transiting in the navigable channel, or attempting to moor at the facilities and that any on-water activities do not create hazardous conditions while grain-shipment vessels are moored at the facilities.
This rule is effective without actual notice from November 27, 2013 until November 27, 2015. For the purposes of enforcement, actual notice will be used from the date the rule was signed, October 31, 2013, until November 27, 2013.
Documents mentioned in this preamble are part of docket [USCG–2013–0011]. To view documents mentioned in this preamble as being available in the docket, go to
If you have questions on this rule, call or email LTJG Ian P. McPhillips, Waterways Management Division, Marine Safety Unit Portland, U.S. Coast Guard; telephone (503) 240–9319, email
On August 6, 2013, the Coast Guard published a temporary interim rule and request for comments titled, “Safety Zones; Pacific Northwest Grain Handlers Association Facilities; Columbia and Willamette Rivers” in the
Coast Guard Captains of the Port are granted authority to establish safety and security zones in 33 CFR 1.05–1(f) for safety and environmental purposes as described in 33 CFR Part 165.
These safety zones are being implemented to ensure the safe navigation of maritime traffic on the Columbia and Willamette Rivers and their tributaries while grain-shipment and grain-shipment assist vessels transit to and from these Pacific Northwest Grain Handlers Association facilities and to ensure that vessels remain safely moored at these Coast Guard regulated facilities. These safety zones are intended to ensure that members of the maritime public, in particular, those engaged in commerce and protest activities on the water, are not injured. Recreational boating, fishing, and protest activity afloat in these safety zones is particularly hazardous because of the effects of strong river currents, the maneuvering characteristics of grain-shipment vessels, and the safety-sensitive mid-stream personnel transfers conducted by grain-shipment assist vessels with which recreational boaters and protesters may be unfamiliar. These safety zones apply equally to all waterway users and are intended to allow maximum use of the waterway consistent with safe navigation. The impact of the safety zones on maritime activity in the area is minimal because the safety zones are of a limited size and do not encroach on the navigation channel. Grain-shipment vessel means any vessel bound for or departing or having previously loaded cargo at any of the following waterfront facilities: Columbia Grain in Portland, OR; United Grain Corporation in Vancouver, WA; Temco Irving in Portland, OR; Temco Kalama in Kalama, WA; or Louis Dreyfus Commodities in Portland, OR. This includes any vessel leaving anchor in the Columbia and Willamette Rivers that is bound for or had previously departed from the aforementioned waterfront facilities. Grain-shipment assist vessel means any vessel bound for or departing from a grain-shipment vessel to assist it in navigation during the movement of the grain-shipment vessel in the Columbia and Willamette Rivers and their tributaries. This includes but is not limited to tugs, pilot boats, and launches.
This temporary final rule is unchanged from the temporary interim rule that was published on August 6, 2013 (78 FR 47567) as no substantive changes have been deemed necessary. One commenter submitted a letter to the docket containing several objections. The commenter addressed the inclusion of the safety zone around the Louis Dreyfus facility, which was not included in the previous rule published on February 4, 2013. The Louis Dreyfus facility was not previously included because it was undergoing repairs and was not operational. The Coast Guard has included the Louis Dreyfus facility in this rule based on the facility's plans to begin fulltime operations within the enforcement period of this rule.
The commenter asserted that the safety zones were unnecessary and overbroad. Specifically, the commenter questioned the necessity of the size of these zones. The sizes of these zones are based on the average size of the grain-shipment vessels operating on the river and the average speed of the vessels during their approach. The commenter asserted that deep-draft vessels on the Columbia and Willamette Rivers typically approach at 1 to 2 knots when entering the final 250 yards before the terminal, and therefore, a narrower safety zone of 50–70 yards would still provide a two-minute pre-collision period. The Coast Guard disagrees that a safety zone of 50–70 yards would provide a sufficient buffer to prevent collisions. As vessels are mooring, their speed and direction are frequently changing. Based on these dynamic conditions, we believe the width and size of these safety zones are necessary to significantly reduce the risk posed by limited ship-to-boat communications or propulsion failure by vessels or watercraft operating in the vicinity of grain-shipment vessels.
The commenter also asserts that the Coast Guard has failed to state why the safety zones are necessary and that it appears the safety zones were enacted as the result of union animus. Coast Guard Captains of the Port are delegated authority to establish safety and security zones in 33 CFR 1.05–1(f) for safety and environmental purposes as described in 33 CFR Part 165. The Coast Guard has previously stated that the purpose of this rule is to ensure the safe navigation of maritime traffic on the Columbia and Willamette Rivers and their tributaries while grain-shipment and grain-shipment assist vessels transit to and from these Pacific Northwest Grain Handlers Association facilities. These safety zones are intended to mitigate the hazardous conditions created by small recreational vessels operating in close proximity to large and less-maneuverable, commercial deep-draft vessels and tug and barge configurations, which are typically between 300 and 800 feet in length. In addition to mitigating the navigational dangers associated with operating a small vessel in close proximity to less-maneuverable deep-draft grain-shipment vessels, the Coast Guard believes these safety zones are necessary to protect the safety-sensitive mid-stream personnel transfers conducted by grain-shipment assist vessels with which recreational boaters and protesters may be unfamiliar.
The Coast Guard also disagrees with the commenter's assertion that the safety zones were enacted out of union animus. The Coast Guard respects the First Amendment rights of protesters. These safety zones do not single out protesters, but apply equally to all waterway users and are intended to allow maximum use of the waterway consistent with safe navigation. The safety zones created by this rule do not prohibit members of the public from assembling on the water to express their points of view. The Captain of the Port has, in coordination with protesters, recommended areas on the water in the
The commenter asserted that the proposed rule would prevent protesters from engaging in peaceful protest activities. The Coast Guard disagrees. The safety zones created by this rule do not prohibit protest activities on the Columbia and Willamette Rivers. Instead, these safety zones are intended to mitigate the hazardous conditions created by small recreational vessels operating in close proximity to large and less-maneuverable commercial deep-draft vessels and tug and barge configurations, which are typically between 300 and 800 feet in length. The safety zones apply to all vessels not otherwise exempted and are intended to ensure the safe navigation of maritime traffic and to protect the safety of life and property on the Columbia and Willamette rivers and all adjoining tributaries.
The commenter also asserted that this rule is inconsistent with the National Labor Relations Act, 29 U.S.C. 151
The commenter disagreed with the Coast Guard's suggested use of on-water assembly areas. Prior to promulgation of the initial safety zone, outreach meetings were held between the local Captain of the Port, Columbia River Pilots, and union members. Based on input from these meetings, the Coast Guard designated on-water assembly areas where protesters could safely exercise their First Amendment rights. However, protestors are not required to restrict their protest activities to these assembly areas and may operate in any part of the river outside of the zones so long as they do so in accordance with the navigational rules.
The commenter expressed the importance of “on-water picketing” in publicizing the ongoing labor dispute and stated that the safety zones unnecessarily burden the ability of protesters to convey their message to their intended audience of “incoming vessels.” The Coast Guard disagrees. Nothing in this rule prevents union members from protesting on the water. The safety zones created by the rule apply to all vessels not otherwise exempted and are intended to ensure the safe navigation of maritime traffic and protect the safety of life and property on the Columbia and Willamette rivers and all adjoining tributaries. The zones address the hazardous conditions for vessels operating in the area due to the maneuvering characteristics of grain-shipment vessels and the safety sensitive mid-stream personnel transfers conducted by grain-shipment assist vessels with which recreational boaters and protesters may be unfamiliar. Vessel operators, including protestors, may operate in any part of the river outside of the zones so long as they do so in accordance with the navigational rules. Additionally, the safety zones are not so large as to prevent vessels from coming within sight or sound of inbound grain-shipment and grain-shipment assist vessels. The recommended on-water assembly areas were proposed specifically to identify locations outside of the safety zones that allow protestors to safely communicate with their intended audience.
Finally, the commenter asserts that the enforcement of these safety zones for a limited amount of time underscores the singling out of labor unions for differential treatment. The Coast Guard disagrees. The safety zones address safety hazards created by the navigation of recreational vessels in close proximity to the facilities to which large and less-maneuverable grain-shipment vessels are transiting. The enforcement of the safety zones for limited time periods is not for the purpose of singling out labor unions but is for the purpose of minimizing the impact on marine operators. The Coast Guard will enforce the safety zones for the minimal amount of time necessary to help ensure the safe navigation for all vessels in the vicinity. The safety zones created by this rule apply to all vessels not otherwise exempted, regardless of whether they are engaged in union activities.
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and executive orders.
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. Although this rule will restrict access to the regulated areas, the effect of this rule will not be significant because: (i) The safety zones are limited in size; (ii) the official on-scene patrol may authorize access to the safety zones; (iii) the safety zones will effect limited geographical locations for a limited time; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 0 comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. This rule may affect the following entities some of which may be small entities: The owners and operators of vessels intending to operate in the area covered by the safety zones created in this rule.
This rule will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zones are limited in size; (ii) the official on-scene patrol may authorize access to the safety zones; (iii) the safety zones will effect limited geographical locations for a limited time; and (iv) the Coast Guard will make notifications via maritime advisories so mariners can adjust their plans accordingly.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104–121), we want to assist small entities in understanding this rule. If this rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. In preparing this temporary final rule, the Coast Guard carefully considered the rights of lawful protestors. The safety zones created by this rule do not prohibit members of the public from assembling on shore or expressing their points of view from locations on shore. In addition, the Captain of the Port has, in coordination with protesters, recommended water areas in the vicinity of these safety zones where those desiring to do so can assemble and express their views without compromising navigational safety. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of temporary safety zones around the Columbia Grain facility on the Willamette River in Portland, OR, the United Grain Corporation facility on the Columbia River in Vancouver, WA, the Temco Irving facility on the Willamette River in Portland, OR, the Temco Kalama facility on the Columbia River in Kalama, WA, and the Louis Dreyfus Commodities facility on the Willamette River in Portland, OR. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
Harbors, Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR Part 165 as follows:
33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.
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Upon notice of enforcement by the Sector Columbia River Captain of the Port, the Coast Guard will enforce the safety zone in accordance with the rules set out in this section. Upon notice of suspension of enforcement by the Sector Columbia River Captain of the Port, all persons and vessels are authorized to enter, transit, and exit the safety zone, consistent with the Navigation Rules.
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(2) To request authorization to enter or operate within the safety zone contact the on-scene official patrol on VHF–FM channel 16 or 13, or the Sector Columbia River Command Center at phone number (503) 861–6211. Authorization will be granted based on the necessity of access and consistent with safe navigation.
(3) Vessels authorized to enter or operate within the safety zone shall operate at the minimum speed necessary to maintain a safe course and shall proceed as directed by the on-scene official patrol. The Navigation Rules shall apply at all times within the safety zone.
(4) When conditions permit, the on-scene official patrol, or a designated representative of the Captain of the Port at the Sector Columbia River Command Center, should:
(i) Permit vessels constrained by their navigational draft or restricted in their ability to maneuver to enter or operate within the safety zone in order to ensure a safe passage in accordance with the Navigation Rules; and
(ii) Permit commercial vessels anchored in a designated anchorage area to remain at anchor within the safety zone; and
(iii) Permit vessels that must transit via a navigable channel or waterway to enter or operate within the safety zone in order to do so.
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Department of Veterans Affairs.
Final rule.
This document promulgates Department of Veterans Affairs (VA) final regulations amending the definition of “spousal resource protection amount” to reference the Maximum Community Spouse Resource Standard, which is adjusted and published each year by the Centers for Medicare and Medicaid Services (CMS). This change has the immediate effect of increasing the spousal resource protection amount from $89,280 to $115,920, and ensures that the spousal resource protection amount will stay consistent with the comparable protection for the spouses of Medicaid recipients.
Kristin J. Cunningham, Director Business Policy, Chief Business Office, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420; (202) 461–1599. (This is not a toll-free number.)
On April 22, 2013, VA published in the
In addition, we proposed to remove § 17.111(g), which consists entirely of a copy of VA Form 10–10EC, Application for Extended Care Services.
Interested persons were invited to submit comments to the proposed rule on or before June 21, 2013. We received one comment advocating for increased funding for medical services provided to military spouses, which is beyond the scope of this rulemaking. We received no substantive comments addressing the substance of the proposed rule or suggesting any changes. Therefore, based on the rationale set forth in the proposed rule, VA is adopting the provisions of the proposed rule as a final rule with no changes.
Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.
This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521).
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. This final rule will directly affect only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.
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. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”
The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that
The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.016, Veterans State Hospital Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.
The Secretary of Veterans Affairs, or designee, approved this document 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. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on November 21, 2013, for publication.
Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.
For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 17 as set forth below:
38 U.S.C. 501, and as noted in specific sections.
The revision reads as follows:
(d) * * *
(2) * * *
(vi)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of metaldehyde in or on multiple commodities which are identified and discussed later in this document. This regulation additionally removes the established tolerances in or on berry group 13 and strawberry, as the tolerances will be superseded by tolerances established by this action. Interregional Research Project Number 4 (IR–4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective November 27, 2013. Objections and requests for hearings must be received on or before January 27, 2014, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2012–0706, is available at
Lois Rossi, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2012–0706 in the subject line on
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2012–0706, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Based upon review of the data supporting the petition, EPA has revised the proposed tolerances for several commodities and has determined that tolerances on sweet corn forage and stover are necessary. The Agency has also determined that the tolerance expression should be revised for all commodities. The reasons for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for metaldehyde including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with metaldehyde follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
The toxicity profile of metaldehyde demonstrates that the principal toxic effects are clinical signs of neurotoxicity, as well as changes in the liver and testes/prostate following repeated oral dosing. The dog is the most sensitive species for neurotoxic effects. Nervous system effects observed in the subchronic and chronic oral toxicity studies include: Ataxia and tremors; emesis; rapid respiration in dogs and maternal rats; limb paralysis, spinal cord necrosis, and hemorrhage in maternal rats; salivation; and twitching. Liver effects include increased liver weight, increased incidence of liver lesions (hepatocellular necrosis, hepatocellular hypertrophy and inflammation), and an increased incidence of hepatocellular adenomas in female rats and in both sexes of mice. In dogs, atrophy of the testes and prostate was observed following subchronic and chronic exposure.
In the rat developmental toxicity study, maternal toxicity was observed as evidenced by clinical signs including ataxia, tremors, and twitching at the highest dose tested in the absence of developmental toxicity. There was no observed developmental or maternal toxicity in the rabbit developmental toxicity study. In the 2-generation rat reproductive toxicity study, mortality and clinical signs including limb paralysis, spinal cord necrosis and hemorrhage were observed in the maternal animals. Effects on the offspring in the rat reproductive toxicity study consisted of decreased pup body weight and body weight gains; reproductive toxicity was not observed.
In the rat, clinical signs of neurotoxicity occurred at high dose levels following repeated oral exposures. In the 90-day neurotoxicity study, bilateral hindlimb paralysis was observed in one female rat at the highest dose tested.
Chronic feeding studies in rats and mice indicated that metaldehyde produced liver effects characterized by liver hypertrophy and liver tumors. The chronic mouse toxicity study showed that metaldehyde was associated with a common tumor in both sexes (liver tumors, adenomas), and the rat chronic toxicity study showed that metaldehyde was associated with liver adenomas in the female. EPA has classified metaldehyde as having “suggestive evidence of carcinogenicity” and has determined that quantification of risk using a nonlinear reference dose (RfD)
1. Tumors found are commonly seen in the mouse.
2. Liver tumors (adenomas) in both species were benign.
3. Metaldehyde is not mutagenic.
4. No carcinogenic response was seen in the male rat.
5. Incidence of adenomas at the high dose in the female rat was within the historical control range of the testing lab.
6. Both the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the chronic rat study on which the chronic RfD/PAD was based are well below the dose at which adenomas were seen.
Specific information on the studies received and the nature of the adverse effects caused by metaldehyde as well as the NOAEL and the LOAEL from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the LOAEL are identified. Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a PAD or RfD—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for metaldehyde used for human risk assessment is shown in Table 1 of this unit.
1.
i.
ii.
iii.
iv.
2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of metaldehyde for acute exposures are estimated to be 205 parts per billion (ppb) for surface water and 1,740 ppb for ground water. Chronic exposures are estimated to be 136 ppb for surface water and 635 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. The water concentration values of 1,740 ppb and 635 ppb were used to assess the contribution to drinking water for the acute and chronic dietary risk assessments, respectively.
3.
i. Adult handler short-term inhalation exposures from loading/applying metaldehyde products including liquid ready-to-use products (with manually pressurized hand wands, hose-end sprayers, and sprinkler cans) and applying granules (via push-type rotary spreaders, belly grinders, spoons, cups, hands, and shaker cans.)
ii. Metaldehyde incidental postapplication exposures assessed for children, including short-term exposure from hand-to-mouth and object-to-mouth contact with treated turf, and short- and intermediate-term exposures from treated soil ingestion. While EPA did calculate an acute incidental ingestion scenario for toddlers accidentally ingesting granules of metaldehyde, it is not appropriate to aggregate this scenario because it represents poisoning incident which is not likely to overlap with the typical post-application exposure scenario. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
1.
2.
3.
i. The toxicity database for metaldehyde is complete. EPA has determined that the immunotoxicity study required for pesticide registration is not needed, nor are addition UFs necessary to account for immunotoxicity concerns. The toxicology database reveals no evidence of treatment-related effects on the
ii. There is a concern for neurotoxicity resulting from exposure to metaldehyde; however, most neurotoxic signs were seen in rats at doses above 100 mg/kg. These neurotoxic signs included:
a. Clinical signs (ataxia, twitching, tremors, prostration, paresis of hind legs) in female rats in the developmental toxicity study.
b. Hindlimb paralysis, necrosis and hemorrhage in the spinal cord and vertebra luxation in F0 dams during the lactation period in the 2-generation reproduction study.
c. Bilateral hindlimb paralysis observed initially on day 10 in one high-dose female sacrificed on day 22 due to poor condition in the 90-day subchronic neurotoxicity study in rats, with no evident neuropathology.
d. Clinical signs (ataxia, tremors, twitching, salivation) in the chronic dog study, which occurred within the first week of exposure and persisted through week 19 (other signs included lateral position, reduced mobility, convulsions, and vocalization in one female, and agitation in another).
EPA has determined that the acute and developmental neurotoxicity studies are not needed, nor are additional uncertainty factors (UFs) necessary to account for neurotoxicity. Neurotoxicity effects observed in the rat occur only at high dose levels. The dog is the more sensitive species for neurotoxic effects and points of departure are based on the chronic dog oral toxicity study, which EPA considers to be protective of any neurotoxicity at higher dose levels. Finally, there is a subchronic neurotoxicity study available for metaldehyde with a clearly defined NOAEL/LOAEL.
iii. There is no evidence that metaldehyde results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to metaldehyde in drinking water. EPA used similarly conservative assumptions to assess postapplication incidental oral exposures of children. These assessments will not underestimate the exposure and risks posed by metaldehyde.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the aPAD and cPAD. For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,900 for adults and 590 for children. Because EPA's level of concern for metaldehyde is a MOE of 100 or below, these MOEs are not of concern.
4.
Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in an aggregate MOE of 280 for children. Because EPA's level of concern for metaldehyde is a MOE of 100 or below, this MOEs is not of concern.
5.
6.
Adequate enforcement methodology, a gas chromatography with mass spectrometry (GC/MS) method (EN–CAS Method No. ENC–3/99, Revision 1) is available to enforce the tolerance expression.
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health
The Codex has not established a MRL for metaldehyde.
Based on the data submitted with the petition, EPA revised the proposed tolerances for several commodities, as follows: Corn, field, forage from 0.25 ppm to 0.30 ppm; corn, field, stover from 0.15 ppm to 0.10 ppm; grass, forage from 1.5 ppm to 2.0 ppm; grass, hay from 1.8 ppm to 2.0 ppm; leaf petioles subgroup 4B from 0.80 ppm to 0.50 ppm; peppermint, oil from 14 ppm to 12 ppm; peppermint, tops from 3.5 ppm to 4.0 ppm; spearmint, oil from 14 ppm to 12 ppm; spearmint, tops from 3.5 ppm to 4.0 ppm; taro, corm from 0.25 ppm to 0.15 ppm; and taro, leaves from 0.60 ppm to 1.0 ppm. The Agency revised these tolerance levels based on analysis of the residue field trial data using the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedures. Additionally, the Agency has determined that tolerances in or on corn, sweet, forage at 0.30 ppm and corn, sweet, stover at 0.10 ppm are necessary. Because sweet corn forage and stover may bear detectable metaldehyde residues and be used as a livestock feedstuff, it was determined that these tolerances should be established in order to support the use of metaldehyde in or on sweet corn.
Finally, the Agency has revised the tolerance expression to clarify:
1. That, as provided in FFDCA section 408(a)(3), the tolerance covers metabolites and degradates of metaldehyde not specifically mentioned.
2. That compliance with the specified tolerance levels is to be determined by measuring only metaldehyde.
Therefore, tolerances are established for residues of metaldehyde, 2,4,6,8-tetramethyl-1,3,5,7-tetroxocane, in or on berry, low growing, subgroup 13–07G at 6.25 ppm; bushberry subgroup 13–07B at 0.15 ppm; caneberry subgroup 13–07A at 0.15 ppm; corn, field, forage at 0.30 ppm; corn, field, grain at 0.05 ppm; corn, field, stover at 0.10 ppm; corn, sweet, forage at 0.30; corn, sweet, kernel plus cob with husks removed at 0.05 ppm; corn, sweet, stover at 0.10 ppm; grass, forage at 2.0 ppm; grass, hay at 2.0 ppm; leaf petioles subgroup 4B at 0.50 ppm; peppermint, oil at 12 ppm; peppermint, tops at 4.0 ppm; soybean, seed at 0.05 ppm; spearmint, oil at 12 ppm; spearmint, tops at 4.0 ppm; taro, corm at 0.15 ppm; and taro, leaves at 1.0 ppm;. The regulation additionally removes the tolerances in or on berry group 13 at 0.15 ppm and strawberry at 6.25 ppm.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a)
(c)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of etofenprox in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR–4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective November 27, 2013. Objections and requests for hearings must be received on or before January 27, 2014, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2011–0905, is available at
Lois Rossi, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 305–7090; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2011–0905 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 27, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2011–0905, by one of the following methods:
•
•
•
In the
Currently there are two products that contain etofenprox registered for mosquito control. However, the existing registrations do not allow treatments on or over agricultural areas. IR–4 submitted this petition to establish tolerances for residues of etofenprox in or on food and feed commodities so that the registration can be modified to allow repeated applications (aerial and ground) over agricultural crops, pasture and rangeland.
Based upon review of the data supporting the petition, EPA has modified the level at which tolerances are being established. The reason for this change is explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for etofenprox including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with etofenprox follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.
In mammals, the major targets of etofenprox are the liver, thyroid, kidney, and hematopoietic system. Results from subchronic and chronic feeding studies in rats indicate that males may be more sensitive to treatment-related effects of etofenprox than females. All subchronic and chronic toxicity including carcinogenicity studies showed adverse effects (organ weights, histopathology, biochemistry, hematology, and clinical chemistry) in two or more of the target organs/systems. Additionally, decreases in body weights and food consumption were observed in most of the studies.
In a mouse carcinogenicity study, the kidney was the most sensitive target organ, especially in males, and many deaths were attributed to renal lesions. Males showed a positive trend in renal cortical adenomas alone and in combined carcinomas and adenomas; however, tumor incidence was within the historical control range. Other effects included decreased body and thymus gland weights, and increased liver, spleen, and pituitary gland weights. Microscopic changes included centrilobular hepatocyte enlargement.
Relevant toxicity studies showed no quantitative or qualitative evidence of increased susceptibility in offspring. A prenatal developmental toxicity study in rabbits showed no quantitative or qualitative evidence of increased susceptibility in offspring, in that the developmental effects were seen at doses that resulted in maternal toxicity, including death. There was no indication of increased susceptibility of offspring in the 1-generation/developmental study in rats. In the developmental portion of the study, effects were seen in maternal animals, while no effects were observed in the offspring. In the 2-generation reproductive toxicity study in rats, there was also no evidence of increased susceptibility of offspring.
Although etofenprox exposure does result in some neurotoxic effects, these effects only occur at high doses. An acute neurotoxicity study in the adult rat revealed no treatment-related effects. The subchronic neurotoxicity study in the rat showed decreased body weight gains, increased liver weights in all dose groups, and increased incidence of rearing behavior in males and abnormal gait in females. The developmental neurotoxicity study in rats showed increased rearing behavior in mothers at the highest dose tested (HDT). In offspring, eye abnormalities were observed at the high-dose level and effects on motor/locomotor activity and auditory startle response observed at the high-dose level.
The immunotoxicity studies in the rat and mouse were both negative for immunotoxicity.
The cancer classification for etofenprox is “Not likely to be carcinogenic to humans at doses that do not alter rat thyroid hormone homeostasis.” This decision was based on the following considerations:
i. Treatment-related thyroid follicular cell tumors were seen in both male and female rats at a dose level considered to be adequate, and not excessive, to assess carcinogenicity;
ii. No treatment-related tumors were seen in male or female mice when tested at a dose that was considered adequate to assess carcinogenicity;
iii. There is no mutagenicity concern for etofenprox based
iv. The non-neoplastic toxicological evidence (
v. Rats are substantially more sensitive than humans to the development of thyroid follicular cell tumors in response to thyroid hormone imbalance. The overall weight-of-the-evidence was considered sufficient to indicate that etofenprox induced thyroid follicular tumors through an antithyroid mode of action.
Specific information on the studies received and the nature of the adverse effects caused by etofenprox as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for etofenprox used for human risk assessment is shown in the Table of this unit.
1.
i.
ii.
Specific information on the TREX and AGDISP analyses can be found at
iii.
iv.
• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.
• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.
• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6–7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency estimated the PCT for proposed uses of etofenprox as a mosquito adulticide which may result in residues on food and feed commodities. The PCT estimates are for 35 agricultural crops which may be exposed to mosquito adulticide applications of etofenprox. The agricultural crops included in the analysis are apples, pears, oranges, rice, field com, wheat, and 29 crops grown predominantly in California. The EPA relied on national and state level usage data for the most widely used mosquito insecticides to develop percent crop treated estimates for new uses. The general approach to estimating PCT was to assume that all etofenprox mosquito adulticide applications will be made randomly across the landscape without regard to land use patterns. Except for area wide vector control programs, this approach is highly conservative in that mosquito adulticide applications are generally made to populated urban and suburban areas. However, because of the inherent drift of mosquito adulticides into non-target areas, it is realistic to assume that some residues of etofenprox may be found on agricultural crops in the urban-agricultural interface. Using this approach, PCT estimates including residues on rice, which is a registered use, are as follows:
Apples: 1%; almonds: 5%; apricots: 5%; artichokes: 5%; avocados: 5%; broccoli: 5%; Brussels sprouts: 5%; carrots: 5%; cauliflower: 5%; celery: 5%; chicory: 5%; dates: 5%; field corn: 1%; figs: 5%; garlic: 5%; grapes: 5%; honeydew melon: 5%; kiwifruit: 5%; lemons: 5%; nectarines: 5%; olives: 5%; oranges: 15%; pears: 1%; persimmons: 5%; pistachios: 5%; plums: 5%; pluots: 5%; pomegranates: 5%; prunes: 5%; raisins: 5%; rice: 3%; tomatoes: 5%; walnuts: 5%; wheat: 1%; all other crops: (including livestock commodities, milk, and eggs) 3%.
The Agency used the market leader approach to develop upper bound percent crop treated estimates for this new use. Under the market leader approach, this upper bound is estimated as the percent of the crop treated by the most widely used pesticide for the new use. The EPA's usual application of the market leader approach for deriving PCT traditionally focuses on broad categories of pesticides (e.g., insecticides, fungicides, or herbicides) applied directly to crops for control of agricultural pests. In this case, however, EPA determined that this would not be appropriate because mosquito adulticides fill a unique niche in the pesticide marketplace. The amount of general insecticide use on crops has no rational relationship to the amount of mosquito adulticide use. Instead of using the insecticides applied directly on these crops, EPA chose the most widely used mosquito adulticide in the states/regions that the crop is grown in. For occasional area wide vector control programs for West Nile Virus (WNV) or Vector-borne encephalitis (Western Equine Encephalitis, Eastern Equine Encephalitis, or St. Louis Encephalitis) this approach provides an accurate estimate of the PCT for agricultural crops.
These estimates represent the upper bound of use expected during the pesticide's initial five years of registration; that is, PCT for etofenprox is a threshold of use that EPA is reasonably certain will not be exceeded
Specific information on the methodology to estimate PCT can be found at
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which etofenprox may be applied in a particular area.
2.
Based on the Tier 1 Rice Model and Screening Concentration in Ground Water (SCI–GROW) models, the estimated drinking water concentrations (EDWCs) of etofenprox for chronic exposures are estimated to be 1.2 ppb for surface water and 3.0 × 10
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For chronic dietary risk assessment, the water concentration of value 1.2 ppb was used to assess the contribution to drinking water.
3.
The worst-case residential short-term exposure for adults is from post-application inhalation exposure from treatment of flying insects. The worst-case residential short-term exposure for children 1 to 2 years old is from combined inhalation and oral hand-to-mouth post-application exposures from treatment of flying insects. EPA typically combines exposures for treatments to control the same pests (e.g. flea treatment on surfaces and on pets) because such treatments could reasonably be expected to occur on the same day. But a similar presumption is not generally followed for exposures for treatments to control different pests. For etofenprox, EPA has not combined short-term exposures from use of etofenprox to control flying insects and its use to control fleas, ticks, and bed bugs. Several factors support this approach for etofenprox. First, EPA's manner of estimating short-term residential exposures is very conservative. When assessing individual short-term residential post-application exposure scenarios, EPA assumes exposure occurs at the level of zero-day residues (i.e., day of application residues) on each day of the short-term exposure period (1–30 days), instead of incorporating information on residue decline values. EPA also assumes that an individual performs the same post-application activities, intended to represent high-end exposures as described in the Residential SOPs, for
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to etofenprox. Although etofenprox shares some structural characteristics with synthetic pyrethroids, it is not included in the pyrethroid cumulative assessment. Naturally occurring pyrethrins and the synthetic pyrethroids (collectively called `pyrethroids') are grouped for purposes of cumulative risk assessed based on the following shared characteristics:
i.
ii.
iii.
Etofenprox is not included in the pyrethroid common mechanism grouping or included in the cumulative risk assessment because etofenprox does not exhibit these key characteristics. Etofenprox is an ether compound; pyrethroids are esters. Etofenprox exposure does not result in the neurotoxic syndromes typical of pyrethroids and no available data suggest the molecular target for etofenprox is the sodium channel.
For the purposes of this tolerance action, therefore, EPA has not assumed that etofenprox has a common mechanism of toxicity with other pyrethroids. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see the policy statements released by EPA's Office of Pesticide Programs concerning common mechanism determinations and procedures for cumulating effects from substances found to have a common mechanism on EPA's Web site at
1.
2.
3.
i. The toxicity database for etofenprox is complete.
ii. An acute neurotoxicity study in the adult rat revealed no treatment-related effects. The subchronic neurotoxicity study in the rat showed decreased body weight gains, increased liver weights in all dose groups, and increased incidence of rearing behavior and abnormal gait, all in the absence of histopathological changes. The developmental neurotoxicity study in rats showed increased rearing behavior in mothers. In offspring, eye lesions (including sclera and lens hemorrhage), which are sometimes associated with aggressive maternal behavior, were observed prior to weaning at the highest dose tested. Effects on motor/locomotor activity and auditory startle response were also observed in the high-dose treatment groups on PND 58. These latter isolated, post-ontogenic effects of treatment are not presumed to occur following a single dose.
Evidence of neurotoxicity was also observed in other studies. In a subchronic mouse study piloerection, hunched posture, lethargy, body tremors, and an unsteady gait were noted in both sexes above the limit dose. The rat developmental study showed increased salivation in all treatment groups of the F
However, residual concern for neurotoxicity is low based on the following:
a. Signs of neurotoxicity in the database occur only at the high dose level in each study;
b. The studies show clear and well-defined NOAELs;
c. The signs of neurotoxicity are well-characterized in terms of their effects in offspring; and
d. The PODs used for risk assessment are protective of neurotoxicity seen in the database.
No systemic toxicity was observed in the 28-day dermal study in rabbits up to 1,000 mg/kg/day. In this study, clinical signs were evaluated and signs such as piloerection, hunched posture, lethargy, body tremors, an unsteady gait and salivation, seen in the oral repeated dose studies discussed in this unit, were not observed. With neurotoxic signs occurring only at high doses in the oral studies and a dermal absorption factor (DAF) of 7% for etofenprox, neurotoxic manifestations via the dermal route are not expected below the limit dose. Therefore, concern for neurotoxicity following dermal exposure is low.
iii. As discussed in this unit, there is no indication of increased quantitative or qualitative susceptibility of the developing offspring in the toxicology database for etofenprox.
iv. There are no residual uncertainties identified in the exposure databases. The chronic dietary exposure assessment utilizes tolerance residue levels for all commodities based on conservative modeled estimates. The residue level of 5 ppm is considered an upper bound estimate for both ground and aerial applications that assume the conservative deposition onto surrounding crops following a ULV mosquito adulticide application. The dietary assessment also assumes conservative, upper-bound PCT estimates for the proposed uses. By using these screening level assessments, actual exposures/risks are not expected to be underestimated. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to etofenprox in drinking water. EPA used similarly conservative assumptions to assess post-application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by etofenprox.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
There is potential chronic/long-term exposure to etofenprox via dietary (which is considered background exposure) and residential (which is considered primary) exposure pathways for children 1 to < 2 years old. Chronic/long-term exposure to etofenprox for adults is expected via the dietary (background exposure) and residential (primary) exposure pathways; however, there is no dermal hazard identified for etofenprox, incidental oral exposure is not expected for adults, and inhalation exposure is not expected for adults from treating pets; therefore, chronic/long-term risk is best represented by the risk from dietary exposure described in this unit.
The aggregate long-term MOE for children 1 to < 2 years old, including dietary exposure (food and water) and incidental oral exposures from contact with treated pets is 180. Because EPA's level of concern for etofenprox is a MOE of 100 or below, this MOE is not of concern.
3.
As noted in Unit III.C.3., because the short- and intermediate-term endpoints and PODs for inhalation and oral routes are the same, the short-term exposure and risk estimates are considered to be protective of potential intermediate-term exposure and risk.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 420 for children 1- < 2 years old, and 1,700 for adults. Because EPA's level of concern for etofenprox is a MOE of 100 or below, these MOEs are not of concern.
4.
5.
For crop commodities, adequate enforcement methodology (liquid chromatography/mass spectrometry/mass spectrometry (LC/MS/MS)) is available to enforce the tolerance expression. For livestock commodities, adequate enforcement methodology (gas chromatography/mass spectrometry (GC/MS)) is available to enforce the tolerance expression.
The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
Codex has established etofenprox MRLs on several crop and livestock commodities at levels that range from 0.01–8.0 ppm. These MRLs are different than the tolerances established for etofenprox in the United States. Codex and U.S. MRLs/tolerances could not be harmonized due to differences in the use pattern used to derive the tolerances. Codex MRLs were based on field trial data from foliar and granular use of etofenprox to kill crop pests in agricultural fields whereas the U.S. tolerances were based on aerial application over crops to kill mosquitoes. Different application amounts, frequencies, and techniques are used for these different use patterns and thus harmonization with Codex cannot be achieved.
The proposed tolerance at 0.5 ppm was estimated using limited field trial data. These data were determined to be insufficient to support the proposed use pattern. Subsequently, the applicant submitted modeling results using the Terrestrial Residue Exposure Model (TREX) which estimated residues following repeated ULV applications and concluded residues were likely to peak at 1.5 ppm following repeated aerial applications to agricultural crops. EPA estimated an upper-bound crop residue estimate of 5.0 ppm following repeated ULV aerial and ground applications. In addition, based on the Agency review, it was determined that tolerances were required on livestock commodities as well.
Therefore, tolerances are established for residues of etofenprox, [2-(4-ethoxyphenyl)-2-methylpropyl 3-phenoxybenzyl ether], in or on food commodities at 5.0 ppm; feed commodities at 5.0 ppm; eggs at 0.40 ppm; hog fat at 4.0 ppm; hog meat at 0.20 ppm; hog, meat byproducts at 4.0 ppm; fat of cattle, goat, horse, and sheep at 10.0 ppm; meat of cattle, goat, horse, and sheep at 0.40 ppm; meat byproducts of cattle, goat, horse, and sheep at 10.0 ppm; milk at 0.60 ppm; poultry, fat at 1.0 ppm; poultry, meat at 0.01 ppm; and poultry, meat byproducts at 1.0 ppm.
This final rule establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether (CAS Reg. No. 1373125–59–7) when used as an inert ingredient in a pesticide formulation. Huntsman Corp. submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether on food or feed commodities.
This regulation is effective November 27, 2013. Objections and requests for hearings must be received on or before January 27, 2014, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2013–0526, is available at
Lois Rossi, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460–0001; telephone number: (703) 305–7090 email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ–OPP–2013–0526 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before January 27, 2014. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP–2013–0526, by one of the following methods.
•
•
•
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and use in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing an exemption from the requirement of a
EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.
Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.
1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.
2. The polymer does contain as an integral part of its composition the atomic elements carbon, hydrogen, and oxygen.
3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).
4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize.
5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the TSCA Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.
6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 daltons.
7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF3- or longer chain length as specified in 40 CFR 723.250(d)(6).
Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).
8. The polymer's number average MW of 4,500 is greater than 1,000 and less than 10,000 daltons. The polymer contains less than 10% oligomeric material below MW 500 and less than 25% oligomeric material below MW 1,000, and the polymer does not contain any reactive functional groups.
Thus, Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether.
For the purposes of assessing potential exposure under this exemption, EPA considered that Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The number average MW of Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether is 4,500 daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether conform to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.
Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”
EPA has not found Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether to share a common mechanism of toxicity with any other substances, and Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.
Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether.
An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether.
Accordingly, EPA finds that exempting residues of Octadecanoic Acid, 12-Hydroxy-, Homopolymer, Ester with 2-Methyloxirane Polymer with Oxirane Monobutyl Ether from the requirement of a tolerance will be safe.
This final rule establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these rules from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes, or otherwise have any unique impacts on local governments. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this final rule. In addition, this final rule does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1501
Although this action does not require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994), EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. As such, to the extent that information is publicly available or was submitted in comments to EPA, the Agency considered whether groups or segments of the population, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticide discussed in this document, compared to the general population.
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
Federal Communications Commission.
Final rule.
In this document, the Federal Communications Commission specifies service obligations of price cap carriers that accept Connect America Phase II model-based support through the state-level commitment process, and addressed how to determine what areas are considered as served by an unsubsidized competitor. Specifically, the Commission sets out how a price cap carrier satisfies the latency, usage allowance, and pricing requirements for Connect America Phase II. This document also addresses how these metrics will apply in determining what areas will be considered as served by an unsubsidized competitor.
Effective December 27, 2013, except for § 54.313(a)(11), which contain new or modified information collection requirements that will not be effective until approved by the Office of Management and Budget. The Federal Communications Commission will publish a document in the
Ryan Yates, Wireline Competition Bureau, (202) 418–0886 or TTY: (202) 418–0484.
This is a synopsis of the Wireline Competition Bureau's Report and Order in WC Docket No. 10–90, and DA 13–2115, released on October 31, 2013. The complete text of this document is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY–A257, Washington, DC 20554. These documents may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street SW., Room CY–B402, Washington, DC 20554, telephone (800) 378–3160 or (202) 863–2893, facsimile (202) 863–2898, or via the Internet at
1. In the
2. In this Report and Order (Order), the Wireline Competition Bureau (Bureau) takes further action to implement the Commission's direction that price cap carriers may elect to receive model-based support in certain areas in exchange for making a state-level commitment to meet the Commission's service obligations. The Bureau specifies the service obligations of price cap carriers that accept Phase II model-based support through the state-level commitment process. Specifically, the Bureau provides two options for a price cap carrier accepting model-based support to meet the Commission's requirements for reasonably comparable pricing of voice and broadband services. In addition, the Bureau specifies a 100 gigabyte (GB) minimum usage allowance that will initially apply to a price cap carrier accepting model-based support for Phase II-funded locations, to the extent the carrier chooses to set usage allowances in such areas. The Bureau also specifies latency requirements—specifically, that price cap carriers must have a provider round trip latency of 100 milliseconds (ms) or less, and provide two options for how they may test and report compliance with this requirement. Finally, the Bureau addresses how we will apply these metrics to determine what areas we will consider as served by an unsubsidized competitor.
3. In this section, the Bureau discusses the specific metrics that will be used to determine compliance of recipients of model-based Phase II support with the Commission's service obligations. By setting these standards, the Bureau provides clarity to price cap carriers contemplating accepting Phase II support through the state-level commitment process. The Bureau details how compliance with the Commission's requirements will be evaluated, while creating a straightforward framework for oversight and accountability in Phase II. Price cap carriers should use the standards in this Order when making their annual certifications. The Commission will review these annual reports to ensure the standards set forth in this Order are being met and to evaluate price cap carriers' continuing eligibility for Phase II support.
4.
5. Consistent with the Commission's approach when it adopted rules for the second round of Connect America Phase I incremental support, the Commission also adopted an alternative means for showing reasonable rate comparability: A carrier's rate for both voice and broadband will be presumed reasonably comparable if the carrier certifies that it is offering fixed services meeting our voice and broadband requirements for the same or lower prices in rural areas as urban areas. To qualify for this presumption, the qualifying service plan must have substantially similar terms and conditions in both urban and rural areas. This approach recognizes that if rates in rural areas are the same as urban areas, that by definition complies with the reasonable comparability principles set forth in section 254(b). In order to certify that rates are reasonably comparable under this presumption, the rates in Phase II-funded areas must be the same or lower than rates for fixed wireline services in urban areas. The Bureau does not require the carrier to offer a particular rate nationwide; rather, it is sufficient if the carrier offers the same rate in an urban area in the state where it accepts Phase II funding.
6. The Bureau recognizes that, in comparing urban and rural offerings, carriers may not offer service plans that exactly match the minimum service obligations for Connect America. Therefore, in certifying that rural rates are at or below urban rates, the basis for comparison should be the lowest cost non-promotional rate for an urban service offering that meets or exceeds each dimension of the service obligations set in this Order.
7. In adopting this presumption, the Bureau concludes that the relevant comparison for a price cap carrier accepting model-based support is to rates and usage allowances for fixed
8. This presumption may be overcome in extreme circumstances where other evidence strongly suggests that the price cap carrier is relying on the existence of a rate plan in urban areas to which few consumers subscribe. For example, it would not be reasonable for a price cap carrier to rely on the offering of the same service at the same rate in urban and rural areas when only a de minimus number of customers subscribe to the service offering in the urban area. Similarly, the presumption may be overcome if a carrier is only offering the service plan in a very small portion of the urban area.
9. As proposed in the
10. The rate survey benchmarks, once adopted, will serve as a safe harbor. To the extent the rates in question for funded locations are at or below the benchmarks established through the rate survey, that will be sufficient to meet the Commission's reasonable comparability requirements.
11.
12. In the
13. The Commission envisioned that price cap carriers accepting model-based support would build “robust, scalable networks.” As such, the Bureau does not expect those carriers accepting model-based support would impose the kind of usage allowances that typically exist today for many wireless and satellite offerings. Indeed, such usage allowances would be incompatible with the fiber-based forward looking cost model approach that the Bureau has adopted. To provide clarity in the event a price cap carrier sets any usage allowance for the service offering that it relies upon to meet its universal service obligations for acceptance of model-based support, however, we specify an initial minimum allowed usage limit of 100 GB per month, with the opportunity to obtain additional data usage at a reasonable price to the extent the price cap carrier chooses to offer a plan providing the minimum specified amount. The Bureau concludes that 100 GB is a reasonable initial usage allowance for price cap carriers making a state-level commitment. According to the Commission's most recent data, 80 percent of cable/fiber users—most of which are likely to be in urban areas—currently use less than 100 GB per month. As discussed in the
14. Other parties have called for a lower minimum usage limit, with some advocating for limits at or below 20 GB per month and others suggesting 60 GB. However, a 20 GB limit would fall well short of existing fixed broadband usage levels—over two-thirds of cable and fiber subscribers currently consume in excess of 20 GB of data per month. Nor is the Bureau convinced we should establish a minimum usage allowance of 60 GB for price cap carriers accepting model-based support. Over 30 percent of current fiber and cable subscribers consumed in excess of 60 GB of data per month, and consumers are likely to consume more, not less, over time. The Bureau is guided by the Commission's statement that “Americans should have access to broadband that is capable of enabling the kinds of key applications that drive our efforts to achieve universal broadband, including education (e.g., distance/online learning), health care (e.g., remote health monitoring), and person-to-person communications (e.g., VoIP or online video chat with loved ones serving overseas).” While the Commission recognized that service obligations may need to be relaxed in some fashion for extremely high cost areas, the Bureau concludes that a usage limit of 20 GB, or 60 GB, for price cap carriers accepting model-based support is not consistent with the robust, scalable networks that the Commission expects such providers to deploy.
15. The Bureau requires price cap carriers accepting model-based Phase II support to offer a minimum usage allowance over the course of Phase II's five-year term that remains consistent with trends in usage for 80 percent of consumers using cable or fiber-based fixed broadband services. As an alternative to any national data set (such as Measuring Broadband America) that demonstrates trends in usage over time, the Bureau will deem a price cap carrier to be in compliance with this usage allowance requirement in future years if its minimum usage allowance for Connect America funded locations is at least 100 GB and is at or above the usage level for 80 percent of all of its broadband subscribers, including those subscribers that live outside of Phase II funded areas. Given the size and scale of most price cap carriers, it is reasonable to presume that their individual data would be consistent with national data, and this alternative will enable price cap carriers to anticipate how their usage allowances may change in the future.
16.
17. The Bureau agrees with WISPA that because latency can be defined and measured in many ways, “a clear, workable, measureable definition of `latency'” is necessary. The Bureau also agrees with commenters that argue the Commission should base its performance metrics on “empirical data.” After consideration of the record, the Bureau therefore bases our standard on the International Telecommunication Union (ITU) G.114 design objectives. ITU Standard G.114 provides that consumers are “very satisfied” with the quality of VoIP calls up to a mouth-to-ear latency of approximately 200 ms. The ITU has determined that consumers become less satisfied with the quality of VoIP calls when total mouth-to-ear latency is above 200 ms. Therefore, the Bureau concludes that a reasonable approach is a framework that should result in mouth-to-ear latency of 200 ms or less.
18. The Bureau recognizes that price cap carriers accepting model-based support may not presently have a way to measure end-to-end latency, and therefore adopt an approach that allows them to certify they are meeting the Commission's requirements based on a provider round-trip latency measure. The ITU latency calculations are “mouth-to-ear” one-way path measurements which include: The signal conversion at the input (the conversion of the speaker's voice to digital packets); the broadband provider's network path from the input device to the Internet core; the path through the Internet core; the broadband provider's network path from the Internet core over the provider's network to the output device; and the signal conversion at the output device (the conversion of the digital packets back to voice for the listener). ITU Standard Y.1541 calculates input and output terminal conversion delays together to be between 50 and 80 ms. Based on these ITU calculations and other research, we use 75 ms for purposes of calculating conversion delays. An assumed conversion delay of 75 ms means that the total latency for the network path to the Internet core, the Internet core, and the network path from the Internet core to the output device would need to be no greater than 125 ms if 200 ms mouth-to-ear latency limit is to be maintained.
19. Based on ITU calculations and reported core latencies in the contiguous United States, the Bureau assumes 50 ms as the roundtrip (25 ms one way) core Internet latency in our calculations. The assumed 75 ms for conversion delay and assumed 50 ms (25 ms one way) for the Internet core path means that the provider network path from the input device to the Internet core and from the Internet core to the output device must be no more than 100 ms (50 for each provider segment) in order to maintain an overall mouth-to-ear latency limit of 200 ms. Because existing network management systems, ping tests, or other commonly available network measurement tools typically calculate latency as a round-trip measurement, we adopt a 100 ms provider latency round-trip limit, which is consistent with the 50 ms one-way latency assumption for the path from the input device to the Internet core.
20. To show that it is meeting this standard, a price cap carrier accepting model-based support will need to certify that 95 percent or more of all peak period measurements (also referred to as observations) of network round trip latency are at or below 100 ms. As suggested in the
21. The Bureau acknowledges that measuring latency is a complex task that requires detailed testing protocols. To minimize the cost of testing and ensure that it can be done relatively quickly, the Bureau will allow providers to rely on existing network management systems, ping tests, or other commonly available network measurement tools. Although the Bureau recognizes that these types of tests have drawbacks, such as a possible low priority handling/response times at target servers, low quality of service (QoS) handling/packet drops in intermediate nodes, and generally small packet sizes, the Bureau concludes that this approach strikes the appropriate balance of implementing Phase II quickly, with some assurance that Phase II funded locations will have the service that the Commission expects, without requiring carriers accepting model-based support to make a significant investment in testing infrastructure.
22. As an alternative to conducting ping-like tests, carriers participating in the MBA program may use the results from that testing to support certification that they meet the latency requirement. To use MBA results, carriers will need to deploy at least 50 white boxes to customers within the Phase II-funded areas within each state, i.e. at least 50 white boxes per state distributed throughout the Phase II-funded areas within that state. The white box costs and any associated administrative costs imposed by the MBA program would be the carrier's responsibility. Because white boxes take measurements on a continuous basis, a carrier would prove
23. The Bureau is not persuaded by AT&T's argument that the Commission should not set a specific numerical latency standard and should instead “assume that wireline networks capable of delivering speeds of 4/1 and greater will meet the latency requirements for real-time applications such as VoIP.” Although results from the most recent MBA testing show that providers using fiber, cable, or DSL technology are generally able to meet or exceed 100 ms provider-round trip latency 95 percent limit, MBA testing is currently limited to only large providers. Not all of the price cap carriers eligible for Phase II support are participating in this program and, in any event, we have no assurance that the measurements taken in MBA are taken at Phase II-funded locations. Moreover, MBA testing results show that there can be a great disparity in latency among different locations served by a single provider. The Bureau concludes it is necessary for carriers to test latency in the census blocks where they will be receiving Phase II funding, and not rely on MBA data that may be derived from other locations.
24. The Bureau also disagrees with ViaSat's argument that “network latency need not impact the end-user experience” and that adoption of a numerical latency standard could “violate the Commission's policy of technological neutrality.” To the contrary, the ITU's extensive VoIP calculations show that consumer satisfaction is improved by lower latency. Further, adoption of a numerical standard designed to meet reasonable regulatory objectives does not violate technological neutrality simply because some technologies or service providers cannot meet that standard. Failing to specify how the Commission's requirements will be enforced in practical terms that can be incorporated into business planning would be a disservice both to price cap carriers accepting Phase II support and to consumers that stand to benefit from Phase II deployments. Quantifiable metrics provide certainty to these price cap carriers at the time they accept funding: they are aware of the specific performance standards they must meet in order to satisfy their obligations. These metrics also give federal and state regulators a bright line standard against which to hold these Phase II recipients accountable, ensuring that they perform in line with expectations. Failing to provide such clarity would result in obligations that are difficult to anticipate, difficult to measure, and difficult to enforce.
25. The Bureau notes that they are adopting a more lenient approach than the 60 ms average latency standard they originally proposed in the Public Notice. The Bureau does so after consideration of the ITU conclusion that consumers are “very satisfied” with the quality of VoIP calls up to an ear-to-mouth latency of approximately 200 ms and the record received in this proceeding. The Bureau agrees that the ITU data for a VoIP call are an appropriate basis for determining latency sufficient for this aspect of Phase II, and we believe the 100 ms limit adopted herein is consistent with ITU data.
26. The Bureau disagrees with ACS that “[i]t is particularly important to develop testing solutions not dependent on customer usage, as there is an expected increase in latency over Internet Protocol networks as customer usage nears the peak capacity of the service.” Although the Bureau agrees that latency is affected by customer usage, this does not lead to a conclusion that testing should be done at times of low customer usage. Latency sufficient for real-time applications such as VoIP must be available to consumers during the time they use the Internet. A network with low latency does not benefit most consumers if the low latency is only available when few customers are using the Internet. Therefore, the Bureau has adopted testing specifications that require testing to be conducted during the peak hours, weeknights between 7:00 p.m. to 11:00 p.m. local time. The Bureau believes that measurements conducted during the peak period will demonstrate the latency experienced by the majority of customers.
27. The Bureau does not believe that the testing methodology they have adopted will impose an undue burden on providers, as there are readily available hardware and software solutions for conducting such testing. The latency testing requires only 50 Phase II-funded locations in a state to be measured over a two-week period per quarter using existing or readily acquired network management or performance management systems. Many providers already perform network management tests to monitor network performance. Network devices commonly support ICMP and SNMP, as well as other vendor-specific tests such as Cisco's IP service level agreement (SLA) command line. In addition, for those carriers that either currently participate in or join the MBA program, the Bureau will allow the use of MBA test results from Phase II-funded locations as an alternative basis for certifying compliance with our requirements. Therefore, even if a provider does not already have a testing mechanism in use for its network, the means to conduct such testing are readily available.
28. The Bureau is not persuaded by USTelecom's claims that testing should be “between the customer premises to the provider's transit or peering interconnection point, at least in cases where there is a transit or peering interconnection point located in the same state as the customer premises being measured.” The Commission determined that latency should be sufficient to allow consumers to make use of real-time applications such as VoIP. Testing latency on only a portion of the network connecting a consumer to the Internet core will not show whether that customer is able to enjoy high-quality real-time applications because it is network performance from the customer's location to the destination that determines the quality of the service from the customer's perspective.
29. Further, while a price cap carrier accepting Phase II model-based support may not have direct control over any middle-mile or transit providers with which it connects, it does have influence over its transit providers. For example, a last-mile provider can compare the quality of service offered by transit providers and select one with a higher quality of service. In addition, the last-mile provider can improve its latency by purchasing additional capacity from the transit provider or by negotiating a SLA. Last-mile providers can also implement dual homing to more than one transit provider to ensure a higher quality of service. Measuring latency from the customer location to designated Internet exchange points will show if customers are being provided with service that allows use of real-time applications by giving price cap carriers accepting Phase II model-based support strong incentives to maintain a high-quality network and to use sufficient, high-quality transit providers.
30. The Bureau concludes that the metrics adopted today provide sufficient flexibility that price cap carriers serving markets with unique conditions, such as Alaska, will be able to make the necessary certifications. ACS argues that when measuring broadband latency in Alaska, the Commission must take into account the long transmission facilities in Alaska, which often include point-to-point microwave, satellite transport, and
31. Conversely, the use of geostationary satellite technologies would substantially affect a price cap carrier's ability to meet the 200 ms end-to-end latency standard we adopt herein. Although satellite transmissions travel at rates faster than copper, cable, or fiber transmissions, the satellite's distance from Earth makes achievement of the 200 ms end-to-end transmission (100 ms limit for the round-trip carrier portion) impossible. Therefore, the Bureau presumes that ACS would not include customers served by satellite technologies in the 50 measurement locations required for latency testing. ACS has not alleged that a majority, or even a substantial number, of its customers are served by satellite technologies, so elimination of satellite customers from testing calculations should resolve this concern.
32. ACS also alleges that the use of undersea cable in its network and the distance between customers and Internet exchange points could affect ACS's ability to meet the latency standard. It is possible that the use of undersea cable, depending upon the type and length of cable, could affect latency determinations for providers serving Alaska. Therefore, providers in noncontiguous areas of the United States should conduct their latency network testing from the customer location to a point at which traffic is consolidated for transport to an Internet exchange point in the continental United States. For example, speedtest.net has five servers located in Anchorage, Alaska, and one in Fairbanks, Alaska, that could be used for network testing. Although the Bureau allows providers in noncontiguous areas of the United States to conduct their latency network testing from the customer location to a point at which traffic is consolidated for undersea cable transport to an IXP in the continental United States, the Bureau may not extend this exception to other circumstances without additional evidence that such an exception is warranted. The Bureau notes that MBA 2013 data results show that the 25 Time Warner Cable-based customer locations in Hawaii were able to meet the 100 ms limit 95 percent or more of the time. Hawaii, at approximately 2,500 miles from the continental United States, is over double the undersea cable distance from a continental United States-based IXP as Anchorage, Alaska.
33. ACS notes that with peering points “over a thousand miles away in Oregon and Washington,” its ability to conduct testing and improve results is limited. The Bureau's decision that testing for noncontiguous parts of the United States should be conducted between the customer location and the point at which traffic is aggregated for transport to the continental United States via undersea cable should resolve this issue. Moreover, for remote points within Alaska, MBA testing data shows that although there is a correlation between distance and latency, the 200 ms end-to-end standard (100 ms roundtrip limit 95 percent or more of the time for the carrier portion) is reasonable for distances of 700 or more miles, as data from Measuring Broadband America testing in Hawaii shows. The MBA February 2013 Report shows that the mean latency for measurements 700 miles from the test server was 44.7 ms roundtrip. Thus, even for customer locations in Alaska located a substantial distance from a point used for aggregating traffic for transport to the continental United States, an Alaska provider should be able to meet the 200 ms end-to-end standard (100 ms roundtrip limit for the carrier portion).
34.
35. Generally, all deployment must occur in census blocks funded under the Connect America Cost Model. However, the
36. In adopting the
37. Consistent with the Commission's direction in the
38.
39.
40.
41. The Bureau also adopts a conclusive presumption that if a potential unsubsidized competitor is competing in a particular census block with the incumbent price cap carrier, and both are offering services that offer at least 4 Mbps downstream, and at least 1 Mbps upstream, and at least 100 GB of data, the pricing of the competitor will be deemed reasonable, and not subject to challenge. Given the finite $1.8 billion budget for Phase II, the Bureau did not find it efficient to target funding to such areas that already have two providers offering service meeting the Phase II standards for price cap carriers, when there are likely to be other census blocks where the average cost exceeds the funding threshold that have no providers at all.
42. The Bureau now turns to situations where the potential competitor does not offer fixed wireline service in urban areas, or does not serve an area where the incumbent itself offers broadband. Once the Bureau adopts the urban rate benchmark, the pricing of such a potential competitor will not be subject to challenge if it at or below the urban rate benchmark. Stated differently, there will be a conclusive presumption that the pricing of any operator with non-promotional rates below the urban rate benchmark is reasonable. In the event the challenge process is underway prior to the publication of the urban rate benchmark resulting from the urban rate survey, however, the Bureau will need a simple, administratively workable method of determining whether the price cap carrier has made a prima facie case regarding pricing that shifts the burden to the other provider to respond. In the
43. In order to make a prima facie case to proceed with a challenge in situations where the conclusive presumptions discussed above do not apply, a price cap carrier seeking to overturn the classification of a particular block as served based on a lack of reasonably comparable pricing would need to demonstrate that the provider's advertised non-promotional price for the lowest cost broadband service offering is above $60 and/or the provider's advertised non-promotional price for the lowest cost voice service offering is above $37. If the price cap carrier successfully makes such a showing, the burden then would shift to the other provider to submit evidence that its rates are in fact reasonably comparable. The provider can defeat the challenge by demonstrating either that: (1) It does in fact offer a qualifying broadband offering at a price at or below $60 and a voice offering at or below $37; (2) its rates nonetheless should be deemed reasonably comparable because it offers a more robust broadband service than the minimum requirements established for price cap carriers accepting Phase II support; or (3) its rates are the same as those of other providers in nearby urban markets where there are two or more providers offering fixed services meeting the Commission's standards.
44. The Bureau now addresses what showing is necessary when a provider is challenging the initial designation of a census block as unserved, arguing that instead the block should be treated as served by the provider. Prior to adoption of the urban rate benchmark, the provider may demonstrate that (1) it offers a qualifying broadband offering at a price at or below $60 and a voice offering at or below $37; (2) its rates nonetheless should be deemed reasonably comparable because it offers a more robust broadband service than the minimum requirements established for price cap carriers accepting Phase II
45. This document contains new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Bureau notes that pursuant to the Small Business Paperwork Relief Act of 2002, they previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees.
46. In this present document, the Bureau has assessed the effects of requiring price cap carriers to report certain information related to their Phase II service obligations. As all price cap carriers employ more than 25 employees, these changes will have no impact on businesses with fewer than 25 employees. Some changes adopted in this Order affect how unsubsidized competitors report information related to the challenge process. Unsubsidized competitors may be businesses with fewer than 25 employees. However, the changes adopted herein fall under previous OMB approval for the Phase II challenge process.
47. The Regulatory Flexibility Act of 1980, as amended (RFA) requires that a regulatory flexibility analysis be prepared for rulemaking proceedings, unless the agency certifies that “the rule will not have a significant economic impact on a substantial number of small entities.” The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA).
48. The metrics and standards for determining compliance with the Commission's service requirements contained in the “Price Cap Carrier Obligations” section of this Order do not have a significant economic impact on a substantial number of small entities. The requirements in that section only directly affect price cap carriers that ultimately elect to accept Phase II support through the state-level commitment. The vast majority of these affected carriers are not small businesses. As separate and independent grounds, we also conclude that articulating objective quantitative metrics for demonstrating compliance with the standards adopted by the Commission creates only a de minimis economic impact. The metrics and standards adopted in the “Unsubsidized Competitors” section of this Order could affect a substantial number of small entities, depending on how many such entities participate in the challenge process. However, in setting the proxy by which we will determine whether an unsubsidized competitor offers 4 Mbps/1 Mbps service and stating a how an unsubsidized competitor can make a showing that its rates are reasonably comparable, we create only a de minimis economic impact. Therefore, we certify that the requirements of this Order will not have a significant economic impact on a substantial number of small entities. The Commission will send a copy of the order including a copy of this final certification, in a report to Congress pursuant to the Small Business Regulatory Enforcement Fairness Act of 1996,
49. The Commission will send a copy of this order to Congress and the Government Accountability Office pursuant to the Congressional Review Act.
50. Accordingly,
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Interim statement of agency interpretation, with request for public comment.
FRA is providing interim guidance on a railroad's use of processor-based signal or train control technology subject to the requirements of 49 CFR part 236, subpart H, in the situation where the railroad has not previously obtained FRA's approval to use the technology, but a different railroad has already received FRA's approval to do so. Under these regulations, any railroad seeking to use signal or train control technology subject to the regulations must first adopt both a Railroad Safety Program
This document is effective on November 27, 2013. Public comments on the interim interpretation are due by January 27, 2014. Late-filed comments will be considered to the extent practicable.
You may submit comments on the interim interpretation set forth in this document, identified as Docket No. FRA–2001–10160, Notice No. 5,
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Dr. Mark Hartong, PE., Senior Scientific/Technical Advisor, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., Washington, DC 20590 (telephone: (202) 493–1332), email (
FRA's regulations at Subpart H of 49 CFR part 236 (Subpart H), most of which FRA issued in 2005, set forth minimum performance standards for the development and use of certain technologies, namely safety-critical processor-based signal or train control systems, including subsystems and components thereof, developed under the terms and conditions of that subpart. See 70 FR 11095 (Mar. 7, 2005); 49 CFR 236.0(h), 236.901. The term “processor-based” means dependent on a digital processor in order to function properly. See 49 CFR 236.903. The subpart does not apply to a processor-based signal or train control system (including a subsystem or component thereof) that was in service as of June 6, 2005. See 49 CFR 236.911(a). For brevity, the subpart defines the term “product” to mean “a processor-based signal or train control system, subsystem, or component.” See 49 CFR 236.903.
Under Subpart H, a railroad that wishes to develop and use a safety-critical product or products covered by Subpart H must develop a Railroad Safety Program Plan (RSPP). The RSPP is intended to serve as the railroad's principal safety document for all of the railroad's safety-critical products subject to Subpart H. The railroad's RSPP must outline its methods of evaluation, risk assessment, safety assessment, system verification and validation, human factors analysis, and configuration management practices for all of its products subject to Subpart H. Using the methods described in its RSPP, the railroad then must develop a Product Safety Plan (PSP), for each product, which is intended to describe in detail all of the safety aspects of each particular product. Then the railroad must submit its RSPP and PSP(s) to FRA for approval. See 49 CFR 236.905(c) and 236.913.
FRA recognizes that Subpart H does not explicitly discuss how a third party may use the same processor-based signal or train control technology after FRA has approved it for use on the basis of a different railroad's PSP. However, FRA did discuss the potential for “portable” PSPs to be used by multiple railroads.
Any third-party railroad seeking to implement a product subject to Subpart H must first develop and adopt its own RSPP in accordance with 49 CFR 236.905. This holds true even where a railroad will only be using technologies subject to an FRA-approved PSP developed by a different railroad. The third-party railroad must then submit an informational filing or petition for approval of a PSP in accordance with 49 CFR 236.913. An RSPP and PSP are necessary in order for a railroad to establish the performance requirements to which it will be held by FRA, and an RSPP and PSP are, therefore, required even for the use of previously-approved technologies. If a railroad submits an RSPP that includes only minor, non-safety-critical changes from an RSPP previously-approved by FRA and if the railroad indicates both the source of the RSPP and the variances from the FRA-approved version, FRA anticipates few difficulties in the RSPP-approval process. If a railroad does not plan to develop a PSP independently, the most important element of the RSPP is the “configuration management control plan” required by 49 CFR 236.905(b)(4).
Similarly, if a third-party railroad submits a PSP for a product based upon a PSP for the same product that was previously approved by FRA and if the third-party railroad identifies all variances in the product and its use from the approved version, FRA expects that the review process will focus only on those areas where variances exist in the product design or intended use. Where a PSP makes reference to a
Once FRA approves a railroad's PSP (submitted through either an informational filing or a petition for approval), the submitting railroad becomes subject to Subpart H in its entirety, including the requirement set forth in 49 CFR 236.915 that the railroad comply with the terms of its FRA-approved PSP.
49 U.S.C. 20102–20103, 20107, 20133, 20141, 20157, 20301–20303, 20306, 20701–20703, 21301–21302, 21304; 28 U.S.C. 2461, note; and 49 CFR 1.89.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS announces that the 2013 summer flounder commercial quota allocated to the State of New Jersey has been harvested. Vessels issued a commercial Federal fisheries permit for the summer flounder fishery may not land summer flounder in New Jersey for the remainder of calendar year 2013, unless additional quota becomes available through a transfer from another state. Regulations governing the summer flounder fishery require publication of this notification to advise New Jersey that the quota has been harvested and to advise vessel permit holders and dealer permit holders that no Federal commercial quota is available for landing summer flounder in New Jersey.
Effective 1801 hours, November 27, 2013, through December 31, 2013.
Carly Bari, (978) 281–9224, or
Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from North Carolina through Maine. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102.
The initial total commercial quota for summer flounder for the 2013 fishing year is 11,793,596 lb (5,349,575 kg) (77 FR 76942, December 31, 2012). The percent allocated to vessels landing summer flounder in New Jersey is 16.72499 percent, resulting in a commercial quota of 1,972,478 lb (894,716 kg). The 2013 allocation was adjusted to 1,972,066 lb (894,514 kg) after deduction of research set-aside, adjustment for 2012 quota overages, and adjustments for quota transfers between states.
The Administrator, Northeast Region, NMFS (Regional Administrator), monitors the state commercial landings and determines when a state's commercial quota has been harvested. NMFS is required to publish notification in the
Section 648.4(b) provides that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective 1801 hours, November 27, 2013, landings of summer flounder in New Jersey by vessels holding summer flounder commercial Federal fisheries permits are prohibited for the remainder of the 2013 calendar year, unless additional quota becomes available through a transfer and is announced in the
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
The Assistant Administrator for Fisheries, NOAA (AA), finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action closes the summer flounder fishery for New Jersey until January 1, 2014, under current regulations. The regulations at § 648.103(b) require such action to ensure that summer flounder vessels do not exceed quotas allocated to the states. If implementation of this closure was delayed to solicit prior public comment, the quota for this fishing year will be exceeded, thereby undermining the conservation objectives of the Summer Flounder Fishery Management Plan. The AA further finds, pursuant to 5 U.S.C.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede airworthiness directive (AD) 2009–18–18, which applies to certain ATR—GIE Avions de Transport Régional Model ATR42 and ATR72 airplanes. AD 2009–18–18 requires repetitive inspections for damage and absence of repair of the cockpit forward side windows, and replacement if necessary. Since we issued that AD, we received reports of a cockpit forward right-hand side blow out during flight. This proposed AD would require repetitive detailed inspections of the cockpit forward side window for damage and discrepancies; replacement if necessary. Replacing both cockpit forward side windows with approved windows would terminate the repetitive detailed inspections. This proposed AD would also expand the applicability of AD 2009–18–18. The actions required by AD 2009–18–18 are not required by this AD. We are proposing this AD to detect and correct air/water leakage of the cockpit forward side window, which could lead to rapid cabin decompression, resulting in loss of control of the airplane.
We must receive comments on this proposed AD by January 13, 2014.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact PPG Aerospace, 12780 San Fernando Road, Sylmar, California 91342; telephone 818–362–6711; fax 818–362–0603; Internet
You may examine the AD docket on the Internet at
Tom Rodriguez, Aerospace Engineer, International Branch, ANM–116, Transport Airplane Directorate, FAA 1601 Lind Avenue SW., Renton, Washington 98057–3356; telephone (425) 227–1137; fax (425) 227–1149.
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
On August 26, 2009, we issued AD 2009–18–18, Amendment 39–16014 (74 FR 46336, September 9, 2009). That AD required actions intended to address an unsafe condition on certain ATR Model ATR42 and ATR72 airplanes.
Since we issued AD 2009–18–18, Amendment 39–16014 (74 FR 46336, September 9, 2009), we received reports of a cockpit forward right-hand side blow out during flight. We also received reports of an air/water leak, which is an indication that structural components within the window have begun to deteriorate. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2013–0087, dated April 9, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:
In 2009, a Left-Hand (LH) forward side glass window of an ATR 72–212 aeroplane blew out while performing a ground pressure test. The investigation results revealed some anomalies on the forward side window at the level of the z-bar on the windows external side and at the level of the inner retainer on the windows internal side. Such anomalies are considered as precursors of this kind of failure. Air or water leakages between the z-bar and the outer glass ply, or between the inner retainer and inner glass ply indicate the presence of deteriorating structural components in the window.
Neither ATR nor PPG Aerospace have authorized repairs on the window z-bar or z-bar sealant. Any attempted repairs on these forward side window z-bars and/or z-bar sealants could lead to a similar event as described above.
In-flight loss of a forward side window would cause rapid cabin decompression, possibly resulting in flight crew incapacitation and consequent reduced control, or loss of control of the aeroplane, and cause the risk of injury to persons on the ground. The loss of a forward side window while the aeroplane is on the ground, due to
To address this potential unsafe condition, EASA issued AD 2009–0159–E [dated July 20, 2009] [(
Since that [EASA] AD was issued, a cockpit forward RH-side window blew out during flight on an ATR72–212 aeroplane. Degradation of the window is considered to have been the cause for this failure.
* * * [T]his [EASA] AD * * * requires to accomplish the [detailed] inspections in accordance with the instructions of Revision 1 of PPG Aerospace SB NP–158862–001, which provides more information on examples of [damaged and] discrepant conditions.
This [EASA] AD also requires the removal from service of the affected Part Number (P/N) NP158862–1 and P/N NP158862–2 cockpit forward side windows, which constitutes terminating action for the repetitive inspections required by this AD.
The corrective action is replacing windows, if damage and discrepancies are found. Damage and discrepancies to detect during the inspection include z-bar existing sealant repair, z-bar deformation, separation or gap in the sealant bond between the retainer and inner glass ply, z-bar deformation and retainer gap at same location, or z-bar deformation and retainer gap in window corner.
You may examine the MCAI in the AD docket on the Internet at
PPG Aerospace has issued Service Bulletin NP–158862–001, Revision 1, dated January 10, 2013. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
Although EASA AD 2013–0087, dated April 9, 2013, specifies to replace affected window(s) in accordance with the instructions of ATR42/72 Job Instruction Card airplane maintenance manual (AMM) JIC 56–12–00 RAI 10000, this proposed AD would require replacement of affected window(s) using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the EASA (or its delegated agent, or the Design Approval Holder with EASA design organization approval).
While paragraph (6) of EASA AD 2013–0087, dated April 9, 2013, specifies to replace each PPG Aerospace P/N NP–158862–1 LH and P/N NP–158862–2 RH cockpit forward side window with another approved cockpit forward side window, this proposed AD would require that replacement windows and procedures for their installation be approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the EASA (or its delegated agent, or the Design Approval Holder with EASA design organization approval).
Based on the service information, we estimate that this proposed AD would affect about 43 products of U.S. registry.
We estimate the following costs to comply with this proposed AD:
We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need this replacement.
Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120–0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This proposed regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by January 13, 2014.
This AD supersedes AD 2009–18–18, Amendment 39–16014 (74 FR 46336, September 9, 2009).
This AD applies to all ATR—GIE Avions de Transport Régional Model ATR42–200, –300, –320, and –500 airplanes; and Model ATR72–101, –201, –102, –202, –211, –212, and –212A airplanes; certificated in any category; all manufacturer serial numbers.
Air Transport Association (ATA) of America Code 56, Windows.
This AD was prompted by reports of a cockpit forward right-hand side blow out during flight. We are issuing this AD to detect and correct air/water leakage of the cockpit forward side window, which could lead to rapid cabin decompression, resulting in loss of control of the airplane.
You are responsible for having the actions required by this AD performed within the compliance times specified, unless the actions have already been done.
For airplanes that are equipped with any PPG Aerospace cockpit forward side glass window having part number (P/N) NP158862–1 or P/N NP158862–2: At the applicable time specified in paragraph (g)(1) or (g)(2) of this AD, do a detailed inspection of the cockpit forward side window to detect any damage and discrepancies (z-bar existing sealant repair, z-bar deformation, separation or gap in the sealant bond between the retainer and inner glass ply, z-bar deformation and retainer gap at same location, or z-bar deformation and retainer gap in window corner), in accordance with the Accomplishment Instructions of PPG Aerospace Service Bulletin NP–158862–001 Revision 1, dated January 10, 2013. Repeat the inspection thereafter at intervals not to exceed 550 flight hours or 750 flight cycles, whichever occurs first, except as required by paragraph (h) of this AD.
(1) For windows for which the total flight cycles can be established, inspect within 2,000 flight cycles since first installation of the cockpit forward side window, or within 10 days after the effective date of this AD, whichever occurs later.
(2) For windows for which the total flight cycles cannot be established, inspect before the accumulation of 2,000 total flight cycles on the airplane, or within 10 days after the effective date of this AD, whichever occurs later.
If any of the conditions specified in paragraphs (h)(1), (h)(2), and (h)(3) of this AD is found during any inspection required by paragraph (g) of this AD, reduce the interval of each subsequent inspection as required by paragraph (g) of this AD to 50 flight cycles or 7 days, whichever occurs later.
(1) Sealant separation between the Z-bar and the outer glass ply, with depth less than 4 millimeter (mm) (0.160 inches (in)).
(2) Sealant separation between the inboard retainer and inner glass ply, with depth less than 7.5 mm (0.300 in) and cumulative length less than 300 mm (12.000 in).
(3) Window showing both sealant separation between the Z-bar and the outer ply, and separation between inboard retainer and inner glass ply, common to the same hole location with a length less than 225 mm (8.860 in), and not covering the entire arc of a window corner.
If, during any inspection required by this AD, any damage or discrepant condition as defined in PPG Aerospace Service Bulletin NP–158862–001 Revision 1, dated January 10, 2013 (z-bar existing sealant repair, z-bar deformation, separation or gap in the sealant bond between the retainer and inner glass ply, z-bar deformation and retainer gap at same location, or z-bar deformation and retainer gap in window corner) is found, except for the conditions specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD, before further pressurized flight or within 10 days after the inspection, whichever occurs first, replace the affected window(s) using a method approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA) (or its delegated agent, or the Design Approval Holder with EASA design organization approval). For a replacement method to be approved, the repair must specifically refer to this AD.
Guidance for unpressurized flight conditions and limitations can be found in ATR Master Minimum Equipment List (MMEL) item 21–30–1 and Dispatch Deviation Guide (DDG) item 21–30–1.(4).
Guidance for the replacement required by
Submit a report of the findings of the inspection required by paragraph (g) of this AD to ATR techdesk, 1 ALLEE PIERRE NADOT, 31712 BLAGNAC CEDEX, France, phone: +33 (0)5 62 21 62 21; fax: +33 (0)5 62 21 67 18; email:
(1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
Replacing only the affected window, as required by paragraph (i) of this AD, with a cockpit forward side window having P/N NP158862–1 left-hand (LH) or P/N NP158862–2 right-hand (RH), as applicable, is not terminating action for the repetitive inspections required by this AD.
Within 72 months after the effective date of this AD, replace each PPG Aerospace P/N NP–158862–1 LH and P/N NP–158862–2 RH cockpit forward side window with an approved cockpit forward side window. Replacing both PPG Aerospace P/N NP158862–1 LH and P/N NP158862–2 RH cockpit forward side windows with approved windows is a terminating action for the repetitive inspections required by this AD. Replacement windows and procedures for their installation must be approved by the Manager, International Branch, ANM–116, Transport Airplane Directorate, FAA; or the EASA (or its delegated agent, by the Design Approval Holder with EASA design organization approval).
As of 72 months after the effective date of this AD, no person may install any PPG Aerospace cockpit forward side window having P/N NP158862–1 LH or P/N NP158862–2 RH on any airplane.
The following provisions also apply to this AD:
(1)
(2)
(3)
(1) Refer to Mandatory Continuing Airworthiness Information EASA Airworthiness Directive 2013–0087, dated April 9, 2013, for related information. This MCAI may be found in the AD docket on the Internet at
(2) For service information identified in this AD, contact PPG Aerospace, 12780 San Fernando Road, Sylmar, California 91342; telephone 818–362–6711; fax 818–362–0603; Internet
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to establish 14 RNAV Q-routes and modify 4 Q-routes in support of the Optimization of Airspace and Procedures in a Metroplex (OAPM) project. This proposed action is intended to enhance air traffic flow in the vicinity of the Atlanta, GA (ATL) and Charlotte, NC (CLT) Metroplex areas.
Comments must be received on or before January 13, 2014.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M–30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001; telephone: (202) 366–9826. You must identify FAA Docket No. FAA–2013–0860 and Airspace Docket No. 12–ASO–36 at the beginning of your comments. You may also submit comments through the Internet at
Paul Gallant, Airspace Policy and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA–
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2013–0860 and Airspace Docket No. 12–ASO–36.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish 14 RNAV Q-routes and modify 4 Q-routes in support of the OAPM project. OAPM is intended to improve air traffic flows within an entire region resulting in increased capacity and fuel efficiency and reduced track distances. The proposed changes are described below.
High altitude RNAV routes are published in paragraph 2006 of FAA Order 7400.9X dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The RNAV routes listed in this document would be subsequently published in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would modify the route structure as required to enhance the safe and efficient flow of air traffic in the eastern United States.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify RNAV route Q–20 in support of the Houston Optimization of Airspace and Procedures in a Metroplex (OAPM) project. This proposed action re-aligns Q–20 to incorporate the FUSCO waypoint (WP) being relocated .48 nautical miles southwest to match the intersection of Jet routes J–15 and J–183.
Comments must be received on or before January 13, 2014.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, M–30, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590–0001; telephone: (202) 366–9826. You must identify FAA Docket No. FAA–2013–0951 and Airspace Docket No. 13–ASW–22 at the beginning of your comments. You may also submit comments through the Internet at
Colby Abbott, Airspace Policy and ATC Procedures Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267–8783.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers (FAA Docket No. FAA–2013–0951 and Airspace Docket No. 13–ASW–22) and be submitted in triplicate to the Docket Management Facility (see
Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA–2013–0951 and Airspace Docket No. 13–ASW–22.” The postcard will be date/time stamped and returned to the commenter.
All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see
Persons interested in being placed on a mailing list for future NPRM's should contact the FAA's Office of Rulemaking, (202) 267–9677, for a copy of Advisory Circular No. 11–2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify Q–20 in support of the Houston OAPM project. OAPM is intended to improve air traffic flows within an entire region resulting in increased capacity and fuel efficiency and reduced track distances. Q–20 extends between the Corona, NM, VHF Omnidirectional Range/Tactical Air Navigation (VORTAC) navigation aid and the Junction, TX, VORTAC navigation aid. This action would amend Q–20 by relocating the FUSCO WP to match the intersection of Jet routes J–15 and J–183, and re-designating FUSCO as a fix. The modification would enable aircraft filed eastbound via J–15, J–183, or Q–20, to file, after FUSCO, direct to a published transition to a Houston Standard Terminal Arrival Route. This would simplify flight plan filing and Flight Management Computer entries; thus, reducing the potential for routing errors.
High altitude RNAV routes are published in paragraph 2006 of FAA Order 7400.9X dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document would be subsequently published in the Order.
The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. Therefore, this proposed regulation: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–1963 Comp., p. 389.
Internal Revenue Service (IRS), Treasury.
Cancellation of a notice of public hearing on proposed rulemaking by cross-reference to temporary regulations.
This document cancels a public hearing on proposed regulations relating to the application of the straddle rules to a debt instrument.
The public hearing originally scheduled for January 15, 2014 at 10 a.m. is cancelled.
Oluwafunmilayo Taylor of the Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration) at (202) 317–6901 (not a toll-free number).
A notice of proposed rulemaking and by cross-reference to temporary regulations and a notice of public hearing that appeared in the
The public comment period for these regulations expired on November 4, 2013. The notice of proposed rulemaking by cross-reference to temporary regulations and notice of public hearing instructed those interested in testifying at the public hearing to submit a request to speak and an outline of the topics to be addressed. As of Wednesday, November 20, 2013, no one has requested to speak. Therefore, the public hearing scheduled for January 15, 2013, is cancelled.
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone on the waters of the Atlantic Ocean in Key West, Florida, during the Bone Island Triathlon on Saturday, January 25, 2014. The safety zone is necessary to provide for the safety of life on navigable waters during the event. Persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Key West or a designated representative.
Comments and related material must be received by the Coast Guard on or before December 27, 2013.
You may submit comments identified by docket number using any one of the following methods:
(1)
(2)
(3)
If you have questions on this Notice of Proposed Rulemaking, call or email Marine Science Technician First Class Ian G. Bowes, Sector Key West Prevention Department, Coast Guard; telephone (305) 292–8823, email
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8½ by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the
We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under
The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701; 46 U.S.C. 3306; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1; Department of Homeland Security Delegation No. 0170.1.
The purpose of the proposed rule is to protect race participants, participant vessels, spectators, and the general public from the hazards associated with the event.
On January 25, 2014, Questor Multisport, LLC. is hosting the Bone Island Triathlon. The event will be held on the waters of the Atlantic Ocean located south of Key West, Florida. Approximately 700 swimmers will be participating in the swim portion of the race.
The proposed rule would establish a safety zone that encompasses certain waters of the Atlantic Ocean located south of Key West, Florida. The safety zone will be enforced from 7 a.m. until 10 a.m. on January 25, 2014. All persons and vessels, except those persons and vessels participating in the event, are prohibited from entering, transiting, anchoring, or remaining the safety zone. Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the race area by contacting the Captain of the Port Key West by telephone at 305–292–8727, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the race area is granted by the Captain of the Port Key West or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Key West or a designated representative. The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 14 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and
The economic impact of this proposed rule is not significant for the following reasons: (1) The safety zone will only be enforced for three hours; (2) vessel traffic in the area is expected to be minimal during the enforcement period; (3) although persons and vessels will not be able to enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Key West or a designated representative, they may operate in the surrounding area during the enforcement period; (4) persons and vessels may still enter, transit through, anchor in, or remain within the safety zone if authorized by the Captain of the Port Key West or a designated representative; and (5) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601–612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of the Atlantic Ocean encompassed within the safety zone from 7:00 a.m. until 10:00 a.m. on January 25, 2014. For the reasons discussed in the Regulatory Planning and Review section above, this proposed rule will not have a significant economic impact on a substantial number of small entities.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104–121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520).
A proposed rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
This proposed rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
This action is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321–4370f), and have concluded this action is one of a
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
33 U.S.C. 1231; 46 U.S.C. Chapter 701; 46 U.S.C. 3306; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Key West by telephone at (305) 292–8727, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Key West or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Key West or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Postal Regulatory Commission.
Proposed rulemaking.
The Commission is establishing a rulemaking docket to consider eliminating a requirement that the Postal Service prepare the cost and revenue analysis report in an alternative format for the annual compliance review process. The Postal Service also seeks waiver of this requirement for the upcoming annual review process if the Commission cannot complete consideration of the request for permanent elimination before that process begins. The Commission provides public notice of the establishment of this docket, describes the Postal Service's request, and invites public comment on both the requested reporting change and the application for waiver.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
On November 15, 2013, the Postal Service filed a petition requesting that the Commission initiate a rulemaking proceeding to eliminate the requirement for the production and submission, as part of the Annual Compliance Report (ACR) process, of the “Alternate CRA (Cost and Revenue Analysis Report)” required by Commission rule 3050.14. 39 CFR 3050.14. The Postal Service proposes the Commission remove the requirement to prepare the Alternate CRA by striking the second sentence of Commission rule 3050.14.
Additionally, the Postal Service requests that if the Commission anticipates that it might not be able to complete the requested rulemaking prior to the time at which preparation of this year's ACR must be finalized, the Postal Service contingently requests that the requirement be waived for fiscal year 2013.
The Postal Service explains that Commission rule 3050.14 establishes the format for the Cost and Revenue Analysis Report (CRA), which reports costs, revenues, volumes, contribution, and other information “reflecting the classification structure in the Mail Classification Schedule.” The same rule also calls for “an alternative, more disaggregated format capable of reflecting the classification structure in effect prior to the adoption of the Postal Accountability and Enhancement Act.”
Initially, the Postal Service was able to file both public and non-public
In order to reassemble the pre-PAEA classifications, the estimation approaches vary, such that the aggregation of cost data from underlying categories of mail from one report or estimation methodology may not always match those developed via a different estimation technique, and data for some categories may not exist at all.
The Postal Service points out that the Alternate CRA provided a bridge from the pre-PAEA era to the post-PAEA era as a way of maintaining trend data based on the pre-PAEA categories to ensure no categories of postal products were inadvertently omitted, and to ensure the integrity of the data reporting. Citing changed circumstances,
The Postal Service also claims that the burden to produce this alternative format report is substantial when Postal Service resources are already most fully taxed by preparation of the other components of the ACR. By necessity, the Alternate CRA cannot be produced until all other ACR work has been completed, as it requires inputs from the CRA itself, the cost avoidance studies, and other analyses, which means that the Alternate CRA is the last part of the ACR production process and requires last-minute attention
Therefore, the Postal Service requests the Commission delete the second sentence of Commission rule 3050.14 establishing the requirement for production and submission of the alternative format CRA with the ACR.
The Postal Service recognizes that it may not be possible for the Commission to accomplish a permanent change in its rules in the next month prior to the Postal Service's preparation of the ACR.
The Commission establishes Docket No. RM2014–2 for consideration of matters raised by the Petition. For specific details on the request, interested persons are encouraged to review the Petition which is available via the Commission's Web site at
Interested persons may submit comments on the Petition to amend rule 3050.14 relating to the Alternative format CRA no later than January 9, 2014. Reply comments are due no later than January 23, 2014.
Responses to the Postal Service's request for a waiver of the Alternate CRA reporting requirement for FY 2013 are due no later than December 3, 2013.
Pursuant to 39 U.S.C. 505, Cassie D'Souza is designated as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
1. The Commission establishes Docket No. RM2014–2 for consideration of the matters raised by the Petition of the United States Postal Service for the Initiation of a Proceeding to eliminate the requirement for an Alternative format CRA Report.
2. Responses to the request for waiver of application of the Alternative format CRA portion of rule 3050.14 for FY 2013 are due no later than December 3, 2013.
3. Comments by interested persons in this proceeding on the request to eliminate the second sentence of rule 3050.14 relating to the Alternative format CRA are due no later than January 9, 2014. Reply comments are due no later than January 23, 2014.
4. Pursuant to 39 U.S.C. 505, the Commission appoints Cassie D'Souza to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.
5. The Secretary shall arrange for publication of this order in the
By the Commission.
Environmental Protection Agency (EPA).
Proposed rule; extension of comment period.
The Environmental Protection Agency (EPA) is extending the comment period for the proposed rule “Water Quality Standards Regulatory Clarifications”. EPA is extending the comment period in response to stakeholder requests for a 30-day extension.
Comments must be received on or before January 2, 2014. The comment period was originally scheduled to end on December 3, 2013.
Submit your comments, identified by Docket identification (ID) No. EPA–HQ–OW–2010–0606, by one of the following methods:
•
•
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Janita Aguirre, EPA Headquarters, Office of Water, Office of Science and Technology, at 202–566–1860 or email address:
On September 4, 2013, EPA published the proposed rule “Water Quality Standards Regulatory Clarifications” in the
The original comment deadline was December 3, 2013. This action extends the comment period for 30 days. Written comments must now be received by the January 2, 2014.
Environmental Protection Agency (EPA).
Notice of filing of petition and request for comment.
This document announces the Agency's receipt of a revision to an initial filing of a pesticide petition requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.
Comments must be received on or before December 27, 2013.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2012–0638, by one of the following methods:
•
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
Olga Odiott, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 308–9369; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
1.
2.
i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
3.
EPA is announcing receipt of a
Pursuant to 40 CFR 180.7(f), a summary of the petition that is the subject of this document, prepared by the petitioner, is included in a docket EPA has created for this rulemaking. The docket for this petition is available online at
As specified in FFDCA section 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities.
Further information on the revised petition may be obtained through the petition summary referenced in this unit.
Environmental protection, Agricultural commodities, Feed additives, Food additives, Pesticides and pests, Reporting and recordkeeping requirements.
Federal Communications Commission.
Proposed rule.
In this document, the Commission proposes minor rule changes to incorporate by reference into the Commission's rules and make mandatory the Advanced Television Systems Committee's (ATSC) March 12, 2013 A/85:2013 Recommended Practice (Successor RP), replacing the July 25, 2011 A/85:2011 RP (Current RP), incorporated into the Commission's rules in 2011. The Commercial Advertisement Loudness Mitigation (CALM) Act directs the Commission to incorporate by reference and make mandatory “any successor” to the ATSC's A/85 Recommended Practice (RP). This document also seeks comment on the appropriate timing for the 2013 Successor RP to replace the 2011 Current RP, and proposes an effective date of one year from the release date of the Report and Order resulting from this proceeding. The 2013 Successor RP applies an improved loudness measurement algorithm to conform to the International Telecommunication Union's (ITU) updated BS.1770 measurement algorithm, “BS.1770–3.”
Comments are due on or before December 27, 2013; reply comments are due on or before January 13, 2014.
You may submit comments, identified by MB Docket No. 11–93, by any of the following methods:
•
•
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the section IV. “PROCEDURAL MATTERS” heading of the
For additional information on this proceeding, contact Evan Baranoff, Evan.Baranoff@fcc.gov, of the Media Bureau, Policy Division, (202) 418–2120 or Shabnam Javid,
This is a summary of the Commission's
1. In this Further Notice of Proposed Rulemaking (FNPRM), we propose minor rule changes to incorporate into our rules the Advanced Television Systems Committee's (ATSC)
2. On December 13, 2011, the Commission released a Report and Order adopting rules implementing the CALM Act.
3. Section 2(a) of the CALM Act mandates that the Commission's rules incorporate by reference and make mandatory “any successor” to the RP, affording the Commission no discretion in this regard.
4. As an initial matter, we address a procedural issue. In the
5. We tentatively conclude that the only substantive change raised by the Successor RP as it relates to our rules is the change to the measurement algorithm to conform to BS.1770–3, and seek comment on this tentative conclusion. As a practical matter, this change seems to be designed to prevent advertisers from using silent passages to offset excessively loud passages when calculating the average loudness of program material. Thus, once this Successor RP is implemented, consumers may notice a modest decrease in the perceived loudness of certain commercials. This change is consistent with the type of updates that we believe Congress intended the Commission to incorporate in its rules by specifying in the CALM Act that the Commission shall make mandatory successor versions of the RP. Accordingly, we propose to adopt the Successor RP and incorporate it by reference into our rules.
6. We recognize that, as a result of the proposed changes, parties
7. Although stations and MVPDs must continue to comply with the 2011 A/85 RP that is currently incorporated by reference in the rules, we waive our rules to permit stations and MVPDs to implement the Successor RP early. We expect that some stations and MVPDs may be able and willing to implement the Successor RP in less than the year we propose to allow for compliance with the new standard. Therefore, to the extent it may be necessary to expressly permit such early adoption of the Successor RP, and in light of the fact that the CALM Act makes mandatory the revision of our rules proposed herein, we hereby waive our rules to allow stations and MVPDs to comply with our existing rules by following either the BS.1770–1 measurement method in the Current RP or the BS.1770–3 updated measurement method in the Successor RP. Although the change in the measurement method is minor, we believe that consumers may benefit from early implementation of the improved loudness measurement technique incorporated into the Successor RP, and allowing stations and MVPDs to demonstrate compliance at this time based on the new standard is accordingly in the public interest. Finally, we invite comment on whether the Successor RP raises any other issues that should be addressed in this proceeding.
8.
9. This FNPRM proposes minor rule changes to incorporate by reference into the Commission's rules and make mandatory the Advanced Television Systems Committee's (ATSC) March 12, 2013 A/85:2013 Recommended Practice (RP) (Successor RP).
10. The proposed action is authorized pursuant to the Commercial Advertisement Loudness Mitigation Act of 2010, Public Law 111–311, 124 Stat. 3294, and Sections 1, 2(a), 4(i) and (j), and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152(a), 154(i), and 303 and 621.
11. The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.
12.
13. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
14.
15.
16.
17.
18.
19.
20. As stated above, the
21. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.
22. The CALM Act requires that the new technical loudness standard (
23. None.
24.
25.
26.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.
27. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to
28.
29. For additional information, contact Evan Baranoff,
30. Accordingly,
31.
32.
Cable television, Digital television, Incorporation by reference, and Satellite television.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 73 and 76 as follows:
47 U.S.C. 154, 303, 334, 336, and 339.
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
United States Agency for International Development.
Notice of meeting.
Pursuant to the Federal Advisory Committee Act, notice is hereby given of a meeting of the Advisory Committee on Voluntary Foreign Aid (ACVFA).
USAID Administrator Rajiv Shah will make opening remarks, followed by a discussion of current issues facing USAID, and an opportunity for public comment. A draft agenda will be forthcoming on the ACVFA Web site at
The meeting is free and open to the public. Persons wishing to attend should register online at
Sandy Stonesifer, 202–712–4372
Rural Utilities Service, USDA.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), the Rural Utilities Service invites comments on this information collection for which the Agency intends to request approval from the Office of Management and Budget (OMB).
Comments on this notice must be received by January 27, 2014.
Michele L. Brooks, Director, Program Development & Regulatory Analysis, Rural Utilities Service, USDA, 1400 Independence Ave. SW., STOP 1522, Room 5159 South Building, Washington, DC 20250–1522. Email:
Over the past six years, the Agency has undertaken a comprehensive review of its Telecommunications Program contracts. The purpose of this undertaking is to improve customer service to the Agency's rural borrowers with a more efficient and effective means to complete a contract transaction as well as improve the internal efficiency of processing contracts. The anticipated outcome when the contract revision process is completed is that the paperwork burden will not increase and may be reduced.
Copies of this information collection can be requested from MaryPat Daskal, Program Development and Regulatory Analysis, Rural Utilities Service by telephone at (202) 720–7853 or email:
Comments are invited on (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumption used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques on other forms of information technology.
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the
Copies of the above information collection proposal can be obtained by writing Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 or via email at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to Paul Bugg, OMB Desk Officer, via email at
The Regulations and Procedures Technical Advisory Committee (RPTAC) will meet December 10, 2013, 9:00 a.m., Room 3884, in the Herbert C. Hoover Building, 14th Street between Constitution and Pennsylvania Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on implementation of the Export Administration Regulations (EAR) and provides for continuing review to update the EAR as needed.
The open session will be accessible via teleconference to 25 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
The Assistant Secretary for Administration, with the concurrence of the delegate of the General Counsel, formally determined on February 4, 2013, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. app. 2 § (10)(d)), that the portion of the meeting dealing with pre-decisional changes to the Commerce Control List and U.S. export control policies shall be exempt from the provisions relating to public meetings found in 5 U.S.C. app. 2 §§ 10(a)(1) and 10(a)(3). The remaining portions of the meeting will be open to the public.
For more information, call Yvette Springer at (202) 482–2813.
The President's Export Council Subcommittee on Export Administration (PECSEA) will meet via teleconference on December 13, 2013, from 1:00 p.m. to 3:00 p.m. The PECSEA provides advice on matters pertinent to those portions of the Export Administration Act, as amended, that deal with United States policies of encouraging trade with all countries with which the United States has diplomatic or trading relations and of controlling trade for national security and foreign policy reasons.
1. Opening remarks by the Chairman.
2. Opening remarks by the Bureau of Industry and Security.
3. Export Control Reform Update.
4. Presentation of papers or comments by the Public.
5. Subcommittee Updates.
The open session will be accessible via teleconference to 15 participants on a first come, first serve basis. To join the conference, submit inquiries to Ms. Yvette Springer at
To the extent time permits, members of the public may present oral statements to the PECSEA. Written statements may be submitted at any time before or after the meeting. However, to facilitate distribution of public presentation materials to PECSEA members, the PECSEA suggests that public presentation materials or comments be forwarded before the meeting to Ms. Yvette Springer.
For more information, contact Yvette Springer on 202–482–2813.
The Emerging Technology and Research Advisory Committee (ETRAC) will meet on December 19, 2013, 8:30 a.m., Room 3884, at the Herbert C. Hoover Building, 14th Street between Pennsylvania and Constitution Avenues NW., Washington, DC. The Committee advises the Office of the Assistant Secretary for Export Administration on emerging technology and research activities, including those related to deemed exports.
The open session will be accessible via teleconference to 20 participants on a first come, first serve basis. To the conference, submit inquiries to Ms. Yvette Springer at
A limited number of seats will be available for the public session. Reservations are not accepted. To the extent that time permits, members of the public may present oral statements to the Committee. The public may submit written statements at any time before or after the meeting. However, to facilitate the distribution of public presentation materials to the Committee members, the Committee suggests that presenters forward the public presentation materials prior to the meeting to Ms. Springer via email.
For more information, call Yvette Springer at (202) 482–2813.
Enforcement and Compliance, formerly Import Administration, International Trade Administration, Department of Commerce.
On October 30, 2013, the United States Court of International Trade (CIT) entered final judgment sustaining a remand redetermination of the Department of Commerce (Department) relating to the countervailing duty (CVD) investigation on certain new pneumatic off-the-road tires (OTR tires) from the People's Republic of China.
Jun Jack Zhao, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone (202) 482–1396.
In July 2008, the Department published a final determination in which it found that countervailable subsidies are being provided to producers/exporters of OTR tires from the PRC.
In May 2012, the CAFC vacated and remanded the earlier final judgment of the CIT referenced in the 2010
In its decision in
Because there is now a final CIT judgment with respect to the
This notice is issued and published in accordance with sections 516A(e)(1) and 777(i)(1) of the Act.
Enforcement & Compliance, formerly Import Administration, International Trade Administration, Department of Commerce
On June 20, 2013, the Department of Commerce (“Department”) published its preliminary determination of sales at less than fair value (“LTFV”) in the antidumping duty investigation of silica bricks and shapes from the People's Republic of China (“PRC”).
Jonathan Hill, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3518.
The Department published its
On July 15, 2013, Utah Refractories Corporation (“Petitioner”) requested that the Department reject as untimely the unsolicited submission of new factual information filed on July 5, 2013 by New Century Group.
On July 30, 2013, New Century Group submitted surrogate value comments. On August 12, 2013, Utah Refractories Corporation (“Petitioner”) submitted rebuttal surrogate value comments.
On August 17, 2013 and August 19, 2013, the New Century Group and Fedmet Resources Corporation, respectively, submitted case briefs. On September 3, 2013, Petitioner submitted a rebuttal brief.
As explained in the memorandum from the Assistant Secretary for Enforcement and Compliance, the Department exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from October 1, through October 16, 2013.
The period of investigation (“POI”) is April 1, 2012, through September 30, 2012. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition, which was November 2012.
All issues raised in the case and rebuttal briefs by parties to this investigation are addressed in the Issues and Decision Memorandum.
Based on the Department's analysis of the comments received, the Department made changes to the following elements of the antidumping duty calculations since the
• Direct and Indirect labor hours
• Iron Scale Consumption and Surrogate Value
• Electricity Consumption
• Freight Distances from Suppliers to Factory
• Packing Material Consumption
• Entered Value
• Brokerage and Handling
• Use of Partial Adverse Facts Available for Unreported U.S. Sales
• Value Added Tax Adjustment
The products covered by the scope of this investigation are refractory bricks and shapes, regardless of size, that contain at least 90 percent silica (SiO
The scope of this investigation does not cover refractory bricks and shapes, regardless of size, that are made, in part, from non-crystalline silica (commonly referred to as fused silica) where the silica content is less than 50 percent, by weight, crystalline silica.
As provided in section 782(i) of the Act, the Department verified the information submitted by New Century Group for use in the final determination. The Department used standard verification procedures, including examination of relevant accounting and production records and original source documents provided by New Century Group.
In the
We determined that New Century Group failed to report certain sales and thus withheld necessary information within the meaning of section 776(a) of the Act. Moreover, New Century Group failed to act to the best of its ability to comply with the Department's requests for information within the meaning of section 776(b) of the Act regarding unreported sales. We therefore applied adverse facts available (“AFA”) to New Century Group's unreported sales, pursuant to section 776(b) of the Act. As partial AFA, we applied the highest transaction specific margin calculated to the unreported sales.
Furthermore, because the PRC-wide entity did not provide the Department with requested information, pursuant to section 776 (a)(2)(A) of the Act, the Department continues to find it appropriate to base the PRC-wide rate on AFA. As was the case in the
The Department determines that the following weighted-average dumping margins exist for the period April 1, 2012, through September 30, 2012.
We intend to disclose to parties the calculations performed in this proceeding within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
In accordance with section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (“CBP”) to continue to suspend liquidation of all appropriate entries of silica bricks and shapes from the PRC as described in the “Scope of the Investigation” section, which were entered, or withdrawn from warehouse, for consumption on or after June 20, 2013, the date of publication of the
In accordance with section 735(d) of the Act, we have notified the International Trade Commission (“ITC”) of the final affirmative determination of sales at LTFV. As the Department's final determination is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will determine, within 45 days, whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports of subject merchandise, or sales (or the likelihood of sales) for importation, of the subject merchandise. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice also serves as a reminder to the parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation,
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Marilyn Mazzoil, Harbor Branch Oceanographic Institute at Florida Atlantic University, 5600 US 1 North, Fort Pierce, Florida 34946, has applied in due form for a permit to conduct scientific research on bottlenose dolphins (
Written, telefaxed, or email comments must be received on or before December 27, 2013.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the
These documents are also available upon written request or by appointment in the following offices:
Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301)427–8401; fax (301)713–0376; and
Southeast Region, NMFS, 263 13th Avenue South, Saint Petersburg, FL 33701; phone (727)824–5312; fax (727)824–5309.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301)713–0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Carrie Hubard or Amy Hapeman, (301)427–8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant requests a permit to study bottlenose dolphins along the east coast of Florida, from Fernandina Beach to Jupiter. Dolphins would be photo-identified and biopsy sampled to study and determine: (1) Abundance estimation; (2) occurrence and distribution; (3) behavioral information; and (4) population structure and life history parameters. Vessel surveys would be conducted year-round. Annually, the applicant expects to encounter 10,000 animals from the Indian River Lagoon Estuarine System (IRLES) stock, 4000 from the Jacksonville Estuarine System (JES) stock, 12,000 from the Western North Atlantic Central Florida Coastal (WNACFC) stock, and 6000 from the Western North Atlantic Northern Florida Coastal (WNANFC) stock. Individual animals would likely be observed and photographed multiple times per year. A maximum of 350 biopsy samples could be collected annually (100 IRLES, 50 JES, 100 WNACFC, 100 WNANFC). Up to 20 animals from the IRLES stock may be sampled twice in the same year to examine seasonal changes in contaminant loads. Animals determined to be less than two years of age would not be sampled. The permit would be valid for five years.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments.
NMFS has received an application from the National Ocean Service's Office of National Marine Sanctuaries Gulf of the Farallones National Marine Sanctuary (GFNMS) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to rocky intertidal monitoring work and searching for black abalone, components of the Sanctuary Ecosystem Assessment Surveys. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to GFNMS to incidentally take, by Level B harassment only, marine mammals during the specified activity.
Comments and information must be received no later than December 27, 2013.
Comments on the application should be addressed to Michael Payne, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is
An electronic copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below (see
Candace Nachman, Office of Protected Resources, NMFS, (301) 427–8401.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking, other means of effecting the least practicable impact on the species or stock and its habitat, and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”
Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the United States can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: “Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”
On September 12, 2013, NMFS received an application from GFNMS for the taking of marine mammals incidental to rocky intertidal monitoring work and searching for black abalone. NMFS determined that the application was adequate and complete on November 14, 2013.
GFNMS proposes to continue rocky intertidal monitoring work and the search for black abalone in areas previously unexplored for black abalone from January 25 through February 1, 2014. All work will be done only during daylight minus low tides. This is a long-term study that began in 1992. This IHA, if issued, though, would be effective from January 20 through February 8, 2014, to allow for a bit of flexibility in the sampling schedule. Twelve sites are proposed for sampling. The following specific aspects of the proposed activities are likely to result in the take of marine mammals: Presence of survey personnel near pinniped haulout sites and approach of survey personnel towards hauled out pinnipeds. Take, by Level B harassment only, of individuals of five species of marine mammals is anticipated to result from the specified activity.
NMFS previously issued an IHA to GFNMS for this activity on November 8, 2012. The IHA was effective from November 8, 2012, through November 7, 2013. However, GFNMS did not conduct any abalone sampling during
Since the listing of black abalone as “endangered” under the U.S. Endangered Species Act (ESA; 16 U.S.C. 1531
Rocky intertidal monitoring on the Farallon Islands is now a component of the GFNMS Sanctuary Ecosystem Assessment Surveys (SEAS) long-term monitoring program and is a necessity to the management and protection of the sanctuary. All GFNMS SEAS monitoring projects are designed to provide documentation on the density and biodiversity of sanctuary natural resources for condition analyses, particularly for a baseline in the event of a major natural or human-induced perturbation. This program has and continues to acquire information on seasonal and annual changes of intertidal species abundances in 1–3 visits per year. The monitoring data, decades from now, can also be used to assess trends and changes from global climate change and ocean acidification, based on range extensions, changes in biodiversity, and changes in density of calcium carbonate-containing organisms.
Routine shore activity will continue to involve the use of only non-destructive sampling methods to monitor rocky intertidal algal and invertebrate species abundances (see Figure 2 in GFNMS' application). At each sampling site, there are three to four permanent 30 x 50 cm (12 x 20 in) quadrat sites that occur in the low, middle, and upper elevation tidal zones (marked by white epoxy pads in the quadrat corners). Three to four random quadrats (unmarked) are also sampled at each site every survey, if time permits. Fifty randomly selected points within each permanent and random quadrat are sampled, using methods described by Foster
Inaccessible shore areas will be surveyed by boat up to once each year, dependent on boat availability and weather conditions. This effort includes the Middle and North Farallon Islands. In this effort, the boat navigates to within 15–100 m (49–328 ft) of the shore, and intertidal species that can be seen through binoculars are recorded (presence/absence). Point Blue (formerly named PRBO Conservation Science) continues its year round pinniped and seabird research and monitoring efforts on the South Farallon Islands, which began in 1968, under MMPA scientific research permits and IHAs. GFNMS biologists will gain access to the sites via boats operated by Point Blue, with disturbance and incidental take authorized via IHAs issued to Point Blue. For this reason, GFNMS has not requested authorization for take from disturbance by boat, as incidental take from that activity is authorized in a separate IHA.
The Farallon Islands consists of a chain of seven islands located approximately 48 km (30 mi) west of San Francisco, near the edge of the continental shelf and in the geographic center of the GFNMS (see Figure 1 in GFNMS' application). The land of the islands above the mean high tide mark is designated as the Farallon National Wildlife Refuge (managed by the U.S. Fish and Wildlife Service [USFWS]), while the shore and subtidal below are in GFNMS. The nearshore and offshore waters are foraging areas for pinniped species discussed in this document.
The two largest islands of the seven islands are the Southeast Farallon and Maintop (aka West End) Islands. These and several smaller rocks are collectively referred to as the South Farallon Islands and are the subject of this IHA request. The two largest islands are separated by only a 9 m (30 ft) wide surge channel. Together, these islands are approximately 49 hectares (120 acres) in size with an intertidal perimeter around both islands of 7.7 km (4.8 mi).
The areas proposed for sampling are: Blow Hole Peninsula; Mussel Flat; Dead Sea Lion Flat; Low Arch; Raven's Cliff; Drunk Uncle Islet; East Landing; North Landing; Fisherman's Bay; Weather Service Peninsula; Indian Head; and Shell Beach (see Figure 2 in GFNMS' application). Each sample site will be visited one to two times each minus tide cycle for 3–5 hours each visit.
The shorelines on these islands, including areas above the mean high tide elevation, have become more heavily used over time as haulout sites for pinnipeds to rest, give birth, and molt. The intertidal zones where GFNMS conducts intertidal monitoring area also areas where pinnipeds can be found hauled out on the shore. Accessing portions of the intertidal habitat may cause incidental Level B (behavioral) harassment of pinnipeds through some unavoidable approaches if pinnipeds are hauled out directly in the study plots or while biologists walk from one location to another. No motorized equipment is involved in conducting these surveys. The species for which Level B harassment is requested are: California sea lions (
Many of the shores of the two South Farallon Islands provide resting, molting, and breeding habitat for pinniped species: Northern elephant seals; harbor seals; California sea lions; northern fur seals; and Steller sea lions.
We refer the public to Carretta
Northern elephant seals are not listed as threatened or endangered under the ESA, nor are they categorized as depleted under the MMPA. The estimated population of the California breeding stock is approximately 124,000 animals with a minimum estimate of 74,913 (Carretta
Northern elephant seals range in the eastern and central North Pacific Ocean, from as far north as Alaska and as far south as Mexico. Northern elephant seals spend much of the year, generally about nine months, in the ocean. They are usually underwater, diving to depths of about 330–800 m (1,000–2,500 ft) for 20- to 30-minute intervals with only short breaks at the surface. They are rarely seen out at sea for this reason. While on land, they prefer sandy beaches.
Northern elephant seals breed and give birth in California (U.S.) and Baja California (Mexico), primarily on offshore islands (Stewart
The population on the Farallon Islands has declined by 3.4 percent per year since 1983, and in recent years numbers have fluctuated between 100 and 200 pups (PRBO, unpubl. data). At Southeast Farallon, the population consists of approximately 500 animals (GFNMS, 2012).
California sea lions are not listed as threatened or endangered under the ESA, nor are they categorized as depleted under the MMPA. The California sea lion is now a full species, separated from the Galapagos sea lion (
California sea lion breeding areas are on islands located in southern California, in western Baja California, Mexico, and the Gulf of California. During the breeding season, most California sea lions inhabit southern California and Mexico. Rookery sites in southern California are limited to the San Miguel Islands and the southerly Channel Islands of San Nicolas, Santa Barbara, and San Clemente (Carretta
Pacific harbor seals are not listed as threatened or endangered under the ESA, nor are they categorized as depleted under the MMPA. The estimated population of the California stock of Pacific harbor seals is approximately 30,196 animals (Carretta
The animals inhabit near-shore coastal and estuarine areas from Baja California, Mexico, to the Pribilof Islands in Alaska. Pacific harbor seals are divided into two subspecies:
In California, over 500 harbor seal haulout sites are widely distributed along the mainland and offshore islands, and include rocky shores, beaches and intertidal sandbars (Lowry
Steller sea lions consist of two distinct population segments: The western and eastern DPSs divided at 144° West longitude (Cape Suckling, Alaska). The eastern DPS of the Steller sea lion was removed from the endangered species list in November 2013, and the western distinct population segment is endangered under the ESA. The eastern DPS is the one anticipated to occur in the proposed project area. The eastern segment includes sea lions living in southeast Alaska, British Columbia, California, and Oregon.
Steller sea lions range along the North Pacific Rim from northern Japan to California (Loughlin
In 2013, the estimated population of the eastern DPS ranged from 58,334 to 72,223 animals, and the maximum population growth rate is 12 percent (Allen and Angliss, 2013).
The eastern DPS of Steller sea lions breeds on rookeries located in southeast Alaska, British Columbia, Oregon, and California. There are no rookeries located in Washington State. Steller sea lions give birth in May through July, and breeding commences a couple of weeks after birth. Pups are weaned during the winter and spring of the following year.
Despite the wide-ranging movements of juveniles and adult males in particular, exchange between rookeries by breeding adult females and males (other than between adjoining rookeries) appears low, although males have a higher tendency to disperse than females (NMFS, 1995; Trujillo
The current population of eastern Steller sea lions in the proposed research area is estimated to number between 50 and 750 animals. Overall, counts of non-pups at trend sites in California and Oregon have been relatively stable or increasing slowly since the 1980s (Angliss and Allen, 2011). PRBO estimates that between 50 and 150 Steller sea lions live on the Farallon Islands. On Southeast Farallon Island, the abundance of females declined an average of 3.6 percent per year from 1974 to 1997 (Sydeman and Allen, 1999). Pup counts on the Farallon Islands have generally varied from five to 15 (Hastings and Sydeman, 2002; PRBO unpub. data).
Northern fur seals are not listed as threatened or endangered under the ESA, nor are they categorized as depleted under the MMPA. Two stocks of northern fur seals are recognized in U.S. Pacific waters: Eastern Pacific stock and San Miguel Island stock. Adult females and juveniles migrate to the central California area (and Oregon and Washington) from rookeries on San Miguel Island in the Southern California Bight (Carretta
The most recent population estimate of the San Miguel Island stock is 9,968 animals (Carretta
California (southern) sea otters (
The appearance of researchers may have the potential to cause Level B harassment of any pinnipeds hauled out on Southeast Farallon and Maintop (West End) Islands. Although marine mammals are never deliberately approached by abalone survey personnel, approach may be unavoidable if pinnipeds are hauled out in the immediate vicinity of the permanent abalone study plots. Disturbance may result in reactions ranging from an animal simply becoming alert to the presence of researchers (e.g., turning the head, assuming a more upright posture) to flushing from the haul-out site into the water. NMFS does not consider the lesser reactions to constitute behavioral harassment, or Level B harassment takes, but rather assumes that pinnipeds that move greater than 1 m (3.3 ft) or change the speed or direction of their movement in response to the presence of researchers are behaviorally harassed, and thus subject to Level B taking. Animals that respond to the presence of researchers by becoming alert, but do not move or change the nature of locomotion as described, are not considered to have been subject to behavioral harassment.
Numerous studies have shown that human activity can flush harbor seals off haulout sites (Allen
Typically, even those reactions constituting Level B harassment would result at most in temporary, short-term disturbance. Researchers will visit approximately 12 sites over about an 8 day period. Each site visit typically lasts 3–5 hours. Therefore, disturbance of pinnipeds resulting from the presence of researchers lasts only for short periods of time. Because such disturbance is sporadic, rather than chronic, and of low intensity, individual marine mammals are unlikely to incur any detrimental impacts to vital rates or ability to forage and, thus, loss of fitness. Correspondingly, even local populations, much less the overall stocks of animals, are extremely unlikely to accrue any significantly detrimental impacts.
There are three ways in which disturbance, as described previously, could result in more than Level B harassment of marine mammals. All three are most likely to be consequences of stampeding, a potentially dangerous occurrence in which large numbers of animals succumb to mass panic and rush away from a stimulus, an occurrence that is not expected on Southeast Farallon and Maintop Islands. The three situations are (1) falling when entering the water at high-relief locations; (2) extended separation of mothers and pups; and (3) crushing of elephant seal pups by large males during a stampede.
Because hauled-out animals may move towards the water when disturbed, there is the risk of injury if animals stampede towards shorelines with precipitous relief (e.g., cliffs). However, while cliffs do exist on the islands, shoreline habitats near the abalone study sites are of steeply sloping rocks with unimpeded and non-obstructive access to the water. If disturbed, hauled-out animals in these situations may move toward the water without risk of encountering barriers or hazards that would otherwise prevent them from leaving the area. In these circumstances, the risk of injury, serious injury, or death to hauled-out animals is very low. Thus, abalone research activity poses no risk that disturbed
The risk of marine mammal injury, serious injury, or mortality associated with abalone research increases somewhat if disturbances occur during breeding season. These situations present increased potential for mothers and dependent pups to become separated and, if separated pairs do not quickly reunite, the risk of mortality to pups (through starvation) may increase. Separately, adult male elephant seals may trample elephant seal pups if disturbed, which could potentially result in the injury, serious injury, or mortality of the pups. The risk of either of these situations is greater in the event of a stampede.
The proposed site visits in late January/early February fall outside of the pupping and breeding seasons for California sea lions, harbor seals, northern fur seals, and Steller sea lions. The most sensitive months for northern elephant seals are generally December through March. However, though elephant seal pups are occasionally present when researchers visit abalone survey sites, risk of pup mortalities is very low because elephant seals are far less reactive to researcher presence than the other two species. Further, pups are typically found on sand beaches, while study sites are located in the rocky intertidal zone, meaning that there is typically a buffer between researchers and pups. Finally, the caution used by researchers in approaching sites generally precludes the possibility of behavior, such as stampeding, that could result in extended separation of mothers and dependent pups or trampling of elephant seal pups. No research would occur where separation of mother and her nursing pup or crushing of pups can become a concern.
In summary, NMFS does not anticipate that the proposed activities would result in the injury, serious injury, or mortality of pinnipeds because (1) the timing of research visits would preclude separation of mothers and pups for four of the pinniped species, as activities occur outside of the pupping/breeding season and (2) elephant seals are generally not susceptible to disturbance as a result of researchers' presence. In addition, researchers will exercise appropriate caution approaching sites, especially when pups are present and will redirect activities when pups are present.
The only habitat modification associated with the proposed activity is the quadrat locations being marked with marine epoxy. The plot corners are marked with a 3 × 3 cm (1.2 × 1.2 in) patch of marine epoxy glued to the benchrock for relocating the quadrat sites. Markers have been in place since 1993, and pinniped populations have increased throughout the islands during this time. Maintenance is sometimes required, which consists of replenishing worn markers with fresh epoxy or replacing markers that have become dislodged. No gas power tools are used, so there is no potential for noise or accidental fuel spills disturbing animals and impacting habitats. Thus, the proposed activity is not expected to have any habitat-related effects, including to marine mammal prey species, that could cause significant or long-term consequences for individual marine mammals or their populations.
In order to issue an incidental take authorization (ITA) under Section 101(a)(5)(D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant).
GFNMS proposes to implement several mitigation measures to reduce potential take by Level B (behavioral disturbance) harassment. Measures include: (1) Coordinating sampling efforts with other permitted activities (i.e., Point Blue and USFWS); (2) conducting slow movements and staying close to the ground to prevent or minimize stampeding; (3) avoiding loud noises (i.e., using hushed voices); (4) vacating the area as soon as sampling of the site is completed; (5) monitoring the offshore area for predators (such as killer whales and white sharks) and avoid flushing of pinnipeds when predators are observed in nearshore waters; (6) using binoculars to detect pinnipeds before close approach to avoid being seen by animals; and (7) rescheduling work at sites where pups are present, unless other means to accomplishing the work can be done without causing disturbance to mothers and dependent pups.
The methodologies and actions noted in this section will be utilized and included as mitigation measures in any issued IHA to ensure that impacts to marine mammals are mitigated to the lowest level practicable. The primary method of mitigating the risk of disturbance to pinnipeds, which will be in use at all times, is the selection of judicious routes of approach to abalone study sites, avoiding close contact with pinnipeds hauled out on shore, and the use of extreme caution upon approach. In no case will marine mammals be deliberately approached by abalone survey personnel, and in all cases every possible measure will be taken to select a pathway of approach to study sites that minimizes the number of marine mammals potentially harassed. In general, researchers will stay inshore of pinnipeds whenever possible to allow maximum escape to the ocean. Each visit to a given study site will last for approximately 3–5 hours, after which the site is vacated and can be re-occupied by any marine mammals that may have been disturbed by the presence of abalone researchers. By arriving before low tide, worker presence will tend to encourage pinnipeds to move to other areas for the day before they haul out and settle onto rocks at low tide.
The following measures are proposed for implementation to avoid disturbances to elephant seal pups. Disturbances to females with dependent pups can be mitigated to the greatest extent practicable by avoiding visits to those intertidal sites with pinnipeds that are actively nursing, with the exception of northern elephant seals. The time of year when GFNMS plans to sample avoids disturbance to young, dependent pups, with the exception of northern elephant seals. Thus, late January/early February, at minimum, is preferable for the proposed intertidal survey work in order to minimize the risk of harassment. Harassment of nursing northern elephant seal pups may occur but only to a limited extent. Disruption of nursing to northern elephant seal pups will occur only as biologists pass by the area. No flushing on nursing northern elephant seal pups will occur, and no disturbance to newborn northern elephant seals (pups less than one week old) will occur. Moreover, elephant seals have a much higher tolerance of nearby human activity than sea lions or harbor seals. In the event of finding pinnipeds breeding and nursing, the intertidal monitoring activities will be re-directed to sites where these activities and behaviors are not occurring. This mitigation measure will reduce the possibility of takes by harassment and further reduce the remote possibility of serious injury or mortality of dependent pups.
GFNMS will suspend sampling and monitoring operations immediately if an injured marine mammal is found in the
NMFS has carefully evaluated GFNMS' proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Based on our evaluation of the applicant's proposed measures, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an ITA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must, where applicable, set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
Currently many aspects of pinniped research are being conducted by Point Blue scientists on the Farallon Islands, which includes elephant seal pup tagging and behavior observations with special notice to tagged animals. Additional observations are always desired, such as observations of pinniped carcasses bearing tags, as well as any rare or unusual marine mammal occurrences. GFNMS' observations and reporting will add to the observational database and on-going marine mammal assessments on the Farallon Islands.
GFNMS can add to the knowledge of pinnipeds on the South Farallon Islands by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, such that any potential follow-up research can be conducted by the appropriate personnel; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.
Proposed monitoring requirements in relation to GFNMS' abalone research surveys will include observations made by the applicant. Information recorded will include species counts (with numbers of pups/juveniles), numbers of observed disturbances, and descriptions of the disturbance behaviors during the abalone surveys. Observations of unusual behaviors, numbers, or distributions of pinnipeds on the South Farallon Islands will be reported to NMFS and Point Blue so that any potential follow-up observations can be conducted by the appropriate personnel. In addition, observations of tag-bearing pinniped carcasses as well as any rare or unusual species of marine mammals will be reported to NMFS and Point Blue.
If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of any other marine mammal occurs, and such action may be a result of the proposed abalone research, GFNMS will suspend research activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.
A draft final report must be submitted to NMFS Office of Protected Resources within 60 days after the conclusion of the 2014 field season or 60 days prior to the start of the next field season if a new IHA will be requested. The report will include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. A final report must be submitted to the Director of the NMFS Office of Protected Resources and to the NMFS Southwest Office Regional Administrator within 30 days after receiving comments from NMFS on the draft final report. If no comments are received from NMFS, the draft final report will be considered to be the final report.
Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].
All anticipated takes would be by Level B harassment, involving temporary changes in behavior. The proposed mitigation and monitoring measures are expected to minimize the possibility of injurious or lethal takes such that take by injury, serious injury, or mortality is considered remote. Animals hauled out close to the actual survey sites may be disturbed by the presence of biologists and may alter their behavior or attempt to move away from the researchers. No motorized equipment is involved in conducting the proposed abalone monitoring surveys.
As discussed earlier, NMFS considers an animal to have been harassed if it moved greater than 1 m (3.3 ft) in response to the researcher's presence or if the animal was already moving and changed direction and/or speed, or if the animal flushed into the water. Animals that became alert without such movements were not considered harassed. The distribution of pinnipeds hauled out on beaches is not consistent throughout the year. The number of marine mammals disturbed will vary by month and location. PRBO (now Point Blue) obtains weekly counts of pinnipeds on the South Farallon Islands, dating back to the early 1970s. GFNMS used data collected by PRBO in February 2010 and 2011 to estimate the number of pinnipeds that may potentially be taken by Level B (behavioral) harassment. Table 3 in GFNMS' IHA application and Table 1 here present the maximum numbers of California sea lions, harbor seals, northern elephant seals, northern fur seals, and Steller sea lions that may be present at the various sampling sites during the proposed activity timeframe under this proposed IHA. Based on this information, NMFS proposes to authorize the take, by Level B harassment only, of 5,270 California sea lions, 141 harbor seals, 79 northern elephant seals, 64 northern fur seals, and 99 Steller sea lions. These numbers are considered to be maximum take estimates; therefore, actual take may be slightly less if animals decide to haul out at a different location for the day or animals are out foraging at the time of the survey activities.
NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.” In making a negligible impact determination, NMFS considers a variety of factors, including but not limited to: (1) The number of anticipated mortalities; (2) the number and nature of anticipated injuries; (3) the number, nature, intensity, and duration of Level B harassment; and (4) the context in which the take occurs.
No injuries or mortalities are anticipated to occur as a result of GFNMS' rocky intertidal monitoring work and searching for black abalone, and none are proposed to be authorized. The behavioral harassments that could occur would be of limited duration, as researchers will only conduct sampling over a period of 8 days. Additionally, each site is sampled for approximately 3–5 hours before moving to the next sampling site. Therefore, disturbance will be limited to a short duration, allowing pinnipeds to reoccupy the sites within a short amount of time.
Some of the pinniped species use the islands to conduct pupping and/or breeding. However, with the exception of northern elephant seals, GFNMS will conduct its abalone site sampling outside of the pupping/breeding seasons. GFNMS has proposed measures to minimize impacts to northern elephant seals nursing or tending to dependent pups. Such measures will avoid mother/pup separation or trampling of pups.
None of the five marine mammal species anticipated to occur in the proposed activity area are listed as threatened or endangered under the ESA. Table 2 in this document presents the abundance of each species or stock, the proposed take estimates, and the percentage of the affected populations or stocks that may be taken by harassment. Based on these estimates, GFNMS would take less than 1% of each species or stock, with the exception of the California sea lion, which would result in an estimated take of 1.8% of the stock. Because these are maximum estimates, actual take numbers are likely to be lower, as some animals may select other haulout sites the day the researchers are present.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation and monitoring measures, NMFS preliminarily finds that the rocky intertidal monitoring program will result in the incidental take of small numbers of marine mammals, by Level B harassment only, and that the total taking from the rocky intertidal monitoring program will have a negligible impact on the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
None of the marine mammals for which incidental take is proposed are listed as threatened or endangered under the ESA. Therefore, NMFS has determined that issuance of the proposed IHA to GFNMS under section 101(a)(5)(D) of the MMPA will have no effect on species listed as threatened or endangered under the ESA.
In 2012, we prepared an EA analyzing the potential effects to the human environment from conducting rocky intertidal surveys along the California and Oregon coasts and issued a Finding of No Significant Impact (FONSI) on the issuance of an IHA for GFNMS' rocky intertidal surveys in accordance with section 6.01 of the NOAA Administrative Order 216–6 (Environmental Review Procedures for Implementing the National Environmental Policy Act, May 20, 1999). GFNMS' proposed activities and impacts for 2014 are within the scope of our 2012 EA and FONSI. We have reviewed the 2012 EA and determined that there are no new direct, indirect, or cumulative impacts to the human and natural environment associated with the IHA requiring evaluation in a supplemental EA and we, therefore, intend to reaffirm the 2012 FONSI.
As a result of these preliminary determinations, NMFS proposes to authorize the take of marine mammals incidental to GFNMS' rocky intertidal and black abalone monitoring research activities, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by December 27, 2013.
Fred Licari, 571–372–0493.
Written comments and recommendations on the proposed information collection should be sent to Mr. John Kraemer at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
•
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Notice.
The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Consideration will be given to all comments received by December 27, 2013.
Fred Licari, 571–372–0493.
Written comments and recommendations on the proposed information collection should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, Desk Officer for DoD, Room 10236, New Executive Office Building, Washington, DC 20503.
You may also submit comments, identified by docket number and title, by the following method:
• Federal eRulemaking Portal:
Written requests for copies of the information collection proposal should be sent to Ms. Toppings at WHS/ESD Information Management Division, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Office of the Administrative Assistant to the Secretary of the Army, DoD.
Notice.
In compliance with Section 3506(c)(2)(A) of the
Consideration will be given to all comments received by January 27, 2014.
You may submit comments, identified by docket number and title, by any of the following methods:
• Federal eRulemaking Portal:
• Mail: Federal Docket Management System Office, 4800 Mark Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350–3100.
Any associated form(s) for this collection may be located within this
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of the Army, Military Surface Deployment and Distribution Command, 1 Soldier Way, Scott AFB, IL 62225–1604, ATTN: Richard Cody, or call Department of the Army Reports Clearance Officer at (703) 428–6440.
The DoD tender format was developed to take advantage of improved information collection technology and to connect with ongoing initiatives to implement automated systems to file tenders, select carriers, quote rates, and audits. The disciplined data fields of the tenders will facilitate the Electronic Data Interchange of tender data between carriers and SDDC, also between SDDC subordinate commands and DoD shippers. This initiative ultimately will permit electronic filing of the tender and eliminate mailing paper documents, which are manually processed.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before December 27, 2013.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For questions related to collection activities or burden, please call Kate Mullan, 202–401–0563 or electronically mail
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Federal Student Aid (FSA), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before December 27, 2013.
Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at
For questions related to collection activities or burden, please call Kate Mullan, 202–401–0563 or electronically mail
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
The Department will determine whether the borrower is responsible for accruing interest on their previously received Direct Subsidized Loans. To ensure that the Department has the information to necessary to make that determination, institutions will be required to report additional information to NSLDS. For example, institutions will be required to report: The CIP code and the credential level for the program in which a borrower is enrolled; the length of the program in academic years, weeks, or months (consistent with current institutional reporting in the COD System); and a more detailed enrollment status of the borrower (e.g., full-time, three-quarter-time, half-time, or less-than-half-time).
These data will allow the Department to determine whether a borrower who is not eligible for additional Direct Subsidized Loans is responsible for accruing interest on his or her previously received Direct Subsidized Loans.
The regulations implement a new statutory requirement that significantly limits a borrower's eligibility for Direct Subsidized Loans and potentially results in the borrower becoming responsible for accruing interest on existing Direct Subsidized Loans. Under section 485(l) of the HEA, which requires that borrowers be provided with entrance and exit counseling on the provisions governing federal student aid, institutions will be required to revise the entrance and exit counseling provided to borrowers.
For entrance counseling, the added counseling requirements under 685.304 will require institutions to explain the new provisions to borrowers.
Office of Fossil Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Ultra-Deepwater Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Monday, December 16, 2013, 12:00 p.m.–1:00 p.m. (EST).
U.S. Department of Energy, 1000 Independence Avenue SW., Room 3G–043, Washington, DC 20585.
Elena Melchert, U.S. Department of Energy, Office of Oil and Natural Gas, 1000 Independence Avenue SW., Washington, DC 20585. Phone: (202) 586–5600.
Office of Fossil Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Unconventional Resources Technology Advisory Committee. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of this meeting be announced in the
Wednesday, December 18, 2013, 10:00 a.m.—11:00 a.m. (EST).
U.S. Department of Energy, 1000 Independence Avenue SW., Room 3G–043, Washington, DC 20585.
Elena Melchert, U.S. Department of Energy, Office of Oil and Natural Gas, 1000 Independence Avenue SW., Washington, DC 20585. Phone: (202) 586–5600.
Office of Nuclear Energy, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Nuclear Energy Advisory Committee (NEAC). The Federal Advisory Committee Act (Public Law No. 94–463, 86 Stat. 770) requires that public notice of these meetings be announced in the
Thursday, December 19, 2013, 8:30 a.m.—4:00 p.m.
Washington Marriott at Metro Center, 775 12th Street NW., Washington, DC 20005.
Bob Rova, Designated Federal Officer, U.S. Department of Energy, 19901 Germantown Rd, Germantown, MD 20874; telephone (301) 903–9096; email at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
National Nuclear Security Administration (NNSA), U.S. Department of Energy (DOE).
Notice of designation of Kansas City Plant Facilities as off-limit areas.
DOE hereby amends and adds to previously published site descriptions of various DOE and contractor occupied facilities as off-limit areas. In accordance with 1O CFR part 860, it is a federal crime under section 229 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2278a), for unauthorized persons to enter into or upon the facilities of the Kansas City Plant of the United States Department of Energy, National Nuclear Security Administration, Kirtland Operations operating area. The facilities are described in this notice. If unauthorized entry into or upon these properties is into an area enclosed by a fence, wall, floor, roof or other such structural barrier, conviction for such unauthorized entry may result in a fine not to exceed $100,000 or imprisonment for not more than one year, or both. If unauthorized entry into or upon the properties is into an area not enclosed by a fence, wall, floor, roof, or other such structural barrier, conviction for such unauthorized entry may result in a fine of not more than $5,000.'
• By operation of law, the Criminal Fine Improvements Act of 1987, Public Law 100–185, 101 Stat. 1279 (1987), increased the fine amounts from $1000/$5000 to $5000/$100,000. See,
This action is effective on November 27, 2013.
Laurel I. Hautala, Director, Security & Information Technology Systems, NNSA Kansas City Plant, 14520 Botts Road, Kansas City, MO 64147, Telephone: (816) 488–5109, Facsimile: (816) 488–3718.
Albert N. Guarino, Site Counsel, NNSA Kansas City Plant, 14520 Botts Road, Kansas City, MO 64147, Telephone: (816) 488–3344, Facsimile: (816) 488–3718.
The DOE, successor agency to the Atomic Energy Commission (AEC), is authorized, pursuant to § 229 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2278a), and § 104 of the Energy Reorganization Act of 1974 (42 U.S.C. 5814), as implemented by 10 CFR part 860, published in the
By notice dated October 19, 1965 (30 FR 13290), DOE prohibited unauthorized entry into or upon the Kansas City Plant. The boundary was revised on November 25, 1983 (48 FR 56822–568224) and again revised on October 26, 2012 (FR 65376–65377).
Accordingly, NNSA prohibits the unauthorized entry and the unauthorized introduction of weapons or dangerous materials, as provided in 10 CFR 860.3 and 860.4 into and upon the following additions to the existing Kansas City Plant boundary. The additions are described in further detail in the paragraphs that follow.
Property Description:
2100 Air Park Road SE., Albuquerque, Bernalillo County, NM—Legal Description: Lot Numbered Four (4) of Airport Business Park, within Section 34, Tl0N, R3E, NMPM containing 1.4204 acres.
2445 Alamo Avenue SE., Albuquerque, Bernalillo County, NM—Legal Description: 1. Building and parking for Alamo Building—Legal Description: Tract A-2-A-2 replat of Tract A-2-A in Block Numbered Two (2) of Airport Industrial Park containing 0.9944 Acres. 2. Parking lot on Baylor for 2445 Alamo building—Legal Description: Lot Numbered 11–B in Block Numbered One (1) of Airport Industrial Park of the Plat of Lot 11–A and 11–B, Block 1. of Airport Industrial Park containing .4931 Acres.
2540 Alamo Avenue SE., Albuquerque, Bernalillo County, NM—Legal Description: 87106 TR A-1-A replat of tract Z-4 & A-1 Airport Industrial Park to TRS A-4-A, A-1-A, A-1-B & A-1-C of Airport Industrial Park containing 1.8989 AC MIL, or 82,717 SF M/L, consisting of approximately 34,860 square feet including the means of access thereto and egress therefrom along ways controlled by lessor and together with the use of outside perimeter and grounds appurtenant to the building for purposes of parking
2460 Alamo Avenue SE Albuquerque, Bernalillo County, NM—Legal Description: TR Z-4-A replat of tract Z-4 & A-1 Airport Industrial Park to TRS A-4-A, A-1-A, A-1-B & A-1-C of Airport Industrial Park containing 1.5470 AC MIL OR 67,390 SF MIL consisting of approximately 5,828 square feet including the means of access thereto and egress therefrom along ways controlled by lessor and together with the use of outside perimeter and grounds appurtenant to the building for purposes of parking employees, visitors, and guests and in addition thereto, hereinafter described collectively as the leased premises to be used for administrative offices, engineering, production, maintenance and repair, and storage for such other lawful purposes as may be incidental thereto.
2450 Alamo Avenue SE., Albuquerque, Bernalillo County, NM—Legal Description: TR C-1 Airport Industrial Park consisting of approximately 23,732 square feet including the means of access thereto and egress therefrom along ways controlled be lessor and together with the use of outside perimeter and grounds appurtenant to the building for purposes of parking employees, visitors, and guests and in addition thereto, hereinafter described collectively as the leased premises to be used for administrative offices, engineering, production, maintenance and repair, and storage for such other lawful purposes as may be incidental thereto.
This revised boundary is in addition to the property description contained in the
Notices stating the pertinent prohibitions of 10 CFR 860.3 and 860.4 and the penalties of 10 CFR 860.5 are being posted at all entrances of the above-referenced areas and at intervals along their perimeters, as provided in 10 CFR 860.6.
Environmental Protection Agency (EPA).
Notice of data availability (NODA).
The Environmental Protection Agency (EPA) is providing notice that the 2011 Emissions Modeling Platform data are available for public review and comment. The 2011 Emissions Modeling Platform consists of emissions inventory data, supporting data, and methods that are used to process the 2011 National Emissions Inventory (NEI) and related data into a form that can be used for air quality modeling. The platform, or portions of the data that make up the platform, may be used by the Office of Air and Radiation in several contexts, including the development of rules related to the transport of air pollution and the National Ambient Air Quality Standards. The platform may also be used for other studies such as the National Air Toxics Assessment. The EPA is requesting comment on the 2011 Emissions Modeling Platform, including the emissions inventories and on the supporting data and methods. A docket has been established to track the comments.
Comments must be received on or before March 31, 2014. Please refer to
Submit your comments, identified by Docket ID No. EPA–HQ–OAR–2013–0743, by one of the following methods:
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For questions on the 2011 platform and on how to submit comments, contact Alison Eyth, Air Quality Assessment Division, Environmental Protection Agency, C339–02, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; telephone number: (919)541–2478; fax number: (919) 541–0684; email address:
The EPA is requesting comment on the 2011 platform emission inventories; supporting ancillary files used to allocate emissions temporally, spatially, and by species; and on the emissions modeling methods used to process the inventories into data suitable for input to air quality models. Summaries of the emission inventories and data are provided to aid in the review of the data, but comments are sought on the actual data.
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i. Identify the notification by docket number and other identifying information (subject heading,
ii. Explain your comments, why you agree or disagree; suggest alternatives and substitute data that reflects your requested changes.
iii. Describe any assumptions and provide any technical information and/or data that you used.
iv. Provide specific examples to illustrate your concerns, and suggest alternatives.
v. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
vi. Make sure to submit your comments by the comment period deadline identified.
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The EPA can most effectively incorporate comments that provide specific alternative values to those in the EPA data sets, and for which accompanying documentation supports the alternative values. Commenters should provide the alternative data at a level of detail appropriate to the data set into which it will be incorporated, thereby including all key fields needed to substitute the old data with the new. For example, commenters should not provide a new set of county total emissions as an alternative to more detailed point source emissions data.
Any alternative emission inventory or other data provided should be compatible with the formats used by the Sparse Matrix Operator Kernel Emissions (SMOKE) modeling system version 3.5, which is used by the EPA to process emission inventories into a format that can be used for air quality modeling. Formats are defined in the SMOKE Version 3.5 User's Manual available from
The 2011 Emissions Modeling Platform consists of emission inventories primarily based on the 2011 NEI version 1, additional ancillary data files that are used to convert the NEI emissions into a form that can be used for air quality modeling, along with the methods used to prepare the air quality model inputs. The NEI represents emissions of criteria and hazardous pollutants into the atmosphere from all source categories within the United States. 2011 is the latest year for which a complete NEI for all emission processes is available. These complete, national emission inventories are prepared every three years and are primarily based on data and inputs provided by state, local, and tribal agencies for sources within their jurisdictions. The NEI includes emissions from sources at specific locations called point sources, emissions from fire events, and county-level emissions of onroad mobile sources, nonroad mobile sources, and other nonpoint sources.
The 2011 emissions modeling platform is named for the year of the data that it represents. The emission inventories in the modeling platform are primarily based on the 2011 NEI version 1, although there are some key differences between the platform inventories and the NEI. First, in the modeling platform, the NEI inventories are split into additional categories called modeling sectors. For example, the point sources are split into peaking electric generating units (EGUs), other EGUs, oil and gas sources, and other point sources. The nonpoint sources are split into agricultural ammonia sources, residential wood sources, oil and gas
The 2011 emissions modeling platform also includes emissions inventories for Canada and Mexico, along with ancillary data files used to allocate annual emissions to the hourly, gridded emissions of chemical species used by an air quality model (AQM). The types of ancillary data files include temporal profiles that allocate annual and monthly emissions down to days and hours, spatial surrogates that allocate county-level emissions onto the grid cells used by an AQM, and speciation profiles that allocate the pollutants in the NEI to the chemical species used by an AQM. In addition, there are temporal, spatial, and speciation cross-reference files that map the emission sources in the emission inventories to the appropriate profiles based on their location, emissions source classification code (SCC), and in some cases the specific facility or unit.
The 2011 emissions modeling platform, or portions of the data that make up the platform, may be used by the Office of Air and Radiation in several contexts including the development of rules related to the transport of air pollution and the National Ambient Air Quality Standards. Air quality modeling results that are based on the outputs of the emissions modeling platform are typically used in support of Regulatory Impact Analyses (RIAs) and sometimes support other aspects of rulemaking. The platform may also be used for other studies such as the National Air Toxics Assessment.
The EPA has placed key information related to the 2011 emissions modeling platform into the electronic docket available at
The emissions inventories, along with many of the ancillary files, are provided in the form of flat files that can be input to SMOKE. Flat files are comma-separated value style text files with columns and rows that can be loaded into spreadsheet or database software. The columns of interest in the emission inventory files are specified in each subsection below. The EPA requests comment on the following components of the 2011 emissions modeling platform data:
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To aid in the interpretation of the provided data files and how they relate to the aspects of the data on which the EPA is requesting comment, the EPA has provided in the docket a document describing the information included in the provided data files.
Environmental Protection Agency (EPA).
Notice.
EPA is announcing for public review and comment draft Guidelines intended to provide a transparent, fair, and consistent approach to using non-governmental product environmental performance standards and ecolabels in Federal purchasing, consistent with Federal standards policy and sustainable acquisition mandates. These draft Guidelines have been developed in response to requests via a wide variety of stakeholder engagement channels from suppliers, manufacturers, environmental organizations, Federal purchasers, and other stakeholders over the last several years. Voluntary guidelines for standards and ecolabels would help agencies implement sustainable acquisition requirements of Executive Order 13514 and the Federal Acquisition Regulation (FAR) 23.103 which requires 95% of the government's applicable contract actions to be sustainable. Specifically, the Guidelines for standards and ecolabels could provide clarity regarding the term “environmentally preferable” for purposes of the Executive Order. In addition to seeking input on the draft Guidelines themselves, EPA is seeking input on how standards and ecolabels should be assessed for conformance to such guidelines. The proposed draft Guidelines and supplementary information can be found in the docket and at
Comments must be received on or before February 25, 2014.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2013–0579, by one of the following methods:
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This action is directed to the public in general. Although this action may be of particular interest to those persons who purchase or provide products and services for Federal agencies, developers of standards and ecolabels, and the manufacturers of products, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the technical contact person listed under
EPA is announcing for public review and comment draft Guidelines intended to assist the Federal workforce in more consistently utilizing non-governmental product environmental performance standards and ecolabels in the Federal procurement process, consistent with Federal standards policy and sustainable acquisition mandates.
Federal agencies must comply with the following sustainability-related purchasing mandates: section 2(h) of Executive Order 13514 (Federal Leadership in Environmental, Energy and Economic Performance), section 6002 of the Resource Conservation and Recovery Act, section 9002 of the Farm Security and Rural Investment Act of 2002, The Energy Policy Act, section 2(d) of Executive Order 13423 (Strengthening Federal Environmental, Energy, and Transportation Management) (72 FR 3919, January 26, 2007), and the FAR, including FAR Part 23 (Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace) (see
Section 2(h) of Executive Order 13514 states that:
The Head of each Agency shall . . . advance sustainable acquisition to ensure that 95 percent of new contract actions including task and delivery orders, for products and services with the exception of acquisition of weapon systems, are . . . energy-efficient (Energy Star or Federal Energy Management Program (FEMP) designated), water-efficient, biobased, environmentally preferable (e.g., Electronic Product Environmental Assessment Tool (EPEAT) certified), non-ozone depleting, contain recycled content, or are non-toxic or less toxic alternatives, where such products and services meet agency performance requirements.
In addition, via the “National Technology Transfer and Advancement Act of 1995” (Pub. L. 104–113; hereinafter “the NTTAA”), Congress required Federal agencies to “use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities,” except when an agency determines that such use “is inconsistent with applicable law or otherwise impractical.” Office of Management and Budget (OMB) Circular A–119 (titled “Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities”) reaffirms Federal agency use of non-governmental standards in procurement.
While Federal purchasing policy is clear for the several standards and ecolabels that are listed in statute, regulation, or Executive Order, the lack of guidance on using other product environmental performance standards and ecolabels often results in an inconsistent approach by Federal purchasers and confusion and uncertainty for vendors and manufacturers.
Therefore, in accordance with Federal obligations under the NTTAA and OMB Circular A–119 (see
As envisioned by EPA, guidelines for standards and ecolabels that would be used by the Federal government would not be applied to products directly or to government standards and ecolabels or to non-governmental standards and ecolabels that are already mandated for procurement via statute or Executive Order. Moreover, these draft Guidelines are not intended to discontinue or diminish procurement of products conforming to government standards and ecolabels. Existing mandates and government standards and ecolabels were influential in framing the draft Guidelines, especially guidelines regarding the environmental effectiveness of a standard's criteria. These standards and ecolabels were
Rather, EPA envisions that non-governmental standards and ecolabels determined to be in conformance with the Guidelines would supplement existing mandates and government standards and ecolabels. [For illustration purposes, “product category x” has a recovered content minimum of 20% per the EPA Comprehensive Procurement Guidelines (CPG) (section 6002 of the Resource Conservation and Recovery Act). A multi-attribute environmental performance standard for “product category x” is determined to conform to the Guidelines. Depending on the standard, Federal procurement officials could be informed that either (1) the non-governmental standard facilitates meeting the mandate (e.g., the standard includes the CPG requirement as a prerequisite) or (2) the non-governmental standard addresses important environmental considerations, but does not necessarily fully address the CPG requirement, so the standard could be specified in addition to the CPG requirement.]
In 2011 and 2012, EPA and the General Services Administration (GSA) convened several listening sessions to solicit input regarding the Federal Government's role in sustainability. A number of sessions were held following the release of the National Academy of Sciences report “Sustainability and the U.S. EPA.” Other sessions were held under the auspices of the Interagency Workgroup established by GSA per section 13 of Executive Order 13514: Federal Leadership in Environmental, Energy, and Economic Performance (74 FR 52117, October 8, 2009).
EPA heard some common themes from suppliers, manufacturers, environmental organizations, multi-stakeholder bodies, regulatory partners, and others. Key points included: (1) The desire for greater clarity in the marketplace regarding standards and ecolabels and (2) the opportunity to leverage the Federal Government's purchasing power toward sustainability goals.
The Interagency Workgroup developed an initial set of draft Guidelines and contracted with Big Room Inc. (developers of
EPA is issuing this notice pursuant to the authority in the Pollution Prevention Act [42 U.S.C.A. § 13103(b)(11)] which requires EPA to “Identify opportunities to use Federal procurement to encourage source reduction” and Section 12(d) of the NTTAA, which requires Federal agencies to “use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities.”
The draft Guidelines are organized into the following four sections:
• Section I, “Guidelines for the Process for Developing Standards” addresses the procedures used to develop, maintain, and update a product environmental performance standard.
• Section II, “Guidelines for the Environmental Effectiveness of Standards” addresses the criteria in the standard or ecolabel that support the claim of environmental preferability.
• Section III, “Guidelines for Conformity Assessment” addresses the procedures and practices by which products are assessed for conformity to the criteria specified by standards and ecolabeling programs.
• Section IV, “Guidelines for Management of Ecolabeling Programs” addresses the organizational and management practices of an ecolabeling program.
EPA recognizes that the level to which sustainability practices have been incorporated varies by industry sector and even from product category to product category. Therefore, a single, one-size-fits-all approach to assessing standards and ecolabels would not be appropriate or useful. To address differences among sectors, EPA is requesting comment on an approach that provides flexibility. For example, each draft Guideline has been designated either as “baseline” or “leadership.” Based on initial analysis, draft “baseline” Guidelines align with Federal goals and requirements, are relatively straightforward to evaluate, and are applicable across industry sectors. Draft “leadership” Guidelines represent best practices and are currently achievable by some standards and ecolabels.
Another example of the flexibilities EPA has considered arises with respect to the draft Guidelines sections addressing Conformity Assessment and Management of Ecolabeling Programs. Specifically, there may not be a marketplace need for a second or third-party conformity assessment program depending upon, among other factors, the degree of risk associated with a product's nonconformity to the standard. In those cases, a supplier's self-declaration of conformity would suffice. Similarly, there may not be a marketplace need for an ecolabel, depending upon the type of product and/or how it is procured. In those cases, the Guidelines for Management of Ecolabeling Programs would not apply.
The proposed draft Guidelines and supplementary information can be found at
In addition to seeking input on the draft Guidelines themselves, EPA is seeking input on how standards and ecolabels should be assessed for conformance to the Guidelines if they are finalized and implemented. Based on discussions with stakeholders, EPA anticipates that a number of organizations may be positioned to respond to the need for assessment of standards and ecolabels for conformity with the Guidelines. Taking this into account, EPA is considering a limited pilot project, assuming sufficient appropriations are available, to test an assessment approach, especially with respect to Guidelines addressing the “environmental effectiveness” of a standard or ecolabel's criteria. During this pilot, EPA expects that an external entity (or entities) would convene and work with a multi-stakeholder panel (or panels) to develop product category-specific programs to assess conformity of standards and ecolabels with the Guidelines. The entity (or entities) would then conduct the assessments for selected product categories in a manner consistent with the International Organization for Standardization's Guides on conformity assessment, and develop a list of standards and ecolabels that conform to the Guidelines. The results from the pilot project would be made publicly available and EPA would evaluate the results to inform any future action such as making available a list of conforming standards and ecolabels for voluntary use by Federal agencies in procurement activities.
The external entity (or entities) would not perform any inherently governmental functions such as procurement policy, procurement decisions, or strategic implementation decisions.
EPA is seeking public input on the draft Guidelines and the concept of assessing non-governmental standards and ecolabels for voluntary use in Federal procurement. Recognizing that implementation of these draft Guidelines will call for additional stakeholder engagement and assessment processes, EPA also welcomes comment on the overall approach, including the potential pilot project. In particular:
1. How might the Guidelines benefit the broader marketplace?
2. Are there any draft Guidelines that should be removed or modified? Are there gaps in the draft Guidelines that could be addressed by a new Guideline(s)?
3. Are the designations of “baseline” and “leadership” in the draft Guidelines understandable? Can the designations be easily implemented? Do they appropriately reflect varying approaches in the marketplace today?
4. How should the leadership Guidelines be applied to standards and ecolabels in different product categories (e.g., different weightings in an overall conformity assessment scheme)?
5. What processes, approaches, measures, and mechanisms should be used to determine conformance with the Guidelines, if they are finalized and implemented?
6. Under what circumstances and under what authorities, if any, should the Federal Government require a particular type of conformity assessment to provide adequate confidence that the products have met a particular environmental performance standard or ecolabel?
7. Are there alternatives to the pilot project that EPA should consider?
8. If EPA were to move forward with a pilot project to test the proposed standards and ecolabels assessment approach, which product categories should be prioritized?
9. What challenges need to be addressed/resolved in implementing the proposed Guidelines in order to be a transparent, fair, and consistent process?
Environmental protection, government procurement, standards, ecolabels, Guidelines.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) announces a public teleconference of the Great Lakes Advisory Board (GLAB). The purpose of the teleconference is to conclude discussions that will inform the development of a draft Great Lakes Restoration Initiative FY 2015–2019 Action Plan.
The public teleconference will be held on Wednesday, December 11, 2013 from 1:00 p.m. to 3 p.m. Central Time, 2 p.m. to 4 p.m. Eastern Time. The teleconference number is: (877) 744–6030; Participant code: 11645588.
The public teleconference will take place by telephone only.
Any member of the public wishing further information regarding this teleconference may contact Taylor Fiscus, Acting Designated Federal Officer (DFO), GLAB, by telephone at 312–353–6059 or email at
The GLAB consists of 18 members appointed by EPA's Administrator. Members serve as representatives of state, local and tribal government, environmental groups, agriculture, business, transportation, foundations, educational institutions, and as technical experts.
The GLAB held a teleconference and meeting on May 21–22, 2013 (as noticed in 78 FR 26636–26637) and on November 13, 2013 (as noted in 78 FR 66356) to discuss the development of a draft FY 2015–2019 GLRI Action Plan.
The teleconference will provide opportunity for members of the public to submit oral comments in response to the draft of the Great Lakes Restoration Initiative FY 2015–2019 Action Plan.
Environmental Protection Agency (EPA).
Notice.
In accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), EPA is issuing a notice of receipt of request for amendments by registrants to delete uses in certain pesticide registrations. FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any request in the
The deletions are effective December 27, 2013, unless the Agency receives a written withdrawal request on or before December 27, 2013. The Agency will consider a written withdrawal request postmarked no later than December 27, 2013.
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant on or before December 27, 2013.
Submit your withdrawal request, identified by docket identification (ID) number EPA–HQ–OPP–2013–0682, by one of the following methods:
•
•
Additional instructions on visiting the docket, along with more information about dockets generally, is available at
Christopher Green, Information Technology and Resources Management Division, (7502P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; telephone number: (703) 347–0367; email address:
This action is directed to the public in general. Although this action may be of particular interest to persons who produce or use pesticides, the Agency has not attempted to describe all the specific entities that may be affected by this action.
The docket for this action, identified by docket ID number EPA–HQ–OPP–2013–0682, is available either electronically through
This notice announces receipt by the Agency of applications from registrants to delete uses in certain pesticide registrations. These registrations are listed in Table 1 of this unit by registration number, product name, active ingredient, and specific uses deleted:
Users of these products who desire continued use on crops or sites being deleted should contact the applicable registrant on or before December 27, 2013, because the registrants requested a waiver of the 180-day comment period, to discuss withdrawal of the application for amendment. This 30-day period will also permit interested members of the public to intercede with registrants prior to the Agency's approval of the deletion.
Table 2 of this unit includes the names and addresses of record for all registrants of the products listed in Table 1 of this unit, in sequence by EPA company number.
Section 6(f)(1) of FIFRA provides that a registrant of a pesticide product may at any time request that any of its pesticide registrations be amended to delete one or more uses. The FIFRA further provides that, before acting on the request, EPA must publish a notice of receipt of any such request in the
Registrants who choose to withdraw a request for use deletion must submit the withdrawal in writing to Christopher Green using the methods in
The Agency has authorized the registrants to sell or distribute a product under the previously approved labeling for a period of 18 months after approval of the revision, unless other restrictions have been imposed, as in special review actions.
Environmental protection, Pesticides and pests.
Equal Employment Opportunity Commission.
Notice.
Notice is hereby given of the appointment of members to the Performance Review Board of the Equal Employment Opportunity Commission.
Lisa M. Williams, Chief Human Capital Officer, U.S. Equal Employment Opportunity Commission, 131 M Street NE., Washington, DC 20507, (202) 663–4306.
Publication of the Performance Review Board (PRB) membership is required by 5 U.S.C. 4314(c)(4). The PRB reviews and evaluates the initial appraisal of a senior executive's performance by the supervisor, and makes recommendations to the Chair, EEOC, with respect to performance ratings, pay level adjustments and performance awards.
The following are the names and titles of executives appointed to serve as members of the SES PRB. Members will serve a 12-month term, which begins on November 18, 2013.
Mr. Dexter R. Brooks, Director, Federal Sector Programs, Office of Federal Operations, Equal Employment Opportunity Commission.
Mr. Kevin J. Berry, Director, New York District Office, Equal Employment Opportunity Commission;
Ms. Katherine E. Bissell, Deputy Solicitor for Regional Enforcement, Department of Labor;
Ms. Kathryn A. Ellis, Assistant General Counsel, Division of Educational Equity and Research, and Agency Dispute Resolution Specialist, Department of Education;
Ms. Gwendolyn Y. Reams, Associate General Counsel, Equal Employment Opportunity Commission;
Ms. Delner Franklin-Thomas, Director, Birmingham District Office, Equal Employment Opportunity Commission.
By the direction of the Commission.
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. chapter 35), the FDIC may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. As part of its continuing effort to reduce paperwork and respondent burden, the FDIC invites the general public and other Federal agencies to take this opportunity to comment on renewal of an existing information collection, as required by the PRA. On September 16, 2013 (78 FR 56895), the FDIC requested comment for 60 days on renewal of its information collection entitled
Comments must be submitted on or before December 27, 2013.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
•
•
•
•
Leneta Gregorie, at the FDIC address above.
Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements to the Secretary, Federal Maritime Commission, Washington, DC 20573, within ten days of the date this notice appears in the
By Order of the Federal Maritime Commission.
1:00 p.m., Thursday, December 5, 2013.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (entry from F Street entrance).
Open.
The Commission will consider and act upon the following in open session:
Any person attending this meeting who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Jean Ellen (202) 434–9950/(202) 708–9300 for TDD Relay/1–800–877–8339 for toll free.
10:00 a.m., Thursday, December 5, 2013.
The Richard V. Backley Hearing Room, Room 511N, 1331 Pennsylvania Avenue NW., Washington, DC 20004 (entry from F Street entrance).
Open.
The Commission will hear oral argument in the matters
Any person attending this oral argument who requires special accessibility features and/or auxiliary aids, such as sign language interpreters, must inform the Commission in advance of those needs. Subject to 29 CFR 2706.150(a)(3) and 2706.160(d).
Jean Ellen (202) 434–9950/(202) 708–9300
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than December 13, 2013.
A. Federal Reserve Bank of Atlanta (Chapelle Davis, Assistant Vice President) 1000 Peachtree Street NE., Atlanta, Georgia 30309:
1.
In accordance with Section 271.25 of its rules regarding availability of information (12 CFR part 271), there is set forth below the domestic policy directive issued by the Federal Open Market Committee at its meeting held on October 29–30, 2013.
Consistent with its statutory mandate, the Federal Open Market Committee seeks monetary and financial conditions that will foster maximum employment and price stability. In particular, the Committee seeks conditions in reserve markets consistent with federal funds trading in a range from 0 to
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 23, 2013.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 23, 2013.
A. Federal Reserve Bank of Kansas City (Dennis Denney, Assistant Vice President) 1 Memorial Drive, Kansas City, Missouri 64198–0001:
1.
B. Federal Reserve Bank of San Francisco (Gerald C. Tsai, Director, Applications and Enforcement) 101 Market Street, San Francisco, California 94105–1579:
1.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 13, 2013.
A. Federal Reserve Bank of Dallas (E. Ann Worthy, Vice President) 2200 North Pearl Street, Dallas, Texas 75201–2272:
The companies listed in this notice have given notice under the Home Owners' Loan Act (HOLA) (12 U.S.C. 1461
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 10a(c)(4)(B) of HOLA (12 U.S.C. 1467a(c)(4)(B)).
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than December 13, 2013.
A. Federal Reserve Bank of Philadelphia (William Lang, Senior Vice President) 100 North 6th Street, Philadelphia, Pennsylvania 19105–1521:
1.
Office of Executive Councils, U.S. General Services Administration (GSA).
Meeting Notice.
The President's Management Advisory Board (PMAB), a Federal Advisory Committee established in accordance with the Federal Advisory Committee Act (FACA), 5 U.S.C., App., and Executive Order 13538, will hold a public teleconference meeting on Thursday, December 19, 2013.
The meeting will be held on Thursday, December 19, 2013, beginning at 3:00 p.m. eastern time, ending no later than 4:30 p.m.
Mr. Stephen Brockelman, Designated Federal Officer, President's Management Advisory Board, Office of Executive Councils, General Services Administration, 1800 F Street NW., Washington, DC 20006, at
The public is invited to submit written statements for this meeting until 12:30 p.m. eastern time on Wednesday, December 18, 2013, by either of the following methods:
Office of the Secretary, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for renewal of the approved information collection assigned OMB control number OS–0990–0323, scheduled to expire on 30 April 2014. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before December 27, 2013.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the OMB control number 0990–0323 and document identifier HHS–OS–20518–30D for reference.
Office of the Secretary, HHS.
Notice.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, announces plans to submit a new Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting that ICR to OMB, OS seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on the ICR must be received on or before January 27, 2014.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the document identifier HHS–OS–20987–60D for reference. Information Collection Request Title: Pre-Test of Instruments of Psychosocial Care for the Treatment of Adults with PTSD.
OS specifically requests comments on (1) the necessity and utility of the proposed information collection for the proper performance of the agency's functions, (2) the accuracy of the estimated burden, (3) ways to enhance the quality, utility, and clarity of the information to be collected, and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Pantex Plant in Amarillo, Texas, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000.
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, NIOSH, 4676 Columbia Parkway, MS C–46, Cincinnati, OH 45226, Telephone 877–222–7570. Information requests can also be submitted by email to
42 U.S.C. 7384q(b). 42 U.S.C. 7384
On September 30, 2013, as provided for under the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked at the Pantex Plant in Amarillo, Texas, from January 1, 1984, through December 31, 1991, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
This designation became effective on October 30, 2013. Hence, beginning on October 30, 2013, members of this class of employees, defined as reported in this notice, became members of the SEC.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Feed Materials Production Center (FMPC) in Fernald, Ohio, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000.
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, NIOSH, 4676 Columbia Parkway, MS C–46, Cincinnati, OH 45226, Telephone 877–222–7570. Information requests can also be submitted by email to
42 U.S.C. 7384q(b). 42 U.S.C. 7384
On September 30, 2013, as provided for under the Secretary of HHS designated the following class of employees as an addition to the SEC:
All employees of the Department of Energy, its predecessor agencies, and their contractors and subcontractors who worked at the Feed Materials Production Center (FMPC) in Fernald, Ohio, from January 1, 1954, through December 31, 1967, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
This designation became effective on September 30, 2013. Hence, beginning on October 30, 2013, members of this class of employees, defined as reported in this notice, became members of the SEC.
National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
HHS gives notice concerning the final effect of the HHS decision to designate a class of employees from the Feed Materials Production Center (FMPC) in Fernald, Ohio, as an addition to the Special Exposure Cohort (SEC) under the Energy Employees Occupational Illness Compensation Program Act of 2000.
Stuart L. Hinnefeld, Director, Division of Compensation Analysis and Support, NIOSH, 4676 Columbia Parkway, MS C–46, Cincinnati, OH 45226, Telephone 877–222–7570. Information requests can also be submitted by email to
Authority: 42 U.S.C. 7384q(b). 42 U.S.C. 7384
All employees of the Feed Materials Production Center (FMPC) in Fernald, Ohio, who were not employed by National Lead of Ohio, NLO, or the Department of Energy or its predecessor agencies, who worked at FMPC from January 1, 1951, through December 31, 1983, for a number of work days aggregating at least 250 work days, occurring either solely under this employment, or in combination with work days within the parameters established for one or more other classes of employees included in the Special Exposure Cohort.
This designation became effective on September 30, 2013. Hence, beginning on October 30, 2013, members of this class of employees, defined as reported
Based on the comments we received in response to the 60-day notice in the
Therefore, at this time, we are requesting an extension of the current forms without any changes. Once we complete the analysis of the issues raised in response to the recent 60 day notice, we will propose changes to the forms and associated burden and request a new round of comments under the Paperwork Reduction Act. The changes will be based on the state's needs and the best interest of the program.
Copies of the proposed collection may be obtained by writing to the Administration for Children and Families, Office of Planning, Research and Evaluation, 370 L'Enfant Promenade SW., Washington, DC 20447, Attn: ACF Reports Clearance Officer. All requests should be identified by the title of the information collection. Email address:
OMB is required to make a decision concerning the collection of information between 30 and 60 days after publication of this document in the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by January 27, 2014.
Submit electronic comments on the collection of information to
FDA PRA Staff, Office of Operations, Food and Drug Administration, 1350 Piccard Dr., PI50–400B, Rockville, MD 20850,
Under the PRA (44 U.S.C. 3501–3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 801 of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (U.S.C. 381) charges the Secretary of Health and Human Services (HHS), through FDA, with the responsibility of assuring foreign origin FDA regulated foods, drugs, cosmetics, medical devices, radiological health, and tobacco products offered for import into the United States meet the same requirements of the FD&C Act as do domestic products, and for preventing products from entering the country if they are not in compliance. The discharge of this responsibility involves close coordination and cooperation
This collection of information gathers data for FDA-regulated products being imported into the United States and is being used by FDA to review and prevent imported products from entering the United States if the products do not meet the same requirements of the FD&C Act as domestic products.
Until October 1995, importers were required to file manual entries on OMB-approved forms which were accompanied by related documents. FDA did away with use of the paper forms effective October 1, 1995, to eliminate duplicity of information and to reduce the paperwork burden both on the import community and FDA. FDA then implemented an automated nationwide entry processing system which enabled FDA to more efficiently obtain and process the information it requires to fulfill its regulatory responsibility.
Most of the information FDA requires to carry out its regulatory responsibilities under section 801 is already provided electronically by filers to USCS. Because USCS relays this data to FDA using an electronic interface, the majority of data submitted by the entry filer need be completed only once.
At each U.S. port of entry (seaport, landport, and airport) where foreign-origin, FDA-regulated products are offered for import, FDA is notified through USCS's Automated Commercial System (ACS) by the importer (or his/her agent) of the arrival of each entry. Following such notification, FDA reviews relevant data to ensure the imported product meets the standards as required for domestic products, decides on the admissibility of the imported product, and informs the importer and USCS of its decision. A single entry frequently contains multiple lines of different products. FDA may authorize products listed on specific lines to enter the United States unimpeded, while other products listed in the same entry may be held pending further FDA review/action.
All entry data pass through a screening criteria program resident on a USCS computer. This screening program was developed and is maintained by FDA. This electronic screening criteria module makes the initial screening decision on every entry of foreign-origin, FDA-regulated product. Almost instantaneously after the entry is filed, the filer receives FDA's admissibility decision for each entry, i.e., “MAY PROCEED” or “FDA REVIEW.”
In addition to the information collected by USCS, FDA requires four additional pieces of information that were not available from USCS's system in order to make an admissibility decision for each entry. These data elements include the FDA Product Code, FDA country of production, manufacturer/shipper, and ultimate consignee. OMB has previously approved the automated collection of these four data elements for tobacco products that filers could provide to FDA along with other entry-related information. Providing this information to FDA results in importers receiving an FDA admissibility decision more expeditiously, e.g., the quantity, value, and Affirmation(s) of Compliance with Qualifier(s).
Since the inception of the interface with ACS, FDA's electronic screening criteria program has been applied nationwide. This eliminates issues such as “port shopping” (attempts to intentionally slip products through one FDA port when refused by another, or filing entries at a port known to receive a high volume of entries). Every electronically submitted entry line of foreign-origin, FDA-regulated product undergoes automated screening and the screening criteria can be set to be as specific or as broad as applicable; changes are immediately effective. This capability is of tremendous value in protecting the public if there is a need to immediately halt specific product from entering the United States.
If the data in this collection of information is not collected, FDA could not adequately meet its statutory responsibilities to regulate imported products, nor control potentially dangerous products from entering the U.S. marketplace.
FDA estimates the burden of this collection of information as follows:
The hourly burden for this information collection is based on FDA's averaging of data obtained during a survey of nine representative filers nationwide and FDA's experience. For purposes of comparison of hourly burden, the filers also were requested to provide the same information with regard to filing entries manually. FDA felt that the average time for completing either electronic or manual entries was very similar.
Based on data collected by FDA's survey of nine filers and its experience, the total annual burden to the import community to submit information electronically for 3,731,574 average annual responses was 522,421 hours. The previously OMB-approved hours per response (0.14 hours) are expected to remain the same.
This burden includes the time FDA estimates it will take respondents to compile and provide documents to FDA for those entries where FDA cannot make an admissibility decision based on the electronic data alone. Based on the survey of nine filers and FDA's past experience, FDA estimates that there will be no additional costs to provide import data electronically to FDA, as filers already have equipment and software in place to enable them to provide data to USCS via the automated system. Therefore, no additional software or hardware need be developed or purchased to enable filers to file the FDA data elements at the same time they file entries electronically with USCS.
Food and Drug Administration, HHS.
Notice; reopening of the comment period.
The Food and Drug Administration (FDA) is reopening the comment period for the notice of availability entitled “Draft Guidance for Industry on Bioequivalence Recommendations for Fluticasone Propionate; Salmeterol Xinafoate”, published in the
Submit either electronic or written comments to the docket by December 11, 2013.
Submit electronic comments to
Bhawana Saluja, Center for Drug Evaluation and Research (HFD–643), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240–276–8465.
In the
Following publication of the September 10, 2013, notice of availability, there were technical difficulties with the
Interested persons may submit either electronic comments regarding this document to
Food and Drug Administration, HHS.
Notice; reopening of the comment period.
The Food and Drug Administration (FDA) is reopening the comment period for the notice of availability entitled “Draft Guidance for Industry on Generic Drug User Fee Amendments of 2012: Questions and Answers (Revision 1)”, published in the
Submit either electronic or written comments to the docket by December 11, 2013.
Submit electronic comments to
Jaewon Hong, Center for Drug Evaluation and Research, Food and Drug Administration, 10001 New Hampshire Ave., rm. 4145, Silver Spring, MD 20993–0002, 301–796–6707, email:
In the
Following publication of the September 10, 2013, notice of availability, there were technical difficulties with the
Interested persons may submit either electronic comments regarding this document to
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
If you are unable to join us in person, we encourage you to watch the free Webcast. Visit the Risk Communication Advisory Committee Web site at
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Luis G. Bravo at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Food and Drug Administration, HHS.
Notice.
The Center for Drug Evaluation and Research (CDER) and the Center for Biologics Evaluation and Research (CBER) in the Food and Drug Administration (FDA) are announcing a pilot project to evaluate the Clinical Data Interchange Standard Consortium (CDISC) Submission Data Standards (SDS) Extensible Markup Language (XML) transport format for the submission of regulatory study data. The current study data transport format supported by FDA is the SAS Transport (XPORT) version 5 file format. Although XPORT has been a reliable exchange format for many years, it is not an extensible modern technology. SDS XML is an extension of the CDISC Operational Data Model, which is a vendor neutral, platform-independent format for the exchange and archive of study data. FDA is announcing an invitation to sponsors to participate in this pilot project to evaluate the SDS XML transport format.
Submit either electric or written requests for participation in the pilot project by January 27, 2014.
Submit electronic requests to participate in the pilot and comments regarding this pilot project to
Ron Fitzmartin, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, rm. 1160, Silver Spring, MD 20993, 301–796–5333,
In the 1999 “Guidance to Industry: Providing Regulatory Submissions in Electronic Format” FDA recommended that regulatory submissions of clinical data to FDA utilize SAS Institute's open transport called XPORT version 5 format (XPORT). The XPORT format was developed in the late 1980s and there have been no version updates since 1999. XPORT is now considered by many to be an outdated transport technology for transferring data across different hardware and operating systems.
Following a
FDA envisions several pilot projects conducted to evaluate new transport formats. The purpose of this pilot project is to obtain additional experience with CDISC SDS XML format. A successful pilot may allow CDER and CBER to routinely receive study data that employ CDISC SDS XML format as the transport format once an alternatives analysis is completed. As part of this pilot, FDA would like to have sponsors participate in the preparation and submission of previously submitted study datasets using the SDS XML transport format. Participation in this evaluation will be outside of the regulatory pathway and, as such, will not be used to make regulatory decisions.
FDA expects that the pilot will assess the technical capability of SDS XML to exchange and archive regulatory study data in investigational new drug applications, new drug applications, and biologics licensing applications.
Requests to participate in the SDS XML pilot project are to be identified with the docket number found in brackets in the heading of this document. Interested persons should include the following information in the request: Contact name, contact phone number, email address, name of the sponsor, address, and license number. Once requests for participation are received, FDA will contact interested sponsors to discuss the pilot project. FDA is seeking a limited number of sponsors (approximately three to five, but no more than six) to participate in this project. The elapsed time duration of the pilot is expected to be approximately 12 months but may be extended as needed. Participants should be willing to provide previously submitted study data using both the SAS XPORT version 5 format and the CDISC SDS XML format.
National Institutes of Health, HHS.
Notice.
This notice, in accordance with 35 U.S.C. 209 and 37 CFR Part 404, indicates that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in technology family E–150–2005/0, including U.S. Patent application 11/991,692 [HHS Ref. E–150–2005/0–US–07], PCT Application PCT/US06/35070 [HHS Ref. E–150–2005/0–PCT–02] and foreign equivalents thereof, entitled “Methods and Compositions for Inhibiting Cell Death or Enhancing Cell Proliferation”, to Medicenna Therapeutics, Inc., located in Vancouver, Canada. The patent rights in these inventions have been assigned to and/or exclusively licensed to the Government of the United States of America.
The prospective exclusive patent license territory may be worldwide, and the field of use may be limited to:
Development and commercialization of GMCSF-BclxL-derived chimeric therapeutics and immunotherapeutics, alone or in combination, for restoring, protecting, or stimulating cells in order to treat (i) cancer, (ii) neutropenia, (iii) CNS injury and (iv) Parkinson's disease.
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before December 27, 2013 will be considered.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive patent license should be directed to: Surekha Vathyam, Ph.D., Senior Licensing and Patenting Manager, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852–3804; Telephone: (301) 435–4076; Facsimile: (301) 402–0220; Email:
The subject invention is to a chimeric protein comprising human granulocyte-macrophage colony stimulating factor (GMCSF) and B-cell lymphoma-extra large (BclxL). Chimeric proteins such as GMCSF-BclxL and its analogs have the potential to enhance cell survival, inhibit apoptosis and promote cell growth or proliferation (collectively referred to as “anti-apoptotic”). Such anti-apoptotic proteins could have utility for restoring, protecting and stimulating cells in patients to treat a variety of disorders.
This technology relates to compositions comprising an anti-apoptotic chimeric protein and its use to inhibit apoptosis
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless within thirty (30) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New Mexico (FEMA–4148–DR), dated September 30, 2013, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646–2833.
The notice of a major disaster declaration for the State of New Mexico is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 30, 2013.
Sierra County and the Navajo Nation for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapters 35.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
Ivery W. Himes, Director, Office of Single Family Asset Management, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Ivery Himes at
Copies of available documents submitted to OMB may be obtained from Ms. Himes.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202–395–5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection described in Section A. The
This submission is to request a new OMB number for the information collection for the recordkeeping requirements that Continuum of Care program recipients will be expected to implement and retain. On May 20, 2009, the President signed into law “An Act to Prevent Mortgage Foreclosures and Enhance became Public Law 111–22; Division B of this law is the HEARTH Act. As amended by the HEARTH Act, Subpart C of the McKinney-Vento Homeless Assistance Act establishes the Continuum of Care Program. The Continuum of Care Program is formed from the consolidation and amendment of three separate homeless assistance programs (The Supportive Housing Program, the Shelter Plus Care Program, and the Moderate Rehabilitation/Single Room Occupancy Program) into one single grant program. The three programs that had been carried out under title IV of the McKinney-Vento Homeless Assistance Act (42 U.S.C.11371 et seq.). The HEARTH Act was designed to improve administrative efficiency and enhance response coordination and effectiveness in addressing the needs of homeless persons through the Continuum of Care Program. The purpose of the program is to promote communitywide commitment to the goal of ending homelessness; provide funding for efforts by nonprofit providers, and State and local governments to quickly rehouse homeless individuals and families while minimizing the trauma and dislocation caused to homeless individuals, families, and communities by homelessness; promote access to and effective utilization of mainstream programs by homeless individuals and families; and optimize self-sufficiency among individuals and families experiencing homelessness. Publication of the interim rule for the Continuum of Care Program on July 31, 2012, found at 24 CFR part 578, continues HUD's implementation of the HEARTH Act. This rule establishes the regulatory framework for the Continuum of Care Program and the Continuum of Care planning process, including requirements applicable to the establishment of a Continuum of Care. A Continuum of Care is designed to address the critical problem of homelessness through a coordinated community-based process of identifying needs and building a system of housing and services to address those needs. The statutory provisions and implementing interim regulations govern the Continuum of Care Program recordkeeping requirements for recipient and subrecipients and the standard operating procedures for ensuring that Continuum of Care Program funds are used in accordance
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) The accuracy of the agency's estimate of the burden of the proposed collection of information; (3) Ways to enhance the quality, utility, and clarity of the information to be collected; and (4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapters 35.
Office of the Secretary, Interior.
Notice of Renewal of the Commission on Indian Trust Administration and Reform.
Following consultation with the General Services Administration, notice is hereby given that the Secretary of the Interior is renewing the Commission on Indian Trust Administration and Reform.
Sarah Harris, Designated Federal Officer, Office of the Secretary, 1849 C Street NW., Mailstop 4141, Washington DC 20240; or email to
The purpose of the Commission is to provide advice and recommendations to the Secretary of the Interior (Secretary) regarding trust management. This includes a thorough evaluation of the existing management and administration of the trust administration system to support a reasoned and factually based set of options for potential management improvements. This further includes a review of the manner in which the Department audits the management of the trust administration system, including the possible need for audits of management of trust assets.
I hereby certify that the renewal of the Commission on Indian Trust Administration and Reform is necessary, is in the public interest and is established under the authority of the Secretary of the Interior, Department of the Interior under Section 2 of the Reorganization Plan No. 3 of 1950 (64 Stat. 1262), as amended, the American Indian Trust Fund Management Reform Act of 1994, 25 U.S.C. 4001–4061, and the Claims Resolution Act of 2010, Public Law 111–291.
Bureau of Land Management, U.S. Department of the Interior.
Notice of Public Meeting.
In accordance with the Federal Land Policy and Management Act (FLPMA) and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Gateway West Project Subcommittee of the Boise District Resource Advisory Council (RAC), will hold meetings as indicated below.
The meetings will be held on December 5, 2013, December 17, 2013, January 7, 2014, and January 16, 2014 at the Boise District Office located at 3948 Development Avenue, Boise, ID 83705, beginning at 9:00 a.m. and adjourning at 3:00 p.m. Members of the public are invited to attend. A public comment period will be held.
Marsha Buchanan, Supervisory Administrative Specialist and RAC Coordinator, BLM Boise District, 3948 Development Ave., Boise, ID 83705, Telephone (208) 384–3364.
The Gateway West Project Subcommittee advises the Boise District Resource Advisory Council on matters of planning and management of the Gateway West Project (segments 8 and 9). The Boise District Resource Advisory Council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in southwestern Idaho. The subcommittee will be discussing proposed routes of the Gateway West transmission line segments 8 and 9. Agenda items and location may change due to changing circumstances. The public may present written or oral comments to members of the Subcommittee. Individuals who plan to attend and need special assistance should contact the BLM Coordinator as provided above. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week,
Bureau of Land Management, Interior.
Notice of Meeting/Conference Call
In accordance with the Federal Land Policy and Management Act, the Federal Advisory Committee Act, and the Federal Lands Recreation Enhancement Act, the Bureau of Land Management's (BLM) Utah Resource Advisory Council (RAC)/Recreation Resource Advisory Council (RRAC) will host a meeting/conference call.
The Utah RAC/RRAC will host a meeting/conference call on Friday, Jan. 10, 2014, from 8:00 a.m.–5:00 p.m., MST.
Those attending in person must meet at the BLM, Utah State Office, 440 West 200 South, Salt Lake City, Utah, in the Monument Conference Room on the fifth floor.
If you wish to listen to the teleconference, orally present material during the teleconference, or submit written material for the RAC/RRAC to consider during the teleconference, please notify Sherry Foot, Special Programs Coordinator, Bureau of Land Management, Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101; phone (801)539–4195; or,
BLM-Utah's Executive Leadership Team collaborated to produce a Draft Program Development and Budget Strategic Plan that will define BLM-Utah's organization vision and provide an important starting point for meeting future challenges. The RAC will have a discussion and provide comments on the draft plan. The RRAC will listen to fee presentations from the BLM Grand Staircase-Escalante National Monument, which is proposing to increase camping, day-use and group reservation picnic fees at Calf Creek Recreation Area and Deer Creek Campground. The BLM Moab Field Office is proposing to charge expanded amenity fees at the Bitter Creek, Westwater, Hideout, Cowskin, Fish Ford, and Swasey's Rapid Campgrounds. The U.S. Forest Service will present fee proposals on the Miller Flat Campground, Orange Olsen Dwelling and Bunkhouse; reduce the fee area, designate three separate stand-alone sites, and eliminate the Standard Amenity Fee at the American Fork Canyon-Recreation Fee Area; eliminate the current fee area designation and designate specific recreation sites and special recreation fee areas for groomed winter trail systems at the Mirror Lake Scenic Byway Recreation Fee Area.
Presentations will also be given on the Utah Greater Sage-Grouse Draft Land Use Plan Amendment and Environmental Impact Statement and the newly-created Utah Office of Outdoor Recreation.
A half-hour public comment period will take place from 11:45 a.m.–12:15 p.m. The meeting is open to the public; however, transportation, lodging, and meals are the responsibility of the participating individuals.
The conference call will be recorded for purposes of minute-taking. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to leave a message or question for the above individual. The FIRS is available 24 hours a day, seven days a week. Replies are provided during normal business hours.
43 CFR 1784.4–1.
Bureau of Land Management, Interior.
Notice of Meeting/Conference Call.
In accordance with the Federal Land Policy and Management Act, the Bureau of Land Management (BLM) Utah Resource Advisory Council (RAC) will host a meeting/conference call.
The BLM-Utah RAC will host a meeting/conference call on Thursday, Jan. 23, 2014, from 8:30 a.m.–5:00 p.m., MST.
Those attending in person should meet at the BLM Utah State Office, 440 West 200 South, Salt Lake City, Utah, in the Monument Conference Room on the fifth floor.
If you wish to listen to the teleconference, orally present material during the teleconference, or submit written material for the RAC to consider during the teleconference, please notify Sherry Foot, Special Programs Coordinator, Bureau of Land Management, Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101; phone (801) 539–4195; or,
The Utah RAC will elect officers for calendar year 2014. The Utah RAC is tasked to provide collective input on the Utah Greater Sage-Grouse Draft Land Use Plan Amendment and Environmental Impact Statement and to submit a draft comment letter to the BLM Utah. A 30-minute public comment period will take place from 9:45–10:15 a.m. The meeting is open to the public; however, transportation, lodging, and meals are the responsibility of the participating individuals.
The conference call will be recorded for purposes of minute-taking. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to leave a message or question for the above individual. The FIRS is available 24 hours a day, seven days a week. Replies are provided during normal business hours.
43 CFR 1784.4–1
On November 20, 2013, the Department of Justice lodged a proposed consent decree with the United States District Court for the Central District of Illinois in the lawsuit entitled
The consent decree resolves the claims of the United States and the State of Illinois under the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and relevant state law at facilities formerly owned by PolyOne Corporation (“PolyOne”) in Pedricktown, New Jersey and Henry, Illinois. Under the consent decree, PolyOne will pay a civil penalty of $280,000, of which $35,000 will be paid to the State of Illinois, and implement Supplemental Environmental Projects valued at $800,000. The decree also contains injunctive relief provisions relating to both facilities. These injunctive provisions are binding on Mexichem Specialty Resins Inc., which is the current owner of the facilities and a signatory to the Consent Decree.
The publication of this notice opens a period for public comment on the consent decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the consent decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $11.25 (25 cents per page reproduction cost for the 45 page proposed Consent Decree) payable to the U.S. Treasury. If you would also like a copy of the attachments to the proposed Consent Decree, please so note and include an additional $7.25 (25 cents per page for the 29 pages of attachments).
On November 21, 2013, the Trustees for the bankruptcy estates of Port Arthur Chemical & Environmental Services, LLC (“PACES”) and CES Environmental Services, Inc. (“CES”) filed a proposed Settlement Agreement with the United States Bankruptcy Court for the Southern District of Texas in the matters entitled
The United States is seeking recovery of response cost incurred as part of an emergency removal action conducted on a site owned by the PACES estate in Port Arthur, Jefferson County, Texas at 2420 South Gulfway Drive under CERCLA Section 107(a) and Section 503 of the Bankruptcy Code. The United States' incurred a total of approximately $1.875 million in response costs. The Settlement Agreement provides that the United States will recover $1.4 million on a sale of certain real property owned by the estate for $3.75. Should the property sell for more than $3.75 million, the United States will recover a proportion of sale proceeds above that amount until the United States recovers a total of $1.875 million.
The publication of this notice opens a period for public comment on the Settlement Agreement. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Settlement Agreement may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $17.25 (25 cents per page reproduction cost) payable to the United States Treasury.
Notice.
The Department of Labor (DOL) is submitting the Employee Benefits Security Administration (EBSA) sponsored information collection request (ICR) titled, “Notice to Employees of Coverage Options Under Fair Labor Standards Act Section 18B,” to the Office of Management and Budget (OMB) for review and approval for continued use, without change, in accordance with the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.
Submit comments on or before December 27, 2013.
A copy of this ICR with applicable supporting documentation; including a description of the likely respondents, proposed frequency of response, and estimated total burden may be obtained free of charge from the RegInfo.gov Web site at
Submit comments about this request by mail or courier to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for DOL–EBSA, Office of Management and Budget, Room 10235, 725 17th Street NW., Washington, DC 20503; by Fax: 202–395–6881 (this is not a toll-free number); or by email:
Contact Michel Smyth by telephone at 202–693–4129 (this is not a toll-free number) or by email at
44 U.S.C. 3507(a)(1)(D).
This ICR seeks to maintain PRA authorization for information collections contained in EBSA Technical Release 2013–2 and a related model notice of healthcare coverage options available under the Patient Protection and Affordable Care Act (ACA). ACA section 2623 created a new Fair Labor Standards Act (FLSA) section 18B, 29 U.S.C. 218B, requiring a covered employer to give an employee notice of coverage options available through the Health Insurance Marketplace. An employer may use the model notice in meeting the FLSA section 18B requirement.
This information collection is subject to the PRA. A Federal agency generally cannot conduct or sponsor a collection of information, and the public is generally not required to respond to an information collection, unless it is approved by the OMB under the PRA and displays a currently valid OMB Control Number. In addition, notwithstanding any other provisions of law, no person shall generally be subject to penalty for failing to comply with a collection of information that does not display a valid Control Number.
The current approval for this collection is scheduled to expire on November 30, 2013; however, the DOL notes that existing information collection requirements submitted to the OMB receive a month-to-month extension while they undergo review. For additional substantive information about this ICR, see the related notice published in the
Interested parties are encouraged to send comments to the OMB, Office of Information and Regulatory Affairs at the address shown in the
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Enhance the quality, utility, and clarity of the information to be collected; and
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (Pub. L. 104–13, 44 U.S.C. 3506(c)(2)(A)).
All comments should be submitted within 60 calendar days from the date of this publication.
All comments should be addressed to Frances Teel, Mail Code JF000, National Aeronautics and Space Administration, Washington, DC 20546–0001.
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Frances Teel, NASA PRA Clearance Officer, NASA Headquarters, 300 E Street SW., Mail Code JF000, Washington, DC 20546, (202).
Information collection is for reports, other than financial, property, or patent, data or copyrights reports (which are covered under separate ICRs) which are required for effective management and administration of contracts with an estimated value of more than $500,000, in support of NASA's mission.
NASA collects this information electronically where feasible, but information may also be collected by mail or fax.
Comments are invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the functions of NASA, including whether the information collected has practical utility; (2) the accuracy of NASA's estimate of the burden (including hours and cost) of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including automated collection techniques or the use of other forms of information technology.
National Aeronautics and Space Administration.
Notice of meeting.
In accordance with the Federal Advisory Committee Act, Public Law 92–462, as amended, the National Aeronautics and Space Administration (NASA) announces a meeting of the Human Exploration and Operations Committee (HEOC) of the NASA Advisory Council (NAC). This Committee reports to the NAC.
Monday, December 9, 2013, 10:30 a.m. to 2:35 p.m.; and Tuesday, December 10, 2013, 9:00 a.m. to 2:00 p.m., Local Time.
NASA Kennedy Space Center, Headquarters Building, Room 2229, Kennedy Space Center, FL 32899.
Dr. Bette Siegel, Human Exploration and Operations Mission Directorate, NASA Headquarters, Washington, DC 20546, (202) 358–2245, or
This meeting is also available telephonically and by WebEx. Any interested person may call the USA toll free conference call number (888) 989–8180 or toll number (415) 228–5016, pass code 1687504, to participate in this meeting by telephone. The WebEx link is
The agenda for the meeting includes the following topics:
The meeting will be open to the public up to the seating capacity of the room. Seating will be on a first-come basis. Attendees will be required to sign a visitor's register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. All U.S. citizens desiring to attend this meeting at the NASA Kennedy Space Center must provide their full name, company affiliation (if applicable), driver's license number and state, citizenship, place of birth, and date of birth to the Kennedy Space Center Protective Services Office no later than close of business on December 5, 2013. All non-U.S. citizens must submit their name; current address; driver's license number and state (if applicable); citizenship; company affiliation (if applicable) to include address, telephone number, and title; place of birth; date of birth; U.S. visa information to include type, number, and expiration date; U.S. Social Security Number (if applicable); Permanent Resident (green card) number and expiration date (if applicable); place and date of entry into the U.S.; and passport information to include country of issue, number, and expiration date, to the Kennedy Space Center Protective Services Office no later than close of business on December 5, 2013. If the above information is not received by the noted dates, attendees should expect a minimum delay of two (2) hours. All visitors to this meeting will be required to process in through the KSC Badging Office, Building M6–0224, located just outside of KSC Gate 2, on SR 405, Kennedy Space Center, Florida. Please provide the appropriate data required above by email to Tina Hosch at
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
National Aeronautics and Space Administration.
Notice of meeting.
The National Aeronautics and Space Administration (NASA) announces a meeting of the Technology and Innovation Committee (TIC) of the NASA Advisory Council (NAC). The meeting will be held for the purpose of reviewing status of activities within the Office of the Chief Technologist with an emphasis on the discussing the Agency's Technology Roadmapping efforts; status of the Space Technology Mission Directorate programs with an emphasis on Solar Electric Propulsion and Cryogenic Propellant Storage and Transfer; and a discussion of barriers to innovation and innovation enablers.
Tuesday, December 10, 2013, 8:00 a.m. to 5:00 p.m., Local Time.
NASA Kennedy Space Center, Headquarters Building, Room 3225, Kennedy Space Center, FL 32899.
Dr. Kathleen Gallagher, Office of the Chief Technologist, NASA Headquarters, Washington, DC 20546, (202) 358–2185, fax (202) 358–4078, or
This meeting is also available telephonically and by WebEx. Any interested person may call the USA toll free conference call number 866–880–0098, passcode 2851035, to participate in this meeting by telephone. The WebEx link is
The agenda for the meeting includes the following topics:
The meeting will be open to the public up to the seating capacity of the room. Seating will be on a first-come basis. Attendees will be required to sign a visitor's register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. All U.S. citizens desiring to attend the this meeting at the NASA Kennedy Space Center must provide their full name, company affiliation (if applicable), driver's license number and state, citizenship, place of birth, and date of birth to the Kennedy Space Center Protective Services Office no later than close of business on December 5, 2013. All non-U.S. citizens must submit their name; current address; driver's license number and state (if applicable); citizenship; company affiliation (if applicable) to include address, telephone number, and title; place of birth; date of birth; U.S. visa information to include type, number, and expiration date; U.S. Social Security Number (if applicable); Permanent Resident (green card) number and expiration date (if applicable); place and date of entry into the U.S.; and passport information to include country of issue, number, and expiration date, to the Kennedy Space Center Protective Services Office no later than close of business on December 5, 2013. If the above information is not received by the noted dates, attendees should expect a minimum delay of two (2) hours. All visitors to this meeting will be required to process in through the KSC Badging Office, Building M6–0224, located just outside of KSC Gate 2, on SR 405, Kennedy Space Center, Florida. Please provide the appropriate data required above by email to Tina Hosch at
It is imperative that the meeting be held on this date to accommodate the scheduling priorities of the key participants.
In accordance with the Federal Advisory Committee Act (Pub. L. 92–463, as amended), the National Science Foundation (NSF) announces its intent to hold proposal review meetings throughout the year. The purpose of these meetings is to provide advice and recommendations concerning proposals submitted to the NSF for financial support. The agenda for each of these meetings is to review and evaluate proposals as part of the selection process for awards. The review and evaluation may also include assessment of the progress of awarded proposals. The majority of these meetings will take place at NSF, 4201 Wilson Blvd., Arlington, Virginia 22230.
These meetings will be closed to the public. The proposals being reviewed include information of a proprietary or confidential nature, including technical information; financial data, such as salaries; and personal information concerning individuals associated with the proposals. These matters are exempt under 5 U.S.C. 552b(c), (4) and (6) of the Government in the Sunshine Act. NSF will continue to review the agenda and merits of each meeting for overall compliance of the Federal Advisory Committee Act.
These closed proposal review meetings will not be announced on an individual basis in the
3:30 p.m., Thursday, December 5, 2013.
NeighborWorks America—Gramlich Boardroom, 999 North Capitol Street NE., Washington DC 20002.
Open.
Jeffrey Bryson, General Counsel/Secretary (202) 760–4101;
Nuclear Regulatory Commission.
Combined license applications; receipt.
The U.S. Nuclear Regulatory Commission (NRC) is giving notice once each week for four consecutive weeks of a combined license (COL) application from Luminant Generation Company, LLC. (Luminant).
Please refer to Docket ID NRC–2008–0594 when contacting the NRC about the availability of
• Federal Rulemaking Web site: Go to
• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1–F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.
Stephen Monarque, Office of New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555–0001, telephone: 301–415–1544 or via email to:
The following party has filed applications for COLs with the NRC, pursuant to Section 103 of the Atomic Energy Act of 1954, as amended, and part 52 of Title 10 of the
1. On September 19, 2008, Luminant submitted an application for COLs for two United States-Advanced Pressurized Water Reactors designated as Comanche Peak Nuclear Power Plant, Units 3 and 4, in Somervell County, Texas.
This COL application is currently under review by the NRC staff.
An applicant may seek a COL in accordance with Subpart C of 10 CFR Part 52. The information submitted by the applicant includes certain administrative information, such as financial qualifications submitted pursuant to 10 CFR 52.77, as well as technical information submitted pursuant to 10 CFR 52.79. These notices are being provided in accordance with the requirements in 10 CFR 50.43(a)(3).
For the Nuclear Regulatory Commission.
Union Electric Company, doing business as Ameren UE, submitted to the U.S. Nuclear Regulatory Commission (NRC) a Combined License (COL) Application for a single unit of AREVA NP's U.S. EPR in accordance with the requirements in part 52, of Title 10 of the
In part 50, appendix E, section I.5 requires that an applicant for a COL under subpart C of 10 CFR part 52 whose application was docketed prior to December 23, 2011, must revise their COL application to comply with the EP rules published in the
Since Ameren will not hold a COL prior to December 31, 2013, it is therefore, required to revise its application to be compliant with the new EP rules by December 31, 2013. By letter dated June 23, 2009, Ameren requested the NRC to suspend all review activities relating to the Callaway, Unit 2, COL application. The NRC informed Ameren by letter dated June 29, 2009, that it had suspended all review activities relating to the Callaway, Unit 2, COL application (ADAMS Accession No. ML091750665). In a letter dated, October 3, 2013 (ADAMS Accession No. ML13282A311), Ameren requested an exemption from the requirements of 10 CFR part 50, appendix E, section I.5 until a request for reactivation of the Callaway, Unit 2, COL application review is made by Ameren. Prior to this
Ameren's requested exemption is interpreted as a one-time schedule change from the requirements of 10 CFR part 50, appendix E, section I.5. In its request, Ameren asked the NRC to grant the exemption from 10 CFR part 50, appendix E, section I.5 until requesting the NRC to resume the Callaway, Unit 2, COL application review. Such a request is seen as open-ended, and therefore, not temporary, and also contradicts with Ameren's current FSAR update due date of December 31, 2014, which includes an update of the Emergency Plan as part of the FSAR. Based on the above reasoning, and to be consistent with the FSAR update due date, the NRC included an imposed December 31, 2014, deadline as part of its review of the exemption request. The exemption would allow Ameren to comply with the new EP rules at a later date, but still in advance of NRC's reinstating its review of the application and in any event, by December 31, 2014. The current requirement to comply with the new EP rules by December 31, 2013, could not be changed, absent the exemption.
Pursuant to 10 CFR 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 CFR part 50, including 10 CFR part 50, appendix E, section I.5, when: (1) The exemption(s) are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) special circumstances are present. As relevant to the requested exemption, special circumstances exist if: “[a]pplication of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule” (10 CFR 50.12(a)(2)(ii)).
The purpose of 10 CFR part 50, appendix E, section I.5 was to ensure that applicants and new COL holders updated their COL application or Combined License to allow the NRC to review them efficiently and effectively, and to bring the applicants or licensees into compliance prior to their potential approval and receipt of license, or operate the facility. The targets of section I.5 of the rule were those applications that were in the process of being actively reviewed by the NRC staff when the rule came into effect on November 23, 2011. Since Ameren requested the NRC to suspend its review of the Callaway, Unit 2, COL application, compelling Ameren to revise its COL application in order to meet the December 31, 2013, compliance deadline would only bring on unnecessary burden and hardship for the applicant to meet the compliance date. As long as it is recognized that the COL application must be updated to comply with the enhancements to the EP rules prior to the NRC approving their COL application, it makes no difference if Ameren revises the COL application now, when Ameren requests the review be restarted, or by December 31, 2014. For this reason, the application of 10 CFR part 50, appendix E, section I.5, for the suspended Callaway, Unit 2, COL application is deemed unnecessary, and therefore, special circumstances are present.
The exemption is a one-time schedule exemption from the requirements of 10 CFR part 50, appendix E, section I.5. The exemption would allow Ameren to revise its COL application, and comply with the new EP rules on or before December 31, 2014, in lieu of December 31, 2013, the date required by 10 CFR part 50, appendix E, section I.5. As stated above, 10 CFR 50.12 allows the NRC to grant exemptions from the requirements of 10 CFR part 50. The NRC staff has determined that granting Ameren the requested one-time exemption from the requirements of 10 CFR part 50, appendix E, section I.5 will provide only temporary relief from this regulation under the above cited special circumstances, and will not result in a violation of the Atomic Energy Act of 1954, as amended, or NRC's regulations. Therefore, the exemption is authorized by law.
The underlying purposes of the enhancements to EP found in 10 CFR part 50, appendix E, is to amend certain EP requirements which are aimed at enhancing protective measures in the event of a radiological emergency; address, in part, enhancements identified after the terrorist events of September 11, 2001; clarify regulations to effect consistent Emergency Plan implementation among licensees; and modify certain requirements to be more effective and efficient. Since plant construction cannot proceed until the NRC review of the application is completed, a mandatory hearing is completed, and a license is issued, the exemption does not increase the probability of postulated accidents. Additionally, based on the nature of the requested exemption as described above, no new accident precursors are created by the exemption; thus, neither the probability, nor the consequences of postulated accidents are increased. Therefore, there is no undue risk to public health and safety.
The requested exemption would allow Ameren to submit the revised COL application prior to requesting the NRC to resume the review, and in any event, on or before December 31, 2014. This schedule change has no relation to security issues. Therefore, the common defense and security is not impacted.
Special circumstances, in accordance with 10 CFR 50.12(a)(2)(ii) are present whenever “[a]pplication of the regulation in the particular circumstances would not serve the underlying purpose of the rule or is not necessary to achieve the underlying purpose of the rule” (10 CFR 50.12(a)(2)(ii)). The underlying purpose of 10 CFR part 50, appendix E, section I.5 is to ensure that applicants are in compliance with the new EP rules in a time that allows the NRC to effectively review their revised COL application prior to issuance of the license. Since the Callaway, Unit 2, COL application review is now suspended, the application of this regulation in this particular circumstance is unnecessary in order to achieve its underlying purpose. If the NRC were to grant this exemption and Ameren were then required to comply by December 31, 2014, or prior to any request to restart of their review, the purpose of the rule would still be achieved. Therefore, the special circumstances required by 10 CFR 50.12(a)(2)(ii) for the granting of an exemption from 10 CFR part 50, appendix E, section I.5 exist.
With respect to the exemption's impact on the quality of the human environment, the NRC has determined that this specific exemption request is eligible for categorical exclusion as identified in 10 CFR 51.22(c)(25) and justified by the NRC staff as follows:
(c) The following categories of actions are categorical exclusions:
(25) Granting of an exemption from the requirements of any regulation of this chapter, provided that—
(i) There is no significant hazards consideration;
The criteria for determining whether there is no significant hazards consideration are found in 10 CFR 50.92. The proposed action involves only a schedule change regarding the submission of an update to the application for which the licensing review has been suspended. Therefore, there is no significant hazards consideration because granting the proposed exemption would not:
(1) Involve a significant increase in the probability or consequences of an accident previously evaluated; or
(2) Create the possibility of a new or different kind of accident from any accident previously evaluated; or
(3) Involve a significant reduction in a margin of safety.
(ii) There is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite;
The proposed action involves only a schedule change which is administrative in nature, and does not involve any changes to be made in the types or significant increase in the amounts of effluents that may be released offsite.
(iii) There is no significant increase in individual or cumulative public or occupational radiation exposure;
Since the proposed action involves only a schedule change which is administrative in nature, it does not contribute to any significant increase in occupational or public radiation exposure.
(iv) There is no significant construction impact;
The proposed action involves only a schedule change which is administrative in nature; the application review is suspended until further notice, and there is no consideration of any construction at this time, and therefore, the proposed action does not involve any construction impact.
(v) There is no significant increase in the potential for or consequences from radiological accidents; and
The proposed action involves only a schedule change which is administrative in nature, and does not impact the probability or consequences of accidents.
(vi) The requirements from which an exemption is sought involve:
(B) Reporting requirements;
The exemption request involves submitting an updated COL application by Ameren,
and
(G) Scheduling requirements;
The proposed exemption relates to the schedule for submitting COL application update to the NRC.
Accordingly, the Commission has determined that, pursuant to 10 CFR 50.12(a), the exemption is authorized by law, will not present an undue risk to the public health and safety, and is consistent with the common defense and security. Also, special circumstances are present. Therefore, the Commission hereby grants Ameren a one-time exemption from the requirements of 10 CFR part 50, appendix E, section I.5 pertaining to the Callaway, Unit 2, COL application to allow submittal of the revised COL application that complies with the new EP rules prior to any request to the NRC to resume the review, and in any event, no later than December 31, 2014.
Pursuant to 10 CFR 51.22, the Commission has determined that the exemption request meets the applicable categorical exclusion criteria set forth in 10 CFR 51.22(c)(25), and the granting of this exemption will not have a significant effect on the quality of the human environment.
This exemption is effective upon issuance.
For The Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings requesting the addition of Priority Mail Contract 70 to the competitive product list. This notice informs the public of the filings, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product under 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5.
• Attachment A—a redacted copy of Governors' Decision No. 11–6, authorizing the new product;
• Attachment B—a redacted copy of the contract;
• Attachment C—proposed changes to the Mail Classification Schedule competitive product list with the addition underlined;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and related financial information under seal.
In the Statement of Supporting Justification, Dennis R. Nicoski, Manager, Field Sales Strategy and Contracts, asserts that the contract will cover its attributable costs, make a positive contribution to coverage of institutional costs, and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the related contract, under seal.
The Commission establishes Docket Nos. MC2014–8 and CP2014–9 to consider the Request pertaining to the proposed Priority Mail Contract 70 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than November 29, 2013. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Curtis E. Kidd to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–8 and CP2014–9 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Curtis E. Kidd is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than November 29, 2013.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings requesting the addition of Priority Mail Contract 69 to the competitive product list. This notice informs the public of the filings, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product.
• Attachment A—a redacted copy of Governors' Decision No. 11–6, authorizing the new product;
• Attachment B—a redacted copy of the contract;
• Attachment C—proposed changes to the Mail Classification Schedule competitive product list with the addition underlined;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and related financial information under seal.
In the Statement of Supporting Justification, Dennis R. Nicoski, Manager, Field Sales Strategy and Contracts, asserts that the contract will cover its attributable costs and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the related contract, under seal.
The Commission establishes Docket Nos. MC2014–7 and CP2014–8 to consider the Request pertaining to the proposed Priority Mail Contract 69 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than November 29, 2013. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Pamela A. Thompson to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–7 and CP2014–8 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Pamela A. Thompson is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than November 29, 2013.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings requesting the addition of Priority Mail Contract 67 to the competitive product list. This notice informs the public of the filings, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product.
• Attachment A—a redacted copy of Governors' Decision No. 11–6, authorizing the new product;
• Attachment B—a redacted copy of the contract;
• Attachment C—proposed changes to the Mail Classification Schedule competitive product list with the addition underlined;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and related financial information under seal.
In the Statement of Supporting Justification, Dennis R. Nicoski, Manager, Field Sales Strategy and Contracts, asserts that the contract will cover its attributable costs and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the related contract, under seal.
The Commission establishes Docket Nos. MC2014–5 and CP2014–6 to consider the Request pertaining to the proposed Priority Mail Contract 67 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than November 29, 2013. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Kenneth R. Moeller to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–5 and CP2014–6 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Kenneth R. Moeller is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than November 29, 2013.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing recent Postal Service filings requesting the addition of Priority Mail Contract 68 to the competitive product list. This notice informs the public of the filings, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, at 202–789–6820.
In accordance with 39 U.S.C. 3642 and 39 CFR 3020.30
The Postal Service contemporaneously filed a redacted contract related to the proposed new product.
• Attachment A—a redacted copy of Governors' Decision No. 11–6, authorizing the new product;
• Attachment B—a redacted copy of the contract;
• Attachment C—proposed changes to the Mail Classification Schedule competitive product list with the addition underlined;
• Attachment D—a Statement of Supporting Justification as required by 39 CFR 3020.32;
• Attachment E—a certification of compliance with 39 U.S.C. 3633(a); and
• Attachment F—an application for non-public treatment of materials to maintain redacted portions of the contract and related financial information under seal.
In the Statement of Supporting Justification, Dennis R. Nicoski, Manager, Field Sales Strategy and Contracts, asserts that the contract will cover its attributable costs and increase contribution toward the requisite 5.5 percent of the Postal Service's total institutional costs.
The Postal Service filed much of the supporting materials, including the related contract, under seal.
The Commission establishes Docket Nos. MC2014–6 and CP2014–7 to consider the Request pertaining to the proposed Priority Mail Contract 68 product and the related contract, respectively.
Interested persons may submit comments on whether the Postal Service's filings in the captioned dockets are consistent with the policies of 39 U.S.C. 3632, 3633, or 3642, 39 CFR 3015.5, and 39 CFR part 3020, subpart B. Comments are due no later than November 27, 2013. The public portions of these filings can be accessed via the Commission's Web site (
The Commission appoints Lyudmila Y. Bzhilyanskaya to serve as Public Representative in these dockets.
1. The Commission establishes Docket Nos. MC2014–6 and CP2014–7 to consider the matters raised in each docket.
2. Pursuant to 39 U.S.C. 505, Lyudmila Y. Bzhilyanskaya is appointed to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in these proceedings.
3. Comments by interested persons in these proceedings are due no later than November 27, 2013.
4. The Secretary shall arrange for publication of this order in the
By the Commission.
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 19, 2013, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 19, 2013, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 19, 2013, it filed with the Postal Regulatory Commission a
Postal Service
Notice.
The Postal Service gives notice of filing a request with the Postal Regulatory Commission to add a domestic shipping services contract to the list of Negotiated Service Agreements in the Mail Classification Schedule's Competitive Products List.
Elizabeth A. Reed, 202–268–3179.
The United States Postal Service® hereby gives notice that, pursuant to 39 U.S.C. 3642 and 3632(b)(3), on November 19, 2013, it filed with the Postal Regulatory Commission a
Railroad Retirement Board (RRB).
Notice of a renewal of an existing computer-matching program that expired on February 1, 2013.
As required by the Privacy Act of 1974, as amended, the RRB is issuing public notice of its renewal of an ongoing computer-matching program with the Office of Personnel Management (OPM). The purpose of this notice is to advise individuals applying for or receiving benefits under the Railroad Retirement Act of the use made by RRB of this information obtained from OPM by means of a computer match.
This matching program becomes effective as proposed without further notice on January 6, 2014. We will file a report of this computer-matching program with the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on Oversight and Government Reform of the House of Representatives; and the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB).
Interested parties may comment on this publication by writing to Ms. Martha P. Rico, Secretary to the Board, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611–2092.
Mr. Timothy Grant, Chief Privacy Officer, Railroad Retirement Board, 844 North Rush Street, Chicago, Illinois 60611–2092, telephone 312–751–4869 or email at
The Computer Matching and Privacy Protection Act of 1988, (Pub. L. 100–503), amended by the Privacy Act of 1974, (5 U.S.C. 552a) as amended, requires a Federal agency participating in a computer matching program to publish a notice in the
The Privacy Act, as amended, regulates the use of computer matching by Federal agencies when records contained in a Privacy Act System of Records are matched with other Federal, State, or local government records. It requires Federal agencies involved in computer matching programs to:
(1) Negotiate written agreements with the other agency or agencies participating in the matching programs;
(2) Obtain the approval of the matching agreement by the Data Integrity Boards (DIB) of the participating Federal agencies;
(3) Publish notice of the computer matching program in the
(4) Furnish detailed reports about matching programs to Congress and OMB;
(5) Notify applicants and beneficiaries that their records are subject to matching; and
(6) Verify match findings before reducing, suspending, terminating, or denying a person's benefits or payments. The last notice for this matching program was published at 75 FR 53004 (August 30, 2010).
We have taken appropriate action to ensure that all of our computer matching programs comply with the requirements of the Privacy Act, as amended.
OPM and RRB.
The purpose of the match is to enable the RRB to (1) identify affected RRB annuitants who are in receipt of a Federal public pension benefit but who have not reported receipt of this benefit to the RRB, and (2) receive needed Federal public pension benefit information for affected RRB annuitants more timely and accurately.
Sections 3(a)(1), 4(a)(1) and 4(f)(1) of the Railroad Retirement Act, as amended, 45 U.S.C. 231b(a)(1), 231c(a)(1) and 231c(f)(1) require that the RRB reduce the Railroad Retirement benefits of certain beneficiaries entitled to Railroad Retirement employee and/or spouse/widow benefits who are also entitled to a government pension based on their own non-covered earnings. We call this reduction a Public Service Pension (PSP) offset.
Section 224 of the Social Security Act, as amended, 42 U.S.C. 424a, provides for the reduction of disability benefits when the disabled worker is also entitled to a public disability benefit (PDB). We call this a PDB offset. A civil service disability benefit is considered a PDB. Section 224(h)(1) requires any Federal agency to provide RRB with information in its possession that RRB may require for the purposes of making a timely determination of the amount of reduction under section 224 of the Social Security Act. Pursuant to 5 U.S.C. Section 552a(b)(3) OPM has established routine uses to disclose the subject information to RRB.
The records to be used in the match and the roles of the matching participants are described as follows: OPM will provide the RRB once a year via secure electronic file transfer, data extracted from its annuity and survivor master file of its Civil Service Retirement and Insurance Records. The Privacy Act System of Records designation is OPM/Central-1, (Civil Service Retirement and Insurance Records), Published in the
Normally on December of each year, OPM transmits to us approximately 2.5 million electronic records for matching. The records contain these data elements: Name, social security number, date of birth, civil service claim number, first potential month and year of eligibility for civil service benefits, first month, day, year of entitlement to civil service benefits, amount of current gross civil service benefits, and effective date (month, day, year) of civil service amount, and where applicable, civil service disability indicator, civil service FICA covered month indicator, and civil service total service months. The RRB will match the Social Security number, name, and date of birth contained in the OPM file against approximately the 1.2 million records in our files. For records that match, the RRB will extract the civil service payment information.
This matching program will become effective 40 days after a copy of the agreement, as approved by the Data Integrity Board of each agency, is sent to Congress and the Office of Management and Budget, or 30 days after publication of this notice in the
By authority of the Board.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17a–2—Recordkeeping Requirements Relating to Stabilizing Activities—requires underwriters to maintain information regarding stabilizing activities conducted in accordance with Rule 104 of Regulation M. The collections of information under Regulation M and Rule 17a–2 are necessary for covered persons to obtain certain benefits or to comply with certain requirements. The collections of information are necessary to provide the Commission with information regarding syndicate covering transactions and penalty bids. The Commission may review this information during periodic examinations or with respect to investigations. Except for the information required to be kept under Rule 104(i) (17 CFR 242.104(i)) and Rule 17a–2(c), none of the information required to be collected or disclosed for PRA purposes will be kept confidential. The recordkeeping requirement of Rule 17a–2 requires the information be maintained in a separate file, or in a separately retrievable format, for a period of three years, the first two years in an easily accessible place, consistent with the requirements of Exchange Act Rule 17a–4(f) (17 CFR 240.17a–4(f)).
There are approximately 795 respondents per year that require an aggregate total of 3,975 hours to comply with this rule. Each respondent makes an estimated 1 annual response. Each response takes approximately 5 hours to complete. Thus, the total compliance burden per year is 3,975 burden hours. The total estimated internal compliance cost for the respondents is approximately $250,425.00, resulting in a cost of compliance for each respondent per response of approximately $315.00 (i.e., $250,425.00/795 responses).
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimates of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Thomas Bayer, Director/Chief Information Officer, Securities and Exchange Commission, c/o Remi Pavlik-Simon, 100 F Street, NE., Washington, DC 20549 or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget for extension and approval.
Rule 18f–1 (17 CFR 270.18f–1) enables a registered open-end management investment company (“fund”) that may redeem its securities in-kind, by making a one-time election, to commit to make cash redemptions pursuant to certain requirements without violating section 18(f) of the Investment Company Act of 1940 (15 U.S.C. 80a–18(f)). A fund relying on the rule must file Form N–18F–1 (17 CFR 274.51) to notify the Commission of this election. The Commission staff estimates that 26 funds file Form N–18F–1 annually, and that each response takes one hour. Based on these estimates, the total annual burden hours associated with the rule is estimated to be 26 hours.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Written comments are invited on: (a) whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 12(d)(3) of the Investment Company Act of 1940 (15 U.S.C. 80a) generally prohibits registered investment companies (“funds”), and companies controlled by funds, from purchasing securities issued by a registered investment adviser, broker, dealer, or underwriter (“securities-related businesses”). Rule 12d3–1 (“Exemption of acquisitions of securities issued by persons engaged in securities related businesses” (17 CFR 270.12d3–1)) permits a fund to invest up to five percent of its assets in securities of an issuer deriving more than fifteen percent of its gross revenues from securities-related businesses, but a fund may not rely on rule 12d3–1 to acquire securities of its own investment adviser or any affiliated person of its own investment adviser.
A fund may, however, rely on an exemption in rule 12d3–1 to acquire securities issued by its subadvisers in circumstances in which the subadviser would have little ability to take advantage of the fund, because it is not in a position to direct the fund's securities purchases. The exemption in rule 12d3–1(c)(3) is available if (i) the subadviser is not, and is not an affiliated person of, an investment adviser that provides advice with respect to the portion of the fund that is acquiring the securities, and (ii) the advisory contracts of the subadviser, and any subadviser that is advising the purchasing portion of the fund, prohibit them from consulting with each other concerning securities transactions of the fund, and limit their responsibility in providing advice to providing advice with respect to discrete portions of the fund's portfolio.
Based on an analysis of fund filings, the staff estimates that approximately 775 fund portfolios enter into subadvisory agreements each year.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The title for the collection of information is “Rule 206(4)–6” under the Investment Advisers Act of 1940 (15 U.S.C. 80b–1
Rule 206(4)–6 contains “collection of information” requirements within the meaning of the Paperwork Reduction Act. The respondents are investment advisers registered with the Commission that vote proxies with respect to clients' securities. Advisory clients of these investment advisers use the information required by the rule to assess investment advisers' proxy voting policies and procedures and to monitor the advisers' performance of their proxy voting activities. The information also is used by the Commission staff in its examination and oversight program. Without the information collected under the rules, advisory clients would not have information they need to assess the adviser's services and monitor the adviser's handling of their accounts, and the Commission would be less efficient and effective in its programs.
The estimated number of investment advisers subject to the collection of information requirements under the rule is 9,650. It is estimated that each of these advisers is required to spend on average 10 hours annually documenting its proxy voting procedures under the requirements of the rule, for a total burden of 96,500 hours. We further estimate that on average, approximately 139 clients of each adviser would request copies of the underlying policies and procedures. We estimate that it would take these advisers 0.1 hours per client to deliver copies of the policies and procedures, for a total burden of 134,135 hours. Accordingly, we estimate that rule 206(4)–6 results in an annual aggregate burden of collection for SEC-registered investment advisers of a total of 230,635 hours.
Written comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burdens of the collections of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burdens of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication. An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520), the Securities and Exchange Commission (“Commission”) is soliciting comments on the collections of information summarized below. The Commission plans to submit these existing collections of information to the Office of Management and Budget (“OMB”) for extension and approval.
Section 17(d) (15 U.S.C. 80a–17(d)) of the Investment Company Act of 1940 (“Act”) authorizes the Commission to adopt rules that protect funds and their security holders from overreaching by affiliated persons when the fund and the affiliated person participate in any joint enterprise or other joint arrangement or profit-sharing plan. Rule 17d–1 under the Act (17 CFR 270.17d–1) prohibits funds and their affiliated persons from participating in a joint enterprise, unless an application regarding the transaction has been filed with and approved by the Commission. Paragraph (d)(3) of the rule provides an exemption from this requirement for any loan or advance of credit to, or acquisition of securities or other property of, a small business concern, or any agreement to do any of the foregoing (“investments”) made by a small business investment company (“SBIC”) and an affiliated bank, provided that reports about the investments are made on forms the Commission may prescribe. Rule 17d–2 (17 CFR 270.17d–2) designates Form N–17D–1 (17 CFR 274.00) (“form”) as the form for reports required by rule 17d–1.
SBICs and their affiliated banks use form N–17D–1 to report any contemporaneous investments in a small business concern. The form provides shareholders and persons seeking to make an informed decision about investing in an SBIC an opportunity to learn about transactions of the SBIC that have the potential for self dealing and other forms of overreaching by affiliated persons at the expense of shareholders.
Form N–17D–1 requires SBICs and their affiliated banks to report identifying information about the small business concern and the affiliated bank. The report must include, among other things, the SBIC's and affiliated bank's outstanding investments in the small business concern, the use of the proceeds of the investments made during the reporting period, any changes in the nature and amount of the affiliated bank's investment, the name of any affiliated person of the SBIC or the affiliated bank (or any affiliated person of the affiliated person of the SBIC or the affiliated bank) who has any interest in the transactions, the basis of the affiliation, the nature of the interest, and the consideration the affiliated person has received or will receive.
Up to three SBICs may file the form in any year.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Thomas Bayer, Chief Information Officer, Securities and Exchange Commission, C/O Remi Pavlik-Simon, 100 F Street NE., Washington, DC 20549; or send an email to:
Securities and Exchange Commission (“Commission”).
Notice of an application for an order under section 6(c) of the Investment Company Act of 1940 (the “Act”) for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c–1 under the Act, under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act, and under section 12(d)(1)(J) for an exemption from sections 12(d)(1)(A) and 12(d)(1)(B) of the Act.
Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090; Applicants: Horizons ETFs Management (USA) LLC, One Bryant Park, 39th Floor, New York, NY 10036.
Courtney S. Thornton, Senior Counsel, at (202) 551–6812, or David P. Bartels, Branch Chief, at (202) 551–6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. The Trust is a Delaware statutory trust will register under the Act as an open-end management investment company with multiple series. Each series will operate as an exchange traded fund (“ETF”).
2. Horizons will be the investment adviser to the initial series of the Trust (“Initial Fund”). Horizons is, and any other Adviser (as defined below) will be, registered as an investment adviser under the Investment Advisers Act of 1940 (“Advisers Act”). The Adviser may enter into sub-advisory agreements with one or more investment advisers to act as sub-advisers to particular Funds (each, a “Sub-Adviser”). Any Sub-Adviser will either be registered under the Advisers Act or will not be required to register thereunder.
3. The Trust will enter into a distribution agreement with one or more distributors. Each distributor for a Fund will be a broker-dealer (“Broker”) registered under the Securities Exchange Act of 1934 (“Exchange Act”) and will act as distributor and principal underwriter (“Distributor”) for one or more of the Funds. No Distributor will be affiliated with any Exchange (defined below). The Distributor for each Fund will comply with the terms and conditions of the requested order.
4. Applicants request that the order apply to the Initial Fund and any additional series of the Trust, and any other open-end management investment company or series thereof, that may be created in the future (“Future Funds” and together with the Initial Fund, “Funds”), each of which will operate as an ETF and will track a specified index comprised of domestic or foreign equity and/or fixed income securities (each, an “Underlying Index”). Any Future Fund will (a) be advised by Horizons or an entity controlling, controlled by, or under common control with Horizons (each, an “Adviser”) and (b) comply with the terms and conditions of the application.
5. Each Fund holds or will hold certain securities (“Portfolio Securities”) selected to correspond generally to the performance of its Underlying Index. The Underlying Indexes will be comprised solely of equity and/or fixed income securities issued by one or more of the following categories of issuers: (i) domestic issuers and (ii) non-domestic issuers meeting the requirements for trading in U.S. markets. Other Funds will be based on Underlying Indexes that will be comprised solely of foreign and domestic, or solely foreign, equity and/or fixed income securities (“Foreign Funds”).
6. Applicants represent that each Fund will invest at least 80% of its assets (excluding securities lending collateral) in the component securities of its respective Underlying Index (“Component Securities”) and TBA Transactions,
7. Each Trust may issue Funds that seek to track Underlying Indexes constructed using 130/30 investment strategies (“130/30 Funds”) or other long/short investment strategies (“Long/Short Funds”). Each Long/Short Fund will establish (i) exposures equal to approximately 100% of the long positions specified by the Long/Short Index
8. A Fund will utilize either a replication or representative sampling strategy to track its Underlying Index. A Fund using a replication strategy will invest in the Component Securities of its Underlying Index in the same approximate proportions as in such Underlying Index. A Fund using a representative sampling strategy will hold some, but not necessarily all of the Component Securities of its Underlying Index. Applicants state that a Fund using a representative sampling strategy will not be expected to track the performance of its Underlying Index with the same degree of accuracy as would an investment vehicle that invested in every Component Security of the Underlying Index with the same weighting as the Underlying Index. Applicants expect that each Fund will have an annual tracking error relative to the performance of its Underlying Index of less than 5%.
9. Each Fund will be entitled to use its Underlying Index pursuant to either a licensing agreement with the entity that compiles, creates, sponsors or maintains the Underlying Index (each, an “Index Provider”) or a sub-licensing arrangement with the Adviser, which will have a licensing agreement with such Index Provider.
10. Applicants recognize that Self-Indexing Funds could raise concerns regarding the ability of the Affiliated Index Provider to manipulate the Underlying Index to the benefit or detriment of the Self-Indexing Fund. Applicants further recognize the potential for conflicts that may arise with respect to the personal trading activity of personnel of the Affiliated Index Provider who have knowledge of changes to an Underlying Index prior to the time that information is publicly disseminated.
11. Applicants propose that each day that a Fund, the NYSE and the national securities exchange (as defined in section 2(a)(26) of the Act) (an “Exchange”) on which the Fund's Shares are primarily listed (“Listing Exchange”) are open for business, including any day that a Fund is required to be open under section 22(e) of the Act (a “Business Day”), each Self-Indexing Fund will post on its Web site,
12. In addition, Applicants do not believe the potential for conflicts of interest raised by the Adviser's use of the Underlying Indexes in connection with the management of the Self Indexing Funds and the Affiliated Accounts will be substantially different from the potential conflicts presented by an adviser managing two or more registered funds. Both the Act and the Advisers Act contain various protections to address conflicts of interest where an adviser is managing two or more registered funds and these protections will also help address these conflicts with respect to the Self-Indexing Funds.
13. Each Adviser and any Sub-Adviser has adopted or will adopt, pursuant to Rule 206(4)–7 under the Advisers Act, written policies and procedures designed to prevent violations of the Advisers Act and the rules thereunder. These include policies and procedures designed to minimize potential conflicts of interest among the Self-Indexing Funds and the Affiliated Accounts, such as cross trading policies, as well as those designed to ensure the equitable allocation of portfolio transactions and brokerage commissions. In addition, Horizons has adopted policies and procedures as required under section 204A of the Advisers Act, which are reasonably designed in light of the nature of its business to prevent the misuse, in violation of the Advisers Act or the Securities Exchange Act of 1934 (“Exchange Act”) or the rules thereunder, of material non-public information by the Current Adviser or an associated person (“Inside Information Policy”). Any other Adviser or Sub-Adviser will be required to adopt and maintain a similar Inside Information Policy. In accordance with the Code of Ethics
14. To the extent the Self-Indexing Funds transact with an Affiliated Person of the Adviser or Sub-Adviser, such transactions will comply with the Act, the rules thereunder and the terms and conditions of the requested order. In this regard, each Self-Indexing Fund's board of directors or trustees (“Board”) will periodically review the Self-Indexing Fund's use of an Affiliated Index Provider. Subject to the approval of the Self-Indexing Fund's Board, the Adviser, Affiliated Persons of the Adviser (“Adviser Affiliates”) and Affiliated Persons of any Sub-Adviser (“Sub-Adviser Affiliates”) may be authorized to provide custody, fund accounting and administration and transfer agency services to the Self-Indexing Funds. Any services provided by the Adviser, Adviser Affiliates, Sub-Adviser and Sub-Adviser Affiliates will be performed in accordance with the provisions of the Act, the rules under the Act and any relevant guidelines from the staff of the Commission. Applications for prior orders granted to Self-Indexing Funds have received relief to operate such funds on the basis discussed above.
15. The Shares of each Fund will be purchased and redeemed in Creation Units and generally on an in-kind basis. Except where the purchase or redemption will include cash under the limited circumstances specified below, purchasers will be required to purchase Creation Units by making an in-kind deposit of specified instruments (“Deposit Instruments”), and shareholders redeeming their Shares will receive an in-kind transfer of specified instruments (“Redemption Instruments”).
16. Purchases and redemptions of Creation Units may be made in whole or in part on a cash basis, rather than in kind, solely under the following circumstances: (a) To the extent there is a Cash Amount; (b) if, on a given Business Day, the Fund announces before the open of trading that all purchases, all redemptions or all purchases and redemptions on that day will be made entirely in cash; (c) if, upon receiving a purchase or redemption order from an Authorized Participant, the Fund determines to require the purchase or redemption, as applicable, to be made entirely in cash;
17. Creation Units will consist of specified large aggregations of Shares (
18. Each Business Day, before the open of trading on the Listing Exchange, each Fund will cause to be published through the NSCC the names and quantities of the instruments comprising the Deposit Instruments and the Redemption Instruments, as well as the estimated Cash Amount (if any), for that day. The list of Deposit Instruments and Redemption Instruments will apply until a new list is announced on the following Business Day, and there will be no intra-day changes to the list except to correct errors in the published list. Each Listing Exchange will disseminate, every 15 seconds during regular Exchange trading hours, through the facilities of the Consolidated Tape Association, an amount for each Fund stated on a per individual Share basis representing the sum of (i) the estimated Cash Amount and (ii) the current value of the Deposit Instruments.
19. Transaction expenses, including operational processing and brokerage costs, will be incurred by a Fund when investors purchase or redeem Creation Units in-kind and such costs have the potential to dilute the interests of the Fund's existing shareholders. Each Fund will impose purchase or redemption transaction fees (“Transaction Fees”) in connection with effecting such purchases or redemptions of Creation Units. In all cases, such Transaction Fees will be limited in accordance with requirements of the Commission applicable to management investment companies offering redeemable securities. Since the Transaction Fees are intended to defray the transaction expenses as well as to prevent possible shareholder dilution resulting from the purchase or redemption of Creation Units, the Transaction Fees will be borne only by such purchasers or redeemers.
20. Shares of each Fund will be listed and traded individually on an Exchange. It is expected that one or more member firms of an Exchange will be designated to act as a market maker (each, a “Market Maker”) and maintain a market for Shares trading on the Exchange. Prices of Shares trading on an Exchange will be based on the current bid/offer market. Transactions involving the sale of Shares on an Exchange will be subject to customary brokerage commissions and charges.
21. Applicants expect that purchasers of Creation Units will include institutional investors and arbitrageurs. Market Makers, acting in their roles to provide a fair and orderly secondary market for the Shares, may from time to time find it appropriate to purchase or redeem Creation Units. Applicants expect that secondary market purchasers of Shares will include both institutional and retail investors.
22. Shares will not be individually redeemable, and owners of Shares may acquire those Shares from the Fund, or tender such Shares for redemption to the Fund, in Creation Units only. To redeem, an investor must accumulate enough Shares to constitute a Creation Unit. Redemption requests must be placed through an Authorized Participant. A redeeming investor may pay a Transaction Fee, calculated in the same manner as a Transaction Fee payable in connection with purchases of Creation Units.
23. Neither the Trust nor any Fund will be advertised or marketed or otherwise held out as a traditional open-end investment company or a “mutual fund.” Instead, each such Fund will be marketed as an “ETF.” All marketing materials that describe the features or method of obtaining, buying or selling Creation Units, or Shares traded on an Exchange, or refer to redeemability, will prominently disclose that Shares are not individually redeemable and will disclose that the owners of Shares may acquire those Shares from the Fund or tender such Shares for redemption to the Fund in Creation Units only. The Funds will provide copies of their annual and semi-annual shareholder reports to DTC Participants for distribution to beneficial owners of Shares.
1. Applicants request an order under section 6(c) of the Act for an exemption from sections 2(a)(32), 5(a)(1), 22(d), and 22(e) of the Act and rule 22c–1 under the Act, under section 12(d)(1)(J) of the Act for an exemption from sections 12(d)(1)(A) and (B) of the Act, and under sections 6(c) and 17(b) of the Act for an exemption from sections 17(a)(1) and 17(a)(2) of the Act.
2. Section 6(c) of the Act provides that the Commission may exempt any person, security or transaction, or any class of persons, securities or transactions, from any provision of the Act, if and to the extent that such exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act. Section 17(b) of the Act authorizes the Commission to exempt a proposed transaction from section 17(a) of the Act if evidence establishes that the terms of the transaction, including the consideration to be paid or received, are reasonable and fair and do not involve overreaching on the part of any person concerned, and the proposed transaction is consistent with the policies of the registered investment company and the general provisions of the Act. Section 12(d)(1)(J) of the Act provides that the Commission may exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provisions of section 12(d)(1) if the exemption is consistent with the public interest and the protection of investors.
3. Section 5(a)(1) of the Act defines an “open-end company” as a management investment company that is offering for sale or has outstanding any redeemable security of which it is the issuer. Section 2(a)(32) of the Act defines a redeemable security as any security, other than short-term paper, under the terms of which the owner, upon its presentation to the issuer, is entitled to receive approximately a proportionate share of the issuer's current net assets, or the cash equivalent. Because Shares will not be individually redeemable, applicants request an order that would permit the Funds to register as open-end management investment companies and issue Shares that are redeemable in Creation Units only. Applicants state that investors may purchase Shares in Creation Units and redeem Creation Units from each Fund. Applicants further state that because Creation Units may always be purchased and redeemed at NAV, the price of Shares on the secondary market should not vary materially from NAV.
4. Section 22(d) of the Act, among other things, prohibits a dealer from selling a redeemable security that is currently being offered to the public by or through an underwriter, except at a current public offering price described in the prospectus. Rule 22c–1 under the Act generally requires that a dealer selling, redeeming or repurchasing a redeemable security do so only at a price based on its NAV. Applicants state that secondary market trading in Shares will take place at negotiated prices, not at a current offering price described in a Fund's prospectus, and not at a price based on NAV. Thus, purchases and sales of Shares in the secondary market will not comply with section 22(d) of the Act and rule 22c–1 under the Act. Applicants request an exemption under section 6(c) from these provisions.
5. Applicants assert that the concerns sought to be addressed by section 22(d) of the Act and rule 22c–1 under the Act with respect to pricing are equally satisfied by the proposed method of pricing Shares. Applicants maintain that while there is little legislative history regarding section 22(d), its provisions, as well as those of rule 22c–1, appear to have been designed to (a) prevent dilution caused by certain riskless-trading schemes by principal underwriters and contract dealers, (b) prevent unjust discrimination or preferential treatment among buyers, and (c) ensure an orderly distribution of investment company shares by eliminating price competition from dealers offering shares at less than the published sales price and repurchasing shares at more than the published redemption price.
6. Applicants believe that none of these purposes will be thwarted by permitting Shares to trade in the secondary market at negotiated prices. Applicants state that (a) secondary market trading in Shares does not involve a Fund as a party and will not result in dilution of an investment in Shares, and (b) to the extent different prices exist during a given trading day, or from day to day, such variances occur as a result of third-party market forces, such as supply and demand. Therefore, applicants assert that secondary market transactions in Shares will not lead to discrimination or preferential treatment among purchasers. Finally, applicants contend that the price at which Shares trade will be disciplined by arbitrage opportunities created by the option continually to purchase or redeem Shares in Creation Units, which should help prevent Shares from trading at a material discount or premium in relation to their NAV.
7. Section 22(e) of the Act generally prohibits a registered investment company from suspending the right of redemption or postponing the date of payment of redemption proceeds for more than seven days after the tender of a security for redemption. Applicants state that settlement of redemptions for Foreign Funds will be contingent not only on the settlement cycle of the United States market, but also on current delivery cycles in local markets for underlying foreign Portfolio Securities held by a Foreign Fund. Applicants state that the delivery cycles currently practicable for transferring Redemption Instruments to redeeming investors, coupled with local market holiday schedules, may require a delivery process of up to fourteen (14) calendar days. Accordingly, with respect to Foreign Funds only, applicants hereby request relief under section 6(c) from the requirement
8. Applicants believe that Congress adopted section 22(e) to prevent unreasonable, undisclosed or unforeseen delays in the actual payment of redemption proceeds. Applicants propose that allowing redemption payments for Creation Units of a Foreign Fund to be made within fourteen calendar days would not be inconsistent with the spirit and intent of section 22(e). Applicants suggest that a redemption payment occurring within fourteen calendar days following a redemption request would adequately afford investor protection.
9. Applicants are not seeking relief from section 22(e) with respect to Foreign Funds that do not effect creations and redemptions of Creation Units in-kind.
10. Section 12(d)(1)(A) of the Act prohibits a registered investment company from acquiring securities of an investment company if such securities represent more than 3% of the total outstanding voting stock of the acquired company, more than 5% of the total assets of the acquiring company, or, together with the securities of any other investment companies, more than 10% of the total assets of the acquiring company. Section 12(d)(1)(B) of the Act prohibits a registered open-end investment company, its principal underwriter and any other broker-dealer from knowingly selling the investment company's shares to another investment company if the sale will cause the acquiring company to own more than 3% of the acquired company's voting stock, or if the sale will cause more than 10% of the acquired company's voting stock to be owned by investment companies generally.
11. Applicants request an exemption to permit registered management investment companies and unit investment trusts (“UITs”) that are not advised or sponsored by the Adviser, and not part of the same “group of investment companies,” as defined in section 12(d)(1)(G)(ii) of the Act as the Funds (such management investment companies are referred to as “Investing Management Companies,” such UITs are referred to as “Investing Trusts,” and Investing Management Companies and Investing Trusts are collectively referred to as “Funds of Funds”), to acquire Shares beyond the limits of section 12(d)(1)(A) of the Act; and the Funds, and any principal underwriter for the Funds, and/or any Broker registered under the Exchange Act, to sell Shares to Funds of Funds beyond the limits of section 12(d)(1)(B) of the Act.
12. Each Investing Management Company will be advised by an investment adviser within the meaning of section 2(a)(20)(A) of the Act (the “Fund of Funds Adviser”) and may be sub-advised by investment advisers within the meaning of section 2(a)(20)(B) of the Act (each, a “Fund of Funds Sub-Adviser”). Any investment adviser to an Investing Management Company will be registered under the Advisers Act. Each Investing Trust will be sponsored by a sponsor (“Sponsor”).
13. Applicants submit that the proposed conditions to the requested relief adequately address the concerns underlying the limits in sections 12(d)(1)(A) and (B), which include concerns about undue influence by a fund of funds over underlying funds, excessive layering of fees and overly complex fund structures. Applicants believe that the requested exemption is consistent with the public interest and the protection of investors.
14. Applicants believe that neither a Fund of Funds nor a Fund of Funds Affiliate would be able to exert undue influence over a Fund.
15. Applicants propose other conditions to limit the potential for undue influence over the Funds, including that no Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to purchase a security in an offering of securities during the existence of an underwriting or selling syndicate of which a principal underwriter is an Underwriting Affiliate (“Affiliated Underwriting”). An “Underwriting Affiliate” is a principal underwriter in any underwriting or selling syndicate that is an officer, director, member of an advisory board, Fund of Funds Adviser, Fund of Funds Sub-Adviser, employee or Sponsor of the Fund of Funds, or a person of which any such officer, director, member of an advisory board, Fund of Funds Adviser or Fund of Funds Sub-Adviser, employee or Sponsor is an affiliated person (except that any person whose relationship to the Fund is covered by section 10(f) of the Act is not an Underwriting Affiliate).
16. Applicants do not believe that the proposed arrangement will involve excessive layering of fees. The board of directors or trustees of any Investing Management Company, including a majority of the directors or trustees who are not “interested persons” within the meaning of section 2(a)(19) of the Act (“disinterested directors or trustees”), will find that the advisory fees charged under the contract are based on services provided that will be in addition to, rather than duplicative of, services provided under the advisory contract of any Fund in which the Investing Management Company may invest. In addition, under condition B.5., a Fund of Funds Adviser, or a Fund of Funds' trustee or Sponsor, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b–1 under the Act) received from a Fund by the Fund of Funds Adviser, trustee or Sponsor or an affiliated person of the
17. Applicants submit that the proposed arrangement will not create an overly complex fund structure. Applicants note that no Fund will acquire securities of any investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent permitted by exemptive relief from the Commission permitting the Fund to purchase shares of other investment companies for short-term cash management purposes. To ensure a Fund of Funds is aware of the terms and conditions of the requested order, the Fund of Funds will enter into an agreement with the Fund (“FOF Participation Agreement”). The FOF Participation Agreement will include an acknowledgement from the Fund of Funds that it may rely on the order only to invest in the Funds and not in any other investment company.
18. Applicants also note that a Fund may choose to reject a direct purchase of Shares in Creation Units by a Fund of Funds. To the extent that a Fund of Funds purchases Shares in the secondary market, a Fund would still retain its ability to reject any initial investment by a Fund of Funds in excess of the limits of section 12(d)(1)(A) by declining to enter into a FOF Participation Agreement with the Fund of Funds.
19. Sections 17(a)(1) and (2) of the Act generally prohibit an affiliated person of a registered investment company, or an affiliated person of such a person, from selling any security to or purchasing any security from the company. Section 2(a)(3) of the Act defines “affiliated person” of another person to include (a) any person directly or indirectly owning, controlling or holding with power to vote 5% or more of the outstanding voting securities of the other person, (b) any person 5% or more of whose outstanding voting securities are directly or indirectly owned, controlled or held with the power to vote by the other person, and (c) any person directly or indirectly controlling, controlled by or under common control with the other person. Section 2(a)(9) of the Act defines “control” as the power to exercise a controlling influence over the management or policies of a company, and provides that a control relationship will be presumed where one person owns more than 25% of a company's voting securities. The Funds may be deemed to be controlled by the Adviser or an entity controlling, controlled by or under common control with the Adviser and hence affiliated persons of each other. In addition, the Funds may be deemed to be under common control with any other registered investment company (or series thereof) advised by an Adviser or an entity controlling, controlled by or under common control with an Adviser (an “Affiliated Fund”). Any investor, including Market Makers, owning 5% or holding in excess of 25% of the Trust or such Funds, may be deemed affiliated persons of the Trust or such Funds. In addition, an investor could own 5% or more, or in excess of 25% of the outstanding shares of one or more Affiliated Funds making that investor a Second-Tier Affiliate of the Funds.
20. Applicants request an exemption from sections 17(a)(1) and 17(a)(2) of the Act pursuant to sections 6(c) and 17(b) of the Act to permit persons that are Affiliated Persons of the Funds, or Second-Tier Affiliates of the Funds, solely by virtue of one or more of the following: (a) holding 5% or more, or in excess of 25%, of the outstanding Shares of one or more Funds; (b) an affiliation with a person with an ownership interest described in (a); or (c) holding 5% or more, or more than 25%, of the shares of one or more Affiliated Funds, to effectuate purchases and redemptions “in-kind.”
21. Applicants assert that no useful purpose would be served by prohibiting such affiliated persons from making “in-kind” purchases or “in-kind” redemptions of Shares of a Fund in Creation Units. Both the deposit procedures for “in-kind” purchases of Creation Units and the redemption procedures for “in-kind” redemptions of Creation Units will be effected in exactly the same manner for all purchases and redemptions, regardless of size or number. There will be no discrimination between purchasers or redeemers. Deposit Instruments and Redemption Instruments for each Fund will be valued in the identical manner as those Portfolio Securities currently held by such Fund and the valuation of the Deposit Instruments and Redemption Instruments will be made in an identical manner regardless of the identity of the purchaser or redeemer. Applicants do not believe that “in-kind” purchases and redemptions will result in abusive self-dealing or overreaching, but rather assert that such procedures will be implemented consistently with each Fund's objectives and with the general purposes of the Act. Applicants believe that “in-kind” purchases and redemptions will be made on terms reasonable to Applicants and any affiliated persons because they will be valued pursuant to verifiable objective standards. The method of valuing Portfolio Securities held by a Fund is identical to that used for calculating “in-kind” purchase or redemption values and therefore creates no opportunity for affiliated persons or Second-Tier Affiliates of applicants to effect a transaction detrimental to the other holders of Shares of that Fund. Similarly, applicants submit that, by using the same standards for valuing Portfolio Securities held by a Fund as are used for calculating “in-kind” redemptions or purchases, the Fund will ensure that its NAV will not be adversely affected by such securities transactions. Applicants also note that the ability to take deposits and make redemptions “in-kind” will help each Fund to track closely its Underlying Index and therefore aid in achieving the Fund's objectives.
22. Applicants also seek relief under sections 6(c) and 17(b) from section 17(a) to permit a Fund that is an affiliated person, or an affiliated person of an affiliated person, of a Fund of Funds to sell its Shares to and redeem its Shares from a Fund of Funds, and to engage in the accompanying in-kind transactions with the Fund of Funds.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1. The requested relief to permit ETF operations will expire on the effective date of any Commission rule under the Act that provides relief permitting the operation of index-based ETFs.
2. As long as a Fund operates in reliance on the requested order, the Shares of such Fund will be listed on an Exchange.
3. Neither the Trust nor any Fund will be advertised or marketed as an open-end investment company or a mutual fund. Any advertising material that describes the purchase or sale of Creation Units or refers to redeemability will prominently disclose that Shares are not individually redeemable and that owners of Shares may acquire those Shares from the Fund and tender those Shares for redemption to a Fund in Creation Units only.
4. The Web site, which is and will be publicly accessible at no charge, will contain, on a per Share basis for each Fund, the prior Business Day's NAV and the market closing price or the midpoint of the bid/ask spread at the time of the calculation of such NAV (“Bid/Ask Price”), and a calculation of the premium or discount of the market closing price or Bid/Ask Price against such NAV.
5. Each Self-Indexing Fund, Long/Short Fund and 130/30 Fund will post on the Web site on each Business Day, before commencement of trading of Shares on the Exchange, the Fund's Portfolio Holdings.
6. No Adviser or any Sub-Adviser to a Self-Indexing Fund, directly or indirectly, will cause any Authorized Participant (or any investor on whose behalf an Authorized Participant may transact with the Self-Indexing Fund) to acquire any Deposit Instrument for a Self-Indexing Fund through a transaction in which the Self-Indexing Fund could not engage directly.
1. The members of a Fund of Funds' Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. The members of a Fund of Funds' Sub-Advisory Group will not control (individually or in the aggregate) a Fund within the meaning of section 2(a)(9) of the Act. If, as a result of a decrease in the outstanding voting securities of a Fund, the Fund of Funds' Advisory Group or the Fund of Funds' Sub-Advisory Group, each in the aggregate, becomes a holder of more than 25 percent of the outstanding voting securities of a Fund, it will vote its Shares of the Fund in the same proportion as the vote of all other holders of the Fund's Shares. This condition does not apply to the Fund of Funds' Sub-Advisory Group with respect to a Fund for which the Fund of Funds' Sub-Adviser or a person controlling, controlled by or under common control with the Fund of Funds' Sub-Adviser acts as the investment adviser within the meaning of section 2(a)(20)(A) of the Act.
2. No Fund of Funds or Fund of Funds Affiliate will cause any existing or potential investment by the Fund of Funds in a Fund to influence the terms of any services or transactions between the Fund of Funds or Fund of Funds Affiliate and the Fund or a Fund Affiliate.
3. The board of directors or trustees of an Investing Management Company, including a majority of the disinterested directors or trustees, will adopt procedures reasonably designed to ensure that the Fund of Funds Adviser and Fund of Funds Sub-Adviser are conducting the investment program of the Investing Management Company without taking into account any consideration received by the Investing Management Company or a Fund of Funds Affiliate from a Fund or Fund Affiliate in connection with any services or transactions.
4. Once an investment by a Fund of Funds in the securities of a Fund exceeds the limits in section 12(d)(1)(A)(i) of the Act, the Board of the Fund, including a majority of the directors or trustees who are not “interested persons” within the meaning of Section 2(a)(19) of the Act (“non-interested Board members”), will determine that any consideration paid by the Fund to the Fund of Funds or a Fund of Funds Affiliate in connection with any services or transactions: (i) is fair and reasonable in relation to the nature and quality of the services and benefits received by the Fund; (ii) is within the range of consideration that the Fund would be required to pay to another unaffiliated entity in connection with the same services or transactions; and (iii) does not involve overreaching on the part of any person concerned. This condition does not apply with respect to any services or transactions between a Fund and its investment adviser(s), or any person controlling, controlled by or under common control with such investment adviser(s).
5. The Fund of Funds Adviser, or trustee or Sponsor of an Investing Trust, as applicable, will waive fees otherwise payable to it by the Fund of Funds in an amount at least equal to any compensation (including fees received pursuant to any plan adopted by a Fund under rule 12b–l under the Act) received from a Fund by the Fund of Funds Adviser, or trustee or Sponsor of the Investing Trust, or an affiliated person of the Fund of Funds Adviser, or trustee or Sponsor of the Investing Trust, other than any advisory fees paid to the Fund of Funds Adviser, or trustee or Sponsor of an Investing Trust, or its affiliated person by the Fund, in connection with the investment by the Fund of Funds in the Fund. Any Fund of Funds Sub-Adviser will waive fees otherwise payable to the Fund of Funds Sub-Adviser, directly or indirectly, by the Investing Management Company in an amount at least equal to any compensation received from a Fund by the Fund of Funds Sub-Adviser, or an affiliated person of the Fund of Funds Sub-Adviser, other than any advisory fees paid to the Fund of Funds Sub-Adviser or its affiliated person by the Fund, in connection with the investment by the Investing Management Company in the Fund made at the direction of the Fund of Funds Sub-Adviser. In the event that the Fund of Funds Sub-Adviser waives fees, the benefit of the waiver will be passed through to the Investing Management Company.
6. No Fund of Funds or Fund of Funds Affiliate (except to the extent it is acting in its capacity as an investment adviser to a Fund) will cause a Fund to
7. The Board of a Fund, including a majority of the non-interested Board members, will adopt procedures reasonably designed to monitor any purchases of securities by the Fund in an Affiliated Underwriting, once an investment by a Fund of Funds in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, including any purchases made directly from an Underwriting Affiliate. The Board will review these purchases periodically, but no less frequently than annually, to determine whether the purchases were influenced by the investment by the Fund of Funds in the Fund. The Board will consider, among other things: (i) whether the purchases were consistent with the investment objectives and policies of the Fund; (ii) how the performance of securities purchased in an Affiliated Underwriting compares to the performance of comparable securities purchased during a comparable period of time in underwritings other than Affiliated Underwritings or to a benchmark such as a comparable market index; and (iii) whether the amount of securities purchased by the Fund in Affiliated Underwritings and the amount purchased directly from an Underwriting Affiliate have changed significantly from prior years. The Board will take any appropriate actions based on its review, including, if appropriate, the institution of procedures designed to ensure that purchases of securities in Affiliated Underwritings are in the best interest of shareholders of the Fund.
8. Each Fund will maintain and preserve permanently in an easily accessible place a written copy of the procedures described in the preceding condition, and any modifications to such procedures, and will maintain and preserve for a period of not less than six years from the end of the fiscal year in which any purchase in an Affiliated Underwriting occurred, the first two years in an easily accessible place, a written record of each purchase of securities in Affiliated Underwritings once an investment by a Fund of Funds in the securities of the Fund exceeds the limit of section 12(d)(1)(A)(i) of the Act, setting forth from whom the securities were acquired, the identity of the underwriting syndicate's members, the terms of the purchase, and the information or materials upon which the Board's determinations were made.
9. Before investing in a Fund in excess of the limit in section 12(d)(1)(A), a Fund of Funds and the applicable Trust will execute a FOF Participation Agreement stating, without limitation, that their respective boards of directors or trustees and their investment advisers, or trustee and Sponsor, as applicable, understand the terms and conditions of the order, and agree to fulfill their responsibilities under the order. At the time of its investment in Shares of a Fund in excess of the limit in section 12(d)(1)(A)(i), a Fund of Funds will notify the Fund of the investment. At such time, the Fund of Funds will also transmit to the Fund a list of the names of each Fund of Funds Affiliate and Underwriting Affiliate. The Fund of Funds will notify the Fund of any changes to the list of the names as soon as reasonably practicable after a change occurs. The Fund and the Fund of Funds will maintain and preserve a copy of the order, the FOF Participation Agreement, and the list with any updated information for the duration of the investment and for a period of not less than six years thereafter, the first two years in an easily accessible place.
10. Before approving any advisory contract under section 15 of the Act, the board of directors or trustees of each Investing Management Company including a majority of the disinterested directors or trustees, will find that the advisory fees charged under such contract are based on services provided that will be in addition to, rather than duplicative of, the services provided under the advisory contract(s) of any Fund in which the Investing Management Company may invest. These findings and their basis will be fully recorded in the minute books of the appropriate Investing Management Company.
11. Any sales charges and/or service fees charged with respect to shares of a Fund of Funds will not exceed the limits applicable to a fund of funds as set forth in NASD Conduct Rule 2830.
12. No Fund will acquire securities of an investment company or company relying on section 3(c)(1) or 3(c)(7) of the Act in excess of the limits contained in section 12(d)(1)(A) of the Act, except to the extent the Fund acquires securities of another investment company pursuant to exemptive relief from the Commission permitting the Fund to acquire securities of one or more investment companies for short-term cash management purposes.
For the Commission, by the Division of Investment Management, under delegated authority.
On May 19, 2010, the Securities and Exchange Commission (“Commission”) conditionally exempted, with respect to certain credit ratings and until December 2, 2010, nationally recognized statistical rating organizations (“NRSROs”) from certain requirements in Rule 17g–5(a)(3)
Rule 17g–5 identifies, in paragraphs (b) and (c) of the rule, a series of conflicts of interest arising from the business of determining credit ratings.
In December 2009, the Commission adopted subparagraph (a)(3) to Rule 17g–5. This provision requires an NRSRO that is hired by an arranger to determine an initial credit rating for a structured finance product to take certain steps designed to allow an NRSRO that is not hired by the arranger to nonetheless determine an initial credit rating—and subsequently monitor that credit rating—for the structured finance product.
• Maintain on a password-protected Internet Web site a list of each structured finance product for which it currently is in the process of determining an initial credit rating in chronological order and identifying the type of structured finance product, the name of the issuer, the date the rating process was initiated, and the Internet Web site address where the arranger represents the information provided to the hired NRSRO can be accessed by other NRSROs;
• Provide free and unlimited access to such password-protected Internet Web site during the applicable calendar year to any NRSRO that provides it with a copy of the certification described in paragraph (e) of Rule 17g–5 that covers that calendar year;
• Obtain from the arranger a written representation that can reasonably be relied upon that the arranger will, among other things, disclose on a password-protected Internet Web site the information it provides to the hired NRSRO to determine the initial credit rating (and monitor that credit rating) and provide access to the Web site to an NRSRO that provides it with a copy of the certification described in paragraph (e) of Rule 17g–5.
The Commission stated in the Adopting Release that subparagraph Rule 17g–5(a)(3) is designed to address conflicts of interest and improve the quality of credit ratings for structured finance products by making it possible for more NRSROs to rate structured finance products.
Rule 17g–5(a)(3) became effective on February 2, 2010, and the compliance date for Rule 17g–5(a)(3) was June 2, 2010.
In the Order, the Commission requested comment generally, but also on a number of specific issues.
Given the continued concerns about potential disruptions of local securitization markets, and because the Commission's consideration of the issues raised will benefit from additional time to engage in further dialogue with interested parties and to monitor market and regulatory developments, the Commission believes extending the conditional temporary exemption until December 2, 2014 is necessary or appropriate in the public interest, and is consistent with the protection of investors.
The Commission believes that it would be useful to continue to provide interested parties opportunity to comment. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Use the Federal eRulemaking Portal (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F St. NE., Washington, DC 20549–1090.
For the foregoing reasons, the Commission believes it would be necessary or appropriate in the public interest and consistent with the protection of investors to extend the conditional temporary exemption exempting NRSROs from complying with Rule 17g–5(a)(3) with respect to rating covered transactions until December 2, 2014.
(1) The issuer of the security or money market instrument is not a U.S. person (as defined under Securities Act Rule 902(k)); and
(2) The nationally recognized statistical rating organization has a reasonable basis to conclude that the structured finance product will be offered and sold upon issuance, and that any arranger linked to the structured finance product will effect transactions of the structured finance product after issuance, only in transactions that occur outside the U.S.
By the Commission.
Securities and Exchange Commission.
Notice of roundtable discussion; request for comment.
The Securities and Exchange Commission will host a roundtable about proxy advisory firms. The panel will be asked to discuss topics including the current state of proxy advisory firm use by investment advisers and institutional investors and potential changes that have been suggested by market participants. Panelists will also be invited to discuss any new ideas.
The roundtable discussion will be held in the multi-purpose room of the Securities and Exchange Commission headquarters at 100 F Street NE., Washington, DC, on December 5, 2013 from 9:30 a.m. to approximately 1:30 p.m. The public is invited to observe the roundtable discussion. Seating will be available on a first-come, first-serve basis. The roundtable discussion will also be available via webcast on the Commission's Web site at
The roundtable discussion will take place on December 5, 2013. The Commission will accept comments regarding issues addressed at the roundtable until January 10, 2014.
Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Sara Cortes, Senior Special Counsel, Division of Investment Management, at 202–551–6700, or Raymond Be, Special Counsel, Division of Corporation Finance, at 202–551–3500, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Price List related to co-location services in order to provide further specification regarding the fees applicable to cabinets for which power is not utilized (“PNU cabinets”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend its Price List related to co-location services in order to provide further specification regarding the fees applicable to PNU cabinets.
A User is currently able to obtain one or more PNU cabinets in the data center.
The applicable monthly fee for PNU cabinets (the “PNU Fee”) was described within the Original Co-location Approval as 40% of the applicable per kW monthly fee.
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (e.g., a service bureau providing order entry services); (ii) use of the co-location services proposed herein would be completely voluntary and available to all Users on a non-discriminatory basis;
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Overall, the Exchange believes that the proposed change is consistent with the Act because the Exchange offers the co-location services described herein (i.e., PNU cabinets) as a convenience to Users, but in doing so incurs certain costs, including costs related to the data center facility, including maintaining an adequate level of power so that PNU cabinets can be available and powered on promptly at the request of a User. As such, the proposed fees relate to the level of services provided by the Exchange and, in turn, received by the User.
The Exchange believes that the proposal is reasonable because it would better align the Price List with the Exchange's billing practices and provide further specificity in the Price List regarding such fees. The proposal is further reasonable because pricing for PNU cabinets is comparable to pricing for the “Cabinet Proximity Option” available to users of co-location facilities of The NASDAQ Stock Market LLC (“NASDAQ”), which varies based on the power capacity of the cabinet.
As with fees for existing co-location services, the PNU cabinet fees are charged only to those Users that voluntarily select the related services, which are available to all Users. The Exchange therefore believes that the proposed change is equitable and not unfairly discriminatory because it would continue to result in fees being charged only to Users that voluntarily select to receive the corresponding services and because those services are available to all Users. As such, the proposed change would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange further believes that the proposal would not impose any burden
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if, for example, they deem fee levels at a particular venue to be excessive or if they determine that another venue's products and services are more competitive than on the Exchange. In such an environment, the Exchange must continually review, and consider adjusting, the services it offers as well as any corresponding fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fee Schedule and, through its wholly owned subsidiary NYSE Arca Equities, Inc. (“NYSE Arca Equities”), the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (the “Equities Fee Schedule” and, together with the Options Fee Schedule, the “Fee Schedules”) related to co-location services in order to provide further specification regarding the fees applicable to cabinets for which power is not utilized (“PNU cabinets”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedules related to co-location services in order to provide further specification regarding the fees applicable to PNU cabinets.
A User is currently able to obtain one or more PNU cabinets in the data center.
The applicable monthly fee for PNU cabinets (the “PNU Fee”) was described within the Original Co-location Approval as 40% of the applicable per kW monthly fee.
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is an ETP Holder, an OTP Holder or OTP Firm, a Sponsored Participant or an agent thereof (e.g., a service bureau providing order entry services); (ii) use of the co-location services proposed herein would be completely voluntary and available to all Users on a non-discriminatory basis;
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Overall, the Exchange believes that the proposed change is consistent with the Act because the Exchange offers the co-location services described herein (i.e., PNU cabinets) as a convenience to Users, but in doing so incurs certain costs, including costs related to the data center facility, including maintaining an adequate level of power so that PNU cabinets can be available and powered on promptly at the request of a User. As such, the proposed fees relate to the level of services provided by the Exchange and, in turn, received by the User.
The Exchange believes that the proposal is reasonable because it would
As with fees for existing co-location services, the PNU cabinet fees are charged only to those Users that voluntarily select the related services, which are available to all Users. The Exchange therefore believes that the proposed change is equitable and not unfairly discriminatory because it would continue to result in fees being charged only to Users that voluntarily select to receive the corresponding services and because those services are available to all Users. As such, the proposed change would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange further believes that the proposal would not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because it would result in further specification in the Fee Schedules regarding the fees applicable to PNU cabinets. Although PNU cabinets do not use power, when the Exchange establishes a PNU cabinet, it includes wiring, circuitry, and hardware and allocates either four kWs or eight kWs of unused power capacity, depending on the User's requirements, as it does for all cabinets. This allows the cabinet to be powered and used promptly upon the User's request. The proposed amendment to the Fee Schedules would therefore specify that the applicable monthly PNU Fee is $360 per kW of power allocated to the PNU cabinet.
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if, for example, they deem fee levels at a particular venue to be excessive or if they determine that another venue's products and services are more competitive than on the Exchange. In such an environment, the Exchange must continually review, and consider adjusting, the services it offers as well as any corresponding fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
Pursuant to Section 19(b)(1)
The Exchange proposes a one-year pilot program that would add new Rule 107D—Equities to establish an Institutional Liquidity Program (“Program” or “proposed rule change”) to attract buying and selling interest in greater size to the Exchange for Exchange-listed or traded securities (including but not limited to Exchange-listed securities and securities traded pursuant to unlisted trading privileges) by facilitating interactions between institutional customers (and others with block trading interest) and providers of liquidity exceeding minimum size requirements. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange is proposing a one-year pilot program that would add new NYSE MKT Rule 107D—Equities to establish an Institutional Liquidity Program to attract buying and selling interest in greater size to the Exchange for Exchange-listed and traded securities by facilitating interactions between institutional customers and others with block trading interest (collectively, “Institutional Interest”) and providers of liquidity to service this type of order flow.
As set forth in more detail below, the Program at its core would depend on the interaction between two new proposed order types, the “Institutional Liquidity Order” (“ILO”) and the “Oversize Liquidity Order” (“OLO”). In summary terms, ILOs would express non-displayed Institutional Interest (5,000 or more shares with $50,000 or more market value), and OLOs would express liquidity of at least 500 shares
In particular, the Program has the potential to address three such concerns. First, the Exchange has expressed increasing concern about the migration of orders entered by investors who are less informed as to short term price movements toward dark venues and away from the public markets. At the same time, increasingly small orders entered by technology-enabled, short-term liquidity suppliers have become concentrated on exchanges.
The Exchange proposes to adopt the following definitions under proposed NYSE MKT Rule 107D(a)—Equities.
First, the term “Institutional Liquidity Order” is defined as a limit order for Exchange-listed or traded securities (including but not limited to Exchange-listed securities and securities traded pursuant to unlisted trading privileges) of 5,000 or more shares with a market value of at least $50,000,
An ILO, or recorded parent order instruction, that meets the minimum size requirement and receives a partial execution that reduces its size to below the minimum size requirement will not become size ineligible. Even though a member organization receives a partial execution, and then later cancels the remaining unexecuted ILO or parent order instruction, the member organization has satisfied the size requirement as long as its intent at the time of execution was to fill the 5,000 share ILO or recorded parent order instruction.
An ILO may be designated Immediate-or-Cancel, or entered as a Reserve Order, in which case the order or any residual unexecuted portion will remain executable against contra-side interest in accordance with this Rule. An ILO may be designated with an MTV requirement that must be met before the order is executed. The MTV will be an optional parameter designating a minimum amount of shares of a security for which the ILO will attempt to execute if there is sufficient contra-side OLO and/or ILO interest available at the ILO's limit price or better. Depending on its designation, an ILO will consider the volume on the Exchange book and/or away markets in order to satisfy its MTV requirement.
Under the Program, a member organization submitting ILOs must maintain policies and procedures reasonably designed to ensure that the above requirements are satisfied and maintain records sufficient to reconstruct in a time-sequenced manner all orders routed to the Exchange as an ILO, including how recorded parent order instructions that meet the minimum size requirement relate to child order ILOs. For example, if a member organization is sending ILOs for its own account, it must have written policies and procedures that reflect how it documents that it has a recorded parent order that meets the above requirements. In addition, a member organization may presume that an account's intent to establish, increase, liquidate, or decrease a position is bona fide absent concrete indications to the contrary. Where circumstances indicate that an account does not intend to establish the required position, member organizations should make reasonable inquiry and follow up appropriately. For instance, the following circumstances may indicate that an account does not intend to establish, increase, liquidate, or decrease a position consistent with the Program:
• The account attempts to enter contemporaneous orders in the same security on both sides of the market;
• The account enters a pattern of orders and cancellations apparently designed to implement a market-making or spread-trading strategy; or
• The account enters a pattern of cancellations that consistently produces positions of a size that are less than the size requirements of the Program.
Member organizations receiving size ineligible child orders may rely on the member organization holding the recorded parent order instruction with respect to the size eligibility of the recorded parent order instruction from which the child order is derived. The member organization receiving the child order will not be responsible for the failure of the recorded parent order instruction to meet the requirements of the Program absent circumstances indicating the reliance was unreasonable. For example, if a member organization receiving the child orders knew that its customer member organization primarily engaged in a pattern and practice of trading the same security on both sides of the market, it would not be reasonable to assume that size ineligible child orders received from such member organization would comply with the Program's rules, unless they had information that such trading did not follow the customer member organization's general trading strategy. The Exchange, with FINRA, will review activity indicative of non-compliance with the Program's rules. The Exchange will exclude non-compliant member organizations when necessary to ensure a proper functioning of the Program.
Second, the term “Oversize Liquidity Order” is defined as a non-displayed limit order for Exchange-listed or traded securities (including but not limited to Exchange-listed securities and securities traded pursuant to unlisted trading privileges) with a minimum size of 500 shares.
As discussed below, OLOs and ILOs will be ranked and allocated according to price then size then time of entry into Exchange systems
Third, the term “Program” would be defined as the Institutional Liquidity Program as described in Rule 107D—Equities.
Under proposed NYSE MKT Rule 107D(b)—Equities, the Exchange proposes to disseminate an identifier initially through an Exchange proprietary data feed, and as soon as practicable, the Exchange would disseminate the identifier through the CQS when an OLO or ILO resides in Exchange systems. The LI will reflect the symbol for the particular security, but will not include the price, side (buy or sell), or size of the OLO or ILO interest.
Under proposed NYSE MKT Rule 107D(c)—Equities, a member organization can designate how an ILO would interact with available contra-side interest as follows. As proposed, a Type 1-designated ILO will interact, at each price level, first with displayed interest in Exchange systems, then available contra-side OLOs and/or ILOs in size-time priority, and then with any remaining non-displayed interest in Exchange systems, except a Type 1-designated ILO will not trade through a protected quotation. Any remaining portion of the ILO will be cancelled if designated as a Regulation NMS-compliant Immediate or Cancel Order pursuant to Rule 13—Equities, or if designated as a Reserve Order, rest on the Exchange book and be available to interact with other incoming contra-side OLOs, ILOs, and other available interest in Exchange systems but will not trade through a protected quotation. Accordingly, a Type 1-designated ILO may interact with other interest in Exchange systems, but will not route to other markets.
Under proposed NYSE MKT Rule 107D(d)—Equities, the Exchange proposes that competing OLOs and ILOs will be ranked and allocated according to price, then size, then time of entry into Exchange systems. The size priority of OLOs and ILOs will be based upon their initial size at time of entry; however, any partial cancels of OLOs or ILOs will reduce their original size for priority purposes by an equal amount. As such, when an ILO or OLO is partially cancelled, its size priority will be redetermined based on its new size; however, the ILO or OLO will maintain its time priority. Displayed liquidity will have priority over equally priced ILOs and OLOs. An incoming ILO will execute first against displayed interest, then against contra-side ILOs and OLOs, and finally against any non-displayed interest in Exchange systems. Any remaining unexecuted ILO interest will remain available to interact with other incoming OLOs and/or ILOs if such interest is at an eligible price unless the order is designated IOC. The following examples illustrate this proposed method:
An incoming Type 1 ILO to sell ABC for 10,000 executes first against OLO 1's bid for 5,000, because it is the largest best-priced bid entered first in time, then against OLO 2's bid for 5,000, because it is the next largest best-priced bid. OLO 3 is not filled because the entire size of the ILO to sell 10,000 is depleted.
Assume the same facts as above. An incoming Type 1 ILO to sell ABC for 13,800 with an MTV of 10,000 will execute first against OLO 1's bid for 5,000, because it is the largest best-priced bid entered first in time, then against OLO 2's bid for 5,000, because it is the next largest best-priced bid. OLO 3 then receives an execution for 3,800 of its 4,000, at which point the entire size of the ILO to sell 13,800 is depleted. Note that the MTV requirement is met by the aggregate level of contra-side interest, even though no individual OLO satisfied the ILO's MTV requirement. Additionally, OLO 3 will still be available to interact with an incoming ILO since its original quantity was above the minimum size requirements.
Assume the same facts above, except that OLO 2's bid to buy ABC at $10.00 is for 2,000. An incoming Type 1 ILO to sell 10,000 executes first against OLO 1's bid for 5,000, because it is the largest best-priced bid, then against OLO 3's bid for 4,000, because it is the next largest best-priced bid. OLO 2 then receives an execution for 1,000 of its 2,000, at which point the entire size of the ILO to sell 10,000 is depleted.
Additionally, assume the same facts above, except that OLO 3's bid to buy 4,000 is priced at $10.01 and there is also an additional OLO entered to buy at $10.00 for 4,000 (OLO 4). An incoming Type 1 ILO to sell 11,000 executes first against OLO 3's bid for 4,000, because it is the best-priced bid. OLO 1 then receives an execution for 5,000, because it is the largest next-best-priced bid, and was entered ahead of OLO 2. OLO 2 then receives an execution for 2,000, leaving 3,000 unexecuted shares, at which point the entire size of the ILO is depleted. Next, another incoming Type 1 ILO to sell 3,000 executes against OLO 2 for 3,000 since its original quantity was 5,000, which is greater than the size of OLO 4 at 4,000. Using this same example, assume prior to the second ILO arriving, a partial cancel was sent in for OLO 2 to reduce its quantity by 2,000. The second arriving ILO would execute against OLO 4, since by partially
Finally, assume the same facts above, except that after OLO 3 is entered, ILO 1 is entered to buy ABC at $10.00 for 10,000 with an MTV of 5,000. An incoming Type 1 ILO to sell 15,000 executes first against ILO 1 because it is the largest best-priced bid and the number of shares available exceeds ILO 1's MTV of 5,000. OLO 1 then receives an execution for 5,000, because it is the next largest best-priced bid, and was entered ahead of OLO 2, at which point the entire size of the ILO to sell 15,000 is depleted.
An incoming Type 1 ILO to sell ABC for 6,000 executes first against OLO 1 because it is the best-priced bid, then against O1's bid for 1,000. O1 receives priority over OLO 2 because O1 is a displayed order on the Exchange. OLO 2 remains available to interact with incoming ILOs.
An incoming Type 2 ILO to sell ABC for 12,000 executes first against O1, the Exchange Best Bid, for 1,000 at $10.00 because it is the best-priced displayed liquidity, then against OLO 1 for 4,000 because it is the best-priced bid in the Program and liquidity in the Program has priority over nondisplayed liquidity, then against O2 for 4,000 because it is the best-priced nondisplayed liquidity. The ILO then sweeps to $9.99, first routing 100 shares to the away market bid at $10.00. At $9.99, the ILO executes first against O3 for 2,000 because it is the best-priced displayed liquidity, then against OLO 2 for 900 because it is the best-priced bid in the Program.
The Exchange proposes that all Exchange-listed or traded securities (including but not limited to Exchange-listed securities and securities traded pursuant to unlisted trading privileges) will be eligible for inclusion in the Institutional Liquidity Program. In order to provide for an efficient implementation, the Institutional Liquidity Program will initially cover only a certain specified list of Exchange-listed or traded securities, as announced by the Exchange via a Trader Update. The Exchange anticipates that the securities included within the Institutional Liquidity Program will be expanded periodically based on experience with the Program.
The Commission has consistently recognized the challenges faced by large investors seeking to interact with counterparties without adversely impacting the price of the stock they seek to trade.
Non-displayed liquidity in general, and dark pools in particular, have been viewed as useful tools to address those challenges. The Commission noted specifically in 2009, however, that dark pools differ starkly in their contribution to size discovery. While block crossing networks were producing at that time average trade sizes as large as 50,000 shares, most dark pools were executing trades with average sizes comparable to those on exchanges.
Moreover, it is equally important to consider the side effects of the diversion of a large percentage of investor order flow away from displayed markets.
There are important indicators that this perceived static distribution of lit and dark liquidity is no longer in line with the facts, particularly when accounting for the growth in off-exchange volume. For example, the number of securities with greater than 40% TRF share has more than doubled in the past year to over 56.3% of total stocks.
The Exchange also believes that the data strongly indicate emerging threats to the public price discovery process. The Program has the potential to leverage competition to address, in a limited way, these important concerns.
In considering the potential of the Program to address the possible degradation of the public price discovery process, it is worth underscoring the following basic point: The priority rules of the Exchange (and exchanges generally) offer a higher level of interaction between displayed and non-displayed liquidity than dark pools and broker internalization venues.
Unlike a dark pool or internalization venue, the Program's ILOs would bolster the display incentive. Example 3, as described above, demonstrates such support. As stated in the above example, the PBBO for the security is $10.00 by $10.05 with OLOs within the program to buy at both $10.00 and $9.99. Furthermore, there is displayed interest on the book at $10.00 and $9.99. After the incoming ILO to sell executes against all interest priced at the PBB ($10.00), the ILO then interacts with a displayed limit order priced one penny away from the PBB. Having received an execution, the market participant who placed the limit order has been rewarded and incentivized to display in the future.
As part of the Equity Market Structure Concept Release, the Commission questioned whether the use of “pinging” orders by all or some traders to assess non-displayed liquidity should be prohibited or restricted.
The proposed rule change is consistent with Section 6(b) of the Act,
The proposal arises out of the competition between the Exchange and non-exchange venues for block trading interest and the growth of institutional trading on less-regulated and less-transparent execution venues. As the Commission has previously noted, broker-dealers acting as over-the-counter market makers and block positioners provide liquidity directly to Institutional Interest.
The Exchange understands that Section 6(b)(5) of the Act prohibits an exchange from establishing rules that treat market participants in an unfairly discriminatory manner. However, Section 6(b)(5) of the Act does not prohibit exchange members or other broker-dealers from discriminating, so long as their activities are otherwise consistent with the federal securities laws. Nor does Section 6(b)(5) of the Act require exchanges to preclude discrimination by broker-dealers. Broker-dealers commonly differentiate between customers based on the nature and profitability of their business. The Program will simply replicate these trading dynamics that already exist in the OTC markets and will present another competitive venue for institutional and block order flow execution.
The differentiation proposed herein by the Exchange is not designed to permit unfair discrimination, but instead to promote a competitive process around block trading interest such that Institutional Interest would receive additional liquidity options than they receive in the current market. The Exchange believes that the transparency and competitiveness of an exchange-sponsored program such as the Institutional Liquidity Program would enhance the liquidity available to institutional investors and thereby reduce their trading costs. As the Commission has previously recognized, institutional investors seek to trade efficiently in large sizes without having a significant impact on market prices.
Additionally, the Exchange believes that the Program will promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and a national market system because it will create additional competition for institutional and block order flow, attract institutional and block order flow to the exchange environment, and ensure that Institutional Interest benefit from a larger pool of liquidity and potentially receive better prices than they currently receive through bilateral internalization agreements. As a result, the Program is designed to provide a relative enhancement of the incentive to display than currently exists. The Exchange also notes that the LI will be disseminated through the consolidated public market data stream, and thus be widely viewable by market participants, and as such, would increase the amount of pricing information available to the marketplace. Therefore, the Program is reasonably designed to increase market transparency, thus removing impediments to and perfecting the mechanism of a free and open market and a national market system.
The Exchange believes that the Program will remove impediments to and perfect the mechanism of a free and open market and a national market
Further, the Exchange believes that the Program will remove impediments to and perfect the mechanism of a free and open market and a national market system by promoting order interaction. Specifically, the functionality of ILOs in the Program provides publicly displayed liquidity in general, particularly publicly displayed limit orders below the top of book, the potential to interact with Institutional Interest, thus incentivizing the display of public limit orders in such a way that dark pools do not.
The Exchange believes that the price-size priority of OLOs and ILOs within the Program proposed herein is consistent with the Act. The priority is meant to reward liquidity providers willing to display greater size, an incentive that the Commission has previously approved.
The Exchange believes that the Program is designed to protect investors and the public interest because the Program has the potential to lower volatility in a given security by increasing liquidity and depth at, inside, and outside the PBBO. The Commission has previously acknowledged the relationship between transaction costs, short-term price volatility, and temporary imbalances in trading interest.
Further, the Exchange believes the Program is designed to protect investors and the public interest because the Program has the potential to increase price improvement and size improvement opportunities for institutional investors. Because of the priority provided to equally-priced displayed interest outside the Program, member organizations must submit OLOs and ILOs priced within the PBBO in order to receive priority or else risk receiving a partial or no fill. Additionally, the size priority applied to OLOs or ILOs similarly incentivizes member organizations to submit large orders into the Program, offering size improvement opportunities to institutional investors.
Finally, the Exchange proposes that the Commission approve the proposed rule for a pilot period of twelve months from the date of implementation, which will occur no later than 90 days after Commission approval of Rule 107D—Equities. The Program will expire on [Date will be determined upon adoption of Rule 107D—Equities]. The Exchange believes that this pilot period is of sufficient length to permit both the Exchange and the Commission to assess the impact of the rule change described herein. During the pilot period, the Exchange will submit certain data, periodically as required by the Commission, including: Summary statistics on the operation of the Program along with the meaning of the summary statistics; raw data relating to the operation of the Program; reports and data monitoring the Program's participants along with their activity; and the Exchange's assessment of the impact of the Program.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change will increase competition among execution venues and encourage additional liquidity. The Exchange notes that a significant percentage of the orders of institutional investors are executed over-the-counter. The Exchange believes that it is appropriate to create a financial incentive to bring more institutional order flow to a public market.
Additionally, as previously stated, the differentiation proposed herein by the Exchange is not designed to permit unfair discrimination, but instead to promote a competitive process around block trading such that Institutional Interest would receive better prices and greater access to liquidity than they currently do through bilateral internalization arrangements. The Exchange believes that the transparency and competitiveness of operating a program such as the Institutional Liquidity Program on an exchange market would result in better prices for Institutional Interest while reducing their market impact.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE MKT Equities Price List (“Price List”) and the NYSE Amex Options Fee Schedule (“Fee Schedule”) related to co-location services in order to provide further specification regarding the fees applicable to cabinets for which power is not utilized (“PNU cabinets”). The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List and the Fee Schedule related to co-location services in order to provide further specification regarding the fees applicable to PNU cabinets.
A User is currently able to obtain one or more PNU cabinets in the data center.
The applicable monthly fee for PNU cabinets (the “PNU Fee”) was described within the Original Co-location Approval as 40% of the applicable per kW monthly fee.
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, an ATP Holder, a Sponsored Participant or an agent thereof (e.g., a service bureau providing order entry services); (ii) use of the co-location services proposed herein would be completely voluntary and available to all Users on a non-discriminatory basis;
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
Overall, the Exchange believes that the proposed change is consistent with the Act because the Exchange offers the co-location services described herein (i.e., PNU cabinets) as a convenience to Users, but in doing so incurs certain costs, including costs related to the data center facility, including maintaining an adequate level of power so that PNU cabinets can be available and powered on promptly at the request of a User. As such, the proposed fees relate to the level of services provided by the Exchange and, in turn, received by the User.
The Exchange believes that the proposal is reasonable because it would better align the Price List and Fee Schedule with the Exchange's billing practices and provide further specificity in the Price List and Fee Schedule regarding such fees. The proposal is further reasonable because pricing for PNU cabinets is comparable to pricing for the “Cabinet Proximity Option” available to users of co-location facilities of The NASDAQ Stock Market LLC (“NASDAQ”), which varies based on the power capacity of the cabinet.
As with fees for existing co-location services, the PNU cabinet fees are charged only to those Users that voluntarily select the related services, which are available to all Users. The Exchange therefore believes that the proposed change is equitable and not unfairly discriminatory because it would continue to result in fees being charged only to Users that voluntarily select to receive the corresponding services and because those services are available to all Users. As such, the proposed change would not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange further believes that the proposal would not impose any burden on competition that is not necessary or
Finally, the Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if, for example, they deem fee levels at a particular venue to be excessive or if they determine that another venue's products and services are more competitive than on the Exchange. In such an environment, the Exchange must continually review, and consider adjusting, the services it offers as well as any corresponding fees and credits to remain competitive with other exchanges. For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes a one-year pilot program that would add new Rule 107D to establish an Institutional Liquidity Program (“Program” or “proposed rule change”) to attract buying and selling interest in greater size to the Exchange for NYSE-listed securities by facilitating interactions between institutional customers (and others with block trading interest) and providers of liquidity exceeding minimum size requirements. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange is proposing a one-year pilot program that would add new NYSE Rule 107D to establish an Institutional Liquidity Program to attract buying and selling interest in greater size to the Exchange for NYSE-listed securities by facilitating interactions between institutional customers and others with block trading interest (collectively, “Institutional Interest”) and providers of liquidity to service this type of order flow.
As set forth in more detail below, the Program at its core would depend on the interaction between two new proposed order types, the “Institutional Liquidity Order” (“ILO”) and the “Oversize Liquidity Order” (“OLO”). In summary terms, ILOs would express non-displayed Institutional Interest (5,000 or more shares with $50,000 or more market value), and OLOs would express liquidity of at least 500 shares
In particular, the Program has the potential to address three such concerns. First, the Exchange has expressed increasing concern about the migration of orders entered by investors who are less informed as to short term price movements toward dark venues and away from the public markets. At the same time, increasingly small orders entered by technology-enabled, short-term liquidity suppliers have become concentrated on exchanges.
The Exchange proposes to adopt the following definitions under proposed NYSE Rule 107D(a).
First, the term “Institutional Liquidity Order” is defined as a limit order for NYSE-listed securities of 5,000 or more shares with a market value of at least $50,000,
An ILO, or recorded parent order instruction, that meets the minimum size requirement and receives a partial execution that reduces its size to below the minimum size requirement will not become size ineligible. Even though a member organization receives a partial execution, and then later cancels the remaining unexecuted ILO or parent order instruction, the member organization has satisfied the size requirement as long as its intent at the time of execution was to fill the 5,000 share ILO or recorded parent order instruction.
An ILO may be designated Immediate-or-Cancel, or entered as a Reserve Order, in which case the order or any residual unexecuted portion will remain executable against contra-side interest in accordance with this Rule. An ILO may be designated with an MTV requirement that must be met before the order is executed. The MTV will be an optional parameter designating a minimum amount of shares of a security for which the ILO will attempt to execute if there is sufficient contra-side OLO and/or ILO interest available at the ILO's limit price or better. Depending on its designation, an ILO will consider the volume on the Exchange book and/or away markets in order to satisfy its MTV requirement.
Under the Program, a member organization submitting ILOs must maintain policies and procedures reasonably designed to ensure that the above requirements are satisfied and maintain records sufficient to reconstruct in a time-sequenced manner all orders routed to the Exchange as an ILO, including how recorded parent order instructions that meet the minimum size requirement relate to child order ILOs. In particular, if a member organization is sending ILOs for its own account, it must have written policies and procedures that reflect how it documents that it has a recorded parent order that meets the above requirements. In addition, a member organization may presume that an account's intent to establish, increase, liquidate, or decrease a position is bona fide absent concrete indications to the contrary. Where circumstances indicate that an account does not intend to establish the required position, member organizations should make reasonable inquiry and follow up appropriately. For instance, the following circumstances may indicate that an account does not intend to establish, increase, liquidate, or decrease a position consistent with the Program:
• The account attempts to enter contemporaneous orders in the same security on both sides of the market;
• The account enters a pattern of orders and cancellations apparently designed to implement a market-making or spread-trading strategy; or
• The account enters a pattern of cancellations that consistently produces positions of a size that are less than the size requirements of the Program.
Member organizations receiving size ineligible child orders may rely on the member organization holding the recorded parent order instruction with respect to the size eligibility of the recorded parent order instruction from which the child order is derived. The member organization receiving the child order will not be responsible for the failure of the recorded parent order instruction to meet the requirements of the Program absent circumstances indicating the reliance was unreasonable. For example, if a member organization receiving the child orders knew that its customer member organization primarily engaged in a pattern and practice of trading the same security on both sides of the market, it would not be reasonable to assume that size ineligible child orders received from such member organization would comply with the Program's rules, unless they had information that such trading did not follow the customer member organization's general trading strategy. The Exchange, with FINRA, will monitor activity indicative of non-compliance with the Program's rules and will exclude non-compliant member organizations when necessary to ensure a proper functioning of the Program.
Second, the term “Oversize Liquidity Order” is defined as a non-displayed limit order for NYSE-listed securities with a minimum size of 500 shares.
As discussed below, OLOs and ILOs will be ranked and allocated according to price then size then time of entry into Exchange systems
Third, the term “Program” would be defined as the Institutional Liquidity Program as described in Rule 107D.
Under proposed NYSE Rule 107D(b), the Exchange proposes to disseminate an identifier initially through an Exchange proprietary data feed, and as soon as practicable, the Exchange would disseminate the identifier through the CQS when an OLO or ILO resides in Exchange systems. The LI will reflect the symbol for the particular security, but will not include the price, side (buy or sell), or size of the OLO or ILO interest.
Under proposed NYSE Rule 107D(c), a member organization can designate how an ILO would interact with available contra-side interest as follows. As proposed, a Type 1-designated ILO will interact, at each price level, first with displayed interest in Exchange systems, then available contra-side OLOs and/or ILOs in size-time priority, and then with any remaining non-displayed interest in Exchange systems, except a Type 1-designated ILO will not trade through a protected quotation. Any remaining portion of the ILO will be cancelled if designated as a Regulation NMS-compliant Immediate or Cancel Order pursuant to Rule 13, or if designated as a Reserve Order, rest on the Exchange book and be available to interact with other incoming contra-side OLOs, ILOs, and other available interest in Exchange systems but will not trade through a protected quotation. Accordingly, a Type 1-designated ILO may interact with other interest in Exchange systems, but will not route to other markets.
Under proposed NYSE Rule 107D(d), the Exchange proposes that competing OLOs and ILOs will be ranked and allocated according to price, then size, then time of entry into Exchange systems. The size priority of OLOs and ILOs will be based upon their initial size at time of entry; however, any partial cancels of OLOs or ILOs will reduce their original size for priority purposes by an equal amount. As such, when an ILO or OLO is partially cancelled, its size priority will be redetermined based on its new size; however, the ILO or OLO will maintain its time priority. Displayed liquidity will have priority over equally priced ILOs and OLOs. An incoming ILO will execute first against displayed interest, then against contra-side ILOs and OLOs, and finally against any non-displayed interest in Exchange systems. Any remaining unexecuted ILO interest will remain available to interact with other incoming OLOs and/or ILOs if such interest is at an eligible price unless the order is designated IOC. The following examples illustrate this proposed method:
PBBO for security ABC is $9.99–$10.05
OLO 1 is entered to buy ABC at $10.00 for 5,000
OLO 2 is then entered to buy ABC at $10.00 for 5,000
OLO 3 is then entered to buy ABC at $10.00 for 4,000
An incoming Type 1 ILO to sell ABC for 10,000 executes first against OLO 1's bid for 5,000, because it is the largest best-priced bid entered first in time, then against OLO 2's bid for 5,000, because it is the next largest best-priced bid. OLO 3 is not filled because the entire size of the ILO to sell 10,000 is depleted.
Assume the same facts as above. An incoming Type 1 ILO to sell ABC for 13,800 with an MTV of 10,000 will execute first against OLO 1's bid for 5,000, because it is the largest best-priced bid entered first in time, then against OLO 2's bid for 5,000, because it is the next largest best-priced bid. OLO 3 then receives an execution for 3,800 of its 4,000, at which point the entire size of the ILO to sell 13,800 is depleted. Note that the MTV requirement is met by the aggregate level of contra-side interest, even though no individual OLO satisfied the ILO's MTV requirement. Additionally, OLO 3 will still be available to interact with an incoming ILO since its original quantity was above the minimum size requirements.
Assume the same facts above, except that OLO 2's bid to buy ABC at $10.00 is for 2,000. An incoming Type 1 ILO to sell 10,000 executes first against OLO 1's bid for 5,000, because it is the largest best-priced bid, then against OLO 3's bid for 4,000, because it is the next largest best-priced bid. OLO 2 then receives an execution for 1,000 of its 2,000, at which point the entire size of the ILO to sell 10,000 is depleted.
Additionally, assume the same facts above, except that OLO 3's bid to buy 4,000 is priced at $10.01 and there is also an additional OLO entered to buy at $10.00 for 4,000 (OLO 4). An incoming Type 1 ILO to sell 11,000 executes first against OLO 3's bid for 4,000, because it is the best-priced bid. OLO 1 then receives an execution for 5,000, because it is the largest next-best-priced bid, and was entered ahead of OLO 2. OLO 2 then receives an execution for 2,000, leaving 3,000 unexecuted shares, at which point the entire size of the ILO is depleted. Next, another incoming Type 1 ILO to sell 3,000 executes against OLO 2 for 3,000 since its original quantity was 5,000, which is greater than the size of OLO 4 at 4,000. Using this same example, assume prior to the second ILO arriving, a partial cancel was sent in for OLO 2 to reduce its quantity by 2,000. The second arriving ILO would execute against OLO 4, since by partially canceling 2,000, OLO 2 would have its original quantity decremented to 3,000, making OLO 4 larger.
Finally, assume the same facts above, except that after OLO 3 is entered, ILO 1 is entered to buy ABC at $10.00 for 10,000 with an MTV of 5,000. An incoming Type 1 ILO to sell 15,000 executes first against ILO 1 because it is the largest best-priced bid and the number of shares available exceeds ILO 1's MTV of 5,000. OLO 1 then receives an execution for 5,000, because it is the next largest best-priced bid, and was entered ahead of OLO 2, at which point the entire size of the ILO to sell 15,000 is depleted.
O1 is a limit order and the Exchange Best Bid at $10.00 for 1,000
OLO 1 is entered to buy ABC at $10.01 for 5,000
OLO 2 is then entered to buy ABC at $10.00 for 5,000
An incoming Type 1 ILO to sell ABC for 6,000 executes first against OLO 1 because it is the best-priced bid, then against O1's bid for 1,000. O1 receives priority over OLO 2 because O1 is a displayed order on the Exchange. OLO 2 remains available to interact with incoming ILOs.
PBBO for security ABC is $10.00–10.05
O1 is a limit order and is the Exchange Best Bid quoted at $10.00 for 1,000
O2 is a limit order to buy and is dark at $10.00 for 4,000
O3 is a limit order to buy and is displayable at $9.99 for 2,000
OLO 1 is entered to buy ABC at $10.00 for 4,000
OLO 2 is then entered to buy ABC at $9.99 for 4,000
There is a 100 share away market Bid at $10.00
An incoming Type 2 ILO to sell ABC for 12,000 executes first against O1, the Exchange Best Bid, for 1,000 at $10.00 because it is the best-priced displayed liquidity, then against OLO 1 for 4,000 because it is the best-priced bid in the Program and liquidity in the Program has priority over nondisplayed liquidity, then against O2 for 4,000 because it is the best-priced nondisplayed liquidity. The ILO then sweeps to $9.99, first routing 100 shares to the away market bid at $10.00. At $9.99, the ILO executes first against O3 for 2,000 because it is the best-priced displayed liquidity, then against OLO 2 for 900 because it is the best-priced bid in the Program.
The Exchange proposes that all NYSE-listed securities will be eligible for inclusion in the Institutional Liquidity Program. In order to provide for an efficient implementation, the Institutional Liquidity Program will initially cover only a certain specified list of NYSE-listed securities, as announced by the Exchange via a Trader Update. The Exchange anticipates that the securities included within the Institutional Liquidity Program will be expanded periodically based on experience with the Program.
The Commission has consistently recognized the challenges faced by large
Non-displayed liquidity in general, and dark pools in particular, have been viewed as useful tools to address those challenges. The Commission noted specifically in 2009, however, that dark pools differ starkly in their contribution to size discovery. While block crossing networks were producing at that time average trade sizes as large as 50,000 shares, most dark pools were executing trades with average sizes comparable to those on exchanges.
Moreover, it is equally important to consider the side effects of the diversion of a large percentage of investor order flow away from displayed markets.
There are important indicators that this perceived static distribution of lit and dark liquidity is no longer in line with the facts, particularly when accounting for the growth in off-exchange volume. For example, the number of securities with greater than 40% TRF share has more than doubled in the past year to over 56.3% of total stocks.
The Exchange also believes that the data strongly indicate emerging threats to the public price discovery process. The Program has the potential to leverage competition to address, in a limited way, these important concerns.
In considering the potential of the Program to address the possible degradation of the public price discovery process, it is worth underscoring the following basic point: the priority rules of the Exchange (and exchanges generally) offer a higher level of interaction between displayed and non-displayed liquidity than dark pools and broker internalization venues.
Unlike a dark pool or internalization venue, the Program's ILOs would bolster the display incentive. Example 3, as described above, demonstrates such support. As stated in the above example, the PBBO for the security is $10.00 by $10.05 with OLOs within the program to buy at both $10.00 and $9.99. Furthermore, there is displayed interest on the book at $10.00 and $9.99. After the incoming ILO to sell executes against all interest priced at the PBB ($10.00), the ILO then interacts with a displayed limit order priced one penny away from the PBB. Having received an execution, the market participant who placed the limit order has been rewarded and incentivized to display in the future.
As part of the Equity Market Structure Concept Release, the Commission questioned whether the use of “pinging” orders by all or some traders to assess non-displayed liquidity should be prohibited or restricted.
The proposed rule change is consistent with Section 6(b) of the Act,
The proposal arises out of the competition between the Exchange and non-exchange venues for block trading interest and the growth of institutional trading on less-regulated and less-transparent execution venues. As the Commission has previously noted, broker-dealers acting as over-the-counter market makers and block positioners provide liquidity directly to Institutional Interest.
The Exchange understands that Section 6(b)(5) of the Act prohibits an exchange from establishing rules that treat market participants in an unfairly discriminatory manner. However, Section 6(b)(5) of the Act does not prohibit exchange members or other broker-dealers from discriminating, so long as their activities are otherwise consistent with the federal securities laws. Nor does Section 6(b)(5) of the Act require exchanges to preclude discrimination by broker-dealers. Broker-dealers commonly differentiate between customers based on the nature and profitability of their business. The Program will simply replicate these trading dynamics that already exist in the OTC markets and will present another competitive venue for institutional and block order flow execution.
The differentiation proposed herein by the Exchange is not designed to permit unfair discrimination, but instead to promote a competitive process around block trading interest such that Institutional Interest would receive additional liquidity options than they receive in the current market. The Exchange believes that the transparency and competitiveness of an exchange-sponsored program such as the Institutional Liquidity Program would enhance the liquidity available to institutional investors and thereby reduce their trading costs. As the Commission has previously recognized, institutional investors seek to trade efficiently in large sizes without having a significant impact on market prices.
Additionally, the Exchange believes that the Program will promote just and equitable principles of trade and remove impediments to and perfect the mechanism of a free and open market and a national market system because it will create additional competition for institutional and block order flow, attract institutional and block order flow to the exchange environment, and ensure that Institutional Interest benefit from a larger pool of liquidity and potentially receive better prices than they currently receive through bilateral internalization agreements. As a result, the Program is designed to provide a relative enhancement of the incentive to display than currently exists. The Exchange also notes that the LI will be disseminated through the consolidated public market data stream, and thus be widely viewable by market participants, and as such, would increase the amount of pricing information available to the marketplace. Therefore, the Program is reasonably designed to increase market transparency, thus removing impediments to and perfecting the mechanism of a free and open market and a national market system.
The Exchange believes that the Program will remove impediments to and perfect the mechanism of a free and open market and a national market system by incentivizing the display of public limit orders and promoting the price discovery mechanism. The increasing concentration of “toxic,” or highly informed, high frequency order flow, and the corresponding diversion of more benign flow to off-exchange venues, are evident today, and have been acknowledged with concern by the Commission.
Further, the Exchange believes that the Program will remove impediments to and perfect the mechanism of a free and open market and a national market system by promoting order interaction. Specifically, the functionality of ILOs in
The Exchange believes that the price-size priority of OLOs and ILOs within the Program proposed herein is consistent with the Act. The priority is meant to reward liquidity providers willing to display greater size, an incentive that the Commission has previously approved.
The Exchange believes that the Program is designed to protect investors and the public interest because the Program has the potential to lower volatility in a given security by increasing liquidity and depth at, inside, and outside the PBBO. The Commission has previously acknowledged the relationship between transaction costs, short-term price volatility, and temporary imbalances in trading interest.
Further, the Exchange believes the Program is designed to protect investors and the public interest because the Program has the potential to increase price improvement and size improvement opportunities for institutional investors. Because of the priority provided to equally-priced displayed interest outside the Program, member organizations must submit OLOs and ILOs priced within the PBBO in order to receive priority or else risk receiving a partial or no fill. Additionally, the size priority applied to OLOs or ILOs similarly incentivizes member organizations to submit large orders into the Program, offering size improvement opportunities to institutional investors.
Finally, the Exchange proposes that the Commission approve the proposed rule for a pilot period of twelve months from the date of implementation, which will occur no later than 90 days after Commission approval of Rule 107D. The Program will expire on [Date will be determined upon adoption of Rule 107D]. The Exchange believes that this pilot period is of sufficient length to permit both the Exchange and the Commission to assess the impact of the rule change described herein. During the pilot period, the Exchange will submit certain data, periodically as required by the Commission, including: summary statistics on the operation of the Program along with the meaning of the summary statistics; raw data relating to the operation of the Program; reports and data monitoring the Program's participants along with their activity; and the Exchange's assessment of the impact of the Program.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange believes that the proposed rule change will increase competition among execution venues and encourage additional liquidity. The Exchange notes that a significant percentage of the orders of institutional investors are executed over-the-counter. The Exchange believes that it is appropriate to create a financial incentive to bring more institutional order flow to a public market.
Additionally, as previously stated, the differentiation proposed herein by the Exchange is not designed to permit unfair discrimination, but instead to promote a competitive process around block trading such that Institutional Interest would receive better prices and greater access to liquidity than they currently do through bilateral internalization arrangements. The Exchange believes that the transparency and competitiveness of operating a program such as the Institutional Liquidity Program on an exchange market would result in better prices for Institutional Interest while reducing their market impact.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend NASDAQ Rule 4120(c)(7)(C) to modify the parameters for releasing securities for trading upon the termination of a trading halt. NASDAQ will implement the proposed change immediately.
The text of the proposed rule change is below.
(a)–(b) No change.
(1)–(6) No change.
(7)
(A)–(B) No change.
(C) If at the end of a Display Only Period
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend Rule 4120(c)(7)(C) to strengthen the price volatility comparison of the order imbalance tests done at the conclusion of the Display Only Period and Pre-Launch Period by increasing the number of Current Reference Prices that are compared. The Exchange is also proposing to extend the order imbalance tests of the rule to also include the process by which a company's securities are released for trading after a halt. Securities subject to a halt under Rule 4120(a) cannot be released when there is an order imbalance in the security. Historically, order imbalances were defined uniformly under Rule 4120(c)(7)(C) for all halts under Rule 4120(a) as: (i) the Current Reference Prices, as defined in Rule
NASDAQ recently adopted a new process for releasing securities approved for listing on NASDAQ in an initial public offering (“IPO”).
(1) the IPO is released when the following two conditions are simultaneously met:
• NASDAQ receives notice from the underwriter of the IPO that the security is ready to trade, and
• there is no order imbalance in the security (as discussed below);
(2) the underwriter, with concurrence of NASDAQ, determines at any point during the IPO Halt Cross process up through the Pre-Launch Period to postpone and reschedule the IPO.
The Exchange adopted the condition that there be no order imbalance, as defined in Rule 4120(c)(7)(C), in a halted security prior to its release for trading to ensure that the security price is reasonably stable and trading interest is balanced at the time trading commences. With the changes to the IPO release process discussed above, NASDAQ adopted a new definition of order imbalance applicable only to IPO halt securities, while retaining the same definition of an order imbalance for all other halts under Rule 4120(a). NASDAQ defines an order imbalance in an IPO security as occurring when (1) the Current Reference Price, as defined in Rule 4753(a)(2)(A), disseminated 15 seconds and immediately prior to commencing the release of the IPO for trading during the Pre-Launch Period differs by more than the greater of 5 percent or 50 cents, or (2) all buy or sell market orders will not be executed in the cross. This protection is designed to prevent circumstances where a misunderstanding by the underwriter as to the state of the order book risks launching trading at a time of material volatility in the book for the security. As a consequence, if an underwriter gives notice to launch the IPO security, it must also be free of an order imbalance prior to release for price calculation and trading.
All order imbalances are calculated by the Halt Cross system, which automatically prevents launch of a halted security when an order imbalance exists. For halts under Rule 4120(a) other than IPO halts, at the conclusion of the Display Only Period and any extensions thereof permitted by the rule, the Halt Cross system determines if an order imbalance exists by performing the two order imbalance tests. If there is not an order imbalance, the system calculates the release price of the security based on the trading interest at the conclusion of the Display Only Period and releases the halted security for trading. The conclusion of all halts under Rule 4120(a) other than IPO halts is initiated by the Halt Cross system automatically, resulting in the release of a security immediately after the issuance of a Current Reference Price. IPO halts, however, do not necessarily conclude in synch with the dissemination of a Current Reference Price because the underwriter initiates the conclusion of the Pre-Launch Period without consideration to the dissemination of the Current Reference Price.
The Exchange proposes to strengthen the Price Volatility Test applied to all halts under Rule 4120(a) by increasing the number of prices to which the last disseminated Current Reference Price is compared. The current rule text provides that NASDAQ compares the Current Reference Price available immediately prior to the conclusion of either the Display Only Period
NASDAQ is proposing to amend Rule 4120(c)(7)(C) to reflect that the Price Volatility Test will compare the last available Current Reference Price to each of the three preceding Current Reference Prices. As a consequence, the Price Volatility Test will more robustly detect price volatility at the conclusion of a Display Only Period or Pre-Launch Period by conducting three price comparisons of the most recent Current Reference Prices as compared to the single comparison done now. The order imbalance tests are designed to ensure that the security price is reasonably stable at the time trading commences. NASDAQ believes that testing against the three prior Current Reference Prices increases the likelihood that instability will be detected and, as a consequence, trading in the security will be afforded additional time to stabilize, resulting in a launch that is more reflective of all the trading interest in the security.
NASDAQ is also proposing to extend the order imbalance tests to the release process, which occurs after the conclusion of a Display Only Period or Pre-Launch Period, as applicable, and before the release of the security. During this release process period, the Halt Cross system closes the order book, and then calculates the price at which the security will be opened. As noted above, the release price of an IPO is calculated at the conclusion of the Pre-Launch Period, which is not systematically determined by the expiration of a set time period, but rather is initiated by the underwriter to the IPO. The time between the dissemination of the last Current Reference Price and the close of the Pre-Launch Period may be as long as nearly five seconds, during which market participants may continue to enter and cancel orders. NASDAQ notes that, for a halt concluded pursuant to Rule 4120(c)(7)(A), there is a very brief time after the dissemination of the Current Reference Price and the closing of the order book during which market participants may continue to enter and cancel orders. As a result, the orders in the order book may not be reflected in the last disseminated Order Imbalance Indicator.
Under both launch processes, at the conclusion of the applicable period the Halt Cross system performs the order imbalance tests using an Order Imbalance Indicator that, as noted, may not be reflective of the most recent orders entered during the period after its dissemination. It is possible that a market participant may enter an order that is materially different in price from the last available Current Reference Price disseminated and of an adequate size to significantly distort the security's price during the cross price calculation. Under such a scenario, the halted security could be released at a price significantly different from market expectations based on the indicative price of the Order Imbalance Indicator disseminated just prior to the launch. Moreover, an order entered or canceled during the period between the last dissemination of the Order Imbalance Indicator and the closing of the order book may cause an order imbalance in the number of buy and sell interest resulting in a certain number of shares remaining unmatched at the conclusion of the cross.
NASDAQ is proposing to extend the order imbalance tests to the process for releasing a security for trading applicable to halts concluded pursuant to both Rules 4120(c)(7)(A) and (B). Specifically, the requirement would apply to both the process following the conclusion of the Display Only Period for halts under Rule 4120(a) other than IPOs, and to the process following the conclusion of the Pre-Launch Period for IPO halt securities. NASDAQ has amended the definition of an order imbalance under Rule 4120(c)(7)(C) to reflect the addition of the order imbalance tests to this period. Under the new definition of order imbalance, the Halt Cross system will compare the calculated price at which the security would be released to each of the three preceding Current Reference Prices disseminated immediately prior to initiation of the cross calculation. An order imbalance under this calculation would be present if the prices differ by more than the greater of 5 percent or 50 cents. The Halt Cross system will also apply the Imbalance Test to determine whether all orders were executed in the cross.
Under the amended rule, should a security be subject to an order imbalance during the subsequent process to release the security for trading by failing either the new Price Volatility Test or Imbalance Test, it would return to either a Display Only Period for a one minute extension period, in the case of Rule 4120(a) halts other than IPOs, or in the case of an IPO halt, return to the Pre-Launch Period. Once in the returned state, the security would repeat the process for release until such time that the security may be priced.
The Exchange believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The Exchange believes that the proposal is irrelevant to competition because it is not driven by, and will have no impact on, competition.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(ii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On August 20, 2013, NYSEArca, Inc. (“NYSEArca” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
On November 20, 2013, NYSEArca withdrew the proposed rule change (SR–NYSEArca–2013–42).
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CME proposes to activate its New York Data Center (“1NE Data Center”) as its primary backup data center. The 1NE Data Center currently operates in part as a tertiary data center for CME. The 1NE Data Center will be redesigned and become the primary backup data center in place of CME's current backup data center, the Remote Data Center (“RDC”). The proposed change does not involve any changes to CME's rulebook.
In its filing with the Commission, CME included statements concerning the purpose and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CME has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
As a derivatives clearing organization (“DCO”) registered with the Commodity Futures Trading Commission (“CFTC”), CME has an obligation to establish and maintain a business continuity and disaster recovery plan. The procedures associated with this plan are intended to ensure that CME has sufficient physical, technological and personnel resources to enable the timely recovery and resumption of operations following disruptions. Maintaining backup data centers is one component of these procedures.
With this filing, CME proposes to activate its New York Data Center (“1NE Data Center”) as its primary backup data center. The 1NE Data Center currently operates in part as a tertiary data center for CME. The 1NE Data Center will be redesigned and will become the primary backup data center in place of CME's current backup data center, the Remote Data Center (“RDC”). The 1NE Data Center will be an “all disaster recovery data center” housing the primary back-up for electronic trading, clearing, and regulatory infrastructures. It will also continue to house CME's New York trading floor and office staff systems as well.
CME believes the proposed change will increase the reliability and security of its backup facilities. First, the new back-up facility is located in a distinct geographic area from CME's primary facility and therefore CME Group would have capabilities to mitigate risks associated with a large scale disruption associated with only one geographical area (for example, a weather event). In addition, because CME Group's new datacenter strategy employs single IP connectivity, customers will no longer have to change their configurations or take any additional steps to connect to the backup datacenter and therefore the switch from CME Group's production to back-up data center will be seamless for CME Group's customers.
CME believes that implementation of the proposed change will therefore allow it to continue to maintain a robust and effective business continuity program. The proposed change does not involve any changes to CME's rulebook. CME currently plans to operationalize the new 1 NE Data Center as soon as all required regulatory approvals are obtained. CME is currently making preparations to implement the change as of November 25, 2013. CME notes that it has also submitted the proposed changes to the CFTC in a separate filing, CME Submission 13–379, as an “Advance Notice” filing pursuant to CFTC Regulation 40.10(a).
CME believes the proposed rule changes are consistent with the requirements of the Act including Section 17A of the Act.
For these reasons, CME believes this change will increase the reliability and security of its backup facilities. Because the change is designed to help ensure that critical business activities will be able to be performed in a timely manner even in the event of a significant disruption, CME believes the change should be seen to contribute to the safeguarding of securities and funds in CME's custody or control or for which CME is responsible and the protection of investors. As such, CME believes the proposed changes are consistent with the purposes and requirements of Section 17A(b)(3)(F) of the Act.
CME does not believe that the proposed rule change will have any impact, or impose any burden, on competition. The designation of a new backup data center should not be seen to have any competitive effects.
CME has not solicited comments regarding this proposed rule change. CME has not received any unsolicited written comments from interested parties.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change or
(B) Institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC, 20549–1090.
All comments received will be posted without change; the Commission does not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR–CME–2013–24 and should be submitted on or before December 18, 2013.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services (the “Fee Schedule”) to specify the method of billing when more than one pricing tier could be applicable. The Exchange proposes to implement the Fee Schedule change immediately. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to specify the method of billing when more than one pricing tier could be applicable. The Exchange proposes to implement the Fee Schedule change immediately.
An ETP Holder may qualify for several different pricing “Tiers” based on its level of activity during a particular month. These Tiers each have a corresponding fee or credit that applies to the ETP Holder's transactions during the month. Generally, a qualifying ETP Holder would be subject to a lower transaction fee or a higher transaction credit, depending on the particular Tier. For example, an ETP Holder that qualifies for Tape C Step Up Tier 2 receives an incremental $0.0002 per share credit for executions that provide liquidity to the Book in Tape C securities, which is in addition to the ETP Holder's Tiered or Basic Rate credit(s) (e.g., $0.0002 in addition to the $0.0030 credit under Tier 1).
To qualify for Tier 1, an ETP Holder must (1) provide liquidity an ADV per month of 0.70% or more of CADV or (2) (a) provide liquidity an ADV per month of 0.15% or more of CADV and (b) be affiliated with an Options Trading Permit (“OTP”) Holder or OTP Firm that provides an ADV of electronic posted executions (including all account types) in Penny Pilot issues on NYSE Arca Options (excluding mini options) of at least 100,000 contracts, of which at least 25,000 contracts must be for the account of a market maker.
Due to the lower fee or higher credit that applies, certain of the pricing Tiers specify that a qualifying ETP Holder is not able to qualify to receive certain other specific Tier pricing. Continuing with the example above, Tape C Step Up Tier 2 provides that Investor Tier 1 and Cross-Asset Tier ETP Holders, among others, cannot qualify for Tape C Step Up Tier 2.
To qualify for the Cross Asset Tier, an ETP Holder must (1) provide liquidity of 0.40% or more of the CADV per month, and (2) be affiliated with an OTP Holder or OTP Firm that provides an ADV of electronic posted Customer executions in Penny Pilot issues on NYSE Arca Options (excluding mini options) of at least 0.95% of total Customer equity and exchange-traded fund option ADV, as reported by The Options Clearing Corporation.
The Exchange determines qualifications for the Tiers after the billing month ends. If an ETP Holder or Market Maker qualifies for more than one Tier in the Fee Schedule, the Exchange applies the most favorable rate available under such Tiers. For example, if an ETP Holder or Market Maker qualifies for both the Cross-Asset Tier and the Tape C Step Up Tier 2, the Exchange will apply the single most favorable tier to the ETP Holder or Market Maker. The Exchange has consistently applied pricing in this manner and now proposes to codify this practice by adding text to the Tiers in the Fee Schedule that could be effected.
The proposed change is not otherwise intended to address any other issues and the Exchange is not aware of any problems that ETP Holders would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed change is reasonable because it specifies the Exchange's current method of billing when more than one pricing Tier could be applicable to an ETP Holder. This method of billing is reasonable because it results in the application of the most beneficial fees and credits for which an ETP Holder qualifies when an ETP Holder qualifies for more than one pricing Tier. The proposed change is equitable and not unfairly discriminatory because it applies to all ETP Holders equally. The proposed change is also equitable and not unfairly discriminatory because it eliminates the potential for an ETP Holder that qualifies for more than one pricing Tier to receive less favorable pricing than other ETP Holders that qualify for one of the same Tiers.
Finally, the Exchange believes that it is subject to significant competitive forces, as described below in the Exchange's statement regarding the burden on competition.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to modify NASDAQ connectivity options and fees.
The text of the proposed rule change is available from NASDAQ's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to modify Rule 7034(b) regarding connectivity to NASDAQ. Specifically, the Exchange proposes to establish connectivity and installation fees for a 1Gb Ultra low latency fiber connection option, and to adopt installation fees for subscriptions through January 31, 2014.
The Exchange currently offers various bandwidth and speed options for connectivity to NASDAQ, including copper, fiber, and wireless options in bandwidths ranging from 1Gb to 40Gb. Thus, for example, NASDAQ currently offers both a 1Gb fiber connection, and a 1Gb copper connection.
In keeping with changes in technology, the Exchange now proposes to provide another 1Gb fiber connection offering, which uses new lower latency switches.
The Exchange proposes a monthly subscription fee of $2,500 for a 1Gb Ultra connection, and a one-time installation fee of $1,500. NASDAQ believes that the pricing reflects the hardware and other infrastructure and maintenance costs to NASDAQ associated with offering technology that is at the forefront of the industry. The $1,500 installation fee for the 1Gb Ultra product exceeds the $1,000 installation fee for the existing 1Gb product due to the added complexity of installing the Ultra product. In order to achieve lower latency, the Ultra product requires not only the installation of a fiber telecommunications line; it also requires the additional installation of sophisticated switching equipment.
The new low latency service will be completely optional based on whether potential users perceive sufficient value to adopt the new service. This new low latency service decreases the time individual orders are processed and market data is transmitted by these new switches. The Exchange's proposal provides the co-located client the option for faster switch processing, which is highly-valued among some market participants. NASDAQ notes that other markets have adopted low-latency connectivity options for their users. For example, the International Securities Exchange LLC (“ISE”) offers a 10Gb low latency Ethernet connectivity option to its users, which provides a “higher speed network to access [ISE's] Optimise trading system.”
The Exchange also proposes to provide a waiver of the installation fees for client orders of 1Gb Ultra fiber connectivity to NASDAQ completed between the effectiveness of this proposal and January 31, 2014. The Exchange is providing the waiver to assist its co-located clients in upgrading to lower latency connections to meet the growing needs of co-located clients' business operations.
NASDAQ is also deleting text that refers to an installation fee waiver time period for 10Gb Ultra connections, which has since expired, and replacing it with the fee waiver for the 1Gb Ultra offering.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal is consistent with Section 6(b)(4) of the Act because the fees assessed for 1Gb Ultra fiber connectivity allow the Exchange to cover the costs associated with the purchase of new equipment for this new offering. NASDAQ is offering 1Gb Ultra fiber connectivity at a premium to the current 1Gb offering but at a discount to the 10Gb and 40Gb fiber connectivity offerings as these provide more bandwidth available on NASDAQ, which is important for co-located clients that have high order flow and ingest large amounts of market data and demand the greatest bandwidth possible to handle such message flow. Some co-located clients, however, do not have bandwidth demands that would require 10Gb or 40Gb fiber bandwidth but rather put a premium on reducing latency. The 1Gb Ultra fiber connectivity it designed to meet this demand.
NASDAQ believes that the proposed one-time installation fee is consistent with Section 6(b)(4) of the Act because it is identical to the installation fees assessed for 40Gb fiber connectivity and 10Gb Ultra connectivity under the rule. NASDAQ notes that it will incur the same costs associated with setting up a subscriber with either 40Gb fiber or 10Gb Ultra fiber connectivity. As a consequence, NASDAQ believes that it is reasonable to assess the same installation fee as 40Gb fiber and 10Gb Ultra. The Exchange also believes that its proposal to waive temporarily the 1Gb Ultra fiber connection installation fee is reasonable because it will assist its co-located clients in upgrading to lower latency connections to meet the growing needs of the co-located clients' business operations at a time in the industry when speed continues to be a driver of the U.S. securities markets. Moreover, the Exchange notes that it has previously waived the installation fees for the 10Gb Ultra and 40Gb fiber connections for a limited time after these connectivity options were first introduced.
In addition to covering costs, the proposed fees provide the Exchange a profit while providing customers the ability to reduce the latency of their orders sent via these new connections. As discussed above, ISE offers different connectivity options with respect to latency, charging higher fees for lower latency options.
The Exchange also believes the proposed 1Gb Ultra fiber installation and connectivity fees are equitably allocated in that all co-located clients that voluntarily select this service option will be charged the same amount to cover the hardware, installation, testing and connection costs to maintain and manage the enhanced connection. The proposed fees allow the Exchange to recoup costs associated with providing the 1Gb Ultra fiber connection and provide the Exchange a profit while providing customers with the more efficient connection to the System in terms of latency. All co-located clients have the option to select this voluntary co-location connectivity option; however, NASDAQ is not currently eliminating any existing connectivity options. Accordingly, a co-located client may elect not to subscribe to the 1Gb Ultra fiber connectivity option and retain the option to which it is currently subscribed.
The Exchange also believes the proposal furthers the objectives of Section 6(b)(5) of the Act
The Exchange also believes that the reduction in latencies attributed to the enhanced 1Gb Ultra connection option serves to protect investors and the public interest. The reduction in latency will provide investors with the most efficient means of processing orders once they reach the Exchange. Not all clients require the Higher bandwidth options like NASDAQ's current 10Gb, 10Gb Ultra and 40Gb fiber connectivity, so this new option enables clients to lower their latency while not increasing the bandwidth.
The Exchange also believes the proposed installation and subscription fees for the 1Gb Ultra fiber connectivity option are not unfairly discriminatory because all users have the option to subscribe to co-locate with NASDAQ and subscribe to the 1Gb Ultra connection. There is no differentiation among co-located clients with regard to the fees charged for these services. The Exchange believes the proposal to waive the 1Gb Ultra fiber connection installation fee is not unfairly discriminatory because the waiver of fees is provided to all co-located clients that volunteer for this particular service option during the prescribed timeframe, and there is no differentiation among co-located clients with regard to the waiver of fees for this option.
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. To the contrary, the Exchange believes that the proposed changes will promote competition by offering co-located clients an additional connectivity option that will enhance their trading operations and ultimately bring greater speed and efficiency to trading in the marketplace. NASDAQ further notes that the proposed option is voluntary in that the Exchange is not required to offer this connectivity, and the user is not required to utilize it. The competitiveness of the offering will determine whether a particular user will adopt the option or not.
Written comments were neither solicited nor received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
It appears to the Securities and Exchange Commission that there is a lack of current and accurate information concerning the securities of Life Stem Genetics Inc. because of questions regarding the accuracy of assertions by the company, and by others, including in press releases to investors concerning, among other things, the company's operations.
The Commission is of the opinion that the public interest and the protection of investors require a suspension of trading in the securities of the above-listed company.
By the Commission.
By virtue of the authority vested in me as Secretary of State pursuant to section 7041(a) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2012 (Div. I, Pub. L. 112–74), as carried forward by the Full Year Continuing Appropriations Act, 2013 (Div. F, Pub. L. 113–6), I hereby certify that the Government of Egypt is meeting its obligations under the 1979 Egypt-Israel Peace Treaty.
This determination shall be published in the
This document arrived at the
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the exhibit objects, contact Julie Simpson, Attorney-Adviser, Office of the Legal Adviser, U.S. Department of State (telephone: 202–632–6467). The mailing address is U.S. Department of State, SA–5, L/PD, Fifth Floor (Suite 5H03), Washington, DC 20522–0505.
Department of State.
Notice of meeting.
The Defense Trade Advisory Group (DTAG) will meet in open session January 16, 2014, to discuss current defense trade issues and topics for further study. Specific agenda topics include: (1) Identify potential negative impacts and unintended consequences of the Export Control Reform Initiatives on industry and provide recommendation on how to overcome/minimize such impacts; (2) Review the impacts on industry for use of the exemptions authorized to support the Defense Trade Cooperation Treaties between the United States and the United Kingdom and Australia respectively; (3) Provide a proposal for an effective export control system for non-lethal, non-Category I UAVs that would facilitate their use in non-military roles; and (4) Review how various USG agencies define controlled unclassified information (CUI), including export controlled technical data, and critical program information (CPI); review the statutory, regulatory and other bases (e.g., policy or directive) for agency control; and assess how USG agencies impose potentially competing requirements on industry for protecting CUI and CPI.
The membership of this advisory committee consists of private sector defense trade representatives, appointed by the Assistant Secretary of State for Political Military Affairs, and advises the Department on policies, regulations, and technical issues affecting defense trade.
Members of the public may attend this open session and will be permitted to participate in the discussion in accordance with the DTAG Chair's instructions. Members of the public may, if they wish, submit a brief statement to the committee in writing.
As access to Department of State facilities is controlled, persons wishing to attend the meeting must notify the
Anyone who wishes to attend this plenary session should provide: His/her name; company or organizational affiliation (if any); date of birth; and identifying data such as driver's license number, U.S. Government ID, or U.S. Military ID, to the DTAG Alternate DFO, Lisa Aguirre, via email at
Personal data is requested pursuant to Public Law 99–399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107–56 (USA PATRIOT Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities. The data will be entered into the Visitor Access Control System (VACS–D) database. Please see the Security Records System of Records Notice (State-36) at
The meeting will be held on Thursday, January 16, 2014, from 9:00 a.m. until 12:00 p.m. and 1:15 p.m. until 4:00 p.m.
The meeting will be held in Dean Acheson Auditorium, Harry S. Truman Building, U.S. Department of State, 2201 C Street NW., Washington, DC 20520. Entry and registration will begin at 8:30 a.m. Please use the building entrance located on 23rd Street between C and D Streets.
Lisa Aguirre, PM/DDTC, SA–1, 12th Floor, Directorate of Defense Trade Controls, Bureau of Political Military Affairs, U.S. Department of State, Washington, DC 20522–0112; telephone (202) 663–2830; FAX (202) 261–8199; or email
Pursuant to section 7041(a)(1)(C) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2012 (Div. I, Pub. L. 112–74) (“the Act”), as carried forward by the Full Year Continuing Appropriations Act, 2013 (Div. F, Pub. L. 113–6), I hereby determine that it is in the national security interest of the United States to waive the requirements of section 7041(a)(1)(B) of the Act, which concern the provision of Foreign Military Financing for Egypt, and I hereby waive these requirements.
This determination shall be published in the
Federal Aviation Administration (FAA), DOT
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. FAA regulations prescribe certification standards for pilots, flight instructors, and ground instructors. The information collected is used to determine compliance with applicant eligibility.
Written comments should be submitted by January 27, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, AES–200, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection.
Written comments should be submitted by January 27, 2014.
Send comments to the FAA at the following address: Ms. Kathy DePaepe, Room 126B, Federal Aviation Administration, AES–200, 6500 S. MacArthur Blvd., Oklahoma City, OK 73169.
Kathy DePaepe at (405) 954–9362, or by email at:
Federal Aviation Administration (FAA), DOT.
Notice of petition for exemption received.
This notice contains a summary of a petition seeking relief from specified requirements of 14 CFR. The purpose of this notice is to improve the public's awareness of, and participation in, this aspect of FAA's regulatory activities. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before December 17, 2013.
You may send comments identified by Docket Number FAA–2013–0815 using any of the following methods:
•
•
•
•
Jay Turnberg, Federal Aviation Administration, Engine and Propeller Directorate, Standards Staff, ANE–111, 12 New England Executive Park, Burlington, Massachusetts 01803–5229; (781) 238–7116; facsimile: (781) 238–7199; email:
This notice is published pursuant to 14 CFR 11.85.
Petitioner requests relief to enable it to change the fan blade failure location from the blade outermost retention groove to the blade platform for its engine model PW100G–JM in conducting the blade containment test required by Section 33.94.
Federal Transit Administration, DOT.
Notice of Buy America Waiver.
In response to North Front Range Metropolitan Planning Organization's (NFRMPO) request for a Buy America waiver for minivans based upon non-availability, the Federal Transit Administration hereby waives its Buy America final assembly requirement for NFRMPO's procurement of minivans for NFRMPO's vanpool (“VanGo”) program. This waiver is limited to a single purchase not to exceed 25 seven-passenger vehicles to take place no later than December 31, 2014.
This Buy America waiver is limited to a single purchase not to exceed 25 seven-passenger vehicles and expires on December 31, 2014.
Mary J. Lee, FTA Attorney-Advisor, at (202) 366–0985 or
On April 23, 2013, the North Front Range Metropolitan Planning Organization (NFRMPO) requested a Buy America waiver for the procurement of minivans. In its request, NFRMPO cited a lack of available, Buy America-compliant seven-passenger vehicles for its vanpool program located in northern Colorado and requested a Buy America waiver for its five-year procurement program. According to NFRMPO, a recently issued RFP resulted in no suitable or acceptable bids that meet the Buy America rules. In a second letter dated May 17, 2013, NFRMPO reiterated its request for a Buy America waiver and noted that the Vehicle Production Group (VPG) had “shut down” production of its Mobility Vehicle 1 (MV–1), a Buy America compliant vehicle.
According to NFRMPO, its VanGo Vanpool Program includes 75 vans with routes connecting, among others, Fort Collins, Loveland, Greeley, Denver, and Boulder, Colorado; it carries more than 420 commuters daily at 93 percent occupancy. The vanpools in its VanGo Vanpool Program carry between five and eight passengers, which make the larger passenger vans inefficient and too costly and VPG's MV–1 too small and costly.
With certain exceptions, FTA's Buy America requirements prevent FTA from obligating an amount that may be appropriated to carry out its program for a project unless “the steel, iron, and manufactured goods used in the project are produced in the United States.” 49 U.S.C. 5323(j)(1). A manufactured product is considered produced in the United States if: (1) All of the manufacturing processes for the product must take place in the United States; and (2) All of the components of the product must be of U.S. origin. A component is considered of U.S. origin if it is manufactured in the United States, regardless of the origin of its subcomponents. 49 CFR 661.5(d). If, however, FTA determines that “the steel, iron, and goods produced in the United States are not produced in a sufficient and reasonably available amount or are not of a satisfactory quality,” then FTA may issue a waiver (non-availability waiver). 49 U.S.C. 5323(j)(2)(B); 49 CFR 661.7(c).
On August 5, 2013, the Federal Transit Administration (FTA) published a notice and sought comments on the North Front Range Metropolitan Planning Organization's (NFRMPO) Buy America waiver request for minivans based upon non-availability. 78 FR 47487. FTA received fourteen comments, including comments from the Mayor of the City of Loveland, the Colorado Department of Transportation, Chrysler Group LLC, Taxicab, Limousine & Paratransit Association, Association for Commuter Transportation, vRide, and a number of anonymous comments.
All correctly posted comments expressed support of a waiver. The Colorado Department of Transportation, Division of Transit and Rail, stated that the VanGo Vanpool Program provides a “vital commuting service,” is “an important component in the strategy to address regional air quality issues,” including the Denver and North Front Range Air Quality Planning regions that are in non-attainment status for Ozone (O2) and maintenance status for Carbon Monoxide (CO), and the use of minivans is critical to keeping the program “efficient, affordable and effective.” Chrysler Group LLC also supports a waiver and cited, among other things, the industry's need for a vehicle with greater seating capacity than the MV–1, and the MV–1's production status, which has resulted in a lack of available Buy America compliant vehicles. Another commenter, the Taxicab, Limousine, & Paratransit Association, agreed with the need for a waiver because of the flexibility that a minivan offers,
In response to the comments regarding NFRMPO's waiver request, many of the comments refer to issues that FTA addressed in its December 3, 2012 decision, including, among other things, differences between the MV–1 and traditional minivans, competition, and the need for a blanket waiver. FTA directs interested parties to this decision, 77 FR 71673, for additional information. In addition, FTA notes that AM General LLC recently purchased rights to the MV–1 and expects to resume production of the MV–1 in the near term.
However, FTA appreciates all of the comments and recognizes that there are certain limited circumstances when a waiver is warranted. In its December 3, 2012 decision to rescind the blanket Buy America waiver for minivans and minivan chassis on final assembly (77 FR 71673), FTA stated that, although it rescinded the blanket waiver, it would still review waiver requests for minivans and minivan chassis on a case-by-case basis. Subsequently,
Therefore, after careful consideration, and based upon the fact that no manufacturer has identified itself as willing and able to supply the seven-passenger vehicles that NFRMPO requires for its VanGo Vanpool Program that comply with FTA's Buy America requirements, FTA hereby waives its Buy America final assembly requirement of 49 CFR 661.11 for NFRMPO's procurement. This non-availability waiver is limited to NFRMPO and valid for a single purchase not to exceed 25 seven-passenger vehicles for its VanGo Vanpool Program to take place no later than December 31, 2014.
Federal Transit Administration, DOT.
Notice of Intent to Prepare an Environmental Impact Statement (EIS).
The Federal Transit Administration (FTA) is issuing this Notice of Intent (NOT) to advise other agencies and the public that it will prepare an Environmental Impact Statement (EIS) for the proposed Lake Tahoe Passenger Ferry Project. The project consists of a cross-lake ferry service with a South Shore Ferry Terminal at the Ski Run Marina in South Lake Tahoe, El Dorado County, California, and a North Shore Ferry Terminal at the Grove Street Pier just west of the Tahoe City Marina in Tahoe City, Placer County, California. The project area encompasses the proposed ferry route on Lake Tahoe, the two ferry terminals, and a vessel assembly and maintenance location using existing facilities at Tahoe Keys Marina, City of South Lake Tahoe, El Dorado County, California. The EIS will evaluate alternatives to the proposed action, including, additional terminal locations, if they are adequate for operations.
The EIS will be prepared in accordance with the requirements of the National Environmental Policy Act (NEPA) and its implementing regulations with FTA as the lead agency. The EIS will be prepared as a joint document that includes an Environmental Impact Report (EIR) prepared pursuant to the California Environmental Quality Act (CEQA) with Tahoe Transportation District (TTD) as the CEQA lead agency, and an EIS for the Tahoe Regional Planning Agency (TRPA) prepared pursuant to the Tahoe Regional Planning Compact (Public Law 96–551), Code of Ordinances, and Rules of Procedure.
The purpose of this notice is to alert interested parties regarding the intent to prepare the EIS; to provide information on the nature of the proposed action and possible alternatives; to invite public participation in the EIS process, including providing comments on the scope of the Draft EIS/EIR/EIS; and to announce that public scoping meetings will be conducted.
Written comments on the scope of the EIS/EIR/EIS, including the project's purpose and need, the alternatives to be considered, the impacts to be evaluated, and the methodologies to be used in the evaluations should be sent to TTD on or before January 3, 2014 at the address below. See
• Wednesday, December 4, 2013; beginning at 9:30 a.m. at the TRPA Advisory Planning Commission Meeting at TRPA's offices at 128 Market Street, Stateline, NV 89449.
• Friday, December 13, 2013; beginning at 9:30 a.m. at the TTD Board Meeting at the Granlibaken Conference Center at 725 Granlibaken Road, Tahoe City, CA 96145.
The TRPA APC and TTD Board meetings will begin at 9:30 a.m.; however, scoping for the proposed project is not time certain. Please refer to the agendas posted at
The locations are accessible to persons with disabilities. Any individual who requires special assistance, such as a language interpreter, to participate in the scoping meetings should contact Alfred Knotts with TTD at least three days prior to the meetings at (775) 589–5503 or
Scoping materials will be available at the meetings and are available on the TTD Web site (
Comments will be accepted at the public scoping meetings or they may be sent to Mr. Alfred Knotts, Project Manager, Tahoe Transportation District, P.O. Box 499, Zephyr Cove, NV 89449, or via email at
Ted Matley, Community Planner, Region IX Office, Federal Transit Administration, 201 Mission Street, Suite 1650, San Francisco, CA 94015, phone (415) 744–2590, or via email at
Scoping is the process of determining the scope, focus, and content of an EIS. FTA, TTD, and TRPA invite all interested individuals and organizations, public agencies, and Native American tribes to comment on the scope of the Draft EIS/EIR/EIS. Comments should focus on: alternatives that may be less costly or have less environmental or community impact, while achieving similar transportation objectives and the identification of any significant social, economic, or environmental issues relating to the alternatives that should be addressed in the Draft EIS/EIR/EIS.
NEPA “scoping” has specific and fairly limited objectives: to identify the significant environmental issues associated with alternatives to be examined in detail, while also limiting consideration of issues that are not truly significant. It is in the NEPA scoping process that potentially significant environmental impacts, which give rise to the need to prepare an EIS, should be identified. Transit projects may also generate environmental benefits that should also be discussed.
In the interest of producing a readable and user-friendly public document, and pursuant to Title 40 of the Code of Federal Regulations (CFR) § 1502.07 and § 1502.10, the EIS/EIR/EIS shall be clear and concise and limited to 300 pages to the extent feasible recognizing CEQA and TRPA requirements. The EIS/EIR/
A public transit project connecting the north and south shores of Lake Tahoe is needed for environmental and mobility reasons. The Lake Tahoe Region has seven points of entry, all served by state or federal highways. Access around the Lake is provided by state or federal highways with much of the route limited to winding, two-lane roadways with changing and often steep grades. During summer and winter months, heavy traffic congestion and rugged mountain terrain can make traveling around the Lake slow and difficult, particularly driving between the north and south shores on the narrow, winding highways. During the winter season traveling these routes can be hazardous as a result of snow and ice on the roadways. Routes can also be restricted in winter to vehicles with only four-wheel drive or closed all together due to avalanche control.
There is no current fixed-schedule, cross-region, public transit service between the north and south shores, so all travel must occur by automobile or other personal motor vehicles. Currently, seasonal water taxi service is available from Tahoe City south to Homewood and north to Carnelian Bay. A south shore water taxi operates between Camp Richardson Resort and Lakeside Marina; however, it does not stop at Ski Run Marina. The absence of a north-south, public transit connection across the region results in added traffic congestion, substantial vehicle miles travelled and attendant criteria air pollutant and greenhouse gas (GHG) emissions, and limited transportation options for transit-dependent populations and visitors to the Region. Substantial motor vehicle air pollutant emissions in the Region also contribute to diminished water quality and clarity in Lake Tahoe.
The purpose of the Lake Tahoe Passenger Ferry Project is to support regional goals and planning mandates by: providing a multi-modal transportation alternative and promoting smart growth; enhancing transportation and regional mobility with a safe, reliable, year-round transit service between the north and south shores; reducing vehicle miles traveled and GHG emissions; improving and maintaining air and water quality; and promoting livability and connectivity within the Tahoe Region. Development of the proposed project would help reduce regional automobile travel, alleviate roadway congestion, and provide a safe, convenient, and affordable alternative for traveling between the north and south shores of Lake Tahoe.
The proposed action would include development of a South Shore Ferry Terminal at the Ski Run Marina in the City of South Lake Tahoe and a North Shore Ferry Terminal at the Grove Street Pier at the end of Grove Street in Tahoe City. A network of shared-use paths, sidewalks, and bicycle lanes exist near both proposed terminal locations. A brief description of the existing facilities and surrounding land uses is provided below.
Ski Run Marina is a privately-owned marina located at the northern end of Ski Run Boulevard in the City of South Lake Tahoe. The marina includes two connected fixed piers. The piers extend approximately 120 feet and 65 feet from the shore of Lake Tahoe. The Tahoe Queen, a paddle-wheel touring vessel, docks on the westernmost of the two piers. Street access to the terminal site is provided by Ski Run Boulevard and US 50. Existing non-motorized access to Ski Run Marina includes a shared-use path that runs parallel to US 50 on the north side of the highway and on both sides of Ski Run Boulevard. Transit access is provided year-round by the South Shore bus service along US 50, which provides service from the south shore “Y” in the City of South Lake Tahoe to Stateline, Nevada with connections to the Emerald Bay trolley (providing seasonal service from the “Y” to Tahoe City) and the Lake Valley Express (Stateline to the Carson Valley communities of Carson City, Minden, and Gardnerville in Nevada).
Surrounding land uses include Ski Run Marina Village (a collection of shops and restaurants), Tahoe Beach & Ski and Lake Tahoe Vacation Resort (timeshare accommodations), Tahoe Meadows (an approximately 100 acre private residential community listed on the National Register of Historic Places), Ski Run Boulevard commercial district, Heavenly Mountain Resort at the end of Ski Run Boulevard, and numerous business establishments along US 50.
The Grove Street Pier is a privately-owned pier located just west of the Tahoe City Marina and approximately 0.5 mile east of the intersection of SR 89 and SR 28, known as the “Y”. The existing Grove Street Pier is a fixed pier that is approximately 400 feet long and 8 feet wide. Surrounding land uses include Commons Beach (a 4-acre park and beach area), the Lakeside Bicycle Trail, the Tahoe City Marina, Safeway, the Marina Mall, the Boatworks Mall, and business establishments along SR 28 within the commercial corridor of Tahoe City. Tahoe Area Regional Transit (TART) operates a local, year-round bus service along SR 28, which provides service between Tahoe City and Truckee and to Lake Tahoe communities from Tahoma to Incline Village. The recently completed Tahoe City Transit Center is west of the pier. Tahoe City has the largest population of the California communities on the north shore of Lake Tahoe and provides access to nearby ski resorts, including Squaw Valley USA, Alpine Meadows Resort, Homewood Mountain Resort, Northstar, Sugar Bowl, and other smaller resorts.
The TTD conducted an Alternatives Analysis (AA) to evaluate the costs, benefits, and impacts of a range of transportation alternatives to address north-south mobility within the Lake Tahoe Basin. A copy of the AA is available on TTD's Web site at
No Project Alternative: Under the No Project Alternative, no ferry terminals would be developed and year-round transit service between the north and south shores would not occur.
Proposed Action: Ferry service would be provided year-round, with a travel time of approximately 25 minutes between terminals and hourly headways (i.e., the length of time between departures). Projected daily ridership is estimated to be between 1,600 to 1,800 passengers, using two ferry vessels. Limited parking for ferry passengers would be provided at or near the terminals. Passengers would also be encouraged to use existing public transit and/or pedestrian and bicycle facilities to access the terminals.
The proposed ferry vessels would be catamarans (a vessel with two parallel hulls) with a passenger capacity of up to 150 persons. The vessel currently under consideration would provide space for bicycles. The passenger ferry, Rich Passage I, used for service between Seattle and Bremerton in Washington, is representative of the type of vessel proposed for the Lake Tahoe Passenger
Vessel maintenance would also occur at the Tahoe Keys Marina using existing dry-dock and other facilities. Some required maintenance inspections could take place in the water. The Tahoe Keys Marina already provides maintenance services to vessels of a similar size (such as, The Safari Rose, an 80-foot vessel, and the Woodwind II).
Refueling of the ferry vessels would occur by truck or would require development of fueling facilities or improvement of existing fueling infrastructure at the identified ferry terminals.
Modifications to the existing piers would involve increasing the length of the piers, adding ramped access that meets Americans with Disability Act (ADA) standards, and constructing a floating pier platform that would be long enough to accommodate the ferry and at least 16 feet in width. The area surrounding the proposed pier expansions and floating platforms would require dredging for construction and maintenance dredging to provide sufficient depth during low-lake-level periods. The security requirements at each ferry terminal would likely include fencing, gates, security cameras, lighting, and alarms
Alternatives: Action alternatives that may be considered could include alternative pier designs (such as, a fixed versus floating pier), landside facility configurations, vessel sizes, operational characteristics (such as, service frequency), terminal locations, and/or assembly and maintenance sites. Other reasonable alternatives identified through the public and agency scoping process will be evaluated for potential inclusion in the Draft EIS/EIR/EIS.
The purpose of this EIS/EIR/EIS is to study, in a public setting, the effects of the proposed action and its alternatives on the physical, human, and natural environment. The FTA, TTD, and TRPA will evaluate all significant environmental, social, and economic impacts of the construction and operation of the proposed project. The probable impacts will be determined as a part of the project scoping. Measures to avoid, minimize, and mitigate adverse impacts will also be identified and evaluated.
The regulations implementing NEPA call for public involvement in the EIS process. FTA is required by 23 U.S.C. § 139 to do the following: (1) extend an invitation to other federal and non-federal agencies and Native American tribes that may have an interest in the proposed project to become “participating agencies;” (2) provide an opportunity for involvement by participating agencies and the public to help define the purpose and need for a proposed project, as well as the range of alternatives for consideration in the EIS; and (3) establish a plan for coordinating public and agency participation in, and comment on, the environmental review process. An invitation to become a participating or cooperating agency, with scoping materials appended, will be extended to other federal and non-federal agencies and Native American tribes that may have an interest in the proposed project. It is possible that FTA will not be able to identify all federal and non-federal agencies and Native American tribes that may have such an interest. Any federal or non-federal agency or Native American tribe interested in the proposed project that does not receive an invitation to become a participating agency should notify at the earliest opportunity the Project Manager identified above under
A comprehensive public involvement program and a Coordination Plan for public and interagency involvement will be developed for the project and posted by TTD on the project Web site (
FTA will comply with all applicable Federal environmental laws, regulations, and executive orders during the environmental review process. These requirements include, but are not limited to, the project-level air quality conformity regulation of the U.S. Environmental Protection Agency (EPA) (40 CFR part 93); the § 404(b)(1) guidelines of EPA (40 CFR part 230); the regulation implementing EPA's Anti-degradation Policy (40 CFR 131.12) for Outstanding National Resource Waters, such as Lake Tahoe; the regulations implementing Section 106 of the National Historic Preservation Act (36 CFR part 800), Section 7 of the Endangered Species Act (50 CFR part 402), and Section 4(1) of the Department of Transportation Act (23 CFR part 774); and, Executive Orders 12898 on environmental justice, 11988 on floodplain management, 11990 on wetlands, 13175 on Indian trust assets and Native American consultation, 13112 on invasive species, and 12962 on recreational fisheries.
National Highway Traffic Safety Administration, DOT.
Notice of Petition Denial.
Combi USA, Inc., (Combi),
Pursuant to 49 U.S.C. 30118(d) and 30120(h) and the rule implementing those provisions at 49 CFR part 556, Combi has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety. The National Highway Traffic Safety Administration (NHTSA) published a notice of receipt of the petition, with a 30-day public comment period, on August 9, 2013, in the
To view the petition and all supporting documents log onto the Federal Docket Management System (FDMS) Web site at:
For further information on this decision
The term “new webbing”, is “webbing that has not been exposed to abrasion, light, or micro-organisms.” (49 CFR § 571.213, S5.4.1.2(a)).
Combi described the noncompliance as follows:
Combi USA, Inc. has identified a noncompliance with certain Model #8220 Coccoro Convertible child restraints when the webbing assembly within the restraint is subjected to the minimum breaking strength requirements as specified in FMVSS No. 213 section 5.4.1.2 (a).
Combi filed the same statement describing the noncompliance for the Zeus Turn and Zeus 360 models of child restraint systems. In support of its petition, Combi states that as part of NHTSA's 2012 safety compliance testing of the subject Coccoro child restraint system harness webbing, the breaking strength yielded results of 8,990 N, 9,170 N, and 9,300 N. As noted earlier, paragraph 5.4.1.2(a) of FMVSS No. 213 requires a minimum breaking strength of 11,000 N for webbing used to restrain a child within a child restraint system. Combi also noted that all of the subject Coccoro child restraint systems were produced with the identical harness system as tested by NHTSA in 2012.
Combi further noted that all of the subject Zeus 360 and Zeus Turn child restraint systems were produced with the same embedded stop button within the harness system as the Coccoro child restraints which were tested by NHTSA in 2012.
Combi stated in its petition that the production of the Zeus Turn child restraint system ended on March 25, 2009, and that the production of the Zeus 360 child restraint system ended on May 24, 2012. Combi also explained that it has implemented an engineering modification which removes the embedded stop button to all of the Coccoro child restraints produced since January 29, 2013.
In support of its petition, Combi stated that it has not received notice of any partial or complete breakage or tearing of the harness system in the Coccoro and Zeus child restraints. In further support of its petition, Combi provided data based on its own dynamic testing of the Coccoro and Zeus 360 child restraint systems. According to Combi, its testing attempted to determine the crash force loading on the harness system of the Coccoro and Zeus 360 child restraints when subjected to the FMVSS No. 213 dynamic crash pulse (30 mph crash pulse) and the NCAP pulse (35 mph crash pulse). Combi's own test results showed load cell values ranging from approximately 1,150 N to 1,900 N. Combi stated that these testing results confirm that the harness assemblies of the subject Coccoro, Zeus 360, and Zeus Turn child restraints will not fail in a real world crash under any circumstances, as the forces acting on the harness system in dynamic testing are less than 22 percent of the breaking strength test results determined by NHTSA. Combi therefore asserts that the harness assemblies of the subject Coccoro and Zeus child restraints present no safety risk.
Finally, Combi asserts that given the relatively small number of subject Coccoro, Zeus 360, and Zeus Turn child restraints, the effectiveness of any notification campaign regarding this technical noncompliance will be limited. Combi further states that any noncompliance notice campaign may result in customers deciding to discontinue using their Coccoro and Zeus child restraints for a period of time, adding a risk of injury where none exists as a result of the noncompliance of the harness webbing of the subject Coccoro and Zeus child restraints with the minimum breaking strength requirements of FMVSS No. 213 S5.4.1.2(a).
In summary, Combi contends that the noncompliance is inconsequential to motor vehicle safety, and that its petition to exempt it from providing notification of noncompliance as required by 49 U.S.C. 30118 and remedying the noncompliance as required by 49 U.S.C. 30120, should be granted.
However, Congress has recognized that, under some limited circumstances, a noncompliance could be “inconsequential” to motor vehicle safety. “Inconsequential” is not defined either in the statute or in NHTSA's regulations. Rather, the Agency determines whether a particular noncompliance is inconsequential to motor vehicle safety based on the specific facts before it. The relevant issue in determining inconsequentiality is whether the noncompliance in question is likely to significantly increase the safety risk to individuals involved in accidents or to individual occupants who experience the type of injurious event against which the standard was designed to protect.
In order to demonstrate inconsequentiality, the petitioner must demonstrate that the noncompliance “does not create a significant safety risk.”
The burden of establishing the inconsequentiality of a failure to comply with a performance requirement in a safety standard is more substantial and difficult to meet, and the Agency has not found many noncompliances related to a safety standard to be inconsequential.
Second, Combi argues that, based on measured forces acting on the harness system when subjected to FMVSS No. 213 and NCAP crash pulse dynamic testing, the subject child restraints present no motor vehicle safety risk since the measured forces acting on the harness system are less than 22 percent of the breaking strength results determined by NHTSA. The Agency is not persuaded by this argument. NHTSA does not simply have one performance test, a dynamic test. NHTSA has multiple performance tests because a single test does not address the range of safety concerns with child restraints. The webbing breaking strength test and the child restraint system dynamic test do not test for the same conditions and serve distinct purposes. The webbing breaking strength test conditions are necessarily more severe than those for dynamic testing to help ensure that the webbing will afford effective protection for severe crashes, even after the webbing degrades due to abrasion in use and exposure to sunlight. In addressing past similar arguments raised by child restraint system manufacturers who submitted webbing load force data generated in dynamic testing to demonstrate apparent safety margins in comparison to webbing breaking strength test results, the Agency stated that “[a] 30 mile per hour test is not indicative of the upper limit of safety. The test conditions in FMVSS No. 213 reflect the concern that child restraints will withstand even the most severe crashes. These are well above 30 mph.”
Next, Combi asserts that given the relative small number of subject child restraint systems affected, the effectiveness of any notification campaign will be limited. This type of argument is immaterial to the inconsequentiality analysis because “the number or percentage of vehicles or equipment affected by the noncompliance is not relevant to the issue of consequentiality”.
Finally, Combi argues that any noncompliance notice campaign may result in customers deciding to discontinue using their subject restraint(s) for a period of time thereby adding risk of injury. This argument was not supported with any evidence and the Agency is not persuaded by this argument. The Agency's Recall Management Office will review Combi's noncompliance notification campaign to assure that it is effective and the notification makes it clear to the affected customer(s) that it is better to continue to use the subject child restraint(s) while awaiting the remedy provided by the manufacturer, and that it is unsafe, and in almost all cases unlawful, to transport a child passenger in a motor vehicle without the use of a proper restraint.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of Petition.
Ford Motor Company (Ford) has determined that certain model year 2011 Ford E–150, E–250, E–350 and E–450 motor vehicles manufactured
Pursuant to 49 U.S.C. 30118(d) and 30120(h) (see implementing rule at 49 CFR part 556), Ford has petitioned for an exemption from the notification and remedy requirements of 49 U.S.C. Chapter 301 on the basis that this noncompliance is inconsequential to motor vehicle safety.
NHTSA published a notice of receipt of the petition, with a 30-day public comment period, on February 2, 2012, in the
To view the petition and all supporting documents, log onto the Federal Docket Management System (FDMS) Web site at:
For further information on this decision contact Mr. Luis Figueroa, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366–5298, facsimile (202) 366–7002.
Paragraph S5.1 of FMVSS No. 205 requires in pertinent part:
S5.1 Glazing materials for use in motor vehicles must conform to ANSI/SAE Z26.1–1996 (incorporated by reference, see § 571.5) unless this standard provides otherwise . . .
S5.1.1 Multipurpose passenger vehicles. Except as otherwise specifically provided by this standard, glazing for use in multipurpose passenger vehicles shall conform to the requirements for glazing for use in trucks as specified in ANSI/SAE Z26.1–1996 (incorporated by reference, see § 571.5).
Ford expressed its belief that only approximately 100 of the 4,532 subject vehicles may actually develop air bubbles in their windshields.
Ford argues that paragraph S5.1.1 of FMVSS No. 205 specifies meeting the requirements of ANSI Z26.1–1996 Section 5.4 Boil, Test 4. The affected paragraph 5.4.3 “Interpretation of Results” states “The glass itself may crack in this test, but no bubbles or other defects shall develop more than 13 mm (
The initiation of the air bubbles will most likely occur when the vehicle is parked in the sun with ambient temperatures greater than 80° F, and they occur very early in the life of the vehicle. This was the case for the initial vehicles that exhibited the condition while still at the assembly plant, that was experiencing high seasonal temperatures at the time. Of the 41 field reports of the condition that had occurred as of August 16, 2011, only one occurred subsequent to delivery to a customer. All other field reports were found during pre-delivery vehicle preparation.
The appearance of the air bubbles is a slow process, and there are no reports of air bubbles affecting the entire windshield. If bubbles do occur in the driver vision zone, the vision zone is initially only partially affected. This condition would be noticed by the customer prior to a significant spread of the air bubbles, and the customer would seek repair under Ford's normal
Ford is not aware of accidents or injuries attributed to this condition.
In summation, Ford believes that the described noncompliance of its vehicles to meet the requirements of FMVSS No. 205 is inconsequential to motor vehicle safety, and that its petition, to exempt from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
More importantly, the agency believes that the true measure of inconsequentiality is whether there is a safety effect of the noncompliance on the operational safety of the vehicle. In this case if the noncompliance (a bubble or bubbles in the windshield) were to manifest, this condition causes delamination of the glazing material which could weaken the structural integrity around the windshield edge and pose a safety risk to the occupants. Bubbles also could affect the vision of the driver and thus would have a detrimental effect on the operational safety of the vehicle. The agency also notes that the low number of vehicles involved in this case does not lessen the safety issue that the non-compliance creates. The degraded visibility created by the bubbles in the windshield still creates a safety risk even if it only occurs in a few vehicles.
The fact that customers might notice the non-compliance and seek repairs from Ford on their own does not mean that the safety risk posed by the bubbles in the windshield has been completely mitigated.
(49 U.S.C. 30118, 30120: delegations of authority at CFR 1.95 and 501.8).
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Denial of Petition.
Foreign Tire Sales, Inc. (FTS), as importer for ProMeter brand medium truck radial replacement tires manufactured by Shandlong Linglong Rubber Company Limited, has determined that certain replacement tires manufactured during the period between the 15th week of 2008 and 22nd week of 2009 do not fully comply with paragraph S6.5(d) of 49 CFR 571.119, Federal Motor Vehicle Safety Standard (FMVSS) No. 119,
For further information on this decision, contact Mr. Abraham Diaz, Office of Vehicle Safety Compliance, the National Highway Traffic Safety Administration (NHTSA), telephone (202) 366–5310.
Notice of receipt of FTS's petition was published with a 30-day public comment period, on June 8, 2010, in the
In a supplemental letter dated April 14, 2010, FTS submitted corrections of typographical errors in its petition and stated that subsequent to submitting its petition it had decided to remedy all of the subject tires that it held in its possession as well as those that had not been sold by its customers (the eleven tire distributors). FTS also revised its estimate of the number of affected tires to 2,000, which encompasses tires that had been sold and not retrieved for remedy. Therefore, it is only those 2,000 tires for which FTS is requesting exemption from the notification and remedy requirements because it claims that the remaining 659 tires have been remedied.
FTS describes the noncompliance as its failure to provide accurate load and inflation information as required by FMVSS No. 119. The maximum load rating and corresponding inflation pressure that are erroneously marked on the FTS tires and the correct information for the non-conforming tires are as follows:
295/75R22.5/14 is marked:
295/75R22.5/14 should be marked:
285/75R24.5/14 is marked:
285/75R24.5/14 should be marked:
FTS states that the non-compliance of its tires was brought to its attention on June 9, 2009, “when new molds were ordered and the old molds were compared to the new molds.”
FTS also states that it has advised the manufacturer to hold any additional non-conforming tires and to change the inaccurate information on the tires before exporting them to the United States.
FTS argues that the inaccurate markings on the tires are inconsequential because the difference between the proper load ranges and inflation pressures are minimal. FTS bases its conclusion on its testing of the subject tires using the inaccurate information noted on its tires, and FTS asserts that the tires “greatly exceed all FMVSS testing result requirements.” Specifically, FTS points out that it subjected the tested tires to a modified FMVSS No. 119 endurance test which it states “is far more demanding than the requirements of FMVSS 119.”
FTS submitted with its application for exemption from notification and remedy requirements a copy of eight endurance test reports, originally written in Chinese, and the English translation of those reports. FTS states that “These tests performed using the load inflation information which appears on the subject tires clearly indicates that even at the wrong inflation pressure, these tires greatly exceed FMVSS 119 and are safe.” FTS additionally states that “the mislabeling of the tires poses absolutely no safety issue since even if a user of the tires inflates the tire to the load inflation pressure contained on the side wall of the subject tire, we know that the tire greatly exceeds all requirements (i.e. the tires ran almost three times longer than required by FMVSS 119 at loads increased by 10% every ten hours (nine times over 130 hours)).”
In summation, FTS requests that NHTSA deem this issue as “incidental mislabeling” as it has no bearing on the safety of the tires, therefore requests that FTS's petition, to exempt FTS from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedy the recall noncompliance as required by 49 U.S.C. 30120, should be granted.
Paragraph S6.5(d) of FMVSS No. 119 requires in pertinent part:
S6.5 Tire markings. Except as specified in this paragraph, each tire shall be marked on each sidewall with the information specified in paragraphs (a) through (j) of this section. The markings shall be placed between the maximum section width (exclusive of sidewall decorations or curb ribs) and the bead on at least one sidewall, unless the maximum section width of the tire is located in an area which is not more than one-fourth of the distance from the bead to the shoulder of the tire. If the maximum section width falls within that area, the markings shall
(d) The maximum load rating and corresponding inflation pressure of the tire, shown as follows:
(Mark on tires rated for single and dual load): max load single ___kg (___lb) at ___kPa (___psi) cold. Max load dual ___kg (___lb) at ___kPa (___psi) cold.
(Mark on tires rated only for single load): Max load ___kg (___lb) at ___kPa (___psi) cold.
The additional testing conducted by FTS on the subject tires to support its basis that the tires are safe for use consisted of eight (8) modified FMVSS No. 119 tests, in which the tires were tested at the incorrectly marked inflation pressure and at loads increased by 10% every ten hours of testing up to almost three times longer than that required by FMVSS No. 119. FTS argues that the inaccurate markings on the subject tires are inconsequential because the difference between the proper load ranges and inflation pressures are minimal. FTS further argues that based on its modified FMVSS No. 119 testing, even if a user of the subject tires inflates the tire to the load inflation pressure as marked on the sidewall of the subject tires, the tires greatly exceed FMVSS No. 119 and are safe.
The Agency does not agree with FTS that the noncompliance of the subject tires is inconsequential to motor vehicle safety. The Agency does not consider the difference between the marked load ranges and inflation pressures of the subject tires as compared to the proper marking of load ranges and inflation pressures to be minimal. For example, due to the improper tire marking, the maximum load rating (single) for the subject 285/75R24.5/14 tires is over-rated by 435 lbs and the maximum load rating (dual) for the subject 295/75R22.5/14 tires is over-rated by 165 lbs. Overloading can result in handling or steering problems, brake failure, and tire failure. An under-inflated tire is also a safety concern since the greater the under-inflation, the more the sidewalls of a tire can flex, which increases the internal heat generated and makes the tire more susceptible to failure.
In addition, the Agency does not consider eight (8) additional FMVSS No. 119 endurance tests, even as conducted by FTS with increasing loads and test durations, an adequate basis to support that the subject tires are safe for use as improperly marked. The maximum load ratings and inflation pressures as erroneously marked on the subject tires are outside the intended safe operating limits of the tires as designed for manufacture and proper use. The subject tires as improperly marked indicate a maximum load rating value above that designed for the tire, along with an inflation pressure lower than that designed for the tire. A tire loaded above its designed maximum load rating at a corresponding inflation pressure below the value for which the tire was designed creates a compounding safety problem which clearly impacts the defined purpose of FMVSS No. 119, which includes placing “the correct information on tires to permit the proper selection and use, and safe operation of the tire”.
49 U.S.C. 30118, 30120: delegations of authority at CFR 1.95 and 501.8.
Pipeline and Hazardous Materials Safety Administration, DOT.
Notice and request for comments.
On June 27, 2013, in accordance with the Paperwork Reduction Act of 1995, PHMSA published a notice in the
In response to that notice, PHMSA received comments from three organizations on the proposed revisions. PHMSA is publishing this notice to respond to the comments, to provide the public with an additional 30 days to comment on the proposed revisions to the forms and instructions, and to announce that this revised Information Collection request will be submitted to the Office of Management and Budget (OMB) for approval.
Comments on this notice must be received by December 27, 2013 to be assured of consideration.
Angela Dow by telephone at 202–366–1246, by fax at 202–366–4566, by email at
You may submit comments identified by the docket number PHMSA–2013–0084 by any of the following methods:
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•
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Requests for a copy of the Information Collection should be directed to Angela Dow by telephone at 202–366–1246, by fax at 202–366–4566, by email at
Section 1320.8 (d), Title 5, Code of Federal Regulations, requires PHMSA to provide interested members of the public and affected agencies an opportunity to comment on information collection and recordkeeping requests. This notice identifies a revised information collection request that PHMSA will be submitting to OMB for approval.
During the 60-day comment period, PHMSA received comments from the following stakeholders:
• Norton McMurray Manufacturing Company (NORMAC)
• Interstate Natural Gas Association of America (INGAA)
• Pipeline Safety Trust (PST)
The comments from these stakeholders are available at
NORMAC submitted comments on both the PHMSA F 7100.1 Incident Report—Gas Distribution System (Incident Report) and PHMSA F 7100.1–2 Mechanical Fitting Failure (MFF) Report Form for Calendar Year 20xx for Distribution Operators (MFF Report).
1. NORMAC proposes that PHMSA consistently apply to both the Incident Report and the MFF Report the exemption in the MFF Report instructions against categorizing leaks in gasketed joints found on main or service pipe as “Equipment Failure.”
2. NORMAC asserts that because PHMSA's reports ask the wrong questions, the data collected and stored in PHMSA's database is flawed. NORMAC suggests that PHMSA should delete, redact or similarly account for this flawed data. Further, PHMSA should issue corrections to prior reports and publications that have included remarks based on such flawed data.
3. NORMAC proposes that PHMSA create a bright line separation between equipment failure and improper joining procedures, joint installation, or joint design in the MFF Report and all related PHMSA forms and programs, specifying the precise regulation that applies.
4. NORMAC proposes that PHMSA use the same definition of “Cause” in both the Incident Report and the MFF Report.
5. NORMAC proposed that PHMSA eliminate the titles and intent of 49 CFR 191.12 and 192.1009 for Mechanical Fitting Failure Reporting.
6. NORMAC asserts that the forms do not tie the likely causes of failure to whether such actions, inactions or decisions are compliant with Subpart F, the manufacturer's instructions, or ASME B31.8, as applicable. NORMAC proposes that PHMSA reform the MFF Report to relate each apparent cause of leaks to specific actions or inactions in compliance with PHMSA's applicable regulations.
7. NORMAC proposes that PHMSA remove the note in Part G1 of the Incident Report instructions because the note assumes that the failure of a piece of equipment is always due to a flaw in the equipment and never due to a failure to properly install the equipment.
8. NORMAC proposes that PHMSA clarify language in both the Incident Report and MFF report instructions for Incorrect Operations.
INGAA submitted comments on PHMSA F 7100.2 Incident Report—Natural and Other Gas Transmission and Gathering Pipeline Systems.
1. INGAA contends that PHMSA did not explain the reason for amending the instructions for item 19, time sequence, and that these changes should not be adopted without discussion with the pipeline safety community.
2. INGAA believes there is significant potential value in collecting C3(a) through C3(h) data for welds other than girth welds.
3. INGAA urges PHMSA to ensure that the database is able to accept onshore reports without a valid value for County/Parish.
PHMSA received comments regarding the proposed changes to the Annual Report for Gas Transmission and Gas Gathering Systems—PHMSA F.7100.2–1 from INGAA and the PST. The following is a summary of the comments PHMSA received regarding the proposed changes to PHMSA F. 7100.2–1. A complete record of the comments received is available at
(1) Recognize the distinction between MAOP determination and MAOP verification. According to INGAA, MAOP determination, based on the reporting operator's internal procedures and the best information available, determines the Part Q “Total” column where specific mileage will be placed. MAOP verification, which occurs after MAOP determination, determines how much of the reported “Total” mileage should be reported in the corresponding “Incomplete Records” column.
(2) recognize that an “Incomplete Records” entry refers exclusively to the status of the records for the corresponding determination method but does not indicate anything regarding the quality or existence of the operator's records for any of the other MAOP determination methods.
(3) eliminate the phrase “traceable, verifiable, and complete” to describe the MAOP records because it appears to impose a standard for records though instructions for completing an annual report.
(4) expand the instructions for Part Q to specify how and where entries should be made when two of the methods specified in subsection 192.619(a) result in the same MAOP.
(5) specify that consistency is required between the “Total” columns in Part Q and mileage entered in other parts of the Annual Report. No consistency is expected between the “Incomplete Records” columns and other parts of the Annual Report.
(6) provide that if an elevation analysis shows some of a tested segment did not achieve a specified test pressure, (e.g., a 1.25 x MAOP) because of elevation differences, the operator should report the miles that did not achieve the specified test pressure in the pressure test range actually achieved.
After the publication of the 60-day notice, PHMSA found an error in the instructions for leak and failure categories in Part M of the instructions. Under the heading titled “Third Party Damage/Mechanical Damage,” operators are instructed to report first, second, and third party excavation damage. Only third party excavation damage should be reported under this heading. First and second party excavation damage leaks and failures represent an error by either the operator (first party) or a contractor working for the operator (second party) and should be reported in the “Incorrect Operations” category. PHMSA has revised the instructions accordingly.
The following information is provided for each revised information collection: (1) Title of the information collection; (2) OMB control number; (3) Type of request; (4) Abstract of the information collection activity; (5) Description of affected public; (6) Estimate of total annual reporting and recordkeeping burden; and (7) Frequency of collection. PHMSA will request a three-year term of approval for each information collection activity. PHMSA is only focusing on the revisions detailed in this notice and will request revisions to the following information collection activities.
Comments are invited on:
(a) The need for the proposed collection of information for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(d) Ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of Calendar Year 2014 Minimum Annual Percentage Rate for Random Drug Testing; Reminder for Operators to Report Contractor Management Information System (MIS) Data; and New Method for Operators to Obtain User Name and Password for Electronic Reporting.
PHMSA has determined that the minimum random drug testing rate for covered employees will remain at 25 percent during calendar year 2014. Operators are reminded that drug and alcohol testing information must be submitted for contractors performing or ready to perform covered functions. For calendar year 2013 reporting, PHMSA will not mail the “user name” and “password” for the Drug and Alcohol Management Information System (DAMIS) to operators, but will make the user name and password available in the PHMSA Portal (
Effective January 1, 2014, through December 31, 2014.
Blaine Keener, National Field Coordinator, by telephone at 202–366–0970 or by email at
Operators of gas, hazardous liquid, and carbon dioxide pipelines and operators of liquefied natural gas facilities must randomly select and test a percentage of covered employees for prohibited drug use. Pursuant to 49 CFR 199.105(c)(2), (3), and (4), the PHMSA Administrator's decision on whether to change the minimum annual random drug testing rate is based on the reported random drug test positive rate for the pipeline industry. The data considered by the Administrator comes from operators' annual submissions of MIS reports required by § 199.119(a). If the reported random drug test positive rate is less than one percent, the Administrator may continue the minimum random drug testing rate at 25 percent. In calendar year 2012, the random drug test positive rate was less than one percent. Therefore, the
On January 19, 2010, PHMSA published an Advisory Bulletin (75 FR 2926) implementing the annual collection of contractor MIS drug and alcohol testing data. All applicable § 199.119 (drug testing) and § 199.229 (alcohol testing) MIS reporting operators are responsible for the submission to PHMSA of all contractor MIS reports to PHMSA, as well as their own, by March 15, 2014.
Contractors with employees in safety-sensitive positions who performed covered functions as defined in § 199.3 of Part 199, must submit these reports only through the auspices of each operator for whom these covered employees performed those covered functions (i.e., maintenance, operations or emergency response).
In previous years, PHMSA attempted to mail the DAMIS user name and password to operator staff with responsibility for submitting DAMIS reports. Based on the number of phone calls to PHMSA each year requesting this information, the mailing process has not been effective. Pipeline operators have been submitting reports required by Parts 191 and 195 through the PHMSA Portal (
The user name and password required for an operator to access DAMIS and enter calendar year 2013 data will be available to all staff with access to the PHMSA Portal in late December 2013. When the DAMIS user name and password is available in the Portal, all registered users will receive an email to that effect. Operator staff with responsibility for submitting DAMIS reports should coordinate with registered Portal users to obtain the DAMIS user name and password. Registered Portal users for an operator typically include the U.S. Department of Transportation Compliance Officer and staff or consultants with responsibility for submitting annual and incident reports on PHMSA F 7000- and 7100- series forms.
For operators that have failed to register staff in the PHMSA Portal for Part 191/195 reporting purposes, operator staff responsible for submitting DAMIS reports can register in the Portal by following the instructions at:
Pursuant to §§ 199.119(a) and 199.229(a), operators with 50 or more covered employees, including both operator and contractor staff, are required to submit DAMIS reports annually. Operators with less than 50 total covered employees are required to report only upon written request from PHMSA. If an operator submitted a calendar year 2011 DAMIS report with fewer than 50 total covered employees, the PHMSA Portal message may state that no calendar year 2013 DAMIS report is required. Some of these operators may have grown to more than 50 covered employees during calendar year 2013. The Portal message will include instructions for how these operators can obtain a calendar year 2013 DAMIS user name and password.
49 U.S.C. 5103, 60102, 60104, 60108, 60117, and 60118; 49 CFR 1.53.
On November 8, 2013, St. Lawrence & Atlantic Railroad Company (SLR) filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the prior approval requirements of 49 U.S.C. 10903 to discontinue service over approximately 24.23 miles of rail line, owned by the State of Maine, between milepost 1.74 near Deering, Cumberland County, Me., and milepost 25.97 at the town line between New Gloucester, Cumberland County and Auburn, Androscoggin County, Me. (the Line).
There is one shipper on the Line, B&M Beans, and SLR states that B&M Beans ships all of its outbound products and some of its inbound ingredients by truck. SLR estimates that B&M Beans will ship 12 cars of inbound ingredients in the forecast year.
SLR states that, based on information in its possession, the Line does not contain any federally granted rights-of-way. Any documentation in SLR's possession will be made available promptly to those requesting it.
The interests of railroad employees will be protected by the conditions set forth in
By issuance of this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by February 26, 2014.
Because this is a discontinuance proceeding and not an abandonment, interim trail use/rail banking, and public use conditions are not appropriate. Similarly, no environmental or historic documentation is required under 49 CFR 1105.6(c)(2) and 1105.8(b).
Any offer of financial assistance (OFA) under 49 CFR 1152.27(b)(2) to subsidize continued rail service will be due no later than March 7, 2014, or 10 days after service of a decision granting the petition for exemption, whichever occurs sooner. Each offer must be accompanied by a $1,600 filing fee.
All filings in response to this notice must refer to Docket No. AB 1117X and must be sent to: (1) Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001, and (2) Eric M. Hocky, Clark Hill Thorp Reed, One Commerce Square, 2005 Market Street, Suite 1000, Philadelphia, PA 19103. Replies to the petition are due on or before December 17, 2013.
Persons seeking further information concerning discontinuance procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245–0238 or refer to the full abandonment and discontinuance regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis (OEA) at (202) 245–0305. Assistance for the hearing impaired is available through the Federal Information Relay Service (FIRS) at 1–800–877–8339.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
New Orleans & Gulf Coast Railway Company, Inc. (NOGC), a Class III rail carrier, has filed a verified notice of exemption under 49 CFR 1150.41 to continue to lease from Union Pacific Railroad Company (UP) and operate approximately 11.52 miles of rail line. The line consists of 7.02 miles of UP's main line located between milepost 0.98 at Goldsboro, La., and milepost 8.00 near Westwego, La., and the 4.5-mile
NOGC and UP have recently entered into a First Supplement to their 2003 Lease Agreement that adds the following new provisions: (1) The lease term is extended from September 24, 2013, to September 23, 2023 (Section 1); (2) NOGC is permitted to construct a new yard on the leased premises (Section 2); and (3) NOGC is permitted to assess a surcharge on all NOGC traffic in order to undertake capital investments (Section 3).
NOGC has certified that the Lease Agreement contains a provision that may limit future interchange at Westwego with a third-party connecting carrier by adjustment in the purchase price or rental (interchange commitment). Consequently, the Board's new rules established in
NOGC has certified that its projected annual revenues as a result of this transaction will not result in NOGC's becoming a Class II or Class I rail carrier, but that its projected annual revenues will exceed $5 million. Accordingly, NOGC is required, at least 60 days before this exemption is to become effective, to send notice of the transaction to the national offices of the labor unions with employees on the affected lines, post a copy of the notice at the workplace of the employees on the affected lines, and certify to the Board that it has done so. 49 CFR 1150.42(e).
NOGC, concurrently with its notice of exemption, filed a petition for waiver of the 60-day advance labor notice requirement under § 1150.42(e), asserting that: (1) No UP employees will be affected because no UP employees have performed operations or maintenance on the line since 2003; and (2) no NOGC employees will be affected because NOGC will continue to provide the same service and maintenance on the line as it has been providing since the inception of the lease. NOGC's waiver request will be addressed in a separate decision.
NOGC states that it intends to consummate the transaction on or shortly after the effective date of this transaction. The Board will establish in the decision on the waiver request the earliest date this transaction may be consummated.
If the notice contains false or misleading information, the exemption is void
An original and 10 copies of all pleadings, referring to Docket No. FD 35777, must be filed with the Surface Transportation Board, 395 E Street SW., Washington, DC 20423–0001. In addition, one copy of each pleading must be served on Karl Morell, Ball Janik LLP, Suite 225, 655 Fifteenth St. NW., Washington, DC 20005.
Board decisions and notices are available on our Web site at
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
In accordance with section 999(a)(3) of the Internal Revenue Code of 1986, the Department of the Treasury is publishing a current list of countries which require or may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986).
On the basis of the best information currently available to the Department of the Treasury, the following countries require or may require participation in, or cooperation with, an international boycott (within the meaning of section 999(b)(3) of the Internal Revenue Code of 1986).
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A). Currently the Bureau of the Fiscal Service within the Department of the Treasury is soliciting comments concerning the Resolution for Transactions Involving Treasury Securities.
Written comments should be received on or before January 27, 2014 to be assured of consideration.
Direct all written comments to Bureau of the Fiscal Service, Bruce A. Sharp, 200 Third Street A4–A, Parkersburg, WV 26106–1328, or
Requests for additional information or copies should be directed to Bruce A. Sharp, Bureau of the Fiscal Service, 200 Third Street A4–A, Parkersburg, WV 26106–1328, (304) 480–8150.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the IRS is soliciting comments concerning the Limited Payability Claim Against the United States For Proceeds of An Internal Revenue Refund Check.
Written comments should be received on or before January 27, 2014 to be assured of consideration.
Direct all written comments to Yvette Lawrence, Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224.
Requests for additional information or copies of the form and instructions should be directed to Sara Covington, at Internal Revenue Service, Room 6129, 1111 Constitution Avenue NW., Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Internal Revenue Service (IRS), Treasury.
Notice.
Publication of the tier 2 tax rates for calendar year 2014 as required by section 3241(d) of the Internal Revenue Code (26 U.S.C. section 3241). Tier 2 taxes on railroad employees, employers, and employee representatives are one source of funding for benefits under the Railroad Retirement Act.
The tier 2 tax rates for calendar year 2014 apply to compensation paid in calendar year 2014.
Kathleen Edmondson, CC:TEGE:EOEG:ET1, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC 20224, Telephone Number (202) 317–6798 (not a toll-free number).
TIER 2 TAX RATES: The tier 2 tax rate for 2014 under section 3201(b) on employees is 4.4 percent of compensation. The tier 2 tax rate for 2014 under section 3221(b) on employers is 12.6 percent of compensation. The tier 2 tax rate for 2014 under section 3211(b) on employee representatives is 12.6 percent of compensation.
Department of Veterans Affairs.
Proposed rule.
The Department of Veterans Affairs (VA) proposes to reorganize and rewrite its compensation and pension regulations in a logical, claimant-focused, and user-friendly format. The intended effect of the proposed revisions is to assist claimants, beneficiaries, veterans' representatives, and VA personnel in locating and understanding these regulations.
Comments must be received by VA on or before March 27, 2014.
Written comments may be submitted through
William F. Russo, Deputy Director, Office of Regulations Policy & Management (02REG), Office of the General Counsel, Department of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 20420, (202) 461–4902 (this is not a toll-free number).
The VA Office of the General Counsel provides centralized management and coordination of VA's rulemaking process through its Office of Regulation Policy and Management (ORPM). One of ORPM's major functions is to oversee VA's Regulation Rewrite Project (the Project) to improve the organization and clarity of VA's adjudication regulations, which are in current 38 CFR part 3. These regulations govern the adjudication of claims for VA's monetary benefits (compensation, pension, dependency and indemnity compensation, and burial benefits), which are administered by the Veterans Benefits Administration (VBA).
The Project responds to a recommendation made by the VA Claims Processing Task Force in its October 2001 “Report to the Secretary of Veterans Affairs” and to criticisms by the U.S. Court of Appeals for Veterans Claims. The Task Force recommended that VA reorganize its regulations in a logical, coherent manner. The Court referred to the current regulations as a “confusing tapestry” and criticized VA for maintaining substantive rules in its Adjudication Procedures Manual (manual). Accordingly, the Project reviewed the manual to identify provisions that might be substantive and incorporated those provisions in a complete rewrite of part 3. VA published the rewritten material in 20 Notices of Proposed Rulemaking (NPRMs) and gave interested persons 60 days to submit comments after each publication. These NPRMs addressed specific topics, programs, or groups of regulatory material organized under the following Rulemaking Identifier Numbers (RIN):
VA received numerous comments to the 20 NPRMs. These came from private individuals and several Veterans Service Organizations. VA thanks the commenters for the time they invested and the contribution they have made to the quality of the proposed regulations in this document.
VA also wishes to thank its employees, past and present, for their hard work and dedication in drafting these regulations. We are especially grateful for the contributions of the late Richard Hirst and Robert M. White, who dedicated their lives to our nation's disabled veterans.
In several of the prior NPRMs, we proposed to amend certain provisions or portions of provisions in 38 CFR part 3. Upon further consideration, if VA implemented the Project as a new 38 CFR part 5, it would not amend any part 3 provisions in conjunction with publishing part 5. Instead, it would remove part 3 in its entirety when it is no longer applicable to the adjudication of benefit claims and would provide public notice before doing so.
As stated in the prior NPRMs, we would incorporate numerous statutory amendments, VA General Counsel Opinions, court decisions, and VA manual provisions in the rewritten regulations. To the extent that any manual provision would be inconsistent with a rewritten regulation, the regulation would be binding on VA and the public. Any implementation of the rewritten regulations, whether implemented as proposed in this NPRM or in some other manner, would require a corresponding rewrite of VA's adjudication procedures manual.
VA does not intend to publish a final rule in this rulemaking proceeding in the near future. In the first quarter of fiscal year 2012, VBA formulated a Transformation Plan to improve the delivery of benefits to veterans and their dependents and survivors. In the first phase of this plan, VBA's transformational people, processes, and technology initiatives are designed to achieve VA's priority goals of processing all disability claims within 125 days and increasing rating quality to 98 percent by the end of 2015. Upon achieving those goals, the plan calls for VBA to allocate resources to maintain high-quality service for compensation claims while redirecting resources to the second phase of the transformation, which will address the needs of VBA's other benefit programs (appeals, veterans and survivors pension, dependency and indemnity compensation, burial benefits, vocational rehabilitation, education, and fiduciary). To ensure that VBA successfully implements this plan and accomplishes the Department's priority goals of eliminating the disability claims backlog and improving veterans' and survivors' access to benefits and services, VA may not publish a final-rule notice in this rulemaking until VBA's Transformation implementation is complete.
In the interim, VA will continue to amend its adjudication regulations in 38 CFR part 3 to implement changes in law and the policies and procedures that it needs to properly administer its benefit programs. In amending part 3, VA may refer to the work done by the Project and may incorporate that work in whole or in part depending upon the nature of the amendments. In this way, regardless of any future decision about implementation of the Project's rewritten regulations, VA will update its regulations at the same time that VBA is improving the delivery of benefits to veterans and survivors under the Transformation Plan.
In this NPRM, we have merged the Rulemaking Identifier Numbers (RINs) of the 20 prior NPRMs into the RIN for this NPRM, AO13. The preamble to this NPRM addresses the public comments that VA received in response to those NPRMs and explains the changes we have made to the initially proposed rules.
Although VA does not intend to complete this rulemaking in the near future, we request public comments on the consolidation of the prior proposed rules, which would be implemented in a new 38 CFR part 5, and on the changes made to those proposed rules. Prior to publishing a final rule in this rulemaking, VA will consider any comments that it receives in response to this NPRM and will evaluate the feasibility of a one-time implementation of new part 5 as proposed. If VA determines that such an implementation is feasible, we may need to publish additional rulemakings to adapt to implementation plans and keep these proposed rules up to date.
In the NPRMs we stated:
In the NPRMs we sometimes referred to specific proposed changes from part 3 as “substantive” or “not substantive.” Sometimes we said “we intend no substantive change.” Our intent was to clarify for readers whether we were making a policy change (“substantive”) or merely restating existing VA policy more clearly (“non-substantive”), in those instances where we thought a reader might need that guidance. Most often, however, we applied neither label to our changes; instead we simply told the reader how we were proposing to change a regulation provision and why.
However, the case of
The
This dissent illustrates the need to revise the way we use labels describing differences between part 5 regulations and the part 3 regulations from which they derive. In addition to the confusion highlighted by the
To avoid potential confusion, we now advise readers to draw no inferences from the use of, or non-use of, the labels substantive or non-substantive in the NPRMs. Instead, readers should simply rely on our actual description of the change and our reasons for making the change. The only instances where we use “substantive” in this preamble are where we used the term to refute a
We plan to organize the new part 5 regulations so that most provisions governing a specific benefit are located in the same subpart, with general provisions pertaining to all compensation and pension benefits grouped together. This organization will allow claimants, beneficiaries, and their representatives, as well as VA adjudicators, to find information relating to a specific benefit more quickly than the organization provided in current part 3.
The first major subdivision would be “Subpart A: General Provisions”. It would include information regarding the scope of the regulations in new part 5, general definitions, and general policy provisions for this part. We published this subpart as a Notice of Proposed Rulemaking (NPRM) on Mar. 31, 2006.
“Subpart B: Service Requirements for Veterans” would include information regarding a veteran's military service, including the minimum service requirement, types of service, periods of war, and service evidence requirements. We published this subpart as an NPRM on Jan. 30, 2004.
“Subpart C: Adjudicative Process, General” would inform readers about claim filing and benefit application procedures, VA's duties, claimants' and beneficiaries' rights and responsibilities, general evidence requirements, and general effective dates of new awards, and about revision of decisions and protection of VA ratings. We published this subpart as three separate NPRMs due to its size. We published the first, concerning the duties of VA and the rights and responsibilities of claimants and beneficiaries, on May 10, 2005.
“Subpart D: Dependents and Survivors” would inform readers how VA determines whether a person is a dependent or a survivor for purposes of determining eligibility for benefits. It would also provide the evidence requirements for these determinations. We published this subpart as an NPRM on September 20, 2006.
“Subpart E: Claims for Service Connection and Disability Compensation” would define service-connected disability compensation and service connection, including direct and secondary service connection. This subpart would inform readers how VA determines service connection and entitlement to disability compensation. The subpart would also contain those provisions governing presumptions related to service connection, rating principles, and effective dates, as well as several special ratings. We published this subpart as three separate NPRMs due to its size. We published the first, concerning presumptions related to service connection, on July 27, 2004.
“Subpart F: Nonservice-Connected Disability Pensions and Death Pensions” would include information regarding the three types of nonservice-connected pension: Old-Law Pension, Section 306 Pension, and Improved Pension. This subpart would also include those provisions that state how to establish entitlement to Improved Pension and the effective dates governing each pension. We published this subpart as two separate NPRMs due to its size. We published the portion concerning Old-Law Pension, Section 306 Pension, and elections of Improved Pension on December 27, 2004.
“Subpart G: Dependency and Indemnity Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary” would contain regulations governing claims for dependency and indemnity compensation (DIC); accrued benefits; and various special rules that apply to the disposition of benefits, or proceeds of benefits, when a beneficiary dies. This subpart would also include related definitions, effective-date rules, and rate-of-payment rules. We published this subpart as two separate NPRMs due to its size. We published the NPRM concerning accrued benefits, special rules applicable upon the death of a beneficiary, and several effective-date rules, on October 1, 2004.
“Subpart H: Special and Ancillary Benefits for Veterans, Dependents, and Survivors” would pertain to special and ancillary benefits available, including benefits for a child with various birth defects. We published this subpart as an NPRM on March 9, 2007.
“Subpart I: Benefits for Certain Filipino Veterans and Survivors” would pertain to the various benefits available to Filipino veterans and their survivors. We published this subpart as an NPRM on June 30, 2006.
“Subpart J: Burial Benefits” would pertain to burial allowances. We published this subpart as an NPRM on April 8, 2008.
“Subpart K: Matters Affecting the Receipt of Benefits” would contain provisions regarding bars to benefits, forfeiture of benefits, and renouncement of benefits. We published this subpart as an NPRM on May 31, 2006.
“Subpart L: Payments and Adjustments to Payments” would include general rate-setting rules, several adjustment and resumption regulations, and election-of-benefit rules. We published this subpart as two separate NPRMs due to its size. We published the first, concerning payments to beneficiaries who are eligible for more than one benefit, on October 2, 2007.
The final subpart, “Subpart M: Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries” would include regulations governing apportionments, benefits for incarcerated beneficiaries, and guardianship. We published the NPRM, concerning apportionments to dependents and payments to fiduciaries and incarcerated beneficiaries, on January 14, 2011.
The purpose of the Regulation Rewrite Project is to reorganize all of VA's compensation and pension rules in a logical, claimant-focused, and user-friendly format. We have redistributed the part 3 regulations into a new organizational structure, part 5. We have created two tables, the distribution table and the derivation table, to facilitate the understanding of the redistribution of the regulations. These tables are meant to aid users who are familiar with either
The distribution table lists the part 3 regulations by title and matches them with the corresponding part 5 regulations. There may not be an equivalent part 5 regulation for some part 3 regulations. This is indicated by the phrase “NO PART 5 REG—unnecessary” in the part 5 column. There are several reasons not to include certain part 3 regulations in part 5. It may be obsolete or repetitive of another provision that fully covers the intent of the regulation.
The derivation table is organized by subpart. Each subpart contains regulations relevant to the title of the subpart. The derivation table lists the proposed part 5 regulations in numerical order, with the corresponding part 3 paragraph numbers and the part 5 section title. Some of the part 5 regulations have no part 3 counterpart. This is indicated by the term “new” in the part 3 column. A regulation is determined to be “new” because it may be based on a change in law, a court decision, a General Counsel Opinion, or a manual provision.
As stated previously, there are also instances where we have not carried over a part 3 regulation into part 5. Where appropriate, we have included a comment explaining why part 5 does not include a certain part 3 provision. We propose to add part 5 citations to all the cross-references on the table to ensure that readers will be able to locate the relevant regulation.
One commenter, in response to AL70, “Presumptions of service connection for certain disabilities, and related matters”, suggested that VA's decision to rewrite and reorganize the provisions of part 3 and promulgate them as part 5 is not in the best interest of veterans. The commenter stated that as part 3 has withstood the scrutiny of the courts and has been changed accordingly, there is no reason to now rewrite it. Additionally, the commenter feared that the introduction of part 5 will lead to an increase in the number of appeals to the courts as the regulations undergo the rigors of judicial review, which will result in delays to claimants.
Another commenter asserted that proposed AL83, “Elections of Improved Pension; Old-Law and Section 306 Pension”, would add to the administrative costs of VA programs and therefore should not be adopted. This commenter urged VA to provide the services already promised rather than seek “to change the manner in which they are not put forward.”
The project to rewrite and reorganize the regulations responds to a recommendation made in the October 2001 “Report to the Secretary of Veterans Affairs” by the VA Claims Processing Task Force. The Task Force recommended that the Compensation and Pension (C&P) regulations be rewritten and reorganized in order to improve VA's claims adjudication process. These regulations are among the most difficult VA regulations for readers to understand and apply. The Project began its efforts by reviewing, reorganizing, and redrafting the regulations in 38 CFR part 3 governing the C&P programs of the Veterans Benefits Administration.
We disagree with the assertion of the commenters that rewriting and reorganizing the regulations in part 3 is not in the best interests of veterans. Although it is possible that the validity of the new part 5 regulations may be challenged in the short-term, in the long-term, rewriting and reorganizing these regulations will be beneficial to veterans. This is because part 5 will be better organized, which will allow readers and VA personnel to find information more easily. In addition, the part 5 regulations will be easier for the average reader to understand, will resolve many ambiguities and inconsistencies, and they will not include many outdated references and regulations that are found in part 3. Therefore, we propose to make no changes based on these comments.
One commenter asserted that, without legal authority, VA interprets, amends, and reverses laws enacted by Congress. The commenter stated that VA regulations obstruct compensation and “impose a separate, discriminatory, quasi-judicial process upon veterans.”
We respectfully disagree with the comment and propose to make no changes based on it. Congress has given VA authority to regulate in order to carry out statutory programs supporting veterans and their families, as stated in 38 U.S.C. 501, “Rules and regulations”. Paragraph (a) of section 501 includes the following:
• The Secretary has authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department and are consistent with those laws, including—
○ regulations with respect to the nature and extent of proof and evidence and the method of taking and furnishing them in order to establish the right to benefits under such laws;
○ the forms of application by claimants under such laws;
○ the methods of making investigations and medical examinations; and
○ the manner and form of adjudications and awards.
The same commenter asserted that the Feres Doctrine (which restricts active duty servicemembers from filing suit against the U.S. Government) and the restrictions on veterans hiring attorneys to represent them in VA claims (
We propose to make certain additional technical corrections and changes in terminology in this proposed rule.
In addition to considering any necessary changes to proposed part 5 regulations based on comments received from the public, we propose to make certain technical corrections. These corrections include updated citations to certain regulations to which the NPRM referred. We are now replacing these “place holder” citations with the current part 5 citations.
Additionally, we propose to renumber certain regulations of part 5 in order to accommodate all needed regulations.
As stated previously in this preamble, we propose to eventually replace 38 CFR part 3 with a new part 5. We note that numerous 38 CFR sections reference part 3 sections. To update these citations throughout 38 CFR, we propose to add “or [insert part 5 section]” after each to include a reference to the part 5 equivalent to the referenced part 3 provision.
We have compiled the following table that lists the sections in 38 CFR outside part 3 that reference part 3 sections. In addition to the part 3 section, the list includes the corresponding part 5 citation. The list is organized by part. As discussed in various portions of this preamble, there are instances where a
We propose changes in terminology in this rulemaking primarily to achieve consistency throughout part 5. For example, while reviewing the NPRMs, we noted that we had used the word “termination” interchangeably with the word “discontinuance” (including variations of the two words). To ensure clarity and consistency in our part 5 regulations, we propose to use the term “discontinuance” throughout. The word “discontinuance” is more accurate because there are occasions when the benefit is not terminated, but discontinued for a period, and then resumed. Similarly, we propose to use “person” rather than “individual” in all instances where either term would apply.
According to paragraph 12.9 of the Government Printing Office Style Manual (2008), numerals rather than words are used when referring to units of measurement and time. Therefore, we propose to substitute the number for the word (for example, “1 year” instead of “one year”) throughout part 5.
Another source of ambiguity and confusion is the phrase “on or after” which is used in connection with a specific date when discussing the effective date of a regulatory provision or the date by which an event must have occurred. For example, a regulatory provision might be effective “on or after” October 1, 1982, which to some may seem to permit a choice between “on” or “after”. The simplest way to eliminate this ambiguity is to identify the day before the effective date and precede that date with the word “after”. In the above example, the regulatory provision would be effective “after September 30, 1982”. This method of stating effective dates makes our regulations easier to understand and apply.
We noted that in the NPRMs we used “VA benefits” and “benefits” inconsistently and interchangeably. We propose to define “
There are less than 300 beneficiaries currently receiving death compensation. Except for one small group of beneficiaries, death compensation is payable only if the veteran died prior to January 1, 1957. VA has not received a claim for death compensation in over 10 years and we do not expect to receive any more.
Because of the small number of beneficiaries of death compensation, there is no need to include the provisions concerning claims for death compensation in part 5. We therefore propose to remove the death compensation provisions (§§ 5.560–5.562) that were initially proposed in AL71. 69 FR 59072, Oct. 1, 2004. We propose to reserve §§ 5.560–5.562 for later use. We propose to revise § 5.0 (the scope provision for part 5), as initially proposed in AL87, 71 FR 16464, Mar. 31, 2006, to direct that any new claims for death compensation or actions concerning death compensation benefits be adjudicated under part 3. We propose to retain provisions regarding death compensation in subpart L because a death compensation beneficiary may still elect to receive dependency and indemnity compensation instead.
There is currently one beneficiary receiving a Spanish-American War death pension. Therefore, the provisions concerning Spanish-American War death pensions should not be carried forward to part 5. Instead, we propose to remove the Spanish-American War death pension provisions initially proposed in AL83 (§§ 5.460(c) and 5.462). 69 FR 77578, Dec. 27, 2004. We propose to reserve § 5.462 for later use. In addition, we propose to change initially proposed § 5.0 (the scope provision for part 5) as proposed in AL87, 71 FR 16464, Mar. 31, 2006, to direct that any new claims or actions concerning Spanish-American War death pension benefits be adjudicated under part 3.
Effective April 11, 2011, VA reorganized its Compensation and Pension Service by dividing it into several smaller entities, including the Compensation Service and the Pension and Fiduciary Service. We propose to update these terms throughout part 5.
In a document published in the
In the NPRM, we identified proposed § 5.0 as a new regulation in the derivation table. 71 FR 16465–16466, Mar. 31, 2006. However, initially proposed § 5.0 is derived from § 3.2100, which governs the applicability of rules in one subpart of 38 CFR part 3. Section 5.0(a) states a similar applicability provision for all of part 5, with only minor revisions to conform it to the part 5 formatting and numbering. The derivation and distribution tables are corrected accordingly.
To provide a smooth transition from part 3 to part 5 we propose to add a new paragraph (b) to initially proposed § 5.0 establishing the applicability date for part 5. We propose two rules to govern the applicability date of part 5, and two rules to state the different situations in which part 3 would still apply. These rules would make it clear that part 5 will apply prospectively, but not retroactively.
To have part 5 apply immediately to all pending cases would require readjudication of thousands of claims (e.g. those where a decision has been rendered by the agency of original jurisdiction and the appeal period has not expired), which would significantly delay processing new claims being filed with VA. We believe that our proposed applicability structure will be the most efficient way to transition from part 3 to part 5 and is clear both to VA employees and to the members of the public who use VA regulations.
We propose to have part 3 continue to apply to all death compensation and Spanish-American War benefits. As explained in detail later in this preamble, these two benefit programs have very limited numbers of beneficiaries or potential claimants, and these claims can continue to be processed under part 3, so there is no need to include them in part 5.
To ensure that users of part 3 are aware of part 5's applicability, we propose to add a new § 3.0 to 38 CFR part 3. This section will be titled Scope and applicability and will state that part 5, not part 3, will apply to claims filed on or after the effective date of the final rule.
We note that part 5 is not a “liberalizing VA issue approved by the Secretary or at the Secretary's direction” under § 5.152 with regard to a claim that was filed while part 3 was still in effect for new claims. That is because part 5 does not apply to a claim that was filed while part 3 was still in effect for new claims. Therefore, part 5 cannot be liberalizing with respect to such a claim.
Initially proposed § 5.1, included the following definition of the term “agency of original jurisdiction”: “
Notwithstanding our initially proposed reason for creating a different definition, we have determined that it is unnecessary because the § 20.3(a) definition will work well in part 5. Moreover, having two different definitions, even if the two are substantially the same, could cause a reader to mistakenly believe that VA intends to define “agency of original jurisdiction” differently depending on whether a case is pending at a VA regional office or at the Board of Veterans' Appeals (the Board). We therefore propose to replace the definition from the AL87 NPRM with the § 20.3(a) definition.
In response to RIN 2900–AM05, “Matters Affecting Receipt of Benefits”, we received several comments on our proposed definitions of “willful misconduct”, “proximately caused”, and “drugs”. 71 FR 31056, May 31, 2006. Because these terms apply to several different subparts in part 5, we propose to move them to § 5.1 and will therefore discuss these comments in connection with § 5.1 below.
In proposed rulemaking RIN 2900–AM16, VA Benefit Claims, we initially proposed definitions of “application” and “claim”, to be added to § 5.1, “General definitions”. 73 FR 20138, Apr. 14, 2008. In that rulemaking, we proposed that, “
In responding to this comment, we determined that we had used the terms “file” and “submit” interchangeably in the NPRMs. We note that other provisions in title 38 use “submit” or variants thereof with respect to the presentation of evidence.
One commenter commented on our initially proposed definition of “claimant,” which stated that, “any person applying for, or filing a claim for, any benefit under the laws administered by VA”, noting that the term “claim” has a different meaning than “application”. The commenter noted that a claim does not end with the disposition of the application and that there may be subsequent administrative actions in a claim which were not initiated by any application and action by the claimant. The commenter did not address the substance of our definitions nor did the commenter suggest any revisions. For the reasons set forth in the preamble to proposed AM16, our definitions of “application” and “claim” reflect the distinctions described by the commenter. We therefore propose to make no changes based on the comment.
One commenter objected to the scope of our definition of “claimant”, noting that Congress, in 38 U.S.C. 5100, restricted the definition of “claimant” to 38 U.S.C. chapter 51. The commenter asserted that VA should restrict its definition to 38 CFR part 5. The commenter then noted that 38 U.S.C. 7111 also uses the word “claimant” in connection with a review of a Board decision on grounds of clear and
The first phrase of § 5.1 states that, “The following definitions apply to this part”. Although other parts of 38 CFR may adopt the definitions used in part 5 by expressly stating so, the definitions we provided in § 5.1 are restricted by this phrase to use in part 5 unless adopted in other parts. The situation described by the commenter (concerning the person whose file is being reviewed by the Board) is not related to this rule because it concerns 38 CFR part 20. As stated above, the regulation as initially proposed already restricts the application of the definition of claimant to part 5.
Based on this comment, however, we propose to narrow the definition of “claimant” to “a person applying for, or filing a claim for, any benefit under this part.” Because § 5.1 applies only to part 5, it is beyond the scope of this section to include as a part 5 claimant a person who is seeking VA benefits under another part of title 38 CFR, such as health care. For the same reason, we propose to make similar changes to our definitions of “claim”, “beneficiary”, and “benefit”.
We propose to add the definition of “custody of a child,” which means that a person or institution is legally responsible for the welfare of a child and has the legal right to exercise parental control over the child. Such a person or institution is the “custodian” of the child. This definition is consistent with the definition of “child custody” in 38 CFR 3.57(d) and with current VA practice and usage in 38 CFR part 3.
In AM05, § 5.661(a)(3), we initially proposed to define the term “drugs” as “prescription or non-prescription medications and other substances (e.g., glue or paint), whether obtained legally or illegally.” The definition is now proposed in § 5.1. A commenter suggested an amendment to this definition. The commenter asserted that the definition should include the word “chemical” because in the commenter's view, “chemical” abuse also causes euphoria and “chemicals” are widely abused. Our initially proposed definition used the term “other substances” to describe the chemicals discussed by the commenter. We intended our definition to include organic substances, such as hallucinogenic mushrooms, and all other substances that may be abused to cause intoxication.
In reviewing this comment, we determined that the “other substances” language of our definition may have been overly broad. For instance, it might be misconstrued to include any substance, for example, water. In order to avoid this potential misinterpretation, we propose to modify our basic definition of drugs to read as follows: “chemical substances that affect the processes of the mind or body and that may cause intoxication or harmful effects if abused.” The language about affecting the mind or body is taken from “Dorland's Illustrated Med. Dictionary” 575 (31st ed. 2007). We propose to add the language about intoxication or harmful effects to ensure that we exclude items which technically are chemical substances that might affect the mind or body (for example, commercially prepared prune juice), but do not cause intoxication or harmful effects. We propose to add a second sentence to incorporate important concepts already stated in the initially proposed definition: that our definition includes prescription and non-prescription drugs and includes drugs that are obtained legally or illegally.
Another AM05 commenter stated that the phrase “obtained legally or illegally” was unnecessary and contained a negative implication. The commenter recommended saying, “however obtained” instead. We used the phrase “obtained legally or illegally” because as we stated in the NPRM, this phrase is sufficiently broad to cover all the means of obtaining drugs or other substances. We used the phrase “obtained legally or illegally” to ensure that the regulation makes clear that a properly prescribed drug, obtained legally, may be abused such as to cause intoxication and thus proximately cause injury, disease, or death. We propose to make no changes based on this comment because the recommended change would not make clear that the abuse of legally obtained drugs is also considered drug abuse constituting willful misconduct under § 5.661(c).
We do propose, however, to change “and drugs that are obtained legally or illegally” to “whether obtained legally or illegally.” This makes it clearer that “legally or illegally” applies to how prescription and non-prescription drugs are obtained. The language initially proposed could be misread to mean that there are four distinct categories of drugs, prescription, non-prescription, legally obtained, and illegally obtained. “Whether obtained legally or illegally” makes it clear that there are two categories, prescription and non-prescription, either of which could be obtained legally or illegally.
We propose to define “effective the date of the last payment” as paragraph (s) in § 5.1. This term is commonly used in part 3 as “effective date of last payment”, but not defined in part 3. In certain cases of reduction, suspension, or discontinuance of benefit payments, VA adjusts payments effective the date of the last payment of benefits. This means that “VA's action is effective as of the first day of a month in which it is possible to suspend, reduce, or discontinue a benefit payment without creating an overpayment.” We are adding the word “the” before “date” and “last” for clarity.
One commenter noted that the definition of “fraud” depended on where in the regulations it was used. This commenter expressed the opinion that the meaning of a word in a statute is presumed to be the common law meaning unless Congress has plainly provided otherwise. The commenter then expressed the opinion that none of the definitions of fraud presented in initially proposed § 5.1 incorporate all the common law aspects of fraud, especially the requirement for proof of fraudulent intent and the requirement for proof by clear evidence.
We first note that Congress has specifically defined “fraud” in 38 U.S.C. 6103(a) for purposes of forfeiture of benefits. We incorporated that definition in paragraph (1) of our initially proposed definition of fraud and then proposed to make it VA's “general definition” of fraud. In reviewing our definition based on this comment, we have determined that there is no need for a general definition of fraud, since the term is only used in the context of forfeiture. We therefore propose to limit the scope to instances of forfeiture.
Regarding the commenter's assertion regarding common law, we note that the five elements of common law fraud are: (1) A material misrepresentation by the defendant of a presently existing fact or past fact; (2) Knowledge or belief by the defendant of its falsity; (3) An intent that the plaintiff rely on the statement; (4) Reasonable reliance by the plaintiff; and 5) Resulting damages to the plaintiff.
As stated above, our proposed definition of fraud in § 5.1 now relates only to forfeiture and is consistent with the applicable statute. There is no requirement that our definitions in § 5.1 conform to the common law definition.
Although some State jurisdictions require “clear” or “clear and convincing” evidence of fraud in various contexts, the Supreme Court has stated that “Congress has chosen the preponderance standard when it has created substantive causes of action for fraud.”
We propose to remove the definitions for “in the waters adjacent to Mexico” and “on the borders of Mexico”. Both of these phrases applied to determining entitlement to benefits for the Mexican Border War. There are no surviving veterans of this war, so the definitions are no longer necessary.
We initially proposed to define “notice,” now proposed § 5.1, as “written notice sent to a claimant or beneficiary at his or her latest address of record, and to his or her designated representative and fiduciary, if any.” In reviewing this definition to respond to a comment, we determined that limiting this definition only to written communications could create unintended problems. In
In addition, we have determined that the use of the defined term as part of the definition is not useful to the reader. The term “notice” is more accurately defined as a “communication,” as opposed to a “notice.” We, therefore, propose to define “notice” as either:
• A written communication VA sends a claimant or beneficiary at his or her latest address of record, and to his or her designated representative and fiduciary, if any; or
• An oral communication VA conveys to a claimant or beneficiary.
Additionally, we propose to add the definition of “payee”. This term is used throughout part 5. We propose to define this term in § 5.1 as a person to whom monetary benefits are payable.
One AM05 commenter disagreed with our initially proposed definition of “proximately caused”. This commenter also disagreed with including a definition of “proximate cause” in the regulation, stating that the concept has a long history and that for VA to select one definition narrows the concept, which may not work in the favor of veterans. The commenter also objected to restricting the definition to the second definition found in “Black's Law Dictionary” 213 (7th Ed. 1999).
It is necessary to define “proximately caused” because it has many definitions, as the commenter noted. Moreover, we do not believe the concept is well-known by the public. Claimants, beneficiaries, veterans' representatives, and VA employees are the primary users of regulations. It is important that we choose one definition, to ensure a common understanding of our regulations and to ensure that all users apply them the same way.
We selected the second definition of “proximately caused” from “Black's Law Dictionary” 234 (7th ed. 1999) (the same definition is used in the 8th Edition (2004) and the 9th Edition (2009)), because that definition most closely reflects the way VA and the U.S. Court of Appeals for Veterans Claims (CAVC) apply the concept.
We propose to add a definition of “psychosis” as § 5.1 because other part 5 regulations use the term. The definition is based on 38 CFR 3.384, which defines it as any of the following disorders listed in Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, of the American Psychiatric Association (DSM–IV–TR):
• Brief Psychotic Disorder;
• Delusional Disorder;
• Psychotic Disorder Due to General Medical Condition;
• Psychotic Disorder Not Otherwise Specified;
• Schizoaffective Disorder;
• Schizophrenia;
• Schizophreniform Disorder;
• Shared Psychotic Disorder; and
• Substance-Induced Psychotic Disorder.
We propose to add definitions of the terms “service-connected”, § 5.1, and “nonservice-connected” as § 5.1. Both of these definitions are identical to those in 38 U.S.C. 101(16) and (17), except that we use the term “active military service” in lieu of the longer term “active military, naval, or air service”.
We initially proposed a definition of “service medical records” in § 5.1. We now propose to change the defined term to “service treatment records”, now § 5.1. The Benefits Executive Council, co-chaired by senior VA and Department of Defense (DoD) officials, formally changed the term for a packet of medical records transferred from DoD to VA upon a servicemember's release from active duty. Specifically, they found that VA, the reserve components, and all of the military services, used approximately 20 different phrases for what VA referred to as “service medical records”. They concluded that this inconsistent use of terminology was a contributing factor in the fragmented processing of medical records. This proposed change would implement the Benefits Executive Council's directive.
We omitted the Canal Zone from the initially proposed definition of “State” in § 5.1, because § 3.1(i) does not include the Canal Zone in its definition of “State”. However, 38 U.S.C. 101(20) defines “State” to include “For purpose of section 2303 and chapters 34 and 35 of this title, such term also includes the Canal Zone.” To correct this omission,
We propose to add a definition of “VA”, as § 5.1, that is consistent with current 38 CFR 1.9(b)(1) and 38 U.S.C. 101.
Regarding our initially proposed definition of “willful misconduct”, an AM05 commenter suggested revising the last sentence of initially proposed § 5.661(a)(1) from, “A mere technical violation of police regulations or other ordinances will not by itself constitute willful misconduct”, to, “A mere technical violation of police regulations or any local ordinances, including those under police, city or county authority, will not by itself constitute willful misconduct.” Another commenter expressed the opinion that the use of the word “other” before the word “ordinances” may be misunderstood to refer to a state's general police power to make and enforce laws. We propose to clarify the rule based on these comments for the reasons discussed below.
The definition of “ordinance” includes city or county authority. The word “ordinance” is defined as, “An authoritative law or decree; esp., a municipal regulation.” “Black's Law Dictionary” 1208 (9th ed. 2009). “Municipal” is defined as, “1. Of or relating to a city, town or local government unit. 2. Of or relating to the internal government of a state or nation.”
In most municipalities, the police department establishes regulations relating to parking, street usage, and other similar civil issues. The use of the phrase “police regulations” is intended to express the idea that a violation of these types of regulations will not be used as the grounds for a finding of willful misconduct. Violations of these regulations are “civil infractions”. An “infraction” is “[a] violation, usually of a rule or local ordinance and usually not punishable by incarceration.” “Black's Law Dictionary” 850 (9th ed. 2009). A civil infraction is “An act or omission that, though not a crime, is prohibited by law and is punishable.”
The second sentence of initially proposed § 5.661(a)(2) read: “For example, injury, disease, or death is proximately caused by willful misconduct if the act of willful misconduct results directly in injury, disease, or death that would not have occurred without the willful misconduct.” We have determined that this statement is unnecessary because § 5.1 already defines “proximately caused”, so we propose to remove the example.
One commenter expressed the opinion that a VA determination of “willful misconduct” is a quasi-criminal determination. This commenter stated that the preponderance of the evidence standard is not appropriate in adjudicating a quasi-criminal determination. The commenter asserted that the preponderance of the evidence standard of proof for willful misconduct determinations was too low because a determination of willful misconduct essentially bars a veteran or claimant from receiving benefits based on the veteran's service. The commenter asserted that this deprived the veteran or claimants claiming entitlement based on a veteran's service of procedural due process under the Fifth Amendment to the U.S. Constitution. The commenter expressed the opinion that VA should instead establish the clear and convincing evidence standard as the standard of proof in making willful misconduct determinations. The commenter noted that the U.S. Supreme Court has stated that a principal function of establishing a standard of proof is “to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision.”
The commenter acknowledged that VA had adopted the standard of proof articulated by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in
The commenter noted that the Federal Circuit found in
VA does not equate administrative willful misconduct determinations with quasi-criminal proceedings and decisions. VA administrative procedures for determining entitlement to benefits are non-adversarial and pro-claimant, in contrast to criminal proceedings. Attempts to categorize the administrative entitlement decisions made by VA as quasi-criminal proceedings characterize both the claimants and the VA administrative process incorrectly. While the commenter does not fully explain what was meant by “quasi-criminal” proceedings, we note that unlike criminal proceedings, VA has no authority under these regulations to fine, imprison, or otherwise impose punishment on a claimant. VA administratively decides entitlement to benefits in accordance with the duly enacted statutes of Congress. We do not follow the procedures used in either criminal or civil courts.
A decision that a disability was the result of willful misconduct only prohibits service connection for the disability or death incurred as a result of the willful misconduct. Contrary to the commenter's assertion, a veteran or a claimant claiming entitlement based on a veteran's service does not lose entitlement to all benefits. A decision that willful misconduct caused a disability results in essentially the same consequences as a decision that an injury or disease was not incurred in service. Service connection for that disability or death is not granted. In making a determination that the
Additionally, there is no violation of the Fifth Amendment through application of the preponderance of the evidence standard to willful misconduct decisions. Since the commenter merely asserted a violation of the Fifth Amendment without explaining how the use of any one particular standard of proof could violate the due process provision of the Fifth Amendment, we are unable to respond more fully to this comment and propose to make no changes based on this comment.
VA does not need to decide if the commenter's reasoning concerning adoption of a standard of proof differing from that found by the court in
We propose to move the definitions of “accrued benefits”, “claim for benefits pending on the date of death”, and “evidence in the file on the date of death” from § 5.550 to § 5.1. A comment to RIN 2900–AL71 “Accrued Benefits and Special Rules Applicable Upon Death of a Beneficiary”, raised questions concerning the initially proposed definition of “accrued benefits”. Based on that comment, we made technical revisions to clarify the definition, and also made the following revisions.
The last sentence of initially proposed § 5.550(d) (definition of ”[c]laim for benefits pending on the date of death”) read, “[a]ny new and material evidence must have been in VA's possession on or before the date of the beneficiary's death.” One commenter, responding to RIN 2900–AL71 “Accrued Benefits and Special Rules Applicable Upon Death of a Beneficiary”, suggested that VA should clarify this sentence by inserting the phrase “used to reopen the claim” between the words “evidence” and “must”. The commenter was concerned that the proposed language would deter a deceased beneficiary's survivor from filing existing additional evidence in support of a claim for accrued benefits. However, because a claim for accrued benefits must be granted based on evidence in the file on the date of death, such additional evidence would not be considered in deciding the claim. Nevertheless, to avoid any potential confusion we propose to add “submitted to reopen the claim” between “evidence” and “must”. We propose to use “submitted” rather than “used” because the later implies that VA will always find that the evidence was new and material.
We made additional revisions to the definition of “claim for benefits pending on the date of death” for both readability and consistency purposes. One such revision is that we replaced the initially proposed term “finally disallowed claim” with “finally denied claim” and reorganized the sentence structure with respect to new and material evidence.
38 CFR part 3 uses both singular and plural nouns to refer to a single, regulated person. For example, § 3.750(b)(2) refers to “
One commenter suggested that VA should include additional definitions in § 5.1. The commenter suggested that “evidence” should be defined as “all the means by which any alleged matter of fact, the truth of which is submitted to an adjudicator, is established or disproved.” The commenter went on to state that, “Evidence includes the testimony of witnesses, introduction of records, documents, exhibits, objects, or any other probative matter offered for purpose of inducing a belief in the contention by the fact-finder” and that, “evidence is the medium of proof”. The commenter opined that defining “evidence” would assist an unrepresented claimant in understanding the term and would inform claimants that some materials he or she submitted would not be evidence (such as arguments, assertions, and speculations).
This commenter asserted that after we define “evidence”, we should define “relevant evidence” and “probative evidence”, as follows:
We propose to make no changes based on these comments. We do not believe that there is a significant need to define the referenced terms, and there is some risk that such definitions would be misinterpreted as limiting the types of items a claimant may file or that VA will consider. Except as to claims based on clear and unmistakable error, VA is required to consider all material filed.
The dictionary definition of “evidence” is “something that furnishes proof.” “Merriam-Webster's Collegiate Dictionary” 433 (11th ed. 2006). VA does not use the word in a manner different from this ordinary or natural definition: “When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning.”
The suggested definitions of “relevant evidence” and “probative evidence” are also not necessary. As explained below, the definition of “competent evidence” will be helpful to claimants because VA may in individual cases inform the claimant of the need for competent medical expert evidence on some issues. However, definitions that appear to delineate other categories of evidence, such as “relevant evidence” and “probative evidence” may be confusing to claimants and appear to suggest restrictions on the types of evidence claimants may file or that VA will consider. It is generally to the claimants' advantage to file all information and evidence they have that have potential bearing upon the issues in their claim. Introducing definitions of “relevant evidence” and “probative evidence” might create confusion and discourage claimants from filing all information and evidence that they might otherwise file.
The same commenter urged VA to adopt a certain definition of the term “probative value of evidence”, namely “the tendency, if any, of the evidence to make any fact of consequence in the determination of the matter more or less probable than it would be without the evidence.” However, the commenter did not specifically state why VA should adopt a definition of that term, but focused instead on the suggestion that VA define the distinct but related term “probative evidence”. For the same reasons that we propose not to define “probative evidence”, we propose not to define “probative value of evidence”.
This commenter also suggested we adopt a definition of the word “issue” as “a single, certain point of fact or law that is important to the resolution of a claim for veterans' benefits.” The commenter noted that this word is used in 38 U.S.C. 5107(b). The commenter opined that because Congress used this word in the statute, we must define the word. The commenter similarly opined that § 5.3(b), “Proving a fact or issue”, is confusing because we did not define the word “issue” in § 5.1. The commenter suggested that we used the words “issue” and “fact” as unrelated concepts. The commenter then reasoned that, since the statute did not use the word “fact”, VA may not have authority to include that word in the regulations, noting the canon of “expressio unius est exclusio alterius” (“to express or include one thing implies the exclusion of the other, or of the alternative”, “Black's Law Dictionary” 661 (9th ed. 2009)).
The commenter is correct that the word “issue” is used in 38 U.S.C. 5107(b), but the word is also used in other places in title 38, often with a different meaning.
The same commenter urged VA to adopt a definition of the term “presumption”. In § 5.260(a) of our proposed rule, “Presumptions of Service Connection for Certain Disabilities, and Related Matters”, we clearly described the meaning of the term in the veterans benefits context: “A presumption of service connection establishes a material fact (or facts) necessary to establish service connection, even when there is no evidence that directly establishes that material fact (or facts)”. 69 FR 44624, July 27, 2004. We therefore propose to make no changes based on this comment.
The same commenter urged VA to adopt a definition of “rebuttal of a presumption”. Section 5.3(c), which states, “A presumption is rebutted if the preponderance of evidence is contrary to the presumed fact”, in effect defines the term already so we decline to make any changes based on this comment.
The same commenter urged VA to adopt a definition of “weight of [the] evidence”, a term which was used in initially proposed § 5.3(b)(1) and (3). We agree that such a definition would be helpful to readers and we therefore propose to add the following definition in § 5.3(b)(1), “
One commenter noted that 38 U.S.C. 5107(b) contains the language “approximate balance of positive and negative evidence” and that the regulation that VA proposed to adopt to implement section 5107(b) did not attempt to give any meaning to the statutory terms “positive and negative evidence”. The commenter asserted that these two statutory terms have known “legal” meaning and that VA must define “positive evidence” and “negative evidence” in order to give full force and effect to section 5107(b).
We did not define the terms “positive evidence” and “negative evidence” in initially proposed § 5.1 because we did not use those terms in initially proposed § 5.3(b)(2), which implements section 5107(b). Instead, we described “evidence in support of” and “evidence against” a matter. This interpretation of the statute is consistent with the clear and unambiguous meaning of the statute.
In § 5.3(a), we propose to revise the first sentence of the initially proposed paragraph by adding “material to deciding a claim”. In response to various comments concerning this proposed regulation, we noted that while we had adequately stated the general standards for proving facts and resolving issues, we had not included the reason for proving a fact.
Also in initially proposed § 5.3(a), “Applicability”, we stated, “This section states the general standards of proof for proving facts and for rebutting presumptions. These standards of proof apply unless specifically provided otherwise by statute or a section of this part.” In reviewing the initially proposed paragraph, we have decided to clarify that “a section” means another section besides § 5.3. We therefore propose to change “a section” to “another section”.
Initially proposed § 5.3(b)(1) (now § 5.3(b)(2)) stated, “
We propose to make no changes based on this comment. It is not necessary to use the exact language Congress used in drafting a statute in the wording of the regulations we promulgate. The Secretary has been directed by Congress to “prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the Department.” 38 U.S.C. 501(a). We chose to use the word “equipoise” because as used and defined in § 5.3, it is a clear and concise term and has the same meaning as traditionally applied to the phrase used in 38 U.S.C. 5107(b), “approximate balance of positive and negative evidence”. Our use of this word is consistent with the governing statute.
Another commenter asserted that our definition of “equipoise” in initially proposed § 5.3(b)(1) (now § 5.3 (b)(2)) accurately restates the third sentence of § 3.102, but fails to accurately restate the second sentence, which emphasizes and makes clear that the balances are always to be resolved in favor of the veteran. The same commenter felt that the sentence in initially proposed § 5.3(b)(2) (now § 5.3(b)(3)) that read, “However, if the evidence is in equipoise and a fact or issue would tend to disprove a claim, the matter will not be considered proven”, contradicts the benefit of the doubt rule because the rule must “always be applied in favor of the veteran”. We propose to clarify the statement of the benefit of the doubt rule by revising the first sentence § 5.3(b)(3) to now state, “When the evidence is in equipoise regarding a particular fact or issue, VA will give the benefit of the doubt to the claimant and the fact or issue will be resolved in the claimant's favor.”
In reviewing initially proposed § 5.3(b)(1) (now § 5.3(b)(2)), we have determined that the phrase “such that it is as likely as not that the fact is true” might cause a reader to mistakenly believe that this is an additional requirement for triggering the “reasonable doubt” doctrine, over and above the requirement that there be an “approximate balance between the weight of the evidence in support of and the weight of the evidence against a particular finding of fact”. We therefore propose to remove the language “such that . . .” from this paragraph.
One commenter urged VA to use the current language of 38 CFR 3.102 in proposed § 5.3(b)(2). The commenter asserted that the use of the term “equipoise” in initially proposed § 5.3(b)(2) is adversarial and that the proposed rule would “restrict [veterans'] ability to put forth the best evidence and challenge the credibility [of] evidence which the VA accepts or denies.”
As discussed in the preamble to the NPRM, we are not substantively changing the provisions in current § 3.102. Instead, we are rewording and reorganizing them to make them easier for the reader to understand. We disagree that the changes described in the NPRM and in this rulemaking make these provisions adversarial, and we therefore propose to make no changes based on this comment.
Although we decline to make the changes to initially proposed § 5.3(b)(2) (now § 5.3(b)(3)) suggested by the commenter, in reviewing the first two sentences of that paragraph, we have determined that they can be clarified. Specifically, the initially proposed sentences could be misread to imply that evidence can be in equipoise regarding an issue and at the same time tend to prove or disprove a claim. As stated in 38 CFR 3.102, where the evidence is in equipoise, it “does not satisfactorily prove or disprove the claim”. We therefore propose to remove the potentially confusing language regarding “support” of a claim and “tend[ing] to disprove a claim”, and combined the two sentences into one. The new sentence now reads, “When the evidence is in equipoise regarding a particular fact or issue, VA will give the benefit of the doubt to the claimant and the fact or issue will be resolved in the claimant's favor.”
One commenter noted that the sentence in initially proposed § 5.3(b)(3) (now (b)(4)) lacked parallelism. We agree and propose to change the wording by adding the words “the weight of” before the words “the evidence against it.”
One commenter objected to the sentence in initially proposed § 5.3(b)(5) (now § 5.3(b)(6)): “VA will reopen a claim when the new and material evidence merely raises a reasonable possibility of substantiating the claim.” This commenter asserted that the “reasonable possibility of substantiating the claim” portion could be read by an adjudicator as requiring sufficient evidence to grant the claim. This commenter suggests adding language to ensure that the adjudicator does not equate the new and material evidence requirement to the evidence requirements needed to grant the claim.
We disagree that a VA decisionmaker would apply this sentence as requiring that the new and material evidence to reopen a claim also be sufficient to grant the claim. To the contrary, when read in conjunction with initially proposed § 5.3 (b)(2) (now § 5.3 (b)(3)), “Benefit of the doubt rule”, this sentence makes it very clear that a lower standard of proof is applied for reopening a claim than for granting a claim. We therefore propose to make no changes based on this comment.
One commenter objected to the general format of initially proposed § 5.3(b)(5) (now § 5.3(b)(6)) because the commenter asserted that there was a lack of emphasis on the different standard of proof used to determine whether evidence is new and material. The commenter asserted that the last sentence of the paragraph should be rewritten and moved to the front of the paragraph to add emphasis to the concept that the higher standard of proof does not apply when determining if the evidence is new and material.
We agree and we propose to change the sentence to read, “The standards of proof otherwise provided in this section do not apply when determining if evidence is new and material, but do apply after the claim has been reopened.” We propose to place this sentence as the first sentence of that paragraph, now designated as § 5.3(b)(6), to add emphasis to this provision.
One commenter noted that in § 5.3(c), we stated that, “A presumption is rebutted if the preponderance of evidence is contrary to the presumed fact.” The commenter stated that in 38 U.S.C. 1111, the evidence to rebut the presumption of sound condition when accepted and enrolled for service is specified as clear and unmistakable evidence, a standard higher than a preponderance of evidence. The commenter recommended inserting the phrase “Except as otherwise provided” at the beginning of the section.
We agree that the standard in § 5.3(c) applies to rebutting presumptions unless an applicable statute provides a different standard, such as in the example provided by the commenter. However, we already provided for the application of different standards in § 5.3(a) by stating, “These standards of proof apply unless specifically provided otherwise by statute or a section of this part.” Since the regulations already address the point raised by the
Several commenters noted that under 38 U.S.C. 1113(a), a presumption can be rebutted only when “there is affirmative evidence to the contrary.” The commenters stated that the “affirmative evidence” requirement should be inserted into § 5.3(c). We disagree with the commenters. There are many statutes that govern the rebuttal of presumptions,
We agree with these assertions to the extent that we should retain the phrase “affirmative evidence” and propose to revise § 5.260(c)(2) to include the phrase “affirmative evidence”. We propose to revise § 5.260(c)(2), by replacing “Any evidence . . .” with “Affirmative evidence” in the beginning of the sentence. We also note that 38 U.S.C. 1116(f) requires “affirmative evidence” to rebut the presumption of exposure to herbicides in the Republic of Vietnam and so we now propose to insert that term into § 5.262(d).
We also propose to revise § 5.3(c) by adding a second sentence after the first sentence, that states, “In rebutting a presumption under § 5.260(c)(2), affirmative evidence means evidence supporting the existence of certain facts.” We have chosen this definition instead of one of the definitions recommended by the commenters because this is consistent with the definition of “affirmative” found in “Black's Law Dictionary”, 68 (9th ed. 2009).
In a related matter, comments on both RIN 2900–AL87, “General Provisions”, 71 FR 16464, Mar. 31, 2006, and on RIN 2900–AL70, “Presumptions of Service Connection for Certain Disabilities, and Related Matters”, 69 FR 44614, July 27, 2004, indicated the need for our rules to address the role of “negative” evidence, by which we mean an absence of evidence. An absence of evidence may be considered as evidence in support of, or weighing against, a claim. For example, an absence of evidence of signs or symptoms of a particular disability prior to service would support a veteran's claim that he incurred the disability during service. On the other hand, a lack of symptoms or complaints during service may indicate that the veteran was not disabled during service. An absence of evidence may also be used to rebut a presumption. The U.S. Court of Appeals for the Federal Circuit endorsed this view.
One commenter expressed concern about how a VA decisionmaker would read § 5.3(d), “Quality of evidence to be considered”, in conjunction with § 5.1 that defines “competent lay evidence”. The commenter asserted that if he or she determined that the evidence did not fit within the definition of competent lay evidence or that lay evidence is generally not competent, he or she would be more likely to assess the evidence as adverse to the veteran.
The commenter's assumption is incorrect. Competent lay evidence may be neutral or may be favorable to the claimant. Such evidence may also be probative, depending on the claim to be adjudicated. We also do not agree that a VA decisionmaker would determine that lay evidence was generally not competent. We have provided for the determination of what makes lay evidence competent in the definition in proposed § 5.1. A VA decisionmaker's application of these provisions will lead the adjudicator to determine what is competent lay evidence and what is not. We propose to make no changes based on this comment.
In objecting to our initially proposed definitions of “competent expert evidence” and “competent lay evidence”, one commenter wrongly asserted that there are no such definitions in current VA regulations. In fact, as stated in the preamble of RIN 2900–AL87, these definitions are based on similar definitions in 38 CFR 3.159(a)(1) and (2).
The same commenter asserted that defining competent evidence would “cause the claims of veterans to be pre-judged by adjudicators and foster an adversarial climate in the claims process.” The commenter urged that, “Rather, all the evidence of record in each case should be judged on its own merits, and on the merits of the case as a whole.”
The commenter did not explain how our definitions of “competent expert evidence” and “competent lay evidence” have the adverse effects he predicts, and we disagree that they would have such effects. VA has applied substantially similar definitions since 2001. 38 CFR 3.159(a)(1) and (2);
One commenter expressed concern that by changing the definitions of “competent medical evidence” to “competent expert evidence” and “competent lay evidence” we were impermissibly amending § 3.159, “Department of Veterans Affairs assistance in developing claims.” The commenter expressed the concern that since these terms were originally adopted as part of that regulation, a change in the definitions would amend § 3.159 without providing public notice and the opportunity for public comment as required by 5 U.S.C. 553.
The commenter's concerns relate to the removal of part 3 when we adopt part 5. This rulemaking will not affect such a removal; nor will this rulemaking affect claims currently being adjudicated under part 3. The definitions in § 5.1 only apply to part 5, not to part 3. Hence, there is no basis for a concern that any action in this rulemaking will affect a part 3 rule.
One commenter opined that the definitions of “competent expert evidence” and “competent lay evidence” should be revised since neither definition focused on the relevance of the evidence. The commenter also asserted that neither definition correctly described “competent expert evidence” or “competent lay evidence”. The commenter believed that treatises, medical or scientific articles, and other writings are not “competent expert evidence” because they are not based on the author's personal knowledge of the specific facts of the veteran's particular case.
Although we do not agree with the suggestion that treatises, medical and scientific articles, and other writings of this type may never be “competent expert evidence”, the commenter raises a valid point. Treatises and similar writings may be “competent” in the sense that they state findings and opinions based on specialized training or experience and personal knowledge
We propose not to revise the definitions to include a statement concerning the relevancy of the evidence. The relevance of the evidence depends on the facts in each case and is to be determined on a case-by-case basis by the VA employee charged with making the decision on the claim.
One commenter urged VA to define “competent evidence” in part 5 as, “evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the matter more probable or less probable than it would be without the evidence.”
This suggested definition is actually more a definition of “probative evidence” than “competent evidence”. In fact, this same commenter urged VA to define “probative evidence” as “evidence that tends to prove a particular proposition or to persuade a trier of fact as to the truth of an allegation.” Since the suggested definition of competent evidence concerns evidence's probative value rather than its competence, we propose to make no changes based on the comment.
In our initially proposed definition of competent expert evidence, we stated, “Expert evidence is a statement or opinion based on scientific, medical, technical, or other specialized knowledge.” We propose to add “all or in part” after “based” because an expert opinion may also be based on the specific facts of a case. An example of such an opinion would be a doctor's opinion that general medical principles indicate that a particular injury would not likely have been aggravated under the facts of a particular case.
The initial NPRM to § 5.3 explained why part 5 will not repeat the fifth sentence of § 3.102. 71 FR 16464 (Mar. 31, 2006). Section 5.3 would also not repeat the fourth sentence. It is unnecessary because, like the fifth sentence, it confusingly elaborates the idea of “approximate balance” of evidence, which 5.3(b)(2) through (5) do well without the confusing language of the fourth or fifth sentences of § 3.102.
One commenter asserted that VA gives too much weight to medical exam reports prepared by VA doctors and insufficient weight to medical exam reports prepared by a veteran's own doctors. The commenter cited the example of VA giving more weight to the report of a VA doctor who examined him for less than an hour than to the medical records from his treating doctor covering a period of over 5 years. The commenter asserted that VA's over-reliance on its own medical exams is “VA policy” but is not “sound medical practice”. The commenter further asserted that when a VA medical exam is “poorly conducted and documented”, VA orders a second exam rather than rely on the treating doctor's records to decide the claim. The commenter urged VA to “establish a level of proof which meets the balance test of both patient history and proof of medical condition” and not rely on “an arbitrary, `snapshot' exam conducted in a VA hospital meaning more than years of records from the veteran's regular physician(s).”
We decline to make any changes based on this comment in the manner in which VA weighs medical evidence. VA often gives significant weight to an examination conducted, or a medical opinion provided by, a VA health care provider because they follow set procedures designed to elicit information relevant to the particular claim. However, as stated in 38 CFR 3.326(b), “Provided that it is otherwise adequate for rating purposes, any hospital report, or any examination report, from any government or private institution may be accepted for rating a claim without further examination.” Under 38 U.S.C. 5103A(d), VA must provide a medical examination or medical opinion in all disability claims when it is “necessary to make a decision on the claim”. Under this duty, VA regularly conducts specialized medical examinations of veterans' disabilities and often requests medical opinions on specific questions. If VA's adjudicator finds that such an exam or opinion is inadequate, he or she returns the case to the health-care provider and requests for an adequate one to be provided.
However, VA must also “consider all information and lay and medical evidence of record in a case”. 38 U.S.C. 5107(b). Another statute requires the Board of Veterans' Appeals to review appeals to the Secretary “based on the entire record in the proceeding and upon consideration of all evidence and material of record.” 38 U.S.C. 7104(a). This statute indicates that evidence is an element of a person's entire VA record. The statute prescribing that VA considers the “places, types, and circumstances” of a veteran's service when deciding a claim for service connection prescribes that VA consider “all pertinent lay and medical evidence”. 38 U.S.C. 5104(a). Although section 5104(a) could be interpreted to distinguish evidence from other documents in the record, VA regulations demonstrate that our actual practice is to review the entire record in every claim. The regulation implementing the benefit of the doubt rule of 38 U.S.C. 5107(b) provides for “careful consideration of all procurable and assembled data” and of “the entire, complete record”. 38 CFR 3.102. Therefore, in addition to considering VA medical exams and opinions, VA weighs and considers all other medical evidence, including that produced by a veteran's treating physician.
We note that 38 CFR 3.303(a) only prescribes that VA decide claims for service connection “based on review of the entire evidence of record” and there is no rule in part 3 that specifically implements 38 U.S.C. 5107(b). We therefore propose to add a new sentence at the beginning of § 5.4(b) stating, “VA will base its decisions on a review of the entire record.” We use the term “entire record” because it is unclear whether “entire evidence of record” means all of the evidence of record, or the entire record. The evidence in a VA claims file is only part of the entire record comprising the claims file. Our language resolves the ambiguity in favor of the more inclusive meaning, which is consistent with current VA practice. Because § 5.4(b) would clearly state that “VA will base its decisions on a review of the entire record”, we believe it would be redundant and possibly confusing to restate this principle in specific sections in part 5 (as does part
We propose to add § 5.5, “Delegations of authority”, to this initially proposed segment. This regulation was inadvertently not included in the initially proposed rule. These provisions are the same as § 3.100, “Delegations of authority”, reorganized to make them easier to read. We also propose to replace the § 3.100(a) language, “. . . entitlement of claimants to benefits under all laws administered by the Department of Veterans Affairs governing the payment of monetary benefits to veterans and their dependents . . .” with “entitlement to benefits under part 5”. We propose to make this change because part 5, like part 3, includes benefits which do not involve monetary payments. These include a grant of service connection for a veteran's disability rated 0 percent and certification of loan guaranty benefits for a surviving spouse. Lastly, we propose to omit the reference to the “Compensation and Pension Service” (used in § 3.100(a) and now subdivided into the “Compensation Service” and “Pension and Fiduciary Service”) is a subdivision of the Veterans Benefits Administration, and the reference is therefore unnecessary.
In a document published in the
One commenter expressed satisfaction with the progress of the Regulation Rewrite Project and offered praise for proposed RIN 2900–AL67. The commenter was pleased with the inclusion of the Mexican Border Period in proposed § 5.20, “Dates of periods of war”, as there are veterans and dependents who may still be alive and eligible for benefits based on military service during this period.
While we appreciate the commenter's concern, because there are no veterans or surviving spouses of the Mexican Border Period on VA's compensation and pension rolls and only one surviving dependent (a child), we propose to delete the provisions related to this period of war and refer regulation users to the applicable statutory provisions concerning this earlier period of war. This deletion would not affect benefit entitlement in any way. Should the occasion arise, VA will adjudicate any new claim using the statutory definition of this earlier period of war. See 38 U.S.C. 101(30).
The table in § 5.20 was published as a proposed rule using the terms “armed forces” and “active military, naval, or air service”. For consistency, we propose to capitalize “Armed Forces” and change “active military, naval, or air service” to “active military service”.
In our NPRM, we invited comments on “whether, and to what extent, VA should recognize military duty for special work as active duty for VA purposes.” 69 FR 4822, Jan. 30, 2004. One of the commenters urged that VA recognize active duty for special work. Subsequent to that publication, however, additional issues have arisen which require closer coordination than we previously anticipated between VA and the Department of Defense. When that coordination has been completed, we will publish a separate NPRM on the characterization of active duty for special work. Hence, we propose not to revise § 5.22 to address the recognition of active duty for special work.
Current 38 CFR 3.6(c)(4) refers to “deaths and disabilities resulting from diseases or injuries incurred or aggravated after September 30, 1982, and . . . deaths and disabilities resulting from diseases or injuries incurred or aggravated before October 1, 1982”. In initially proposed § 5.24(c)(1) (based on § 3.6(c)(4)), we proposed to replace the phrase “incurred or aggravated” with the term “that occurred”. Although it was not our intention, the use of “occurred” could be construed as narrowing the scope of the regulation by excluding aggravation. Therefore, we now propose to replace “that occurred” with “incurred or aggravated” in § 5.24(c)(1).
The official names of groups of civilians who, pursuant to section 401 of Public Law 95–202, have been designated by the Secretary of Defense as having performed active military service for VA benefit purposes are listed alphabetically in proposed § 5.27(b).
Such groups apply for status as having performed active military service using group names that, as nearly as possible, precisely identify the members of the group and the service they want recognized. In fact, when a favorable determination is made, the Secretary's
In the NPRM, we initially proposed to revise some of the group names for clarity and readability. However, we have determined that this could cause confusion that a group other than the original was determined to have performed active military service. Such confusion can be avoided by strictly adhering to the official names of the groups, and we now propose to revise § 5.27(b) to reflect the original group names exactly as they were provided to VA by the Secretary of Defense.
In reviewing initially proposed § 5.28, we determined that we mistitled it. This section refers only to groups, not individuals and we have retitled it accordingly.
In initially proposed § 5.31(c)(4), we defined the acronym “AWOL” as “absence without official leave”. However, in the Uniform Code of Military Justice (10 U.S.C. 886) that particular offense is called “absence without leave”, and the word “official” is not used. Therefore, for purposes of consistency and clarity, we propose to delete the word “official” from § 5.31(c)(4).
Initially proposed § 5.39(c)(2) stated, “If it appears that the length of service requirement may not be met, VA will request a complete statement of service to determine if there are any periods of active military service that are required to be excluded under paragraph (e) of this section.” After reviewing this paragraph to respond to a public comment, we propose to correct a typographical error (by changing the reference to paragraph “(e)” to “(d)”) and to clarify the paragraph to improve readability.
In § 5.39(d)(4), we initially proposed to exclude any person who has a compensable disability under 38 U.S.C. chapter 11 from the minimum active duty requirement. A disability is compensable if VA rates it as 10 percent or more disabling according to the Schedule for Rating Disabilities in part 4 of this chapter. One commenter asserted that it would be wrong to discontinue the entitlement of a veteran who did not meet the minimum active duty requirements, but was awarded an initial temporary 100 percent rating under 38 CFR 4.29 or 4.30, which was subsequently reduced to a noncompensable (0 percent) rating. Likewise, any veteran lacking the minimum active duty requirements who had a compensable disability, but a subsequent decision reduced the rating to 0 percent, should not lose entitlement. This commenter agreed that disability ratings should fluctuate with the severity of the disability, but that eligibility, once established, should not be revoked in such cases.
Under 38 U.S.C. 5303A(b)(1), a person who initially enters service after September 7, 1980, must be discharged or released after completing 24 months of continuous active duty or the full period for which such person was called to active duty to be eligible for, or be entitled to, any benefit administered by VA based upon the length of active duty service. Section 5303A(b)(3)(C) excludes those persons from the minimum active duty service requirements who have a disability that the Secretary has determined to be compensable under chapter 11 of this title. Section 5.39(d)(4) clarifies the term “compensable” to include veterans receiving special monthly compensation under 38 CFR 3.350, as well as those receiving a 10 percent rating for multiple 0 percent disabilities under 38 CFR 3.324.
The commenter's position appears to be that once service connection has been established and a disability rating of 10 percent or more disabling has been assigned, a person is forever excluded from having to satisfy the minimum active duty service requirements. We cannot agree.
Under 38 U.S.C. 5303A, the minimum active duty service requirements must be satisfied in order for a person discharged or released from a period of active duty to be eligible for, or entitled to, any benefit based on that period of active duty, unless a person is a member of one of the excluded groups. Under section 5303A(b)(3)(C), a person “who has a disability that the Secretary has determined to be compensable under chapter 11 of this title” meets the minimum active duty service requirement. The statute uses the present tense, “has” when referring to that disability, which means the veteran trying to show that he or she qualifies under section 5303A(b)(3)(C) must currently have a compensable disability. We also note that the current regulation on this point, § 3.12a(d)(3), already requires a current compensable disability to qualify for this exclusion. Section 5.39 does not, in any way, change the scope of this exclusion. For these reasons, we propose not to make any changes on minimum active duty service requirements based on this comment.
Upon reviewing § 5.39(d)(4) in relation to this comment, we determined that it was appropriate to clarify the regulation consistent with the above discussion. We therefore propose to replace the phrase “VA determines to be” with “is currently” in this paragraph. This will ensure that readers understand that the regulation requires that a person have a currently compensable disability to qualify for the paragraph (d)(4) exclusion.
One commenter contended that 38 U.S.C. 5303A pertains only to those persons who are veterans by virtue of having served on active duty. This commenter asserted that a person, who obtained veteran status because an injury or disease was incurred or aggravated during active duty for training, or because an injury was incurred or aggravated during inactive duty training, is exempt from the provisions of section 5303A. The commenter alleged that the initially proposed rule does not clarify that these persons are not required to have a compensable disability to qualify for general benefits under title 38.
Upon a closer review of section 5303A and the definitions in 38 U.S.C. 101, we agree with the commenter. To be a veteran, a person must have “active military, naval, or air service”, referred to in part 5 as “active military service”. There are three types of service that qualify as active military service: (1) Service on active duty, (2) Service on active duty for training during which an injury or disease is incurred or aggravated, or (3) Service on inactive duty training during which an injury is incurred or aggravated, or during which the person suffers an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident.
In reviewing initially proposed § 5.39 in relation to the comment discussed above, we discovered that we inadvertently omitted a phrase contained in current § 3.12a(b): “based on that period of active service”. To correct that omission, we propose to revise § 5.39(a) accordingly.
In initially proposed § 5.39, we included proposed paragraphs (f)(2)(iv) and (v). Based on our review of the proposed rule, we noted that this was a numbering error. Proposed paragraphs (f)(2)(iv) and (v) should have been numbered (f)(2)(iii) and (iv) respectively because the proposed regulation did not have a paragraph (f)(2)(iii). Instead, it mistakenly skipped from (f)(2)(ii) to (f)(2)(iv). We propose to correct this error.
One person commented with reference to RIN 2900–AL67. The comments related to the definition of “Service in the Republic of Vietnam”, and to the so-called Bluewater sailors. These comments are outside the scope of the proposed rule published under RIN 2900–AL67, but relate to another NPRM, RIN 2900–AL70. We discussed these comments together with the other comments received in connection with RIN 2900–AL70.
We also received a comment that was not directed at any particular proposed rule, but we thought it would be most appropriately addressed in this portion of the proposed rule. The commenter was concerned that National Guard full time active duty members were not considered veterans unless they were injured on duty.
The commenter is correct. Persons who serve full time in the National
For the convenience of readers and for economy of language, we propose to spell out the full name of each VA program or benefit the first time we use it in any part 5 regulation, and to abbreviate it thereafter. For example, the death benefit payable to a surviving spouse, child, or dependent parent based on death in service or due to a service-connected disability is officially titled “dependency and indemnity compensation”. That benefit name is quite cumbersome when it is repeated several times within a regulation. The abbreviation or acronym “DIC” is much easier to use and improves the readability of a regulation. In order to use the acronym, we must first spell it out for the reader, and while we do not want to spell out the term every time we use it, neither do we want to spell it out once in part 5 or once in each subpart and force the reader to keep referring back to a definition that is remote from where the acronym is being used. To strike a balance we propose to spell out the official program name followed by the acronym in parentheses the first time the program name is encountered in a section and to use the acronym throughout the remainder of that section. This will apply to regulatory text only, and not to section titles. If we use the program title only once in a section, we would spell it out with no parenthetical abbreviation or acronym. We will apply this convention throughout part 5.
Lastly, we propose to standardize the words used in referring to VA's rating schedule, “the Schedule for Rating Disabilities in part 4 of this chapter”. For this subpart, the new term will replace the initially proposed language in § 5.39(d)(4)(i).
In a document published in the
One commenter criticized our use of the passive voice and overly long sentences in the initially proposed rulemaking. Based on this comment, we propose to revise all of the proposed regulations to use the active voice and shorter sentences whenever possible or appropriate.
In addition to the specific changes discussed below, we propose to revise the regulations proposed in NPRM, RIN 2900–AM16 to help improve clarity and consistency with other part 5 regulations.
Initially proposed § 5.50(a) stated, “Upon request in person or in writing, VA will furnish the appropriate application to a person claiming or applying for, or expressing intent to claim or apply for, benefits under the laws administered by VA.” Based on our review, we propose to remove “in person or in writing” because it is too restrictive. Claimants may also request applications using the telephone or email. We also propose to remove the phrases “or applying for” and “or apply for” because these phrases are redundant of “claiming” and “claim”. Moreover, they may cause a reader to mistakenly believe that we mean something different by the use of these different phrases.
We have defined “notice” in § 5.1. The definition applies to VA's duty to inform a claimant of something a certain way. We propose to revise the first sentence of proposed paragraph § 5.50(b) by replacing the word “notice” with “information” because use of “notice,” as so defined, would be inappropriate.
The term “dependent” as used in the initially proposed rule and in § 3.150 from which it derives referred to persons known to VA as the deceased veteran's dependents at the time of his or her death. The term “survivor” better meets the requirement to provide an application to persons with “apparent entitlement”, because it encompasses persons not known to VA as the veteran's dependent who could, nevertheless, be entitled to a death benefit. We therefore propose to revise initially proposed paragraph (b) by replacing the word “dependent” with the word “survivor”.
We also propose to revise paragraph (b) by replacing the word “forward” in the first sentence with “furnish” and replacing “for execution by or on behalf of” with “to”. As revised, the sentence states that, “VA will furnish the appropriate application to any survivor”. “Furnish” is a more accurate word for supplying the survivor an application and it is consistent with paragraph (a), which also uses the word “furnish”. The initially proposed rule stated that VA will forward the application “for execution by or on behalf of” a dependent. In this regulation, it is surplus to state that the application is “for execution”. Although VA provides applications so claimants can execute them, the rules about what to do with an application are more appropriate to the regulations about filing claims. In the same sentence, we have changed the general reference to “such benefits” to name the benefits that a dependent could possibly receive, for example, death pension or dependency and indemnity compensation.
Additionally, we propose to revise the phrase, “If it is not indicated”, which appeared at the beginning of the second sentence of the initially proposed rule, to read, “If the available evidence does not indicate”. This phrase more clearly states what records VA will review to determine if there is a potential accrued benefits claimant. In the same sentence, we have replaced “forward” with “furnish” for the reasons discussed above. We also propose to revise the last sentence of paragraph (b) to specifically describe the 1-year time limit for filing a claim for accrued benefits because it will be helpful to claimants.
In the NPRM, paragraph (c) implied that VA would not assist in a claim for disability or death due to hospital treatment, medical or surgical treatment, examination, or training. The initially proposed rule stated, in pertinent part, “VA will not forward an application for benefits under 38 U.S.C. 1151.” We believe that it is important to instead inform the reader that VA does not have an application for claims under 38 U.S.C. 1151. We therefore propose to revise paragraph (c) to clarify that a claimant may apply in any written form for disability or death benefits due to hospital treatment, medical or surgical treatment, examination, or training under the provisions of 38 U.S.C. 1151. VA does not have an application for such a claim. See § 5.53, Claims for benefits under 38 U.S.C. 1151 for
Initially proposed § 5.50 repeated the cross reference to § 3.109(b) from the end of § 3.150. This cross reference is erroneous because § 3.109(b) does not apply to any deadlines for filing claims referenced in §§ 3.150 or 5.50. We therefore propose to remove this cross reference from § 5.50.
Initially proposed § 5.51(a) stated, “An individual must file a specific claim in the form prescribed by the Secretary in order for disability benefits to be paid under the laws administered by VA.” We propose to replace the phrase “in order for disability benefits to be paid under the laws administered by VA” with “for VA to grant a claim for disability benefits”. This change clarifies that the provision applies not only to cases where VA grants monetary benefits, but also to cases where VA grants service connection and rates the disabilities as 0 percent disabling.
Subsequent to the publication of proposed § 5.51, section 502 of Public Law 112–154 (2012) amended 38 U.S.C. 5101 by adding a new paragraph which states that if an individual has not attained the age of 18 years, is mentally incompetent, or is physically unable to sign a form, a form filed under paragraph (1) for the individual may be signed by a court-appointed representative, a person who is responsible for the care of the individual, including a spouse or other relative, or an attorney in fact or agent authorized to act on behalf of the individual under a durable power of attorney. If the individual is in the care of an institution, the manager or principal officer of the institution may sign the form * * * The term `mentally incompetent' with respect to an individual means that the individual lacks the mental capacity—(A) to provide substantially accurate information needed to complete a form; or (B) to certify that the statements made on a form are true and complete. We propose to update § 5.51(a) to reflect this amendment.
Initially proposed § 5.52(a) stated, “An individual must file a specific claim in the form prescribed by the Secretary (or jointly with the Commissioner of Social Security, as prescribed by § 5.131(a)) in order for death benefits to be paid under the laws administered by VA.” Subsequent to the publication of proposed § 5.52, section 503 of Public Law 112–154 (2012) amended 38 U.S.C. 5105 by removing the requirement that the Secretary of Veterans Affairs and the Commissioner of Social Security jointly prescribe forms for use by survivors of members and former members of the uniformed services in filing application for benefits under chapter 13 of title 38 and title II of the Social Security Act. Section 503 also removed the requirement that each such form request information sufficient to constitute an application for benefits under both laws. Finally, section 503 also removed the requirement that such a claim be filed on a particular form by allowing it to be filed “on any document indicating an intent to apply for survivor benefits”. We proposed to include these statutory changes in § 5.52(a).
In response to the Center for Plain Language's comment about sentence length in initially proposed § 5.52, we propose to revise the regulation to be more concise. We propose to revise initially proposed paragraph (a) by changing “in the form prescribed” to “for death benefits by completing and filing the application prescribed”.
In
We propose to revise paragraph (b) by removing references to filing a claim for death compensation. This benefit is not available for new applicants, so it is not necessary to include death compensation provisions in part 5. As a result of this change, we propose to eliminate initially proposed (b)(1) and redesignate proposed (b)(2) and (3) as (b)(1) and (2), respectively. We propose to revise paragraph (b) to eliminate needless repetition of language common to initially proposed § 5.52(b)(2) and (3).
In initially proposed § 5.52(c)(4) and (5), we addressed the effective dates of a child's death benefits. These paragraphs referenced the claimant's requirement to timely submit evidence that VA requests and the consequence of failure to timely submit such evidence. The rules on timely submission of evidence are in § 5.136, “Abandoned claims”, derived from current § 3.158. We propose to remove these provisions from initially proposed § 5.52 because there is no need to repeat them. To make the regulations more concise and easier to use, we propose to combine the remaining portions of initially proposed paragraphs (c)(4) and (5) with paragraph (c)(3) and to cross reference the effective date rules by referencing § 5.696 in paragraph (c)(1) and referencing §§ 5.538 and 5.431 in paragraph (c)(3).
We propose to remove the last sentence of initially proposed § 5.53, which stated, “Such communication may be contained in a formal claim for pension, disability compensation, or DIC, or in any other document.” The first sentence of the regulation states that VA may accept “any communication in writing” as a claim for benefits under 38 U.S.C. 1151. In light of that rule, the sentence we propose to remove is surplus; “any communication in writing” inherently includes one “contained in a formal claim”.
We propose to make several changes to initially proposed § 5.54. These changes will revise and reorganize the rule to be clearer and consistent with current VA practice.
Paragraph (a) defines an informal claim and states that the informal claim must be written. VA defines a “claim” as a “formal or informal communication
Initially proposed paragraph (a) also stated that “[a]ny communication or action” may be an informal claim for benefits. As the phrase is used in current § 3.155 from which it derives, any “action” that would be a claim for benefits would be a communication. Therefore, we propose to remove the phrase “or action” as superfluous.
Additionally, initially proposed paragraph (a) listed who may file an informal claim and stated certain conditions for persons other than the claimant to file the claim. We propose to move this list to paragraph (b) to distinguish the authority to file an informal claim from the required content of an informal claim. Readers should find it convenient to have in one place a list of persons who can file a claim and any conditions on that authority. Initially proposed paragraph (b), like 38 CFR 3.155(b), listed several types of representatives: agents, attorneys, and service organizations. Initially proposed paragraph (a) contained the term “authorized representative”, which we have moved into paragraph (b). Because “authorized representative” includes agents, attorneys, and service organizations, we propose to remove those terms from § 5.54.
Initially proposed paragraph (a) provided that a “duly authorized representative” may file a claimant's informal claim. We propose to remove the word “duly” from the phrase “duly authorized representative”. It is a superfluous legalism. A claimant has or has not authorized a representative. There is no such thing as an unduly authorized representative. Such a representative would simply not be authorized.
Initially proposed paragraph (b), like current § 3.155(b), imposed conditions on VA's acceptance of an informal claim when filed by certain organizations or persons. The regulation stated the rule negatively: “A communication . . . may not be accepted . . . if a power of attorney . . . was not executed at the time the communication was written.” We propose to restate the rule affirmatively in paragraph (b) after the term “authorized representative”. The restated rule will read, “if authorized before VA received the informal claim”. This proposed change would also clarify the timing of the authorization.
Initially proposed § 5.54(b), also like current § 3.155(b), required that a power of attorney from the listed parties “was . . . executed at the time the communication was written.” VA requires that it receive the executed power of attorney before it will act on a written communication from certain representatives as an informal claim. In current practice, VA accepts as an informal claim a written communication from one of the listed representatives if it meets the requirements of an informal claim and VA receives it along with a power of attorney executed as regulation requires. “At the time the communication was written” is ambiguous. It could mean the power of attorney was executed simultaneously, more or less contemporaneously, or simply before the communication was written. VA has no mechanism to ascertain whether the power of attorney was executed at any of these times, nor need VA ensure the power of attorney was executed “at the time the communication was written.” VA is sufficiently assured of the authenticity of the power of attorney and of the authority of the representative to act for the veteran if VA receives a properly executed power of attorney and the communication the representative wrote for the claimant together.
Initially proposed § 5.54(b) contained a cross reference to 38 CFR 14.631, “Powers of attorney; disclosure of claimant information.” Because § 14.630, “Authorization for a particular claim”, also describes a type of authorized representative, we propose to add a cross reference to that section, too.
We propose to reorganize the elements of initially proposed paragraphs (a) and (c) that addressed the effect of filing an informal claim, combining them in paragraph (c). Paragraph (c)(1) applies to original informal claims. Initially proposed paragraph (a) provided that VA will “forward” an application to anyone who files an informal claim, but has not filed a formal claim. We propose to revise this to say that VA will “furnish an appropriate application to a person who files an informal claim”. This is consistent with § 5.50(a), which requires VA to furnish an “appropriate application” for a benefit upon request. VA does not have an application for all benefits. We propose to make paragraph (c)(1) practicable by limiting the requirement that VA “furnish an appropriate application” to those benefits for which VA has an application.
The initially proposed rule prescribed that VA would accept the date of receipt of an informal claim as the date of the claim, “If [the application is] received within 1 year after the date it was sent to the claimant”. We propose to add to paragraph (c)(1) that “VA will take no action on the informal claim until the claimant files the completed application.” Though the initially proposed language stating that VA forwards the application “for execution” implies that it must be returned executed (that is, completed), it is clearer to say so explicitly.
We propose to revise initially proposed paragraph (c) as paragraph (c)(2). We propose to remove “an informal request” and “will be accepted as a claim”. The revised regulation will prescribe VA's action upon receipt of an “informal claim” from a claimant who has previously satisfied § 5.51 or § 5.52, as did the initially proposed regulation. We propose to remove the term “informal request” for the same reason we propose to remove “action” from paragraph (a). Any “informal request” for an increase or to reopen must be a communication indicating “an intent to apply for one or more benefits”, that is, an informal claim. We propose to remove “will be accepted as a claim”, because to say that VA will accept an informal request as a claim if the claimant previously satisfied the requirements of § 5.51 or § 5.52 is merely to say that an informal claim is a claim under those circumstances. That is exactly what the regulation means, and VA has never intended an “informal request” to be something different from an informal claim. Using another term for an informal claim confusingly suggests that there is some other type of “informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a VA benefit” that might not be an informal claim. As the definition of “claim” reveals, this cannot be so.
Paragraph (c)(2) provides that VA will act on an informal claim without requiring another application from a person who has previously filed an application. The initially proposed rule and current § 3.155(c) allowed an informal claim for increase or to reopen to be accepted without the claimant subsequently filing an application if the claimant had previously filed a claim
The previous filing of a claim for disability benefits will not have provided VA the critical information necessary for the claimant to have met the requirement of 38 U.S.C. 5101(a) for a claim for death benefits, and vice versa. As proposed to be revised, § 5.54(c)(2)(i) and (ii) will explicitly state the implicit requirement in initially proposed § 5.54(c) that VA will accept an informal claim for increase or to reopen a claim for disability or death benefits only if the claimant has previously filed a claim for that type of benefit.
We propose to revise initially proposed § 5.55 in response to a comment and based on our further review of the regulation. The commenter requested that VA make the rule clearer and use the active voice. We propose to revise this regulation to enhance readability and be more consistent with the format of other part 5 regulations.
The proposed revisions describe the process of, and provide instructions for, reopening a claim that the initially proposed regulation did not. The proposed revisions afford the claimant the same rights, however, and prescribe the same burdens and duties for the claimant and for VA in seeking to reopen a claim as did the initially proposed regulation. They articulate current VA practice in implementing 38 U.S.C. 5108, which requires VA to “reopen the claim and review the former disposition” if “new and material evidence is presented or secured”. They also make explicit several aspects of reopening a claim that are implicit in the initially proposed and the current regulation.
We propose to move the definition of a “reopened claim” from initially proposed § 5.57(f) to § 5.55(a) and (d) and restate it as a list of conditions necessary to reopen a claim VA has finally denied.
Initially proposed § 5.55(a) stated, “A claimant may reopen a finally adjudicated claim”. The paragraph characterized new and material evidence in reference to “evidence of record at the time of the last prior final denial of the claim sought to be reopened”. Both quoted phrases come from current § 3.156(a). As now proposed, § 5.55(a) states, “A claimant may reopen a claim if VA has made a final decision denying the claim.” It would be redundant to state that a claimant may reopen a “finally” adjudicated claim because we define “claim” in § 5.1 and we define “final decision” in § 5.1. A claim is not subject to reopening if a prior decision is not final. Therefore, in order to reopen a claim, paragraph (a) of this section requires the existence of a final decision denying that claim. These changes are consistent with the circumstances in which a claimant will seek to reopen a claim.
We propose to move the language in initially proposed § 5.57(f) regarding the Board of Veterans' Appeals (Board) treatment of certain evidence into § 5.55(d) because it relates to new evidence in the context of reopening a claim. We have shortened that language because under § 20.1304(b)(1)(i), any evidence or request for hearing referenced in that rule will be returned to the RO “upon completion of the Board's action on the pending appeal”. Therefore, the RO will apply § 20.1304(b)(1)(i) only in the context of a final denial, which is already discussed in § 5.55(a), or a grant or remand, in which case, the provisions of § 5.55 are irrelevant. The primary relevance of § 20.1304(b) to § 5.55 is that evidence submitted to the Board prior to its decision, but not considered by the Board, as set forth in § 20.1304(b), may be considered “new” for purposes of § 5.55.
We propose not to include the provision contained in § 5.57(f) regarding hearings in § 5.55(d). When a claimant requests a hearing at the Board more than 90 days after certification of an appeal and transfer of the claims file to the Board, the Board will not allow the hearing unless there is a showing of good cause for the delayed request. If the Board finds good cause and allows the hearing, then any testimony presented is considered in deciding the appeal. If the Board does not find good cause, then it will decide the appeal without conducting the hearing. In that case, it will refer the hearing request to the AOJ as required by 38 CFR 20.1304(b)(1)(i). Any testimony presented at a subsequent AOJ hearing on a claim for a benefit the Board denied would necessarily be “[e]vidence the claimant presented . . . since VA last made a final decision denying the claim the claimant seeks to reopen” under § 5.55(d)(1). Therefore, there is no need to include the § 5.57(f) language about hearings.
We propose to add paragraphs (b) and (c). Proposed paragraph (b) states, “To reopen a claim, the claimant must present or VA must secure new and material evidence. If VA receives a claim to reopen, it will determine whether evidence presented or secured to reopen the claim is new and material.” Proposed paragraph (c) reads, “If the claimant has presented or VA has secured new and material evidence, VA will reopen and decide the claim on its merits.” Together, these paragraphs clearly prescribe the sequence of actions in reopening a claim, implementing 38 U.S.C. 5108 and long-standing judicial precedent.
We propose to move the definition of “new and material evidence” in initially proposed § 5.55(a) to paragraph (d), so it now follows the information a claimant needs to know about the process of reopening a claim. We propose to reorganize the definition of “new and material evidence” as a set of criteria that evidence must meet to be “new” and a set of criteria it must meet to be “material”.
As initially proposed, the definition of “new and material” evidence could be misconstrued to imply that “new and material” evidence has some sort of combined characteristics in addition to those that satisfy the requirement that it is new and that it is material. VA has never intended the term “new and material evidence” to be interpreted this way, and the Federal Circuit has rejected such an interpretation.
In proposing the current definition of “new and material evidence”, 38 CFR 3.156(a), VA stated, “We propose to clarify the definition of `new and material evidence' . . . to state that `new evidence' means . . . evidence not previously submitted to agency decisionmakers, that is neither
In
Initially proposed § 5.55(a) reiterated the language of current § 3.156(a), “New evidence means existing evidence”, and “Material evidence means existing evidence”. For the following reasons, we propose to remove the term “existing” in both instances.
In 2001, VA amended the definition of “new and material evidence” to implement the Veterans Claims Assistance Act of 2000, Public Law 106–475, sec. 3, 114 Stat. 2096, 2096–98 (2000), which mandated that VA assist claimants to substantiate their claims. In doing so, VA prescribed the assistance it would give a claimant to substantiate a claim to reopen by limiting its duty to obtain new and material evidence to obtaining “existing evidence”, as distinguished from newly created evidence. 66 FR 17837–38, Apr. 4, 2001. VA did this to avoid the implication that, under the VCAA of 2000, it had a duty to create new evidence, for example through a medical examination. 66 FR 45628, Aug. 29, 2001 (“VA would not provide an examination or obtain a medical opinion to create new evidence”). VA intended “existing evidence” to mean “evidence that is not newly generated by or with the help of VA”. 66 FR 17838, Apr. 4, 2001.
Nonetheless, if “new” evidence and “material” evidence both mean “existing” evidence, then initially proposed § 5.55(a) could be misconstrued to mean that VA would not accept any evidence newly created to reopen the claim because it is not “new and material” as defined. As initially proposed, the rule could produce the strange result, for example, of VA rejecting a new medical opinion that a claimant obtains and files to reopen a claim as not “new and material evidence”, because it would not be “existing evidence.” We therefore propose to remove the term “existing” to avoid any potential for such misapplication.
There is no need to qualify “new and material evidence” as “existing evidence” to ensure that VA's duty to assist the claimant in obtaining new and material evidence is as limited as VA intends. In any claim, the claimant must identify existing evidence and provide VA the information necessary to obtain this evidence before VA is obligated to try to procure that evidence for the claimant.
Finally, we propose to redesignate initially proposed paragraph (b), “Effective date”, as paragraph (e). We propose to change the term “awards” to “grants”, consistent with the use of “grant” in part 5 as a verb meaning to decide a claim affirmatively.
We propose to revise and reorganize this regulation for simplicity. We also propose to address several specific issues.
We propose to revise initially proposed paragraph (a) so that it simply states the purpose and effect of this section. It is necessary to explain that evidence construed as a claim in accordance with this section meets the claim requirement of § 5.51(a), because after VA receives such evidence, VA requires the claimant to take no further action to establish that he or she has filed a claim. In other words, the evidence constitutes a claim “that is in the form prescribed by the Secretary” for filing the claims to which this section applies.
We propose to add a new paragraph (b), “Claims excluded”, which provides that VA's receipt of a report of examination, treatment, or hospitalization is a claim only under the circumstances named in paragraph (c) of this section. We emphasize this point by explicitly excluding from the scope of this section new claims for service connection.
In reviewing the initially proposed regulation, we noticed that in some places we referred to a report of examination or hospitalization and in others we referred to a report of examination or treatment. Our intent was to accept a report of examination, treatment, or hospitalization as a claim in the situations described. We propose to revise this regulation, including the title, to reflect that any of these types of medical reports may be a claim for increased benefits or for pension under the circumstances described. The revised title also represents the content of the regulation more accurately.
We propose to reorganize initially proposed paragraph (b) of this section and redesignate it as paragraph (c), “Claims included”. We propose to replace the initially proposed language with four succinct statements, (c)(1), (2), (3), and (4). Each statement articulates a circumstance in which VA's receipt of
VA currently considers claims for disability compensation to have been granted, notwithstanding that the disability is rated 0 percent, so long as VA granted service connection. This is because even a 0 percent rating can yield disability compensation or other benefits, such as medical treatment.
The reasoning for not using the term “disallowed” or “denied” or referring to a “reopened” claim in the context of a prior grant of service connection to a veteran rated 0 percent disabled also applies to claims under this section from veterans receiving retired pay. Proposed paragraph (b)(2) changed “disallowed” to “denied” in restating the § 3.157(b) rule about retirees. Section 3.157(b) provides for claims from “a retired member of a uniformed service whose formal claim for pension or compensation has been disallowed because of receipt of retirement pay.” “Disallowed” is used there in the same sense in which § 3.157(b) uses it to refer to nonpayment of disability compensation to a service-connected veteran rated 0 percent and for the reason discussed above; such a claim is not “reopened.” VA may grant service connection to a veteran, yet not pay disability compensation because the veteran elects to receive retired pay rather than VA disability compensation. VA would also not pay pension to the retiree in receipt of retired pay if the amount of retired pay is greater than the amount of income above which VA will not pay pension benefits. In neither instance is a claim under this section “reopened” or a claim to reopen. Our proposed restatement of initially proposed § 5.56(b)(2), to be redesignated as proposed paragraph (c)(3), includes a heading that accurately describes the circumstances in which the section applies to veterans receiving retired pay. It also describes the claims, simply, as for disability compensation or for pension.
Initially proposed § 5.56(c)(3) used the term “retirement pay”. Upon further review, we noted that the terms “retirement pay” and “retired pay” were inconsistently used in part 3. To correct this inconsistency, we propose to use the term “retired pay” throughout part 5 when we are referring to “payment received by a veteran that is classified as retired pay by the Service Department”.
We propose to redesignate initially proposed paragraph (c) as paragraph (d). Initially proposed § 5.56(c)(1)(i) read:
The provisions of paragraph (c)(1) of this section apply only when the reports described in paragraph (c)(1)(ii) of this section relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within 1 year after the date of an examination, treatment, or hospital admission described in paragraph (c)(1)(ii) of this section.
We have not repeated the quoted language of initially proposed paragraph (c)(1)(i) in redesignated paragraph (d)(1)(i). The first clause of the initially proposed language, as with the equivalent language in § 3.157(b)(1), stated, “The provisions of paragraph (c)(1) of this section apply only when the reports described in paragraph (c)(1)(ii) of this section relate to examination or treatment of a disability for which service-connection has previously been established”. The purpose of this language is to emphasize that medical records will not be considered a claim for service connection for a disability. As stated, however, it would preclude the reports described from being a claim for pension. VA has never applied the rule to reject records from a VA or uniformed service medical facility as a claim for pension following a prior grant or denial of pension. We therefore propose to remove the language to avoid such a misapplication of the rule.
The language in the quotation above (§ 5.56(c)(1)(i)) also tracks language from current § 3.157 that was intended to govern a situation in which a claimant obtained treatment for a service-connected disability and during that treatment, the examiner noted the existence of another disability. Before 1962, 38 U.S.C. 3011 had described an award of increased disability compensation or pension as “an award of increased compensation . . . or pension (amending, reopening, or supplementing a previous award, authorizing any payments not previously authorized to the individual involved)”. 38 U.S.C. 3011 (1958). Thus, the law seemed to provide that a claim for increase included a claim for additional disability compensation based on a new disability, if the veteran was already receiving disability compensation. However, that language has long since been repealed.
One commenter suggested that the meaning of the phrase “or when a claim specifying the benefit sought” that had been used in initially proposed § 5.56(c)(1)(i) should be explained more thoroughly. The commenter noted some confusion concerning its meaning based
As stated above, the language “or when a claim specifying the benefit sought” is a vestige of a statute that is no longer in effect. We are not using the phrase in part 5, and therefore we do not need to further explain its meaning.
Regarding the
The sources of evidence that can constitute a claim under paragraph (d)(1) (initially proposed paragraph (c)(1)) are regrouped in paragraph (d)(1)(ii) as (d)(1)(ii)(A) through (D), according to date of claim that results from submission of the particular evidence. Though this makes a fourth level of designation in the rule, it should enhance readability.
Initially proposed paragraph (c)(3)(i), regarding evidence from state and other institutions, stated, “Benefits will be granted if the records are adequate for rating purposes; otherwise findings will be verified by official examination.” We propose to change “official” to “VA”, to make clear that the official examination to which the sentence refers is a VA examination. We also propose to add the phrase, “and demonstrate entitlement to an increased rating, to pension, or to special monthly pension” after “rating purposes” to clarify that mere receipt of such evidence does not establish entitlement to benefits.
Initially proposed paragraph (c)(3)(ii) included the phrase “and entitlement is shown”, derived from current § 3.157(b)(3), as a condition on the date of VA receipt of evidence from state and other institutions as the date of a claim. Neither § 3.157(b)(1) nor (b)(2) contains such a restriction. We therefore propose to remove this language because if the claimant does not eventually establish entitlement to the benefit, then the date of receipt of the claim has no legal significance. Therefore, the language, “and entitlement is shown” is superfluous.
Finally, we propose to revise initially proposed paragraph (d), “Liberalizing law or VA issue”, for clarity and to redesignate it as paragraph (e).
We propose to revise the format of this regulation to be consistent with the format of other regulations that provide definitions. We propose to revise the title of the regulation to be, “Claims definitions”, because it more clearly indicates the contents of the regulation.
We also propose to restate and expand the scope of the definitions. The initially proposed rule, like current § 3.160 from which it derives, stated that the definitions applied to claims for pension, disability compensation, and DIC. VA administratively processes claims under 38 U.S.C. chapter 18 in the same manner as VA processes pension, disability compensation, and DIC. Therefore, we propose to restate the scope of § 5.57 as applying to claims for disability benefits, death benefits, or monetary allowance for a veteran's child under 38 U.S.C. chapter 18. The proposed change to “disability benefits” and to “death benefits” (from “pension, disability compensation, and dependency and indemnity compensation”) better harmonizes the scope of the regulation with the regulations on claims for disability and for death benefits.
We propose to remove initially proposed paragraph (a), definition of “formal claim”. As initially proposed, the definition, “A claim filed on the application required”, was impracticable. There are benefits for which VA does not have an application, for example benefits under 38 U.S.C. 1151. Moreover, as a result of revision of several other proposed regulations, the term does not appear in part 5 other than in its definition. There is no need to define a term that is not used.
We propose to redesignate initially proposed paragraph (b), “Informal claim”, as paragraph (a).
We propose to redesignate initially proposed paragraph (c), “Original claim”, as paragraph (b). We propose to revise the definition to state, “
It is confusing to define the original claim as “the initial formal claim”. More significantly, it is fallacious. Even if we kept the definition of “formal claim” as a claim filed on a prescribed application, the lack of an application for some benefits would make the initially proposed definition of “original claim” impracticable. If an original claim must be an application and there is no application for some benefits, then there cannot be an original claim for some benefits. That conclusion is untenable.
We also propose to add “from a person” to be clear that when two or more claimants each file a claim for the same benefit, each claim will be the original claim for that person. For example, two siblings each filing a claim for DIC based on the death of the same veteran would each have an original claim. This was not apparent in the initially proposed regulation.
We propose to remove initially proposed paragraph (e), “Finally adjudicated claim”. It is essentially redundant of the definition of “final decision” in § 5.1. The definition of “final decision” in § 5.1 encompasses the definition of “finally adjudicated claim” in § 3.160(e), but it is more precise. The procedural posture of finality of VA decisions applies to VA claim adjudication more broadly than just to claims for pension, disability compensation, DIC, and monetrary allowances under 38 U.S.C. chapter 18. For that reason, it is more appropriate for the rule defining finality to be in § 5.1 than in § 5.57, which has a limited scope.
One commenter objected to the title of § 5.57(f), “Reopened claim”, asserting that the title is misleading because the paragraph does not describe what a reopened claim is and is not consistent with how VA and the courts have used the term. This commenter felt that a better title would be, “Claim to reopen.” We agree that “reopened claim” is inaccurate. As noted by the commenter, this paragraph concerns submission of evidence, information, or an assertion of entitlement to a procedure applicable to a previously decided claim. Such submission of evidence, information, or an assertion of entitlement to a procedure applicable to a previously decided claim may not always result in the claim being reopened. We propose to use the suggested phrase “claim to reopen”. However, we propose to do so in the context of moving the paragraph
One private individual submitted a comment concerning the length of time VA takes to process a claim and his dislike of the appeal process. This comment is outside the scope of these proposed regulations, and we therefore propose to make no changes based on this comment.
Two commenters suggested that this initially proposed section was deficient in its scope. They expressed a belief that a claimant or beneficiary should be given notice of the right to representation throughout the adjudicative process, not only when VA sends notice of a decision or a proposed reduction, discontinuance, or other adverse action. Both expressed the opinion that VA should notify the claimant of the right to representation at the beginning of the claims process.
It has been VA's long-standing practice to provide notice to claimants of the right to representation in VA's initial response to the claimant after VA receives a substantially complete application. We propose to revise initially proposed § 5.80 to state that written notice concerning the right to representation will be included in the initial response VA sends to the claimant after receipt of a substantially complete application.
One commenter noted that initially proposed § 5.80 failed to set out in detail the crucial role of the representative in the adjudicative process. Another commenter urged VA to include in initially proposed § 5.80 the limitations on hiring an attorney.
Part 3 regulations do not describe the role of representatives in the adjudicative process or the limitations of hiring an attorney and we do not believe part 5 should either. The rights, duties, limitations and role of a representative are in 38 CFR 14.626—14.637. The first sentence of § 5.80 refers the reader to those sections. We are making no changes in the language of the regulation in response to these comments. We have, however, added a cross reference at the end of initially proposed § 5.80 to 38 CFR 19.25, “Notification by agency of original jurisdiction of right to appeal”, which requires that VA include the right to representation in its notice of an adverse decision on a claim.
One commenter urged VA to include a provision acknowledging the right of both the claimant and the claimant's representative to automatically receive copies of evidence secured by VA. The commenter asserted that access to the evidence developed and relied upon by VA to reach its decision is crucial to proper notice and is a fundamental due process right.
A veteran and representative are entitled to a copy of the evidence or other written records contained within a veteran's claims file in accordance with the provisions of 38 U.S.C. 5701(b)(1), as implemented in 38 CFR 1.503. The veteran or representative must make a written request for the copies of the evidence in accordance with the provisions of 38 U.S.C. 5702(a).
The procedures provided in current statutes and regulations do not infringe on the claimant's due process rights. The claimant has the right to notice of the evidence VA will attempt to obtain on the claimant's behalf, of the evidence the claimant has the responsibility to obtain and submit, and of the decision on the claim. If the decision is adverse, the notice must include a discussion of the evidence considered and the reasons and bases for the decision and it must include the claimant's appellate rights. The claimant may, upon written request, generally obtain a copy of the evidence used in making the decision on the claim. Since our regulations already provide for the result the commenter requested, though not in the manner urged by the commenter, we propose to make no changes based on this comment.
Initially proposed § 5.81(a), “
As stated in our response to a similar comment on initially proposed § 5.80, part 3 regulations do not describe the role of representatives in the adjudicative process or the limitations of hiring an attorney and we do not believe part 5 should either. Initially proposed § 5.81(a) was not intended to regulate the specific authority of a claimant's or beneficiary's representative. This information is codified in §§ 14.626–14.637, to which § 5.80 refers, and to include it in part 5 would be redundant. We therefore propose to make no change based on this comment.
In initially proposed § 5.81(a), we used the term “record of proceeding” twice. We have substituted the term “evidence of record” to be consistent with the other part 5 regulations. This regulation was the only one in part 5 to use the term “record of proceeding”.
Initially proposed § 5.81(b) stated:
Information, evidence, or argument may be submitted by a claimant or beneficiary, or, where applicable, through a guardian or fiduciary acting on his or her behalf. Unless specifically provided otherwise in this part, a claimant's or beneficiary's authorized representative may submit information, evidence, or argument pursuant to any section of this part that allows or requires submission of information, evidence or argument.
Two commenters expressed concern with this paragraph as implying some new restriction on a representative's authority to submit material on behalf of a client. One commenter argued that this section is inappropriate because an authorized representative stands in the same position as the client and should be allowed to submit evidence and arguments as if he is the claimant or beneficiary. The same commenter suggested inserting the phrase “or their authorized representative” after “beneficiary” and deleting the second sentence.
We did not intend to constrain an authorized representative's role or authority in the VA claims process. After reviewing initially proposed § 5.81(b) because of the comments received, however, we noted that all the information contained in the paragraph is also in other regulations. Section 1.524 provides for the right of a fiduciary, representative, attorney, or other authorized person to represent the claimant. Sections 13.1, et seq., and 14.626–14.637 provide specific provisions concerning these representatives. Because other regulations provide for the rights and duties provided in initially proposed § 5.81(b), and do so in greater detail,
We propose to add language to initially proposed § 5.82(a) to make clear that the section pertains only to hearings in claims at the agency of original jurisdiction level of adjudication. We propose to change “claimants” to “claimants and beneficiaries”, except in paragraph (f), to make clear that the rules in § 5.82 apply to claimants and to current beneficiaries. Paragraph (f) pertains only to hearings in response to a VA proposal to take adverse action regarding a beneficiary's benefits. Finally, we propose to change “claim” to “matter” to clarify that if a beneficiary requests a hearing to give testimony or evidence on whether VA should take adverse action against the beneficiary's benefits, such a hearing is within the scope of § 5.82.
Further review of the initially proposed regulation revealed a contradiction between paragraphs (a)(1) and (f). Initially proposed paragraph (a)(1) provided for one hearing “at any time on any issue”. Initially proposed paragraph (f) provided, as does current § 3.105(i) from which it derives, that a beneficiary must request a hearing on the issue of reduction, discontinuance or other adverse VA action within 30 days after receipt of a notice of VA's proposal to take the adverse action. Therefore, a hearing under paragraph (f) is not available “at any time on any issue”. We propose to reconcile the two paragraphs by beginning paragraph (a)(1), “Except as provided in paragraph (f),”. This is not a change from current regulation. Compare §§ 3.103(c) (“a hearing on any issue at any time”) with 3.105(i) (“a predetermination hearing [if] a request . . . is received within 30 days”). It merely clarifies the relationship between paragraphs (a) and (f). This relationship exists between §§ 3.103(c) and 3.105(i), but it becomes obvious when the provisions are consolidated in a single section.
We propose to revise the second to last sentence of initially proposed § 5.82(a), removing the statement entitling a veteran to a hearing before the Board of Veterans' Appeals (Board). Instead, we propose to add a cross reference to the introduction to make the reader aware of Board hearings and to distinguish between hearings at the AOJ and at the appellate levels of adjudication. We propose this change because 38 CFR part 20 provides for the right to a hearing before the Board, and it is not appropriate to regulate Board hearings in part 5.
The initially proposed rule allowed, “one hearing before the agency of original jurisdiction at any time on any issue or issues involved in a pending claim before the agency of original jurisdiction” and permitted one additional hearing “if the claimant asserts that: he or she has discovered a new witness or new evidence to substantiate the claim; he or she can present that witness or evidence only at an oral hearing; and the witness or evidence could not have been presented at the original hearing.” Four commenters asserted that the limitation in initially proposed § 5.82 on the number of hearings allowed was too restrictive. For the reasons stated in response to specific comments, we disagree that the regulation is too restrictive and we reject each of the reasons argued for keeping the current rule.
One commenter asserted that the “one-hearing rule” diminishes claimants' right to due process because it is inconsistent with the VA's tradition of giving claimants the opportunity to continue to produce and submit evidence or argument as a claim develops. It might be true that the one-hearing rule could inhibit ongoing production of evidence or argument throughout the time a claim is pending, if a personal hearing were the only way to submit evidence or argument to the record in a claim, but it is not. Section 5.81, the regulation governing submission of evidence and argument generally, could scarcely be more permissive regarding entering material into the record in a claim: A claimant may submit virtually anything, at almost any time, by nearly any means. Nothing in § 5.82 diminishes the right to submit material to the record in a claim throughout the time the claim is pending, except as limited by the rules of the Board of Veterans' Appeals for submission of material after the AOJ transfers a claim to the Board on appeal. 38 CFR 20.1304.
The same commenter asserted the rule is inconsistent with the current due process right to a hearing before the initial decision on a claim. The commenter requested that we include a provision informing the veteran of the right to a hearing before VA makes a decision on a claim. We interpret the comment to express concern that an adverse decision in a claim could bias a subsequent decision-makers, and that a claimant would have to overcome that bias in a subsequent hearing. Initially proposed paragraph (d) provided that “a VA employee or employees having decision-making authority and who did not previously participate in the case will conduct the hearing.” The comment offered no basis to believe that a VA official conducting a hearing would not be impartial, and we propose to make no change to preempt a bias that is not demonstrated.
To the extent the commenter is concerned about lack of notice to the claimant of the right to a hearing before the decision on a claim, VA does notify claimants of the right to a personal hearing at any time, including before VA has decided a claim. See, for example, VA Form 21–526, instructions page 6, Veteran's Application for Compensation and/or Pension (Jan. 2004), or VA Form 21–534, instructions page 2, Application for Dependency and Indemnity Compensation, Death Pension and Accrued Benefits by a Surviving Spouse or Child (Including Death Compensation if Applicable). Because VA already provides this information to claimants, we propose to make no change based on this comment.
Absent the discovery of a new witness or evidence, there is no valid reason to hold an additional hearing. A single hearing provides full and fair opportunity to place demeanor evidence in front of the decision maker, which satisfies a primary object of personal hearings. The one-hearing rule with its paragraph (a)(2) allowance for a second hearing under the stated circumstances provides a fair and rational balance between the rights of the claimant and the resources of the department. Repeated interruption of the adjudication process for hearings can result in confusion about the evidence to review and in interminable delay, both of the claims subjected to repeated hearings and to the progress of the claims of others who wait their turn. These are not inconsequential concerns. If a claimant wants to submit new arguments, he or she may do so in writing at any time. We therefore propose to make no changes based on these comments.
Another commenter asserted that the provision for an additional hearing is likely to result in VA arbitrarily refusing an additional hearing that a claimant would use to respond to evidence that entered the record subsequent to the first hearing, resulting in limiting a claimant to one hearing in almost all circumstances. After noting the criteria for a second hearing in paragraph (a)(2), the commenter asserted that paragraph (a)(2) should provide for additional hearings “when warranted by circumstances” or “for good cause” and authorize VA to refuse a second, third, or further additional hearing “when clearly unwarranted.” The commenter asserted that there are many
We recognize the commenter's concern that the one-hearing rule will thwart a claimant's legitimate desire to respond to developments during the pendency of the claim. The threshold for obtaining a second hearing, however, is a mere assertion of the factors in the exception paragraph. We see no basis for the speculation that VA will probably refuse almost all requests. It seems likely that a claimant's desire to testify or present witnesses or evidence to rebut evidence that entered the record after a prior hearing is exactly a situation in which the claimant could not have adduced the new evidence or witnesses' testimony before the evidence it would rebut was of record.
We do not agree that the standards for obtaining a second hearing invite arbitrary or capricious refusal of requests for second hearings, or even that VA will deny most requests. Rather, the rule the commenter proposed “where circumstances warrant,” or “for good cause,” but “not when clearly unwarranted” are completely devoid of a standard of application; they seem far more likely to result in inconsistent application than do the paragraph (a)(2) criteria.
More basically, the commenter would have VA afford additional hearings even though the claimant would present no new witness or evidence; even though the claimant could present the testimony of a new witness, or new evidence, without a hearing; and even though the claimant knew of the witness, evidence or argument at the time of the first hearing and could have presented them. The commenter “concede[d] that VA has a legitimate interest in preventing duplicative and unnecessary hearings,” a point with which we do agree. We conclude that the one hearing rule with the paragraph (a)(2) exception provides full and fair hearing process to each claimant.
A commenter objecting that § 5.82(a) would limit a long-standing right to unlimited hearings, asserted that VA had not provided an adequate rationale for its proposed fundamental change in its historic and traditional hearing practice. The preceding paragraphs state additional rationale for the change. Additionally, we do not agree that the change is fundamental, because VA hearing practice will continue to serve every function it has under current § 3.103(c).
The commenter further asserted that “Congress has codified and ratified the agency's traditional practice of providing claimants with multiple opportunities to appear for personal hearings.” The commenter asserted that Congress is presumed to be aware of and adopt an administrative interpretation of a statute when it reenacts the statute without change, citing
The right-to-a-hearing rule in § 3.103(c) is VA's creation, promulgated under the Secretary's general rule-making authority in 38 U.S.C. 501(a). Moreover, as judicial precedent specific to VA clearly shows, congressional silence on a regulation is not necessarily adoption or endorsement of the regulation, or even an indication that Congress is aware of the regulation.
The commenter also asserted as fact that “the legislative history associated with congressional oversight of the agency shows that Congress knew about VA's practices governing personal hearings and did not indicate that it disagreed with the agency's practices.” As we noted above, congressional silence about a practice is not necessarily evidence of congressional endorsement.
The same commenter objected to the language in initially proposed § 5.82(a)(1) precluding a claimant who had a hearing prior to an appeal to the Board from having a second hearing if the Board remands the case, except as paragraph (a)(2) provides. The commenter quoted from the AL82 NPRM, emphasizing the discussion of current § 3.103(c), which stated, “The VA official conducting the hearing is obligated to elicit any information or evidence not already of record in
VA's arguments or litigation strategy in a case on appeal to the court is beyond the scope of this rulemaking, Whatever the argument or reason for an argument raised in litigation, litigation of a VA claim is far downstream in the claims process from the hearings for which § 5.82 provides. The commenter asserted that VA's argument in Colon “shows that [VA's] litigation counsel have no qualms whatsoever in presenting argument . . . to undermine the legal effect of the agency's binding regulations.” The commenter essentially argues that VA should allow unlimited hearings because far downstream from the hearing the Secretary's counsel might argue to the court that a failure to follow a regulation was a harmless error in a specific case. We do not agree that a right to unlimited hearings is likely to preempt an argument at litigation, nor is that an appropriate object of regulation.
The commenter implicitly raised another point worth addressing, that is, whether there is a cure for a defective hearing, and if so, whether the one-hearing rule thwarts that right. In practice, another hearing would cure a defect in the original hearing, and the one-hearing rule will not inhibit that remedy. VA and its hearing officers have various duties in conducting hearings, such as to explain all issues and suggest the submission of evidence the claimant might have overlooked. A right to unlimited hearings is an overly broad remedy for a defective hearing, because it would result in many redundant hearings in cases in which the initial hearing had comprehensively addressed all issues and fully provided due process.
If a hearing was defective, the claimant can assert so to the AOJ, or on appeal to the Board. A defective hearing would not be legally sufficient to satisfy the claimant's right to one hearing. The claimant would be in the position of not having had a hearing. The one-hearing rule in paragraph (a)(1) would not bar repeating the hearing to cure the defect, and the claimant would not be subject to the criteria in paragraph (a)(2) to obtain the new hearing. The claimant could obtain this new hearing from the AOJ. If the claimant appeals an adverse decision to the Board, the claimant can assert the deficiency in the hearing. A Board remand to cure a deficiency in a personal hearing would not be subject to the rule against post-remand hearings in paragraph (a)(1), because it would require AOJ implementation of a specific order within the Board's authority. 38 CFR 19.9. Consequently, the one-hearing rule does not raise the specter of deficient hearings without a remedy for the claimant. Moreover, a remand from the Board alone is not sufficient reason for another hearing in light of the reasons expressed above for the one-hearing rule. If a remand from the Board orders development of evidence, or otherwise results in the conditions that meet the criteria for an additional hearing in paragraph (a)(2), then the claimant can obtain the additional hearing. We propose to make no change to the rule based on the comment.
We propose to reorganize initially proposed paragraph (a)(2) to make its three criteria visually clear by designating them (i), (ii), and (iii).
Initially proposed § 5.82(b) stated, in pertinent part, that, “[t]he purpose of a hearing under this section is to provide the claimant with an opportunity to introduce into the record of proceedings, in person, any available evidence, arguments, or contentions which he or she considers important to the case.” One commenter asserted that the term “contention” is redundant of the term “argument,” and that VA adjudicators often dismiss testimonial evidence as “mere contentions”, citing
Merriam-Webster's Collegiate Dictionary, 269 (11th ed. 2006), defines “contention” as “a point advanced or maintained in a debate or argument”. The term “argument” includes the term “contention”. We agree that it is unnecessary to include both terms in § 5.82(b) and we propose to remove the word “contentions”.
We propose to make an additional change to initially proposed § 5.82(b) by removing the last sentence, that states, “[t]estimony at a hearing will be under oath or affirmation.” We propose this change because the requirement that the testimony be under oath or affirmation is also found in § 5.82(d)(2), where it is more clearly expressed. Including this requirement in § 5.82(b) is redundant and unnecessary. We propose to revise the title of this paragraph to remove the reference to the requirement for oath or affirmation.
Initially proposed § 5.82(d)(1) stated, in pertinent part, “[t]he employee or employees will establish a record of the hearing and will issue a decision after the hearing”, which is substantially similar to the language in current § 3.103(c)(1). One commenter asserted that the phrase “a record of the hearing” is too vague and urged VA to clarify that testimony cannot be “manipulated, paraphrased, or summarized like minutes of a meeting.” The commenter urged that the witness's exact words and complete statements be made a part of the record.
VA normally transcribes the recording of the hearing and includes the transcript of the hearing in the record of evidence. However, it would be inappropriate to require by regulation that a transcript be prepared for every hearing. There are several reasons why the recording of the hearing may not be transcribed. For example, the VA employee conducting the hearing may determine that all benefits sought should be granted. If all benefits sought are granted, there is no reason to expend resources to transcribe the recording of the hearing or to delay the promulgation of the decision while waiting for the recording to be transcribed. The decision granting the benefit would summarize the hearing testimony. Also, the claimant may withdraw the claim during the conduct of the hearing. In such situations, there is no need for a transcript. In either of these examples, the claimant would gain nothing by the VA's expenditure of resources in transcribing the recording of the hearing. Finally, VA puts a transcript of the hearing in the claims file if the claimant or beneficiary initiates an appeal from a decision. The verbatim testimony is thus part of the evidence of record when the claimant or beneficiary seeks appellate review. To require by regulation that a transcript of the recording of every hearing be prepared would not assist the claimant and would unnecessarily expend VA resources.
Currently, VA prepares a transcript of the hearing if the VA employee
One commenter urged VA to require in § 5.82(d)(3) that adjudicators conducting hearings make express credibility findings on the record concerning the sworn, personal hearing testimony of claimants and other witnesses. The commenter averred that VA hearing officials deciding claims regularly fail to state the reasons for rejecting sworn hearing testimony. The commenter asserted that a requirement that hearing officers make specific credibility findings is necessary to compel hearing officers to include the contribution of his or her assessment of the credibility of hearing testimony in the statement of reasons for a decision.
We decline to make this suggested addition. Such findings are already required by initially proposed § 5.83(a), which requires VA to send each claimant a decision that explains, “[if] a claim is not fully granted, the reason for the decision and a summary of the evidence considered. . . .” Additionally, if VA were to specifically require VA personnel conducting hearings to determine the credibility of oral hearing testimony, the requirement could be misconstrued as emphasizing that type of testimony over others, or that they need not make credibility findings on other types of testimony or evidence. A finding as to credibility of testimony, or of any evidence, is fundamental to all weighing of evidence.
Initially proposed § 5.82(e)(1) stated, “Normally, VA will not schedule a hearing for the sole purpose of receiving argument from a representative.” This was based on current 38 CFR 3.103(c)(2) which states, “The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative.” In reviewing § 5.82 to respond to comments, we noted that paragraph (e)(1) provides no guidance on when VA will schedule a hearing for the sole purpose of receiving argument from a representative. Title 38 CFR 20.700(b) states, in pertinent part, “Requests for appearances by representatives alone to personally present argument to Members of the Board may be granted if good cause is shown. Whether good cause has been shown will be determined by the presiding Member assigned to conduct the hearing.” We believe that applying a good cause standard to hearings at the agency of original jurisdiction would be fair to claimants and beneficiaries, and administratively efficient for VA, so we propose to add that standard to paragraph (e)(1).
We propose to reorganize initially proposed § 5.82(e)(3) (now renumbered as paragraph (e)(4)) to make clear that it addresses failure to report for a hearing under any circumstance. Paragraph (e)(4)(i) addresses failure to report without good cause Paragraph (e)(4)(ii) addresses failure to report with good cause and the responsibility of the claimant or beneficiary to request rescheduling.
One commenter urged VA to add a provision to § 5.82(e) on rescheduling hearings upon receipt of a reasonable request from a claimant or beneficiary. VA's long-standing practice has been to inform claimants and beneficiaries, in the letter scheduling their hearing, how to contact VA to reschedule the hearing. Based on the comment, we have added a new paragraph (e)(3) stating, “If a claimant or beneficiary is unable to attend a scheduled hearing, he or she may contact VA in advance to reschedule the hearing for a date and time which is acceptable to both parties.”
Similarly, another commenter argued that VA should provide a claimant with a right to reschedule a hearing if the claimant missed the originally scheduled hearing for good cause. In our view, a request to reschedule is reasonable if the claimant failed to report for good cause. VA's long-standing practice has been that if a claimant fails to attend the hearing with good cause, VA will reschedule the hearing. We agree with the commenter that it would helpful to include this in paragraph (e) and we now propose to add such language.
We reviewed initially proposed § 5.82 in connection with this comment, and determined that it might be unclear whether the hearing procedures discussed in paragraphs (a) through (e) apply to “predetermination hearings” under paragraph (f). We propose to revise (f) by adding the word “Additional” before the paragraph heading. It now reads, “Additional requirements for hearings before proposed adverse actions.” The paragraph provides that before VA takes adverse action regarding a benefit, VA will give the beneficiary notice of a right to a hearing, and that the beneficiary has 30 days to request a hearing. Reading the heading and the paragraph together makes it clear that the provisions of (f) modify the hearing procedures discussed in paragraphs (a) through (e). The modifications consist of VA's unique notice requirement and the beneficiary's 30-day limit to request a hearing.
We have restated the rule in initially proposed paragraph (f) regarding the conditions under which VA will hold a hearing prior to adverse action so it reads in the affirmative, rather than in the negative. That is, stating “VA will conduct a hearing . . . only if . . .”, rather than, “VA will not conduct a hearing . . . unless . . . .” This change is consistent with part 5's preferred style of stating rules in the affirmative. We have also removed the second sentence of initially proposed paragraph (f)(1) providing examples of good cause for failing to report for a hearing. It is the same as the last sentence of paragraph (e)(3). Paragraph (e) provides the rights and responsibilities of the beneficiary regarding hearings generally. The provision need not be repeated in paragraph (f), which comprises hearing requirements in addition to those elsewhere in § 5.82.
One commenter noted that initially proposed paragraph (f)(3) requires that VA “send the notice of the time and place for the predetermination hearing at least 10 days before the scheduled hearing date” and urged that VA provide similar advanced notice for hearings conducted under paragraph
One commenter urged VA not to use the term “predetermination hearing” in § 5.82(f), which describes hearings conducted after VA proposes to take some adverse action affecting benefits, but before rendering a decision. The commenter noted that a claimant may request a hearing at any time, including prior to the initial decision on a claim, which would also be a “predetermination hearing.” The commenter did not offer any suggestion as to what term VA should use in its place.
We agree that any hearing preceding a determination can accurately be called a “predetermination” hearing. The term “predetermination hearing” has been used in current regulation 38 CFR 3.105(i) for many years and is widely understood by VA adjudicators, veterans, and veterans' representatives. It is clear in § 5.82(f) what the term means and we are not aware of any other term that would be more clear to readers. Nonetheless, it is jargon and not essential. A hearing is a hearing. The same rules apply to the conduct of the hearing described in paragraph (f) as to any other hearing. The decision maker must give the same consideration to the testimony and evidence presented as with any other hearing. The unique effect of a request for a hearing prior to a possible adverse decision is that VA will not reduce or discontinue the benefit payments prior to hearing. It is this relationship of the request for a hearing to the timing of any action resulting from the decision whether to reduce or discontinue a benefit that gave rise to the term “predetermination” hearing. This rule is in the last sentence of § 3.105(i)(1), and initially proposed § 5.82(f)(4) restated it. The rule applies regardless of whether the hearing has a special name. For consistency throughout § 5.82, and to avoid any confusion of the sort the commenter highlighted, we propose to remove the modifying term “predetermination” prior to the term “hearing” in paragraph (f).
Initially proposed § 5.82(f)(3) stated that VA will send the notice of the time and place for a predetermination hearing at least 10 days beforehand and that this requirement may be waived by the beneficiary or representative. This 10-day notice provision is currently contained in 38 CFR 3.105(i). Three commenters asserted that this 10-day advanced notice period is often not adequate. They referred variously to the time it takes to deliver the mail, the distance a claimant or beneficiary must travel, and the time required to gather the funds or arrange for time off work to attend a hearing. One commenter urged VA to adopt a rule providing for “negotiated appointments acceptable to both parties, with at least 30 days' notice unless otherwise agreed.”
Regarding the suggestion that we revise initially proposed § 5.82(f) to provide 30 days advanced notice of the date of the hearing; we decline to make this change. Ten days is sufficient time for beneficiaries to receive VA's scheduling letter and, if necessary, to contact VA to reschedule. VA already has the inherent discretion to resolve situations where a beneficiary needs more time. For example, if VA's letter arrived while the beneficiary was on vacation and the beneficiary was unable to reschedule before the hearing date, VA would reschedule the hearing when the beneficiary contacted VA. Second, we note that the 10-day provision has been contained in § 3.105(i) for over 15 years and there have been few, if any, complaints from beneficiaries about this provision. For these reasons, we propose to make no changes based on this comment.
We propose to revise initially proposed paragraph (f)(4), removing the term “final” before “decision”. The decision that follows a proposal to reduce or discontinue a benefit is not a “final” decision as VA defines “final” in § 5.1. Like any other decision on entitlement to benefits, it is subject to appeal and can become final by expiration of the time allowed to appeal the decision, or because the Board of Veterans' Appeals has ruled on an appeal from the decision. The decision to which paragraph (f)(4) refers is the type of decision described in § 5.160 as “binding”. Compare preamble to § 5.160, with § 3.104(a) (final and binding decision).
In the NPRM, we initially proposed not to include in § 5.82 the last sentence of current § 3.103(c)(2). We stated in the preamble of the NPRM that the provision is redundant because 38 U.S.C. 5103A(d), enacted in 2000, requires VA to provide a medical examination if it is “necessary to make a decision on the claim”. This § 5103A(d) examination or opinion provision is now § 5.90(c)(4)(i), which derives from § 3.159(c)(4).
One commenter objected to our proposal not to include the provision concerning a visual examination by a physician in part 5. The commenter stated that there is significant difference between a claimant's right to request a visual examination during a hearing and a claimant's right to request an examination under 38 U.S.C. 5103A(d). The commenter expressed the opinion that under current § 3.103(c)(2), a claimant has the right to have a VA physician “read into the record” the physician's relevant observations but under 38 U.S.C. 5103A(d) there is no guarantee that VA will grant a request for a VA examination. The commenter also noted that under VA's current regulation implementing 38 U.S.C. 5103A(d), 38 CFR 3.159, now § 5.90, VA does not provide examinations for veterans seeking to reopen denied claims. The commenter urged VA to revise § 5.82 to authorize a visual examination by a physician.
Initially, we note that the claimant did not have a right to have a VA physician “read into the record” the physician's relevant observations, but could request a visual examination by a physician. Provision of the visual examination was at the discretion of the VA. The portion of the regulation providing for a visual examination by a physician at a hearing was included in the regulation at a time when the regional offices had physicians (medical members) on the staff, usually as part of the rating board. At that time, the medical member would either attend the hearing or be available nearby within the regional office if needed to conduct the visual examination. Regional offices rarely have a medical member on rating boards any more. Few regional offices have the capability of providing the visual examination by a physician at the hearing location. The provision for a visual examination during the hearing is an anachronism and no longer practical.
Additionally, while there is no “guarantee” that VA will grant a request for a VA examination, the language of 38 U.S.C. 5103A(d) (“necessary to make a decision on the claim”) provides sufficient assurance that VA will obtain needed medical examinations. If an examination is necessary to make a decision on the claim, one will be scheduled. If an examination is not necessary to make a decision on the claim, a visual examination at a hearing would be unlikely to assist the claimant. We also note that in most cases, it is preferable to have a claimant examined by a physician in a medical office (where testing equipment and privacy is available), rather than in a hearing room at a VA regional office. For these reasons, we propose to make no changes to initially proposed § 5.82 based on this comment.
Regarding the commenter's suggestion that VA revise current §§ 3.159 or 5.90
One commenter asserted that the use of the phrase, “the payment of benefits or the granting of relief” could be interpreted as more narrow than the provision in 38 U.S.C. 5104(a), which reads, in pertinent part, “[i]n the case of a decision by the Secretary under section 511 of this title affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and the claimant's representative) notice of such decision.” The commenter urged VA to replace the phrase “the payment of benefits or the granting of relief” with “the provision of benefits”.
We disagree that the phrase “the payment of benefits or the granting of relief” would permit VA not to give notice of decisions of which it would have to give notice if the regulation used the statutory language. The proposed language is taken verbatim from 38 CFR 3.103(b)(1) and is well understood to include VA decisions that involve monetary benefits and those that do not. Switching to the statutory language “provision of benefits” could be misinterpreted to mean only decisions involving monetary benefits. We therefore decline to make the change suggested by this commenter.
The same commenter also noted that the use of “proposed adverse action” in paragraph (a) was confusing. The commenter urged VA to strike the reference to proposed adverse actions and revise the second sentence of paragraph (a) for clarity.
In reviewing initially proposed § 5.83 in response to this comment, we have determined that paragraphs (a) and (b) should be reorganized for clarity. We have restructured these paragraphs so that (a) covers only notices of proposed adverse actions and (b) covers only notices of decisions. Consistent with this structure, we have listed the elements which are contained in each type of notice.
Another commenter stated that initially proposed § 5.83(b) (redesignated as paragraph (a)) would reduce the time VA allows to submit evidence from 1 year to 60 days, which is disadvantageous to veterans. The commenter apparently has mistaken the time VA allows for a beneficiary to submit evidence in response to a notice of a proposed adverse action with the time VA allows for a claimant to submit evidence in support of a claim for benefits. Compare 38 CFR 3.159(b) with 38 CFR 3.103(b)(2). Initially proposed § 5.83 is based on § 3.103, which also states that the time period for a claimant to submit evidence in response to a notice of adverse VA action is 60 days. Therefore, we propose to make no changes based on this comment.
In responding to these comments, we determined that the initially proposed rules failed to explain our omission of the substantively identical provisions found in paragraphs (d), (e), (f), and (h) of 38 CFR 3.105, which state that before notice of a proposed adverse action is sent to a beneficiary, “a rating proposing severance will be prepared setting forth all material facts and reasons.” We believe that these provisions confer no rights or duties and relate purely to internal agency procedures, so it is not necessary to include them in VA's regulations. The due process guarantee of advance notice contained in the second sentences of those paragraphs is included in proposed § 5.83(a).
One commenter asserted that both the current and proposed rules were “contrary to law” because they imposed a 30-day deadline in which the beneficiary is required to contest the decision in order for VA to retroactively restore benefits. The commenter noted that under 38 U.S.C. 7105(b)(1), a beneficiary has 1 year to initiate a corrective action for an erroneous decision or action by VA. This would be done by filing a Notice of Disagreement with the VA decision. The commenter also asserted that “any action based on nonexistent facts or false information provided by a third party would be
We agree with the commenter that 38 CFR 3.156(b) and 3.400(q) require that when VA reverses a decision, the effective date will be set as if the decision had not been rendered. The intent of § 3.103(b)(4) (
However, in order to avoid any confusion that initially proposed § 5.84 limits the rights of beneficiaries as described above, we are adding the following language as a new paragraph (a)(2), “[t]his paragraph (a) does not limit the right of a beneficiary to have benefits retroactively restored based on evidence submitted within the 1-year appeal period under § 5.153, `Effective date of awards based on receipt of evidence prior to end of appeal period.' ”
Also to avoid confusion, we have inserted the word “written” before “information” in § 5.84 to distinguish that term from “oral statements”.
In the NPRM, we stated:
Title 38 CFR 3.159 is currently the subject of a separate VA rulemaking which will implement changes made by section 701 of Pub. L. 108–183, 117 Stat. 2670. When that rulemaking is complete, we plan to repeat the language of the amended § 3.159 as § 5.90. We therefore propose in this rulemaking to reserve space for proposed § 5.90.
VA has published the final rule amending 38 CFR 3.159 and we are now inserting the current language of § 3.159 as § 5.90 (RIN 2900–AM17, “Notice and Assistance Requirements and Technical Correction”, 73 FR 23353, Apr. 30, 2008, with amendment 73 FR 24868, May 6, 2008; based on § 3.159). We propose to remove the definitions of competent medical evidence and competent lay evidence, revise the definition of competent expert evidence, and place the definitions in § 5.1. We have reorganized § 5.90 accordingly and changed the references to part 3 regulations to refer to part 5 regulations.
In addition to the provisions of § 3.159, we propose to include in § 5.90 the provisions of current § 3.109(a). These provisions relate closely to the other provisions in § 5.90 and so it is logical to move them into that rule. However, we propose to clarify the sentence, “Information concerning the whereabouts of a person who has filed a claim is not considered evidence” in § 5.90(b)(3). This sentence means that if a claimant submits information or evidence concerning his or her mailing address, that is not considered information or evidence under paragraph (b). We propose to revise the sentence accordingly to clarify its meaning. The only other change we propose is that we have simplified the scope sentence stated in § 3.109(a)(2) so that it simply says that the rule applies to all part 5 applications.
Subsequent to the publication of proposed § 5.90, section 504 of Public Law 112–154 (2012) amended 38 U.S.C. 5103 by removing the requirement that a claimant submit “a complete or substantially complete application” as a prerequisite to VA providing notice of information and evidence needed to substantiate the claim. Section 504 also amended § 5103 to relieve VA of the requirement to provide such notice “to any claim or issue where the Secretary may award the maximum benefit in accordance with this title based on the evidence of record.” We propose to include these statutory changes § 5.90.
Section 505 of Public Law 112–154 (2012) extensively amended 38 U.S.C. 5103A regarding VA's duty to assist claimants. VA plans to conduct a rulemaking to implement § 505 in part 3 and will incorporate those part 3 regulations into part 5.
One commenter urged VA to replace the word “may” with “shall,” concerning the acceptance of private medical evidence, because this would be consistent with the Congressional intent behind 38 U.S.C. 5125. Although that statute uses the word “may,” the commenter asserts that Congress meant to give VA authority to accept private medical examination reports in place of VA examination reports, but that once VA has determined to accept such private reports generally, it cannot accept or reject such reports “on a whim”. The commenter asserted, “[s]uch unwarranted discretion defeats the very purpose of the rule.”
We disagree that Congress' intent was merely to give VA authority to accept private medical examination reports generally. Rather, the plain language of 38 U.S.C. 5125 allows VA discretion to accept or reject such evidence in each individual case. We do not agree that this process defeats the purpose of the rule. This process allows VA the necessary discretion to reject private reports which, although technically “adequate for purposes of adjudicating a claim”, VA considers to be potentially biased or unreliable. We therefore decline to make the change suggested by this commenter.
Another commenter suggested that VA revise § 5.91 to require VA regional offices to “give a clear and precise explanation for why the claimant's medical evidence is not sufficient to render a VA examination unnecessary.” We decline to adopt this suggestion because such an explanation would be of little use to claimants. VA has a duty to make reasonable efforts to obtain the evidence necessary to properly decide each claim. In addition to the medical evidence provided by the claimant, VA will schedule a VA examination if one is “necessary to decide the claim.”
In initially proposed § 5.92 we repeated the content of current 38 CFR 3.328 without change.
One commenter expressed concern that § 5.92 could be confusing by implying that VA will obtain independent medical opinions in place of VA medical examinations. We do not agree and we propose to make no changes based on this comment. Initially proposed § 5.92 did not state or imply that we would not comply with the provisions of § 3.159. The evidence obtained under the provisions of § 5.92 will generally supplement the other medical evidence with an independent medical opinion “[w]hen warranted by the medical complexity or controversy”.
Another commenter noted that § 5.92(a) gave VA authority to obtain an independent medical opinion when “warranted by the medical complexity or controversy” while paragraph (c) stated that, in order for VA's Compensation and Pension Service to approve requests for such opinions, the claim must pose “a medical problem of such obscurity,” complexity, or controversy. We agree that it would be logical to state the criteria for such opinions using the same terminology in both paragraphs and we have removed the word “obscurity” from paragraph (c). Both paragraphs now use the language used in the authorizing statute, 38 U.S.C. 5109.
Another commenter urged VA to revise § 5.92 to require that VA provide claimants with copies of all communications between the VA regional office and the institution providing the independent medical opinion. The commenter asserted that, “[s]uch a requirement for openness . . . will ensure the fairness and integrity of this new procedure.”
As a preliminary matter, we note that the procedure to obtain an independent medical opinion is not new and has been contained in § 3.328 since 1990.
One commenter urged VA to include a provision in § 5.92(d) allowing a claimant a specified period of time to respond to an independent medical opinion that is adverse to the claimant. We do not believe this change to be necessary because, at the time that VA is seeking the independent medical opinion, the claimant is informed that the independent medical opinion is being sought and also what specific information is being sought. This provides the claimant ample time and
One commenter asserted that the force of § 5.93 is diminished due to the confusing use of terminology. The commenter argued that the phrase, “alternative evidence” should be replaced with, “evidence from alternative sources.” Upon review of the regulation, we propose to change the regulation according to the commenter's suggestion. As noted by the commenter, the evidence sought may be a copy of the missing evidence, not alternate evidence.
In the AL82 NPRM, we inadvertently failed to include provisions contained in current 38 CFR 3.109(b). We are doing so now in § 5.99. This rule restates § 3.109(b) without substantive change. We are clarifying in § 5.99(c) that while late requests for extensions will be permitted under some circumstances, as is currently the case, no extension of time will be granted after VA has made a decision on the claim to which the information or evidence relates and the time to appeal that decision has expired.
One commenter felt that VA should specify that the holidays referenced in the regulation are Federal holidays. We agree and have added the word, “Federal” before holidays in § 5.100(a).
One commenter felt that this regulation should specify whether the date of mailing or the date of receipt by VA would be the ending date of the applicable time period provided to a claimant to respond to a VA communication. We propose to make no changes based on this comment. This regulation is intended to specify how to calculate a time limit. Within part 5, where a response is required to be submitted within a certain time, all the sections specify how the ending date of the applicable time period provided to a claimant will be calculated. This is generally the date of receipt by VA of whatever evidence or information is requested, if received within the applicable time period. To include the ending date information here would be redundant.
One commenter felt that VA should revise this regulation since the commenter felt that sometimes a VA letter may be signed after the last mail pickup for that day. The letter would not actually be mailed until the following workday. The commenter felt that this rule provided for a “convenient and arbitrary assumption that disfavors claimants.” A second commenter agreed, stating that the word “considered” should be removed from the second to last sentence in order to avoid having VA rely on a date that it may know to be erroneous.
We propose to make no changes based on this comment. This regulation provides that the first day of the specified time period will be excluded in computing the time limit for any action required of a claimant. This ensures that the claimant is generally provided the full time period. Additionally, the time periods provided allow ample time for the claimant to respond. While it is true that the 1-day grace period provided by not counting the date of the letter in the time period does not provide for those situations where the letter is dated on a Friday afternoon, but not actually posted until Monday, the claimant still has been provided sufficient time to respond to any requests for information or evidence.
One commenter urged VA to adopt a system of notice for determining the time periods for claimants or beneficiaries' responses similar to that found in 41 U.S.C. 609(a)(3), which provides that the period of time begins running when the notice has been received. VA currently begins the period of time from the date of mailing as shown by the date of the letter sent to a claimant or beneficiary. The commenter felt VA could better afford the minor expense of certified mail than could the claimant or beneficiary.
VA communicates with claimants and beneficiaries at various stages in the adjudication process, using various means. It would not be appropriate to regulate the manner of all such communications because VA needs discretion to use the most effective means of communications and because such means may change over time. Additionally, VA routinely sends hundreds of thousands of pieces of mail to veterans, claimants, and beneficiaries, as well as their representatives. While the burden for sending any one piece of mail by certified mail is small, the expense and time required to send all notices by certified mail would be overwhelming, both in increased monetary cost and human resources expended. Routinely sending certified mail to veterans, claimants, or beneficiaries is not necessary, nor, in most situations, helpful to the veterans, claimants, or beneficiaries. VA provides sufficient time for a veteran, claimant, or beneficiary to respond to the communications we send them. It is not burdensome for the veteran, claimant, or beneficiary to respond, when necessary, within the time limits specified in the communication. The additional two or three days that would be provided by starting the time period from date of receipt instead of date of mailing would rarely assist a veteran, claimant, or beneficiary. For these reasons, we decline to make any changes based on this comment.
Initially proposed § 5.101 explained the statutory requirement that claimants and beneficiaries must provide VA with their Social Security numbers and their dependents' numbers.
One commenter urged VA to excuse those claimants or beneficiaries who, for good cause, fail to provide their Social Security number. The commenter urged that, if VA reduces or discontinues benefits, it should resume the benefits retroactively from the effective date of the reduction, if the person had good cause for the failure.
We note that, as stated in initially proposed § 5.101(f), “A claimant or beneficiary is not required to provide a Social Security number for any person to whom a Social Security number has not been assigned.” Other than this, we are unaware of any reason which would constitute good cause for a claimant or beneficiary failing to provide VA with his or her Social Security number, nor does the commenter offer any such example. We therefore propose to make no change based on this comment.
Initially proposed § 5.101(d) stated, “[i]f a claimant or beneficiary provides VA with the requested Social Security number, VA will resume payment of benefits at the prior rate, effective on the date VA received the Social Security number, provided that payment of benefits at that rate is otherwise in order.” One commenter noted that under paragraph (d), if a claimant or beneficiary failed to furnish the required Social Security number within the deadline but later provided it, VA would pay benefits only from the date it received the Social Security number. The commenter noted that § 5.101 would treat claimants and beneficiaries disparately in that if they ultimately provided VA their Social Security
When a claimant receiving benefits is requested to provide a social security number and does not promptly comply, VA may certainly administratively suspend payment (`terminate the payment') of benefits pursuant to § 5101(c), but the benefits should be resumed effective the date of suspension if the requested information is provided within 1 year. Such a rule would be consistent with the time an applicant has to provide the social security number under sections 5102(c) and 5103(b) and the general rule in 38 CFR 3.158 (2004) that a claim will be considered abandoned only if the requested information is not provided within 1 year.
The commenter asserted that this rule would be contrary to 38 U.S.C. 5102 and 5103, which do not explicitly authorize VA to reinstate benefits only from the date a beneficiary ultimately provides VA his or her Social Security number. In reviewing paragraph (d) in response to this comment, we noted that VA cannot “resume” payments to a claimant, since VA has not begun paying such a person. We therefore propose to remove the term “claimant” from this paragraph, so that it would relate only to beneficiaries and not to claimants.
Regarding the disparity noted by the commenter, we first note that it is not inconsistent with the relevant statutes, 38 U.S.C. 5101–5103. Sections 5102–5103 only cover claims, not running awards, so they are not germane to the disputed provision. Section 5101(c)(2) states that “the Secretary shall deny the application of or terminate the payment of compensation or pension to a person who fails to furnish the Secretary with a social security number required to be furnished pursuant to paragraph (1) of this subsection. The Secretary may thereafter reconsider the application or reinstate payment of compensation or pension, as the case may be, if such person furnishes the Secretary with such social security number.”
This statute, and its implementing regulation 38 CFR 3.216, leave a gap regarding the effective date for the reinstatement of benefits. VA's long-standing practice has been to resume benefits effective the date the beneficiary ultimately provides the social security number. If the rule were changed as the commenter urges, VA would in such cases have to make retrospective determinations, in some cases going back many years, on whether the former beneficiary actually met all the entitlement criteria for the benefit during the entire retroactive period. This would consume considerable VA resources when compared with the rule proposed in § 5.101(d). Furthermore, there is no indication that our proposed rule creates a hardship for beneficiaries. For these reasons, we propose to make no change based on this comment.
Initially proposed § 5.101(e), entitled, “Claimant's application for VA benefits
After reviewing the applicable statutes and VA's other regulations, we agree with the commenter that it would be appropriate to clarify that a claimant has 1 year in which to submit the requested Social Security number. We therefore propose to add a sentence to § 5.101(e), based on a provision from § 5.90(b)(1)(i) (based on current 38 CFR 3.159(b)(1). This new sentence states, “[i]f VA denies the claim or denies benefits for the dependent, and the claimant subsequently provides the Social Security number no later than 1 year after the notice, then VA must readjudicate the claim.”
In making this proposed change based on the comment, we noted that the 60-day deadline in 38 CFR 3.216 applies only to beneficiaries, not to claimants. In order to be consistent with § 5.90(b)(1)(i), we propose to revise the 60-day period in § 5.101(e) to 30 days. In addition to being consistent with § 5.90(b)(1)(i), we believe that 30 days is sufficient time for claimants to provide VA with requested Social Security numbers.
Subsequent to the publication of proposed § 5.101, section 502 of Public Law 112–154 (2012) amended 38 U.S.C. 5101 by adding a new paragraph stating if an individual has not attained the age of 18 years, is mentally incompetent, or is physically unable to sign a form, a form filed under paragraph (1) for the individual may be signed by a court-appointed representative, a person who is responsible for the care of the individual, including a spouse or other relative, or an attorney in fact or agent authorized to act on behalf of the individual under a durable power of attorney. If the individual is in the care of an institution, the manager or principal officer of the institution may sign the form. The term `mentally incompetent' with respect to an individual means that the individual lacks the mental capacity—
• To provide substantially accurate information needed to complete a form; or
• to certify that the statements made on a form are true and complete.
The preamble to initially proposed § 5.103 stated that part 5 would not repeat § 3.655(a) because it is unnecessary. 70 FR 24680, 24685, (May 10, 2005). To clarify, that statement correctly applies only to the first sentence of § 3.655(a). The examples of good cause in § 5.103(f) derive from the second sentence of § 3.655(a).
One commenter felt that the examples provided in the regulation to determine what constitutes “good cause” for failure to report for a scheduled VA examination were too narrow and may lead VA to apply too high a standard to determine what constitutes “good cause”.
The examples of “good cause” for failure to report for a scheduled VA examination in initially proposed § 5.103(f) are the same examples included in the full revision of § 3.655(a), effective December 31, 1990. 55 FR 49520, Nov. 29, 1990. The last sentence of § 5.103(f) is new and requires that VA consider each reason given for missing a VA examination on a case-by-case basis. Use of the examples that have been in place since 1990, together with the last sentence, ensures that determinations concerning whether the veteran had “good cause” for not reporting to the examination will not change. We propose to make no changes based on this comment.
One commenter recommended not repeating § 3.655 in part 5. We disagree because if VA did not repeat this rule, there would be no rule about how to proceed with adjudication if a claimant
The same commenter recommended, alternatively, significantly revising the regulation to eliminate several problems he said it has. The commenter asserted there is no logical reason to distinguish between original and other claims. We interpret the comment to mean that VA should treat a failure without good cause to report for a VA examination the same whether the examination is for an original disability compensation claim or for any other claim.
Before 1991, § 3.655 was silent about VA examinations in original disability compensation claims. 38 CFR 3.655 (1990). It applied only to rating action to be taken upon a failure to report for examination of a beneficiary with an ongoing award of benefits, providing for discontinuance of payments.
There are good and practical reasons to treat the failure to report for an examination in an original claim for disability compensation differently than in other claims. Establishing that a disability is service connected is an element of an original claim for disability compensation that precedes determination of the severity of disability.
The predicate for ordering an examination is that the information to be gained from it is necessary to establish entitlement or confirm continued entitlement to a benefit. In other words, if VA has determined that it cannot decide a claim, or an element of a claim, without the evidence derived from the examination, it would squander resources valuable to the entire veteran community to adjudicate the claim, and it preserves resources to deny the claim upon failure to report for the examination without good cause. We therefore propose to not make any changes in response to this comment.
The object of a VA examination in an original disability compensation claim could be to address one of the elements of proof of service connection,
The same commenter asserted the distinction between types of claims invites fraud. The commenter did not explain how the distinction would invite fraud. We propose to make no changes based on this comment.
The same commenter noted that we had not defined the terms, “other original claim” and “new claim.” The commenter noted that neither term is found in the applicable statutes. The commenter felt this section should be revised so that the terms are understood by claimants and so that the terms fit within the regulatory framework.
In § 5.57, we defined several types of claims. We defined “original claim” in § 5.57(b) as “the first claim VA receives from an individual for disability benefits, for death benefits, or for monetary allowance under 38 U.S.C. chapter 18.” Although not defined in the statutes, the term “original claim” is found in 38 U.S.C. 5110 and 5113. Consistent with how the term is used in current 38 CFR 3.655(b), our use of “other original claim” was intended to mean any original claim arising under part 5 other than an original disability compensation claim. This would include, for example, a claim for a monetary allowance based on spina bifida under 38 U.S.C. chapter 18. We believe that when read in conjunction with § 5.57(b), this term is logical and understandable.
We have not defined the term “new claim”. Based on this comment, we are removing the term from § 5.103(b)(2). We have determined that the term is not needed to assist the reader in understanding what is intended by this regulation.
In addition to the comment about specific terms, the commenter asserted that VA should revise the regulation so its terms are understandable to laypersons and “fall within the rest of the regulatory framework.” The commenter further asserted that the regulation does not fit within the existing statutory framework and opinions of the [VA] General Counsel. The commenter did not explain how the regulation fails to fit within VA's statutory or regulatory framework or cite any precedent opinion of the General Counsel that the regulation violates. Consequently, we do not find anything in this comment to which VA can respond, and we propose to make no changes to the regulation in response to it.
Finally, the commenter recommended an “escape clause” that precludes “endless good cause.” The object would be to permit VA to decide a claim after a year if a claimant fails to report for an examination for a good cause of indefinite duration, such as being in a coma. The commenter suggested that the regulation should provide for VA to reschedule an examination missed for good cause if that good cause ends within 1 year. We construe the commenter to mean that if the good cause for failure to report for a VA examination persists for more than a year after the date of the examination appointment the claimant did not keep, VA would decide the claim on the evidence of record.
We will not add the suggested provision for five reasons. First, the suggestion would abrogate the distinction between original disability claims and other claims. Whether the claimant failed to report for good cause or no cause, without the examination that VA determined is necessary to decide a claim (other than an original disability compensation claim), the status of the evidence would still be such that VA could not grant the claim without the examination. Second, it is to the advantage of a claimant to suspend the claim until the contingency that prevented the claimant from reporting for the examination is removed, because it leaves the claimant
In reviewing initially proposed § 5.103, we noted that the last two sentences of paragraph (d)(1) stated, “The letter [proposing to reduce or discontinue benefits] must include the date on which the proposed discontinuance or reduction will be effective, and the beneficiary's procedural rights.
In responding to these comments, we noted that the initial NPRM failed to explain our addition of the third sentence of § 5.103(a): “If a claimant or beneficiary, with good cause, fails to report for a VA examination or reexamination, VA will reschedule the examination or reexamination.” Though §§ 3.326(a) and 3.327(a) provide for scheduling VA examinations, and § 3.655 prescribes VA action upon a claimant's failure to report for a necessary examination without good cause, nothing in part 3 specifically states that VA will reschedule an examination a claimant missed with good cause, which is VA's standard procedure. We propose to set forth this important point in paragraph (a).
In initially proposed § 5.104(c), we removed the reference to the effective date provisions. In part 5, the effective date provisions are not contained within one regulation, but are located with the regulation concerning the benefit to which the provisions apply. To include these provisions would result in an extremely long and complex paragraph which would not be helpful to the claimants or beneficiaries.
The changes in terminology in this final rulemaking are made primarily for purpose of achieving consistency throughout our part 5 regulations. We replaced the word “evaluation” with “rating;” the term “on behalf of” with “for” or “to or for” where appropriate; and the word “notify” with “send notice to”. As noted earlier, we are removing the modifying term “predetermination” prior to the term “hearing”.
In a document published in the
We propose to revise and reorganize initially proposed § 5.130 for clarity. We propose to add the word “claimant” to the regulation to accurately reflect that this regulation covers submissions by both claimants and beneficiaries. Proposed § 5.130 was derived from § 3.217, which was originally issued to permit modification of existing awards based on electronic and oral reporting of changes, including, but not limited to, income and dependents.
The initially proposed rule referred to “other electronic means” of submissions. We propose to add “that the Secretary prescribes” in paragraphs (a)(1) and (b)(1), to clarify that VA will determine the means or medium of submission it will accept. Additionally, this phrase allows for technological changes over time.
Whereas the initially proposed regulation did not address claimants, it did not distinguish between them and beneficiaries. We propose to revise the regulation to distinguish between the media that claimants may use to file statements, evidence, or information, and the media that beneficiaries may use. VA currently accepts email and oral submissions only from beneficiaries, not from claimants. As revised, paragraph (a) would address submissions from claimants and provide the acceptable media for those submissions. Paragraph (b) would address submissions from beneficiaries and allow submissions, either orally or by email. Paragraph (b)(4) would prescribe VA action upon receipt of an oral statement.
One commenter questioned why we used the word “may” instead of “will” when referring to how VA will use verbal information provided by a beneficiary or fiduciary. We explained in the preamble to the proposed rule that the word “may” was more accurate because “VA may determine that the information or statement needs to be verified through other means”. However, the commenter pointed out that VA will use the evidence, even if it is just to “initiate an investigation to . . . confirm and continue an existing award”, or to contradict prior evidence. We agree with the commenter as the comment applies to the proposed use of “may” in proposed paragraphs (c)(1)(iii) and (2)(v). We propose to change “may” to “will” in redesignated paragraphs (b)(4)(iii) and (iv)(E). We have also decided that the phrase “VA may take action” used in proposed paragraph (b) is more accurately stated as “VA will take appropriate action”, and propose to make this change accordingly. That is because whether VA takes any action that affects entitlement to benefits and what type of action it will take will depend on the content of the submission.
We also propose to change “affecting the [claimant's or beneficiary's] entitlement to benefits based upon” to “in response to”. This is because a submission might not affect entitlement to benefits. The entire clause now reads, “VA will take appropriate action in response to the statement, evidence, or information.” We have made this change, and the change discussed in the preceding paragraph, in paragraphs (a)(3) and (b)(3), which are parallel provisions applying to claimants and to beneficiaries, respectively.
Based on this comment, we have also decided that it would be more accurate to say that VA will use the statement described in proposed paragraphs (b)(4)(iii) and (iv)(E) “to determine entitlement” as well as “to calculate benefit amounts”. Accordingly, we propose to add the phrase “to determine entitlement” in those paragraphs as redesignated. We also propose to revise this sentence from passive voice to active voice.
Initially proposed § 5.130 used the term “form”. This term is no longer used in part 5. For consistency, we propose to change the term from “form” to “application”, which is currently defined in § 5.1.
Initially proposed § 5.130(a)(1) stated:
It is VA's general policy to allow submission of statements, evidence, or information by email, facsimile (fax) machine, or other electronic means, unless a VA regulation, form, or directive expressly requires a different method of submission (for example, where a VA form directs claimants to submit certain documents by regular mail or hand delivery). This policy does not apply to the submission of a claim, Notice of Disagreement, Substantive Appeal, or any other submissions or filing requirements covered in parts 19 and 20 of this chapter.
In reviewing this paragraph in responding to comments, we determined that the last sentence might be misconstrued to mean that a claimant may not file a claim, a Notice of Disagreement (NOD), a Substantive Appeal, or other item covered in 38 CFR parts 19 or 20 electronically. This was not our intent. Section 5.130 concerns submission of a statement, evidence, or information, and not submission of claims. Filing requirements for an NOD and for a Substantive Appeal are in parts 19 and 20. To avoid this possible misconstruction, we propose to remove this sentence.
One commenter noted a typographical error in the preamble language of the initially proposed rule. The error was in the misspelling of the word “belief”. We acknowledge the typographical error but find no need to make the suggested change because the error is not substantive and is contained within the preamble language to the proposed rule which will not be published again.
Initially proposed § 5.132(a) incorrectly grouped together claims, statements, information, and evidence, leading to the absurd implication that, under the terms of the regulation, a claim could be filed in support of a claim. Therefore, we propose to revise § 5.132(a) to separate a “claim” from a “statement, information, and evidence.” Additionally, we reviewed § 3.108, the part 3 provision from which proposed § 5.132(a) is derived, and now propose to reinsert the introductory clause from that section. The introductory clause of § 3.108 explains that certain Department of State representatives in foreign countries are authorized to act as agents for VA. We believe that this information, which was not in initially proposed § 5.132(a), will be valuable to the reader in understanding the agency relationship between the Department of State and VA, and we propose to add it to paragraph (a).
Finally, the regulation text in initially proposed § 5.132 limits evidence of establishing birth, adoption, marriage, annulment, divorce, or death to copies of “public” or “church” records without referencing other religions or religious institutions. We propose to add “other religious-context” records to the regulation text in proposed § 5.132(c)(5) in order to recognize that other religions or religious records, besides church records, may suffice.
One commenter noted that the style of the title of this section as a question was inconsistent with other section titles throughout this part. The commenter suggested an alternative title that “would more closely parallel that of the other proposed sections”, specifically “VA acceptance of signatures by mark or thumbprint”. We agree with the commenter's suggestion and propose to adopt the proposed language as the section title with a slight modification.
The commenter also suggested revising the content of this section. The commenter questioned whether the regulation, as written, would produce unintended results, such as a situation where “an individual who can write his or her name may choose to make a mark or sign by thumbprint”. We recognize the possibility of the hypothetical posed by the commenter, however, it is unlikely that a person who is capable of signing would choose the more burdensome witness/certification process. Even if that occurred, the witness/certification process would be adequate to verify the person's identity and therefore not cause a problem. We decline to make any change based on that comment.
One commenter noted that initially proposed § 5.135(b) only applied to evidentiary requirements for claims for service connection, even though we stated in the preamble that we proposed to apply the evidentiary requirements equally to all claims for compensation or pension benefits. We agree with the commenter and therefore propose to remove the restrictive language “for service connection” in § 5.135(b). Any documentary evidence or written assertion of fact filed by the claimant or on his or her behalf, for purpose of establishing a claim, must be certified or under oath or affirmation. However, as the rest of the subsection provides, VA may consider a submission that is not certified or under oath or affirmation if VA considers certification, oath, or affirmation unnecessary to establish the reliability of a document. The language of the subsection has been revised for clarity.
In initially proposed § 5.135(b) we stated, “Documentary evidence includes records, examination reports, and transcripts material to the issue received by VA from State, county, or municipal governments, recognized private institutions, or contract hospitals.” We have determined that the phrase “material to the issue” is inaccurate because this paragraph applies regardless of whether the evidence is material or not. We therefore propose to remove this phrase.
In the proposed rulemaking, we reserved § 5.136. 72 FR 28770, May 22, 2007. We have now decided to name it “Abandoned Claims”, which is derived from § 3.158(a). We propose to make several changes to the language derived from § 3.158(a) to increase clarity. The scope of the current rule is limited to “an original claim, a claim for increase or to reopen or for purpose of determining continued entitlement”. We propose to expand the scope of § 5.136 to include any claim. This is
One commenter noted a typographical error in proposed
The commenter also pointed out a typographical error in the preamble language concerning this section. The error referred to a mischaracterization of the term “regional office decisions”. We acknowledge the typographical error, but propose not to make the suggested change because the preamble language to the initially proposed rule will not be published again.
In reviewing initially proposed § 5.140, we determined that it would be helpful to readers for all part 5 provisions regarding how VA determines former POW status to be in one section. Therefore, we propose to remove the definition of former POW from § 5.1, “General definitions”, and place it in § 5.140. In combining these two provisions, we have removed redundant material that was contained in initially proposed §§ 5.1 and 5.140.
Several commenters questioned the use of the phrase “date entitlement arose” in place of the phrase “facts found”. In the preamble to the proposed rule, we explained our decision to use “date entitlement arose” by the need for consistency throughout part 5 as well as our understanding that the two terms meant the same thing and are used interchangeably. One commenter did not agree that “facts found” and “date entitlement arose” were interchangeable terms. Rather, the commenter asserted that “facts found” is an alternative to “date entitlement arose” because the latter presumably arises as a matter of law, such as once a claim is actually filed, but is only compensable beginning from a date that is supported by the factual evidence. We believe that the phrase “date entitlement arose” will be clearer to lay persons than the phrase “facts found”, and that § 5.150(a)(2) makes clear that the phrase “date entitlement arose” refers to what the factual evidence shows rather than to procedural requirements such as filing claims. Also, VA regulations have long used “date entitlement arose” without the confusion the commenter described. We note that we do not intend any substantive changes to the determination of the effective dates for benefits based on this substitution of phrases.
The same commenter also felt that it would be unnecessary and possibly confusing to a Veterans Service Representative to pick the latter of either the “date of receipt of the claim” under paragraph (a)(1) or “date entitlement arose” under paragraph (a)(2). The commenter felt that the date of receipt of a claim would presumably always be the later date, since veterans usually experience a disability before filing a claim of entitlement to compensation. The commenter asserted that VA adjudicators sometimes assign “the later effective dates based on the reasoning that increased disability was not factually ascertainable until proven by a VA examination or medical opinion.”
We propose not to make any changes based on this comment because while (a)(2) acknowledges that the date entitlement arose usually precedes the filing of a claim, this may not always be the case. For example, a veteran may file a claim but have it properly denied due to lack of evidence. However, if the veteran later files new evidence that shows that the veteran did not meet all the criteria for a benefit on the date the claim was received, but his or her medical condition changed so that the criteria were satisfied while the appeal was still pending, the date entitlement arose will be after the claim was received. Regarding the assertion that VA adjudicators sometimes assign later effective dates because an increased disability was not factually ascertainable until proven by a VA examination or medical opinion, we note that VA has authority to accept non-VA medical records or lay statements as a basis for setting an effective date.
In responding to these comments, we noted that the first sentence of paragraph (a)(2) could be clarified. In the NPRM, it read, “For the purposes of this part, `date entitlement arose' means the date shown by the evidence to be the date that the claimant first met the requirements for the benefit awarded.” We now propose to simplify this sentence to read, “For purposes of this part, `date entitlement arose' means the date that the claimant first met the requirements for the benefit as shown by the evidence.”
Another commenter suggested keeping the phrase “facts found” because he did not think the phrase was ambiguous or unclear. We have reconsidered the replacement of “facts found” with “date entitlement arose”, however, we decline to keep the phrase “facts found”. As discussed above, the phrase “date entitlement arose” is easier to interpret and apply as it is more instructive as to how VA will make an effective date determination. Furthermore, we do not intend this substitution of the phrases as a substantive change in determining effective dates for benefits.
One commenter suggested that VA should assume that entitlement to benefits arises as of the date of receipt of the claim rather than before the receipt of the claim. In the commenter's view, “this would prevent a conflict with 38 U.S.C. 5110(b)(2)”. We disagree with the commenter and do not see a conflict between the regulation and statute. Indeed, if VA assumed that entitlement to benefits arises as of the date of receipt of the claim, rather than beforehand, that would deprive veterans of potential entitlement to earlier effective dates under § 5110(b)(2). We therefore propose to make no changes based on this comment.
We omitted the provisions of current § 3.400(h)(3) from the AM01 NPRM without any explanation in the preamble. For the reasons discussed below, we propose to omit them from part 5.
Section 3.400(h)(3) states, “As to decisions which have become final (by appellate decision or failure to timely initiate and perfect an appeal) and reconsideration is undertaken solely on Department of Veterans Affairs initiative, [the effective date of an award based on such a reconsideration will be] the date of Central Office approval authorizing a favorable decision or the date of the favorable Board of Veterans[`] Appeals decision.” The current structure of § 3.400(h) first appeared in the CFR in 1969.
For claims that the Board reconsiders and grants “on its own initiative”, there is no distinct effective date rule. VA Central Office reconsiders only non-final decisions under its “difference of opinion” authority (
The initially proposed rule mistakenly omitted the provisions of § 3.400(
As stated in the AM01 NPRM, proposed § 5.150(b), now § 5.150(c), is a table of the location of other effective-date provisions in part 5, which are exceptions to the general effective date rule of proposed paragraph (a). As stated in the proposed rulemaking, the table is for informational purposes. We propose to add the sentence, “This table does not confer any substantive rights”, to clarify that it is a reference tool, and not a substantive rule.
Also, as stated in the preamble to the initially proposed rule, the table showed both already published and as yet unpublished part 5 regulations, which were subject to change. In this NPRM, we have updated the table to reflect the updated part 5 citations. We have also moved the references to effective dates of reductions and discontinuances to a separate table in § 5.705(b). As a result, proposed § 5.150(b), now § 5.150(c), contains only effective date provisions for awards or increased benefits. Having separate tables for each type of effective date will enable readers to more easily locate the section they need.
One commenter proposed adopting a mailbox rule instead of the current date-of-receipt rule for purposes of filing claims. The commenter pointed out that the Board of Veterans' Appeals (the Board) accepts the postmark date as evidence of a document having been timely filed, and suggested that VA should adopt a similar rule for claims.
Initially proposed paragraph (b) consisted of one 93-word sentence. We propose to break the paragraph into three sentences, which will make the paragraph easier to read and understand.
One commenter suggested that we reconsider our decision to restate § 3.114(a) without change. The commenter believed that § 3.114(a) was very difficult to understand and was neither claimant-focused nor user-friendly. In response to this comment, we propose to revise initially proposed § 5.152 to state the provisions in the active voice, replace unnecessarily technical language with more commonly understood language, and reorganize the provisions into a more logical order.
The commenter set forth a detailed fact pattern and then correctly explained how the rule applied to those facts. The commenter then suggested that “
We decline to make any such change because it would be administratively burdensome and an extremely inefficient method of claims processing. The term “claim” is defined in § 5.1 as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit under this part.” In other words, a claimant must identify the benefit sought. It would be unreasonable to require that, for example, the date of receipt of a change-of-address request, which would result in a handling of the claims file unrelated to a claim for compensation, serve as the effective date for retroactive benefits in a compensation claim.
The commenter also suggested that we define the phrase “administrative determination of entitlement”. The commenter did not explain how he believes the phrase is confusing, but the ordinary dictionary meaning of those words is clear. We note that a court has previously held that the meaning of this phrase is clear and consistent with its authorizing statute.
In initially proposed § 5.152(b) we used the term “payment”. We have determined that this term is too narrow because it excludes benefits that have no payment, for example a service-connected disability that was rated noncompensable. We have, therefore, used the term “benefits” instead, which is defined in § 5.1 as “any payment, service, commodity, function, or status, entitlement to which is determined under this part.”
In § 5.152(d)(2), we propose to replace the phrase “the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired” with “VA will pay a reduced rate or discontinue the benefit effective the first day of the month after the end of the notice period”. This change in terminology does not affect the payment made to a beneficiary based on a reduction or discontinuance. The purpose of this change is to remedy any confusion that Veterans Service Representatives or beneficiaries may have experienced in interpreting the former part 3 language, as well as to establish uniform language for describing how to calculate effective dates.
One commenter suggested that we define the term “appeal period”. The term “appeal period” does not need a definition. The ordinary dictionary meanings for the words are sufficient to define the term. The commenter also recommended that the term “appeal period” be defined as any time “after a timely [Notice of Disagreement] and timely Substantive Appeal have been received”. We decline to make such a change because the suggested definition is incorrect. A timely Notice of Disagreement (NOD) and Substantive Appeal are the triggers that initiate appellate review by the Board. The “appeal period”, however, begins with the date of mailing of notice to a claimant concerning a decision made by the agency of original jurisdiction.
We believe that the heading of this section may have caused confusion. Therefore, we propose to revise the heading of § 5.153 to make clear that the regulation refers to both the appeal period and the time period after an appeal has been filed but before a final decision has been rendered.
The commenter also suggested that all evidence received between the date of receipt of a claim and expiration of the appeal period must be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period, and, in claims for increase, evidence received during the 1-year period before the date of receipt of the claim must also be considered. Proposed 5.4(b) states that “VA will base its decisions on a review of the entire record.” Therefore VA must consider the evidence described by the commenter.
One commenter believed that proposed § 5.153 would not prescribe the same effective date for an award based on evidence received during an appeal period as would have applied “had that evidence been submitted and been of record at the time of the decision under appeal”. Proposed § 5.153 prescribed the effective date used in proposed § 5.150 (the general effective date provision for awards or increased benefits) for calculating an effective date based on information or evidence received during the appeal period. The intent in referencing this general effective date provision is to use the same effective date for awarding a benefit as if the final decision being appealed had not been decided. We disagree with the commenter that proposed § 5.153 would lead to a different result than its part 3 predecessors, §§ 3.156(b) and 3.400(q)(1). However, based on the comment, we have reviewed the last sentence of initially proposed § 5.153 and propose to clarify it by replacing it with the language in the last sentence of current § 3.400(q)(1), which states, “The effective date will be as though the former decision had not been rendered.” This change would still lead to the same result as the proposed rule because § 5.150 is still the applicable general effective date provision. We therefore propose to replace the reference to § 5.150 in our regulation text with a cross reference.
This same commenter had several concerns about the preamble discussion of proposed § 5.153 which the commenter believed would cause “misapplication of the law”. The commenter expressed concern with our statement that “if the evidence is submitted within the appeal period or before an appellate decision is rendered, then the effective date of the award can be as early as the date VA received the `open' claim.” 72 FR 28778, May 22, 2007. The commenter noted that “an effective date can be
Similarly, the commenter questioned VA's explanation regarding the removal of the qualifier “new and material” from proposed § 5.153, which is based on current § 3.156(b). 72 FR 28778, May 22, 2007. Specifically, the commenter disagreed with our statement that “if VA were to treat all evidence submitted after the appeal period has begun as `new and material evidence,' then the effective date could not be earlier than the date VA received that evidence (which could be construed as a claim to reopen).”
Finally, we propose to not include current §§ 3.400(p) and 3.500(u) in part 5. These paragraphs are merely cross-references to effective-date provisions (currently in 38 CFR 3.114) are not necessary in part 5.
One commenter questioned our decision not to repeat the 38 CFR 3.104(b) phrase “made in accordance with existing instructions” in proposed § 5.160(b). The commenter was concerned that our removal of the language would allow VA employees to disregard their procedural manuals and other VA guidance documents. As explained in our preamble discussion of the proposed rule, our reason for not including the language in our rewrite was because the “references to internal procedural manuals and other VA-generated documents that lack the force and effect of law are not appropriate for inclusion in the regulations”. 72 FR 28770, May 22, 2007. The problem we addressed by removing the phrase “made in accordance with existing VA instructions” is that substantive rules in procedural manuals and other VA documents that were not promulgated in accordance with the Administrative Procedure Act (APA) are not enforceable against claimants or beneficiaries. Where VA issuances confer a right, privilege, or benefit, or impose a duty or obligation on VA beneficiaries or other members of the public, VA continues to be bound by notice and comment requirements under the APA.
We received several comments regarding this proposed regulation. One commenter suggested that “whether a hearing is ordered or not, [§ 5.161] should be amended to require the Service Center Manager or Decision Review Officer who conducts post-decision review to be subject to the same duty-to-inform obligation as VA hearing officers are now required under 38 CFR [3.103(c)(2)]”. The commenter mistakenly cited to 38 CFR 3.301(c)(2), but the duties of VA employees who conduct hearings are set forth in § 3.103(c)(2).
We agree with the commenter that VA should assist a claimant or beneficiary in developing his or her claim whenever possible and that the duty-to-inform is not limited to situations where a claimant requests a hearing. In practice, VA reviewers already suggest additional sources of evidence during informal conferences. Therefore, we propose to add a sentence to § 5.161(c) stating that, “In an informal conference, the reviewer will explain fully the issues and suggest the submission of evidence the claimant may have overlooked that would tend to prove the claim.”
One commenter questioned the accuracy of the statement, “The review will be conducted by a Veterans Service Center Manager or Decision Review Officer, at VA's discretion.” The commenter believed this statement was incorrect and referred to a VA application which the commenter believed provided “a right of election in these matters”. We decline to make a change based on this comment. Proposed § 5.161 pertains to a review before the agency of original jurisdiction, which is usually conducted by a Decision Review Officer (DRO). However, where a DRO is unavailable, VA reserves the right to have a Veterans Service Center Manager (VSCM) conduct the review. Proposed § 5.161 is based on § 3.2600, which contains this language as well.
One commenter questioned whether paragraphs (a) and (e) contain contradictory provisions. According to the commenter, “If the reviewer may only review a decision that has not yet become final, . . . how [can] this same reviewer . . . [also] reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final) . . . on the grounds of [clear and unmistakable error]” (internal quotations omitted). We disagree that paragraphs (a) and (e) are contradictory. While it is true that the scope of review under proposed § 5.161(a) is limited to the decision with which the claimant has expressed disagreement in the NOD, prior decisions are always subject to reversal or revision for clear and unmistakable error (CUE). As proposed § 5.162(d) explains, CUE is a very specific and rare kind of error reserved for situations where reasonable minds cannot differ about the nature of the error. Specifically, while a reviewer may not be looking for such CUE during the review, if the reviewer encounters one, paragraph (e), as well as § 5.162, allow for reversal or revision of the decision containing that error. We therefore propose to make no changes based on this comment.
In initially proposed § 5.161(b), we stated that VA will, “notify the claimant in writing of his or her right to review under this section.” Because we have defined “notice” in § 5.1 as “a written communication VA sends a claimant or beneficiary at his or her latest address of record, and to his or her designated representative and fiduciary, if any”, we propose to revise paragraph (b) to state that VA will “send notice to the claimant . . .”, to be consistent with our definition.
In reviewing comments received regarding initially proposed § 5.162, we determined that this section should be revised and reorganized to improve readability. We propose to add new paragraphs (a) “Scope”; (b) “Review for clear and unmistakable error (CUE)”; (c) “Binding decisions and final decisions”; and (d) “What constitutes CUE”; and redesignate initially proposed paragraph (b) as paragraph (e).
We also determined that § 5.162 mistakenly omitted the provision in 38 CFR 3.400(k), which states, “
We received several comments based on this proposed regulation. One commenter suggested that we define the terms “reversed” and “revised”. We decline to adopt this suggestion because we prefer to rely on the common dictionary meanings of these terms and do not wish to deviate from these commonly understood meanings.
The same commenter noted that the cross reference to 38 CFR 20.1403 in proposed paragraph (a) is inadequate for purposes of adjudicating compensation and pension claims. The commenter suggested that VA should create a new subpart in part 5 that “will expressly set out for claimants and their representatives what it takes to file, raise, and prevail in a [claim] of clear and unmistakable error”. We agree with the commenter that it will be helpful to include the relevant portions of § 20.1403 in part 5. Newly proposed paragraph (d) includes language from the first paragraph of § 20.1403 by explaining what CUE is. We decline, however, to make the proposed change in a new subpart because such a change is beyond the scope of this project. We are also removing the cross reference so readers will not infer that § 20.1403 applies to CUE claims at the AOJ.
One commenter urged that VA include in § 5.162, “[t]he filing and pleading requirements that are necessary in presenting successful CUE claims . . .”, but offered no rationale for the suggestion. The same commenter urged that VA include provisions stating the “relationship of clear and unmistakable error claims to other statutes, regulations and legal doctrines”, but offered no rationale for the suggestion.
VA has established procedures for filing claims (§§ 5.50 through 5.57). Claims for CUE require the same procedures. Proposed paragraph (d) clearly informs claimants what they must show in order to prove CUE. Regarding the suggestion about the relationship of CUE to other statutes, regulations and legal doctrines, this type of analysis is not germane to the regulation because it would not inform the public about VA's duties or claimants' rights or duties. We therefore propose to make no changes based on these two comments.
In the NPRM preamble discussion of § 5.162, we stated that the intent of the section is to convey that VA adjudicative agency decisions that are final will be presumed correct unless there is a showing of CUE. We also stated:
The requirement of a showing of CUE applies only to a “final decision,” as defined by proposed § 5.2 to mean “a decision on a claim for VA benefits with respect to which VA provided the claimant with written notice” and the claimant either did not file a timely Notice of Disagreement or Substantive Appeal or the Board has issued a final decision on the claim.
One commenter interpreted proposed § 5.162 as meaning that only final decisions can be reviewed for CUE. The commenter noted that the term “final” is not contained in the CUE statute, 38 U.S.C. 5109A, which states, “A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.”
The commenter asked why, if a claimant has filed a notice of disagreement and has not elected review
The commenter asserted, “The law does not limit a claim of CUE to a final VA decision, but rather more accurately contemplates a `binding' decision as defined in proposed § 5.160(a),” which is based on 38 CFR 3.104(a). The commenter further asserted that “[t]his would also be consistent with proposed § 5.161(e) [based on § 3.2600(e)], which permits decision review officers to review a binding, but non-final, decision that has been timely appealed and revise that decision on the basis of CUE.” The commenter urged VA to change initially proposed § 5.162 to state that CUE can be the basis to correct a “binding” decision even if the decision has not yet become “final”. We agree with the commenter and propose to revise proposed § 5.162 as discussed below.
The courts have consistently stated that a “final [AOJ] decision” is a prerequisite for a CUE collateral attack.
Concomitantly, courts have repeatedly found claims of CUE in AOJ decisions improper when that decision was not final, and that CUE may not be used to correct non-final decisions. In
The courts have not, however, ruled on whether, in order to be subject to correction based on CUE, a decision must be “final” as that term is used in § 3.160(d) (which is based on 38 U.S.C. 7105(c)). Section 3.160(d) states that a “finally adjudicated claim” is a decision on a claim, “the action having become final by the expiration of 1 year after the date of notice of an award or disallowance. . . .” We are unaware of any judicial precedent holding that, for purposes of CUE review, a decision becomes final only after the time to appeal has passed.
When VA amended 38 CFR 3.105(a) to add the term “final and binding”, it intended the term to have the same meaning in that section as it has in § 3.104(a). Specifically, VA meant that decisions that are binding on all VA field offices at the time VA issues written notification in accordance with 38 U.S.C. 5104 are subject to revision for CUE. It did not mean “final” under 38 CFR 3.160(d) (that the decision was not timely appealed or was affirmed by the Board.
A review of the regulatory history of § 3.105(a) shows that VA added the “determinations which are final and binding” language in a 1991 rulemaking. 56 FR 65845, Dec. 19, 1991. Prior to that rulemaking, 38 CFR 3.104(a) used the “final and binding” language, but § 3.105(a) used the language “determinations on which an action was predicated. . . .” In the preamble to the proposed rule, VA stated, “The proposed amendment is intended to clarify that decisions do not become final until there has been written notification of the decisions to the claimants. . . .” 55 FR 28234, July 10, 1990. Similarly, in the preamble to the final rule, VA stated that the purpose of the amendment was, “to establish by regulation the point at which a decision becomes final and binding on all VA field offices.” It went on to state, “That point is reached when VA issues written notification on any issues for which it is required that VA provide notice to the claimant. . . .” 56 FR 65845, Dec. 19, 1991.
In
Congress codified 38 CFR 3.105(a) as 38 U.S.C. 5109A when it enacted Public Law 105–111, sec. 1(a)(1), 111 Stat. 2271 (1997).
It has been long-standing VA practice to correct CUE in decisions that are “final and binding” under 38 CFR 3.105(a), even though they have not “become final by the expiration of 1 year after the date of notice [of a decision], or by denial on appellate review, whichever is the earlier.” 38 CFR 3.160(d). We codified this practice in 38 CFR 3.2600(e), which states the “reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error (see § 3.105(a)).” The “decision being reviewed” under § 3.2600(e) is one that has not “become final due to failure to timely appeal”.
Finality under proposed § 5.1 is not a prerequisite for correction of a decision based on CUE, and we therefore propose to write new paragraph (b) to clearly state that final or non-final decisions may be corrected under the CUE doctrine. We propose to clarify this point in § 5.162(b) by stating that, “At any time after the AOJ makes a decision, the claimant may request, or VA may initiate, AOJ review of the decision to determine if there was CUE in the decision.”
Current § 3.105(a) states, “[W]here an award is reduced or discontinued because of administrative error or error in judgment, the provisions of § 3.500(b)(2) will apply.” While this provision tells the reader what effective date provision applies in such cases, it is unclear that the standard governing the decision is clear and unmistakable error. The intended meaning of this sentence is seen in the regulatory history. When VA implemented the effective date rule for 38 U.S.C. 5112(b)(10), it explained that, “Payments will be terminated under this subparagraph on the basis of clear and unmistakable error. (
In the AM01 NPRM, we initially proposed to add a new definitions section that would define “administrative error” and “error in judgment,” in § 5.165(c)(2). We have determined that, because proposed § 5.165 (now renumbered as § 5.166) is an effective date regulation and this provision is substantive, it is more logical to place it in new § 5.162(e).
Initially proposed § 5.165(c)(2) included a list of examples of administrative errors or errors in judgment. That list included, “(iii) Failure to follow or properly apply VA instructions, regulation, or statutes.” We have determined that the term “instructions” is unnecessary. Historically, VA used the term “instruction” to describe the Administrator's binding guidelines for implementing newly enacted laws. VA has not issued such “instructions of the Administrator” since the 1960s. Because VA has not issued such instructions since the 1960s, it is not useful to include references to them in a list of examples of common sources of administrative error or error in judgment.
Finally, in paragraph (f), “Effect of reversal or revision on benefits”, we propose to add a cross reference to § 5.167(c), the effective date rule for reduction or discontinuance of benefits based on VA administrative error or error in judgment. This will alert the reader that the effective date of such reductions or discontinuances differs from the general rule that the revision of a decision containing CUE is effective as if the original decision were correctly made.
Initially proposed § 5.163 was one 89-word sentence. To improve readability we propose to divide it into three sentences. We also propose to specify that the revised decision must be more favorable to the claimant.
We have revised the proposed section heading of § 5.164 to apply to the several types of adverse actions VA can take upon determining a beneficiary obtained a benefit by an act of commission or omission. We have revised the headings of §§ 5.167 and 5.177 similarly.
In initially proposed § 5.162(b), we stated, “[F]or reductions or discontinuances based on CUE resulting from an act of commission or omission by the beneficiary or with the beneficiary's knowledge, VA will apply § 5.165(b).” In doing so, we mistakenly overlooked that the first sentence of 38 CFR 3.105 states, “The provisions of this section apply except where an award was based on an act of commission or omission by the payee, or with his or her knowledge. . . .” Since § 3.105 includes the provisions on CUE, CUE is not the proper standard for a reduction or discontinuance of a benefit, or for severance of service connection, obtained through an act of commission or omission.
We have revised the proposed regulation to include severance of service connection among the adverse actions VA will take upon finding an act of commission or omission by a preponderance of the evidence, rather than by clear and unmistakable evidence. This would be consistent with the holding in
Neither the statutes nor the regulations provide a standard for reduction or discontinuance of a benefit obtained through an act of commission or omission. In such cases, VA applies its default standard of proof, which is preponderance of the evidence. When VA implemented 38 U.S.C. 5112(b)(9) in VA Regulation 1500(b)(1) (currently 38 CFR 3.500(b)(1)), it explained that in determining whether benefits were based on an act of commission or omission “[t]he benefit of any doubt will be resolved in favor of the payee.” VA Regulations, Compensation and Pension, Transmittal Sheet 271 at iii (Dec. 1, 1962). Thus, when the evidence is in equipoise, VA cannot reduce or discontinue benefits. But when the evidence against the beneficiary outweighs the evidence supporting the beneficiary, the benefit of the doubt doctrine does not apply (
Proposed § 5.3(b)(4) states that, “A fact or issue is established by a `preponderance of evidence' when the weight of the evidence in support of that fact or issue is greater than the weight of the evidence against it.” The preponderance standard is relatively easy for VA adjudicators to apply. It is also a high enough standard to protect beneficiaries from arbitrary or capricious reductions or discontinuances by VA. We also note that before reducing or discontinuing benefits under § 5.164, VA must provide due process to the beneficiary under § 5.83(a).
It will be helpful to inform the public that VA applies the preponderance standard in a reduction or discontinuance of a benefit obtained through an act of commission or omission. We therefore propose to add a new § 5.164, which states, “VA will reduce or discontinue a benefit, or sever service connection, if a preponderance of the evidence shows that it resulted in whole or in part, from an award based on an act of commission or omission by the beneficiary or an act of commission or omission done with the beneficiary's knowledge.”
Although section 5112(b)(9) does not specify, VA has long interpreted it to mean that it applies when an award was based in whole or in part on the act of commission or omission. VA General Counsel's opinion VAOPGCPREC 2–90, 55 FR 27756 (July 7, 1990). We propose to include the phrase “in whole or in part” in paragraph (a) to make this point.
As stated in § 5.162(b), in a CUE claim, VA's review will be based “only on the evidence of record and the law in effect when the AOJ made the decision.” However, no such restriction applies when VA reduces or discontinues a benefit, or severs service connection, for reasons other than CUE. To ensure that readers are aware of this, we propose to insert the following sentence into § 5.164(a), “The review will be based on the law in effect when the agency of original jurisdiction (AOJ) made the decision and on all evidence currently of record, regardless of whether it was of record at that time.”
In proposed § 5.164(b), we provide readers with examples of an act of commission or omission by the beneficiary or an act of commission or omission done with the beneficiary's knowledge. We selected all but the fourth of these examples because they are some of the most common situations in which VA reduces or discontinues benefits. We included the fourth example, service connection obtained by fraud, because severance of service connection greatly affects a veteran's benefits. Paragraph (b) is not an exclusive list of acts of commission or omission.
In initially proposed § 5.165 (now renumbered § 5.167) we inadvertently omitted severance of service connection in the list of actions for which initially proposed § 5.165 provided effective dates. The regulation was incomplete without it, because VA will sever service connection if a claimant obtained it by an act of commission or omission, or if VA granted service connection because of its administrative error or error in judgment. We therefore propose to add this severance provision.
We propose to add a new § 5.164 and renumber initially proposed § 5.166 as § 5.165, and therefore we have renumbered initially proposed § 5.164 as § 5.166 and initially proposed § 5.165 as § 5.167. One commenter suggested that initially proposed § 5.165(c) effectively would permit VA to “take adverse action against claimants on much lower showings of VA error than the law governing CUE permits”. We disagree with this comment. This paragraph merely implements the statutory provision in 38 U.S.C. 5112(b)(10). It does not address the standard applicable to VA decisions to reduce or discontinue benefits.
The commenter apparently believed that CUE and VA administrative error are similar in that both can result in a decision to reduce or discontinue an award, with VA administrative error having to meet a lower standard than CUE. That is not correct. Proposed § 5.165 is an effective date provision which sets different dates for reduction or discontinuance of benefits depending on whether the beneficiary or VA made an error. When CUE or severance of service connection and is based on a beneficiary's act of commission or omission, VA corrects the award retroactively. When CUE results in a reduction or discontinuance of an award or severance of service connection and is based solely on VA error, VA corrects the award prospectively. VA is not lowering the standard for finding error that result in the reduction or discontinuance of benefits and these part 5 rules would not cause such an effect. We therefore propose to make no changes based on this comment.
Lastly, initially proposed § 5.165(c)(2) provided a list of administrative errors or errors in judgment. VA does not intend this list to be exclusive, so we propose to add the phrase “but are not limited to” to this provision, which is now included in § 5.162(e), in order to avoid that mistaken impression.
In the preamble to initially proposed § 5.170, we failed to state that paragraph (a) is a new scope provision informing the reader of the rules gathered in § 5.170 (§§ 3.344, 3.951, and 3.957).
One commenter suggested that proposed § 5.170(a) was unclear because a rating has to be “in effect” for 10 years before service connection is protected, but a rating has to be “continuous” for 5 years for a disability to be considered stabilized and “continuous” for 20 years for the disability level to be protected. The commenter suggested that we use either “in effect” or “continuous”, or explain why we use different terms.
For the following reasons, we decline to make a change based on this comment. We use different terms because different rights are being protected. As noted in the preamble to the initially proposed rule, a precedent opinion, VA General Counsel's opinion VAOPGCPREC 5–95, 60 FR 19808 (Apr. 20, 1995), held that a disability could be considered “continuously rated” at or above a specified level for purposes of 38 U.S.C. 110 only if there was no interruption or discontinuance of the compensation being paid based on that rating for a period of 20 years or more. The statute provides this protection because veterans become dependent on a certain level of compensation when it has been paid without interruption for such a long period of time.
Similarly, when a disability has been continuously rated at the same level for 5 years or more, VA considers it to be stabilized. This provides some measure of protection in that the veteran is less likely to experience a reduction in compensation in the future or be subjected to repetitive examinations that yield the same result time after time. In both cases, when the term “continuous” is used, the protection provided concerns the level of compensation.
On the other hand, the term “in effect” is used only in connection with the 10-year protection afforded by 38 U.S.C. 1159 for service-connected status. There is no discussion of interrupted compensation payments breaking the continuity of a rating. Once service connection has been granted for a disability, that status is unaffected by variations in the level of compensation. If that status remains “in effect” for 10 years, service connection cannot be severed in the absence of fraud or military records showing the person did not have the requisite service or character of discharge. Since disability level and service-connected status are different concepts, it is appropriate to use different terms when discussing their protection criteria.
Initially proposed § 5.170(b) stated, “A protection period begins on the effective date of the rating decision and ends on the date that service connection would be severed or the rating would be reduced, after due process has been provided.” We believe the term “protection period” could be misinterpreted to mean that a rating is protected during this period. It is merely a qualifying period that triggers the protections in §§ 5.171, 5.172, and 5.175. We have revised this paragraph to clarify that point and reorganized the language to improve readability.
The same commenter suggested that the language in initially proposed § 5.170(c) was unclear because it did not explain whether the continuity of a rating resumes after a veteran is discharged from active military service. Currently, proposed § 5.170(c) provides that “a rating is not continuous if benefits based on that rating are discontinued or interrupted because the veteran reentered active service.” As noted above, in the preamble discussion for the proposed rule, we cited to VAOGCPREC 5–95, which held:
Where compensation is discontinued following reentry into active service in accordance with the statutory prohibition on payment of compensation for a period in which an individual receives active-service pay, the continuity of the rating is interrupted for purposes of the rating-protection provisions of 38 U.S.C. 110 and the disability cannot be considered to have been continuously rated during the period in which compensation is discontinued.
Moreover, VA generally does not have the ability to examine veterans once they have returned to active duty, nor does it have a reason to do so, so VA generally cannot determine whether their condition has improved during that time. Such veterans can still satisfy the protection criteria of 38 U.S.C. 110, but the qualifying period for protection must begin anew upon resumption of compensation. We therefore propose not to adopt the change suggested by the commenter.
Another commenter questioned whether receipt of active duty for training (ACDUTRA) pay breaks the continuity of payment for purposes of protection. The former part 3 cross reference (§ 3.654) that followed § 5.170(c), which has since been updated with its part 5 counterpart § 5.746, clarifies that “active military service pay means pay received for active duty, active duty for training or
One commenter observed that the NPRM misquoted sentence 5 of § 3.344(a) as follows: “. . . sentence 5, which states, `
This commenter asserted that § 3.344 is a very difficult regulation full of outdated, superfluous verbiage, much of which we could discard. The commenter however, gave one example, specifically the eighth sentence of § 3.344(a) (initially proposed as § 5.171(d)(6)), which the commenter asserted was meaningless. That sentence stated, “When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations.”
We disagree that this provision is meaningless, but we conclude it is not useful because it does not provide any instruction, impose any duty, or convey any right. The sentence essentially informs VA employees who perform disability ratings that syphilis and alcoholic deterioration diagnosed after a long prior history of “psychosis, psychoneurosis, epilepsy, or the like,” can mask the persistent prior disease, and therefore the focus of the rating decision should be the “preceding innocently acquired manifestations.” Initially proposed paragraph (d)(6) does not actually instruct VA to take any specific action. It does not impose any specific duty different than does paragraph (d)(2) for diseases subject to episodic improvement, and it does not convey any rights in addition to those stated in paragraph (d)(2). Consequently, we agree that it is confusing surplus and propose not to repeat the eighth sentence of § 3.344(a) in part 5.
One commenter asked us to clarify that improvement in a veteran's disability condition must be demonstrated before VA can reduce a stabilized disability rating. The commenter suggested that before VA can reduce a disability rating, not only must it be determined that an improvement to a disability has actually occurred, but also that the improvement reflects an improvement in the veteran's ability to function under ordinary conditions of life.
In response to this comment, we note that initially proposed § 5.171(c) stated, in pertinent part, that VA will not reduce a stabilized rating unless there is evidence of material improvement and VA may reduce a stabilized rating when an examination shows sustainable material improvement, physical or mental, in the disability, and the evidence shows that it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life.
As a practical matter, it is doubtful that there would be a case in which the evidence shows that it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life unless there had already been material improvement under the ordinary conditions of life. Therefore, we propose to add “under the ordinary conditions of life” to proposed paragraph (c)(1), to read, “An examination shows material improvement in the disability, under the ordinary conditions of life . . .”
In addition, we propose to remove the word “sustainable” because it refers to the veteran's future condition, which is covered by paragraph (c)(2). We propose to change the word “when” to “if” in the second sentence of paragraph (c) because “when” incorrectly implies that the veteran's condition will eventually improve. Lastly, we propose to remove the phrase, “physical or mental”. It is unnecessary because all disabilities are either physical or mental.
One commenter suggested that paragraph (d) is vague and ambiguous because it does not explain when medical examinations for purposes of determining material improvement would be administered. The commenter also thought that the paragraph failed to explain whether “VA will follow any standards or rules when it chooses certain veterans for a new examination, or if VA will use subjective criteria in its selection”.
Initially proposed § 5.171 does not include the standards VA applies when determining whether and when to reexamine a veteran because these standards are described in detail in proposed § 5.102, “Reexamination requirements”. Based on this comment, we propose to add a cross reference to § 5.102 at the end of § 5.171.
One commenter questioned whether proposed paragraph (d) would create tension with the standard governing reduction of total disability ratings under § 3.343. Section 3.343 pertains to the rule governing continuance of total disability ratings and outlines a list of mandatory considerations that VA must take into account before reducing such total disability ratings. The commenter expressed concern over whether adoption of § 5.171(d) would in effect “allow adjudicators to bypass the established protections of § 3.343 in favor of reducing a total evaluation by . . . more lenient conditions”. Proposed § 5.171(d) would not have such an effect. It is a rewrite of § 3.344(a), which simply provides guidance on factors that VA will consider before reducing disability ratings that have either become stable or otherwise were made on account of diseases that are subject to temporary or episodic improvement. The part 5 counterpart to § 3.343 is § 5.286, which will govern the continuance of total disability ratings. We therefore propose to make no changes based on this comment.
One commenter suggested that the organization of paragraph (d)(1) could be improved by separating the topic of “how VA will determine whether there has been material improvement” from “what types of evidence a complete medical record consists of”. The commenter recommended reorganizing the last sentence of paragraph (d)(1) and its paragraphs into a new paragraph (d)(5) after our discussion concerning what constitutes material improvement. We agree with this suggestion and propose to add a new paragraph (d)(5) consisting of the last sentence of paragraph (d)(1) and its paragraphs. We propose to redesignate initially proposed paragraph (d)(5) as (d)(6).
One commenter suggested that we replace the term “medical record” with “evidentiary record” in regard to initially proposed paragraph (d)(4), which pertains to when VA will determine material improvement exists for purposes of decreasing disability ratings. The commenter was concerned that the term “medical record” may unduly restrict VA's current practice of considering all evidence in the record, including lay evidence. We agree with the commenter and propose to adopt the suggested change.
In reviewing initially proposed § 5.171(e) based on this comment, we noted that in the preamble of the proposed rulemaking, 72 FR 28770, May
We also determined that the scope of paragraph (e) (which is based on current § 3.344(b)) needed clarification. We therefore propose to revise paragraph (e) to clarify that it only applies to cases involving a change in diagnosis.
Initially proposed § 5.173(b) described how VA modifies a rating that was assigned under the 1925 Schedule for Rating Disabilities. There are no longer any veterans being compensated under the 1925 Schedule. We therefore propose to remove the last phrase in paragraph (a) and all of paragraph (b) because these concerned revisions to ratings under the 1925 Schedule.
Initially proposed § 5.175(a)(1) and (2) provided that the protection from severance of 10 year old service connection applies to grants of disability compensation and to dependency and indemnity compensation (DIC), respectively. As initially proposed, § 5.175 did not address whether this protection applies to benefits under 38 U.S.C. 1151.
In August 2010, the U.S. Court of Appeals for Veterans Claims in
One commenter suggested that we separate this section into two regulations, one to address the protection of service connection and the other to address the severance of service connection. We decline to make this change because the paragraphs are appropriately titled regarding when protection of service connection applies versus when severance of service connection applies. Further, when taken as a whole, the entire section addresses the single issue of whether and when VA may sever service connection.
The commenter further asserted that VA should not adopt the proposed regulation § 5.175(b)(2) because “the law of clear and unmistakable error bars a veteran from submitting, and the VA from considering, any new medical opinion evidence (or any new evidence for that matter), in order to establish the existence of CUE”. The commenter also stated that because the law that governs CUE “does not permit the veteran to successfully argue that a change in diagnosis can be accepted as a basis for the award of service connection `based on clear and unmistakable error . . .', VA cannot be permitted to sever an award of service connection based on the same sort of medical evidence.” The commenter asserted that this proposed provision “reflects inconsistent and arbitrary agency action”. The commenter asserted that the courts have clearly held that “when an allegation is made that a VA decision contains CUE, that VA's decision on the allegation is strictly limited to the evidence that was before the VA adjudicator at the time VA made the decision being challenged as containing CUE.” The commenter cited
The commenter also noted that the Board of Veterans' Appeals (Board) regulation contained in 38 CFR 20.1403(d) states, “(d) Examples of situations that are not clear and unmistakable error—(1) Changed diagnosis. A new medical diagnosis that `corrects' an earlier diagnosis considered in a Board decision.”
For the following reasons, we propose to make no change based on this comment. The commenter fails to recognize the distinction between § 3.105(a) and § 3.105(d). As used in § 3.105(d) and proposed § 5.175(b), the phrase “clearly and unmistakably erroneous” is intended to describe the high standard of proof that must be met before VA can sever service connection. The phrase “clearly and unmistakably erroneous” is not intended to incorporate the procedural rule applicable to claims under § 3.105(a) that collateral review of a prior final decision must be based solely on the evidence that was before VA at the time of that decision. The provisions of § 3.105(a) and § 3.105(d) involve different procedural standards because § 3.105(a) concerns collateral review and retroactive correction of a final decision. In contrast, § 3.105(d) involves only review of the veteran's entitlement to benefits prospectively. VA recognizes that the use of the same high standard, clear and unmistakable error, might be confusing to some laypersons. For that reason, VA has consistently made clear in its regulations that severance determinations under § 3.105(d) may be based on consideration of evidence obtained subsequent to a prior determination.
Furthermore, we note that the provision in proposed § 5.175(b)(2) is not new; it is based on a substantially similar provision in current 38 CFR 3.105(d). The courts have held that, as a general principle, when an allegation is made that a VA decision contains CUE, VA's decision on the allegation is strictly limited to the evidence that was before the VA at the time VA made the decision being challenged as containing CUE. The U.S. Court of Appeals for Veterans Claims set forth this principle in the
However,
Thus, § 3.105(d) does not state that decisions will be reversed because they were based on CUE. These are dealt with in § 3.105(a). Rather, § 3.105(d) states that a veteran's service-connected status will be severed if it is clearly and unmistakably erroneous. Since it is a review of the veteran's current status,
The courts have consistently upheld the long-standing provision in 38 CFR 3.105(d) that evidence concerning a change in diagnosis (which was not of record when service connection was granted) may be considered in determining whether service connection is clearly and unmistakably erroneous.
The commenter's reliance on 38 CFR 20.1403(d) is inapposite to the question of the validity of § 3.105(d). Section 20.1403 implements 38 U.S.C. 7111 which relates to the review of Board decisions based on clear and unmistakable error. In the proposed rulemaking for § 20.1403, 63 FR 27535, May 19, 1998, VA noted that, “the term `clear and unmistakable error' originated in veterans regulations some 70 years ago,
Thus, § 20.1403 was intended to codify a statute whose basis was § 3.105(a), not § 3.105(d). As such, there is no reason why § 3.105(d) or § 5.175 must contain the same procedures as those in § 20.1403.
For the reasons stated above, we propose to make no changes based on this comment.
We propose, however, to revise the heading of initially proposed paragraph (b) to read, “Standard of proof to sever service connection—general rule”, and to add paragraph (c), “Standard of proof to sever service connection—fraud”. The new paragraph (c) comprises a cross reference to proposed § 5.164. It serves, without repeating proposed § 5.164, to inform the reader that VA's burden of proof to sever service connection obtained by fraud is the same as to sever service connection obtained by any other act of commission or omission. Fraud is distinguishable from other acts of commission or omission in that a claimant's fraud will breach the protection established after service connection has been in effect for 10 years, whereas other acts of commission or omission will not.
These changes would correct a misstatement in the proposed rule that the dissenting opinion in
Any disparity between the NPRM and the Secretary's position in the
One commenter suggested that we revise the introductory paragraph to enlarge the scope of § 5.176 to include situations where VA reduces or discontinues a disability rating but compensation benefits are not affected. Currently, proposed § 5.176 and its part 3 predecessor, § 3.105(e), require that VA provide notice of a contemplated adverse action followed by a 60-day period for the presentation of additional evidence only in situations where a lower rating would result in a reduction or discontinuance of compensation payments currently being made. However, where compensation benefits are not affected, where there is no adverse action, VA will provide only contemporaneous notice.
We decline to make the suggested change to enlarge the scope of initially proposed § 5.176 because in cases where VA decreases the rating of any disability or disabilities but does not reduce the veteran's overall disability rating, there is no reduction of monetary benefits. In such cases, VA has no statutory duty to send advanced notice of its decision.
Another commenter believed that the initially proposed rule would eliminate the due process procedure of having an impartial VA employee participate in
Proposed § 5.82(d) applies to a claimant's or beneficiary's right to a hearing upon being notified of a proposed reduction, discontinuance, or other adverse action under proposed § 5.83. Therefore, it is unnecessary to repeat the language of proposed § 5.82(d) in proposed § 5.176 because § 5.82(d) outlines an overarching VA policy that applies in all situations where a hearing is based on a proposed reduction, discontinuance, other adverse action, or on an appeal.
In addition, the commenter also urged that VA include in proposed § 5.176 the overarching duty to assist claimants in their claims by “suggest[ing] the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position”. The commenter urged that proposed § 5.176 be amended to require that VA inform beneficiaries of what type of evidence they should file to show “that service connection or a rating should be maintained.” The commenter provided an example, urging that VA inform a beneficiary if a notice of disagreement as to the reduction satisfies the requirement and would toll the 60-day period so that the veteran has more time to file additional evidence if needed.
As a preliminary matter, we note that it would be impossible for a beneficiary to file a valid notice of disagreement until VA had issued a decision, not merely a notice of a proposed decision. Initially proposed § 5.176(c) stated that in proposing a reduction or discontinuance, VA will notify the beneficiary that they may file, “evidence to show that service connection should be maintained, the rating should not be reduced, or the benefits should remain intact.” If such notices were to attempt to specify the exact type of evidence that is relevant, they might inadvertently omit relevant evidence that the beneficiary might file. Rather, it is more helpful to clearly explain “the contemplated action and furnish detailed reasons for the proposed reduction or discontinuance” (as stated in initially proposed § 5.176(b)) and allow the beneficiary to determine what evidence they can obtain or identify for VA to obtain.
The commenter also suggested that the 60-day time period for a beneficiary to present evidence when disputing a proposed severance of service connection or reduction in ratings is too short. The commenter claimed that “if VA expects veterans to file medical or scientific evidence to support their claims, the 60-day period will be too short and veterans will be effectively deprived of their procedural due process”. We decline to change the time period within which beneficiaries must present evidence to challenge a proposed adverse action. Beneficiaries generally are able to meet the 60-day deadline. Furthermore, VA already has procedures and regulations in place to extend the 60-day period if good cause is shown.
Finally, the commenter remarked that “many veterans subject to reduction or elimination of benefits have previously been found to be profoundly disabled.” The commenter expressed concern that “VA should recognize that in reduction actions it is dealing with some of the more helpless segments of the entire veteran population and should tailor its procedures accordingly.” VA beneficiaries subject to reduction of benefits have varying degrees of disability and our procedures are intended to provide fair treatment to all disabled veterans. To the extent that a beneficiary subject to a proposed reduction may have difficulty responding due to a profound disability, the veteran may request a good cause extension under § 5.99. We therefore propose to make no changes based on this comment.
In reviewing initially proposed § 5.176 to respond to comments, we noted that it is largely redundant of initially proposed § 5.83(a), Right to notice of decisions and proposed adverse actions. We therefore propose to delete § 5.176 and leave that number as reserved. We propose to include the following sentence from initially proposed § 5.176 in § 5.83: “If VA receives no additional evidence within the 60 days, or the evidence received does not demonstrate that the action should not be taken, VA will provide notice to the beneficiary that VA is taking the action.” We propose to omit the phrase “Prepare a rating proposing the adverse action and” because this is a administrative action that provides no due process to the beneficiary which is not already provided by the notice of the proposed adverse action.
We redesignated initially proposed § 5.177(c) as § 5.177(i) to move the paragraph explaining the exceptions of the regulation to the end of the section. We accordingly redesignated initially proposed § 5.177(d) through (i) as § 5.177(c) through (h), respectively.
In relation to the comment on initially proposed § 5.176 regarding enlarging the scope of situations where VA will provide advance notice of adverse actions, the commenter also suggested revising initially proposed § 5.177(f) for the same reasons. We decline to make this change because, as explained in our discussion on proposed § 5.176, where a decision does not result in adverse action, VA will follow the notification procedure in proposed § 5.83(b). Because the decision will not adversely affect compensation payments or other benefits, the notification procedure outlined in § 5.83(b) is adequate to preserve the veteran's procedural and appellate rights if the veteran disagrees with the decision.
One commenter questioned whether initially proposed § 5.177(f) would effectively reduce a veteran's compensation benefits by default “whether or not a final decision authorizing that reduction has been issued”. The commenter mistakenly believed that VA would reduce benefits before issuing a final decision on the matter. We decline to make any change based on this comment because § 5.177 clearly provides for two 60-day periods before a reduction or discontinuance takes effect: the first following a notice of a proposed adverse action (
In initially proposed paragraphs (d), (e), and (f), we stated that VA will sever service connection or reduce or discontinue benefits “effective the first day of the month after a second 60-day period beginning on the day of notice to the beneficiary of the final decision.” We propose to revise the language in each of those paragraphs to clarify that after applying the 60-day notice period, VA will apply a second 60-day period which begins on the day VA sends notice to the beneficiary of the final
As with initially proposed § 5.175, discussed above, the dissent in
The
As initially proposed, § 5.177(g) stated that VA would reduce or discontinue pension payments because of a change in disability or employability status effective the first day of the month after a second 60-day period beginning on the day of notice to the beneficiary of the final decision. This statement conflicts with 38 U.S.C. 5112(b)(5), and current 38 CFR 3.105(f). The beneficiary is not afforded a second 60-day period before his or her benefits are to be reduced. We, therefore, propose to correct paragraph (g) in redesignated paragraph (f) to state that the effective date for the reduction or discontinuance of pension because of a change in disability or employability status is the first day of the month after notice to the beneficiary of the final decision.
We propose to move the effective date provision in initially proposed paragraph (h) from § 5.177 to § 5.591(b)(5), to consolidate all the effective date rules on Chapter 18 monetary allowance into one section.
In a document published in the
In the NPRM, we proposed §§ 5.181 and 5.182 as separate sections. Because we have combined the contents of initially proposed §§ 5.181 and 5.182, as explained in § 5.182 below, we propose to renumber initially proposed § 5.180 as § 5.181. We propose to mark § 5.180 as reserved.
We also propose to reorganize and simplify the contents of initially proposed § 5.180 into § 5.181.
Proposed paragraph (a) simplifies the initially proposed “purpose” paragraph to clearly state that this regulation is limited to rules governing adding dependents, and with the exception of paragraph (d), does not govern changes to existing dependents. Also, in proposed paragraph (b)(1), we have eliminated the applicability of this rule to a case involving death, because death does not establish a dependent. Similar conforming changes were made to § 5.182, which governs only changes to the status of existing dependents. We proposed these changes for clarification purposes; we do not intend to change the persons to whom these rules would have applied as initially proposed.
We also propose to change paragraph (b)(1) by inserting “, day,” after “month” and “(city and state, or country if outside of a state)” after “place”. This information is necessary for VA to properly document marriages, termination of marriages, and births.
In initially proposed paragraph (c), we stated “VA will require additional supporting evidence to establish a veteran's marital status or a parent/natural child relationship . . . if any of the following factors are true: . . . (3) VA questions the validity of all or part of the statement;”. In comparing paragraph (c) with other sections in subpart D, we determined that the term “validity” means having legal effect or force. Our intent in paragraph (c)(3) was simply to include a question of the accuracy of a statement as one of the reasons for requiring additional evidence. We have, therefore, replaced the term “validity” with “accuracy”.
In paragraph (c)(5), we propose to change the rule that a statement is not sufficient to establish dependency when there is an indication of fraud or misrepresentation. Thus, we intend to change “in the other evidence in the record” to “in other evidence in the record”, removing the word “the” that appeared before “other evidence”. This change eliminates any suggestion that the reasonable indication of fraud or misrepresentation must appear in the totality of the evidence. VA will require additional evidence if any individual piece of evidence indicates fraud or misrepresentation, or if the evidence in its entirety gives such indication. This revision would make proposed paragraph (c)(5) better conform to proposed paragraph (c)(4), which would provide that a statement is not sufficient to establish dependency if the “statement conflicts with other evidence in the record . . .”
For reasons explained in the preamble to initially proposed § 5.181(c), 71 FR 55052, 55055, we are omitting certain provisions of § 3.213(b) from part 5, subpart D. Because we now propose to consolidate initially proposed § 5.181(c) and other initially proposed provisions in currently proposed § 5.184(d), we would repeat only the first sentence of § 3.213(b) in § 5.184(d). The restoration of benefit provisions of § 3.103(b)(4), restated in § 5.84, is more comprehensive than the restoration provision of § 3.213(b). Consequently, all but the first sentence of § 3.213(b) is superfluous, and § 5.184(d) would restate only that first sentence.
Initially proposed § 5.180(d) stated:
The types of additional supporting evidence required by paragraph (c) of this section are set forth in §§ 5.192 through 5.194, 5.221, 5.229 and 3.211 of this chapter. Where evidence is set forth in a particular section in the order of preference, VA may accept evidence from a lower class of preference if it is sufficient to prove the fact at issue.
This language was confusing. The rule was intended to explain that certain types of evidence are needed to
Several initially proposed rules in RIN 2900–AL94 inadvertently added a requirement that a claimant's or beneficiary's statement filed as proof of marriage, termination of marriage, or birth of a child must be “written”. No such requirement exists in current §§ 3.204(a)(1) or 3.213(a) and (c). We have therefore not included this requirement in §§ 5.151(c), 5.181(b), 5.182(a), 5.183(a) or (b), 5.192(c), 5.193, 5.221(b), or 5.229.
We propose to combine the contents of initially proposed §§ 5.181 and 5.182 into § 5.182, and reorganize and simplify the rules. In the revised rule, we refer in proposed § 5.182(a) to a beneficiary's duty to report a “[c]hange in status of a living child affecting who no longer meets the definition of a dependent”. This language replaces language in the initially proposed § 5.182(a)(2) that had specifically discussed discontinuance of school attendance. The broader language in the proposed rule more accurately describes a beneficiary's duty to report any change in a child's status that makes the child no longer a dependent of the beneficiary.
In initially proposed paragraph (a), we stated that a beneficiary must provide VA a statement containing the details of any change in dependency that could lead to a reduction or discontinuance of VA benefits. We required that the beneficiary report the month and year of the change. VA now requires the day, as well as the month and year of the change. We also require the city and state, or country if outside of a state, where the change occurred. See VA Form 21–686c, Declaration of Status of Dependents. We propose to amend paragraph (a) to conform to VA's current practice.
We propose to remove the cross reference to § 3.217, “Submission of statements or information affecting entitlement to benefits”, which was contained in initially proposed § 5.181(b) because § 5.182 contains all the relevant information needed to understand changes in dependency and so the cross reference is unnecessary.
We propose to move what was initially proposed paragraph § 5.181(c) to proposed § 5.184(d) because it is an effective-date rule specific to § 5.184.
Initially proposed § 5.183 stated that the effective date for adding a dependent is the date VA receives notice of the existence of the dependent. We propose to change “notice” to “information”. In proposed § 5.1, we define notice as a written document that VA sends to the claimant or beneficiary. To state that VA receives notice of the dependent would be contrary to our proposed definition of the term. We mean to say that a dependent will be added upon receipt of information of the existence of such dependent. We also propose to state that the “information” must be filed by the claimant or beneficiary. As stated in proposed § 5.181, this regulation is limited to adding dependents, therefore, a claimant or beneficiary may establish a dependent to a new or existing award. This clarification does not constitute a change from the proposed rule.
Initially proposed § 5.183(a) stated that evidence of dependency must be received within 1 year “of” VA's request. We propose to clarify the regulation to state that the evidence must be received “no later than 1 year after” VA's request in order to eliminate ambiguity with regards to the date of submission of evidence. We have made similar changes throughout this regulation, and throughout this document, where we previously stated “1 year of” to now state “1 year after”. These additional changes to this rule are intended to simplify the general rule and the exceptions thereto. Notably, we propose to move paragraph (c) into paragraph (a) and reorganize paragraph (a).
Initially proposed § 5.183(b)(3) stated the effective date for establishing the dependency of an adopted child. However, it did not specify that in order for these dates to apply, VA must receive information of the adoption no later than 1 year after the event. We therefore propose to correct this omission by stating “For an adoption, the earliest of the following dates, as applicable, if VA receives information about the adoption no later than 1 year after the adoption”. This change is consistent with § 3.401(b)(1)(i) and current practice.
We propose to combine the effective date provisions of initially proposed §§ 5.181(c), 5.184, and 5.198 into one section to make them easier to find and to avoid redundancy. We propose to mark § 5.198 as reserved.
As initially proposed, we referred to a marriage, divorce, annulment, or death as a “change” in dependency status. However, these are “events” that result in “changes” in dependency status. For clarity, we propose to refer to these as an “event that changes” dependency status.
In initially proposed § 5.198(b), we stated, “VA will pay the reduced rate or discontinue benefits effective the first day of the month that follows the month in which the divorce or annulment occurred.” We have determined that the term “occurred” was ambiguous because under some states' laws, the divorce or annulment does not take effect immediately after the court issues the decree. We therefore propose to revise this language to state, “VA will pay . . . in which the death occurred or in which the divorce or annulment became effective.” For the same reason, we propose to make a conforming change to § 5.205(b)(1) and (2), regarding annulment, and (c)(1) and (2), regarding divorce.
We have determined that there is no need to establish a rule for “status” as a spouse. First, the term is plain language and does not need a specialized definition for VA purposes (unlike, for example, the term “surviving spouse”, which does have a specialized meaning). There can be no question that a reference to a “spouse” is a reference to a person's marriage partner. Second, proposed § 5.191 more than adequately defines a valid marriage for VA purposes. To the extent that proposed § 5.190 had implemented the 38 U.S.C. 101(31) requirement that a spouse be of the opposite sex, that requirement is contained in proposed
Initially proposed § 5.191 referred to deemed-valid marriages as an exception to the general rule set forth in this section. However, a deemed-valid marriage is not an exception to the types of marriages recognized by VA; rather, it is one type of such marriages. Therefore, we propose to restructure § 5.191 and add a paragraph (c). In addition, we propose to change the term “is” valid to “was” valid. Because the laws of the states may change, we want to specify that the marriage had to be valid at the time that it occurred. Finally, we propose to change the phrase “the right to benefits” in § 5.191(b) to “entitlement to benefits”. This change improves clarity and is consistent with the language of other part 5 VA regulations.
Initially proposed § 5.191(a) and (b) used the term “parties” to mean “persons”, as stated in the introductory sentence. In order to avoid confusion, we propose to change the term “parties” to “persons” in paragraphs (a) and (b).
As stated in our discussion of § 5.181 above, VA requires the first type of evidence listed in the relevant section as proof of a certain relationship, if it is obtainable. If it is unobtainable, then VA will accept the next listed type of evidence that is obtainable to prove the relationship. In part 3, this basic principle is stated in 38 CFR 3.204(b), which refers the reader to §§ 3.205 through 3.211. It is helpful to state this principle in each section where it applies, and we therefore propose to state it in §§ 5.192(c), 5.221(b)(2), 5.229, and 5.500.
We propose to make minor revisions to § 5.193 for clarity.
We propose to make minor revisions to § 5.194 for clarity.
We propose to combine initially proposed §§ 5.195 and 5.196 to improve clarity and eliminate the need for users to refer to two regulations to address the issue of void or annulled marriages. The content of both initially proposed regulations would now appear in § 5.196. Section 5.196(a)(1) was initially proposed as § 5.195. Section 5.196 was initially proposed as § 5.196(a). We propose to mark § 5.195 as reserved.
One commenter questioned VA's authority to determine whether a marriage was void in accordance with the law of the place that governs the marriage's validity. The commenter opines that 38 U.S.C. 103(c) does not appear to provide VA with jurisdiction or authority to make an independent adjudication on the validity of a veteran's marriage.
As stated in the preamble to the initially proposed rule, current part 3 includes references to “void” marriages, but it does not explain the meaning of a “void” marriage.
This commenter further suggests that any new rule regarding VA's authority to determine the validity of a marriage as it pertains to a veteran's surviving spouse or a veteran's child, should include a procedural reference of such questions to the Regional Counsel because VA adjudicators are generally not equipped to research and determine such matters. We agree with this suggestion. In fact, VA has long-standing procedural guidelines for determination of a void marriage. In such cases, the Veterans Service Representative collects all of the pertinent information and evidence from the claimant and files the case with Regional Counsel for a legal opinion as to whether or not the marriage is void. To implement this suggestion, we have revised proposed § 5.196 to indicate that VA Regional Counsel will make the determination concerning whether a marriage is void under the law of the place that governs the validity of the marriage.
We propose to reorganize initially proposed §§ 5.200 and 5.201 to eliminate redundancy and potentially confusing cross referencing, and to significantly clarify the rules. First, we propose to renumber initially proposed § 5.201 as § 5.200. We have also renamed the rule as, “Surviving spouse: Requirement of valid marriage to veteran.” This title is more descriptive of the rules within this section. This reorganization is for clarity and simplification.
In § 5.200(a), we propose to simplify several initially proposed paragraphs to state that in order to qualify as a surviving spouse, the marriage between the veteran and the person by or for whom surviving-spouse status is sought must have met the requirements of § 5.191, unless the “deemed valid” exception in paragraph (b) applies.
In § 5.200(b)(1), we clarify that there must have been an attempt at legal marriage and that the person seeking surviving-spouse status must have believed that a valid marriage resulted and lasted until the veteran died. This is not a change from current practice. We also clarify that the marriage must have lasted for 1 year unless the person had a child with the veteran. The proposed rule had required that a child have been both “of or before the marriage”; however, because the marriage must have continued until the veteran died, the result is that the child may have been born at any time. Thus, the simplified language in § 5.201(b)(1) is not substantively different from the current and proposed rules.
Initially proposed § 5.201(c) did not clearly define the phrase “no knowledge of legal impediment”. We propose to clarify the definition of legal impediment in initially proposed § 5.201(c), which is now renumbered as § 5.200(b)(2). This clarification is consistent with current practice. We also propose to clarify the evidence that the person must file under § 5.192(c), the requirements of which must be met under § 5.200, without any contradictory evidence.
We also propose to reword the regulation text in § 5.201(e), which is now renumbered as § 5.200(b)(4), for clarity.
We propose to renumber initially proposed § 5.200 as § 5.201, and rename the section, “Surviving spouse: Requirements for relationship with the
Initially proposed § 5.200(a)(2) (now renumbered as § 5.201(a)) specified that to qualify as a surviving spouse, that person must have been a member of the opposite sex from the veteran. Because § 5.191, “Marriages VA recognizes as valid”, requires that a valid marriage must be to a person of the opposite sex, that provision is unnecessary in § 5.201(a) and we propose to remove it. We also propose to make several changes to improve clarity and consistency with the language of other VA regulations.
We propose to move the content of initially proposed § 5.430(b), “Marriage date requirements for Improved Death Pension”, to § 5.201(b)(1), “More than one marriage to the veteran.” The content is based on 38 U.S.C. 103(b), which is not limited to just Improved Pension.
We propose to clarify the provision concerning whether a separation was temporary, initially proposed as § 5.200(b)(3). In § 5.201(b)(4) we propose to add the term “with estrangement” to modify “separation” to accurately reflect the circumstances to which paragraph (b)(4) applies.
The preamble to initially proposed § 5.203(a) stated that it would be a new provision, restating part 38 U.S.C. 101(3), the statutory definition of surviving spouse. Part 3 restates the statutory definition of surviving spouse in § 3.50(b). As a result of the elimination of initially proposed §§ 5.200 and 5.202, and the incorporation of some of those initially proposed provisions in currently proposed § 5.203, we now propose to restate § 3.50(b)(2) in § 5.203(a)(2).
Initially proposed § 5.202 concerned the effect of a Federal court decision on a remarriage determination. We propose to mark § 5.202 as reserved, and include this rule in § 5.203(a)(1). We also propose to change the regulation text in proposed § 5.203(a)(1) from “In determining eligibility for pension, death compensation, or dependency and indemnity compensation” to “In determining eligibility for benefits” to clarify that the rule applies to all benefits based on surviving-spouse status. It simplifies the regulation.
We propose to revise the language of initially proposed paragraph (c)(4), now redesignated as (d)(4), by removing the phrase “openly to the public”. That phrase is unnecessary because that provision is already stated in paragraph (a)(2). For the same reason, we have removed that phrase from initially proposed paragraph (d)(1)(iii), now redesignated as paragraph (e)(1)(iii).
One commenter questioned why there was a rule that allowed reinstatement of benefits to a surviving spouse who is no longer remarried because of the death of the second spouse, but there was no rule that allowed the surviving spouse to establish her initial entitlement to benefits after the death of her second spouse. The commenter provided the following example. A surviving spouse is married to the veteran for over 30 years. The veteran subsequently dies and the surviving spouse remarries, but the surviving spouse's second husband dies after several years of marriage. After the death of her second husband, the surviving spouse wants to claim VA benefits. The commenter further indicated that VA allows for the surviving spouse to receive benefits only if her second husband died before November 1, 1990, but in the scenario that was presented, the veteran died in January 1991. The commenter contends that the surviving spouse would not be entitled to benefits because this is not considered to be a reinstatement of benefits, but rather a first-time application. Initially proposed § 5.203(c) stated that the surviving spouse of the veteran may be entitled to receive benefits if the remarriage ended before November 1, 1990. This rule corroborates the commenter's statement. However, initially proposed § 5.203(d) (now § 5.203(e)) allowed a surviving spouse to be eligible for benefits if he or she was otherwise ineligible for DIC under the laws in effect prior to June 9, 1998, because of the surviving spouse's remarriage after the veteran's death. Although the surviving spouse's eligibility to DIC is said to be reinstated under § 5.203(e), this section applies to reopened as well as original claims. The limitation is that no payments may be issued for any period before October 1, 1998. Because proposed § 5.203(e) already addresses the concerns of the commenter, we propose to take no action based on this comment.
We propose to clarify § 5.203(e)(2) to state that no payments may be made for any period before October 1, 1998. The regulation text stated the month, and year, but failed to state the date. The exact date is needed in order to avoid an erroneous payment.
We also propose to clarify § 5.203(f)(2) to state that no payments may be made for any period before January 1, 2004. The regulation text stated the month and year, but failed to state the date. The exact date is needed in order to avoid an erroneous payment.
We propose to reword the introductory text in § 5.220 for clarity by improving sentence structure.
Initially proposed § 5.220(a), began with the exception prior to the rule. To improve readability, we propose to place the exception at the end of the general rule.
In nitially proposed § 5.220(b)(2)(i), which is now paragraph (b)(1), we referred to a child who is “incapable of self-support through his or her own efforts by reason of physical or mental disability”. We propose to eliminate the phrase “through his or her own efforts” because it is redundant of “self-support” and might be misinterpreted to mean that the child intentionally caused his or her incapacity, which is clearly not what we intended.
We propose to move the content of initially proposed § 5.220(c)(2) to § 5.226(c). Section 5.226(c) elaborates on the criteria set forth in § 5.220(c)(2). This approach also enables us to eliminate the need to refer back to § 5.220 in § 5.226(c). We will leave § 5.220(c)(2) as a cross-reference to § 5.226.
We propose to add a new paragraph (d) to proposed § 5.220. In accordance with § 3.503(a)(2), this new paragraph would provide that a person is still considered a child of a veteran even if the person has entered active duty.
We propose to reword the regulation text in § 5.221(a)(2) for clarity.
We propose to delete § 5.221(a)(2)—Note. The content of the Note is adequately covered in § 5.220(c)(2), so it is unnecessary.
Initially proposed § 5.221(b)(2)(iii)(A) limited evidence of paternity to church records of baptism without referencing other religions. We propose to revise the rule to allow any “religious-context record documenting the birth of the child” in order to eliminate any perceived bias for or against a particular religion or faith. We propose to add similar language to § 5.229(b).
We propose to add a sentence to the initially proposed undesignated first paragraph to state the purpose of this section. We propose to make technical revisions to § 5.222 to clarify that this rule is an exception to § 5.181(b). We
We propose to add an order of preference of types of evidence VA requires to prove an adopted child relationship. We explained orders of preference for evidence in our discussion of § 5.181.
Originally proposed § 5.223 (a) (now (b)) required, inter alia, that, “The person adopted was living in the veteran's household at the time of the veteran's death . . .” This language was based on § 3.57(c)(1). Upon further review, we note that § 3.210(c)(2) uses the phrase “was a member of the veteran's household” to describe the same criteria for children adopted after a veteran's death. To make § 5.223(b) consistent with similar provisions in part 5 (§§ 5.220, 5.226, 5.233, 5.332) we propose to change the paragraph to read, “was a member of the veteran's household”. We therefore propose not to restate the language of § 3.57(c)(1) and (3) in part 5 because it is redundant of the language in § 3.210(c)(2).
Our definition of “State” in § 5.1 includes territories and possessions of the US. Therefore it is unnecessary to include the Commonwealth of the Northern Mariana Islands in this section. We propose to remove it.
We have clarified the regulation text in § 5.227(b)(1)(iv). The initially proposed rule said that “evidence that a person was not employed before or after reaching 18 years old tends to show incapacity for self support when the lack of employment was due to the person's physical or mental disabilities and not due to unwillingness to work or other factors unrelated to the person's disability.” We believe that the phrase “before or after reaching 18 years old” could be unclear and we therefore propose to clearly state that the rule applies to a person who “has never been employed”.
We propose to revise initially proposed § 5.227(c) to clarify that this rule does not exclude from consideration any particular evidence or require that any evidence should be treated more favorably. The rule simply provides guidance to VA employees and to the public about likely sources of evidence relevant to the question whether a person is permanently incapacitated.
We propose to add an introductory sentence to give context to initially proposed § 5.228.
We propose to revise initially proposed § 5.229 to clearly state that the evidence described therein must be provided in accordance with the order of preference in which it is listed, as discussed earlier in proposed § 5.192, and have also reorganized the rule to improve readability.
In addition, we propose to remove the cross reference to § 5.180(e) (now § 5.181(d)), “Acceptability of photocopies”. That paragraph applies equally to all of the sections listed in § 5.181(c), so there is no need to reference it in any of those sections.
In the initially proposed paragraph (a)(4) we inadvertently changed the persons who could certify a birth. We stated that a claimant or beneficiary could prove age or birth with “[a]n affidavit or certified statement from a physician or midwife present during the birth”. However, 38 CFR 3.209(d), from which this paragraph derives, allows proof of age or birth with an “[a]ffidavit or a certified statement of the physician or midwife in attendance at birth”. We propose to use this language because it is a more precise statement of the requirement.
We propose to reword the section for clarity.
We propose to restructure initially proposed § 5.234(a), by creating separate paragraphs (a)(1) and (2) for effective dates of awards and for reductions and discontinuances. We believe this structure will better inform readers on the contents of this section.
In initially proposed § 5.240(c) we stated that the term “parent” includes a natural mother or father of an illegitimate child “if the usual family relationship existed.” Upon further review, we have determined that there is no statutory or regulatory authority for this provision, and we therefore propose to remove it.
A comment was submitted by a member of the public concerning title 32 National Guard troops suggesting that their active duty for training be considered as “active duty”, thereby allowing them veteran status. This comment is outside the scope of this proposed rule published under RIN 2900–AL94, but is relevant to another NPRM, RIN 2900–AL67, “Service Requirements for Veterans”. This comment was addressed together with all of the other submissions received in connection with RIN 2900–AL67.
We also propose to correct our use of the terms “claim” and “application”. Under 38 CFR 3.1(p), “Claim—Application” is defined as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit”. As stated in initially proposed § 5.1, for purposes of part 5, “claim means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a VA benefit under this part” and as stated in proposed § 5.1, “application means a specific form required by the Secretary that a claimant must file to apply for a benefit”. We similarly propose to edit the part 5 regulations proposed in AL94 to correct other inconsistencies in terminology.
In a document published in the
One AM07 commenter commended VA “for the hard work and dedication that its personnel have put into this important project” and stated that,
One commenter stated that while the general idea of the proposed rule is good, some of the proposed changes may be adverse to veterans. However, the commenter did not specifically explain which changes might be adverse. The commenter also urged that VA offer online access to court decisions cited in its rulemaking documents.
Because the commenter did not specifically explain which changes might be adverse to veterans, we cannot respond to that assertion, and we propose to make no change based on that comment. Regarding the suggestion on court decisions, we note that decisions of the U.S. Court of Appeals for Veterans Claims are available on their Web site at
Another commenter asserted that because of the complexity of the regulations proposed in AM07, veterans will incur very expensive legal costs in order to interpret them and determine what benefits they are entitled to. The commenter urged VA to add a section at the end of part 5 outlining what a veteran's options are if the veteran disagrees with a VA decision. The commenter also suggested that VA provide a telephone number to call in the event that a veteran does not understand the final rule on part 5.
VA's intent in rewriting these regulations was to make them less complex. To the extent that commenter believes that he or she requires assistance in preparing a claim for benefits, VA has recognized 87 Veterans Service Organizations (VSO) for purposes of providing no-cost assistance with claims for VA benefits. Each of these VSOs has accredited representatives available to help veterans in preparing claims. A searchable list of recognized VSOs and accredited representatives is available at
The regulations on how to file a notice of disagreement with a VA decision are found in 38 CFR parts 19–20, not in part 3, so that comment is outside the scope of this rulemaking. VA does not offer a phone number for purpose of explaining its regulations; we do not believe that would be an efficient use of government resources. But VA does have a number where veterans can call to inquire about the status of their benefits claims (1–800–827–1000), which veterans find very helpful. For these reasons, we propose to make no changes based on this comment.
One commenter stated that he is opposed to “patient registries” in the prescription process and that all drugs should be taken or not at the discretion of the patient with the advice of his or her doctor. Because this comment is outside the scope of this rulemaking, we propose to make no change.
One commenter urged that VA suspend its Regulation Rewrite Project until it is shown how the implementation of part 5 will interact with certain other VA programs: Virtual VA, Virtual Regional Office and the Veterans Benefits Management System. We do not believe that the implementation of part 5 will disrupt those information technology systems because they were designed to accommodate changes in law or regulation. VA will attempt to implement part 5 in a manner that causes the minimum possible disruption to VA claims processing operations. We believe that over the long term, having clear regulations for our employees to apply will significantly improve timeliness and accuracy in claims processing.
Initially proposed § 5.242(a) states that “VA will give due consideration to any evidence of record concerning the places, types, and circumstances of the veteran's service . . .” One commenter suggested that we insert the phrase “and records constructively in the VA's possession” after “evidence”, to ensure that VA complies with the constructive possession rule set forth in
We do not believe it is necessary to include
One commenter expressed concern that we did not repeat in proposed § 5.242 the following language from 38 CFR 3.303(a): “Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.”
We inadvertently failed to explain why we did not include this language in initially proposed § 5.242. Because proposed § 5.4(b) would clearly state that “VA will base its decisions on a review of the entire record”, we believe it would be redundant and possibly confusing to restate this principle in specific sections in part 5 (as does part 3). Similarly, § 5.4(b) states:
It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent with the facts shown in every case. VA will make decisions that grant every benefit that the law supports while at the same time protecting the interests of the Government.
Since this language is substantially the same as the language quoted by the commenter, and it applies to all VA claims rather than just service connection, there is no need to repeat it in § 5.242.
One commenter urged VA to establish a new policy by revising initially proposed § 5.242 to create a presumption based on H.R. 1490, 110th Congress, 1st session. The commenter suggested that VA include the following language in § 5.242(c):
(1) A claimant presenting a claim for benefits with respect to a service-connected disability or death shall be presumed to have presented a valid claim of service connectedness, subject to the requirements of subparagraph (2), unless the Secretary determines that there is clear and convincing evidence to the contrary.
(2) A claimant presenting a claim described under subparagraph (1) shall be required to support such claim with proof of service referred to in such claim, and a brief description of the nature, including the connection to such service, of the disability or claim.
The commenter asserted that this presumption would allow VA to quickly process backlogged claims.
The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA
Two commenters expressed concern that VA's use of the term “proximately caused” in proposed § 5.243(a) would improperly narrow the criteria for showing incurrence or aggravation. One of these commenters believed that using the term would improperly import a restrictive tort law concept into VA's regulations on service connection. Although this was not our intent, to avoid any such misinterpretation, we propose to revise the term to “due to or the result of” as suggested by one of the commenters. For the same reason, we propose to make the same revision in §§ 5.246 and 5.247.
One of these commenters also rejected the use of term “caused by” in proposed § 5.241(a) and (b), which the commenter suggested be changed to “ `incurred' or `aggravated' ” (as in current 38 CFR 3.1(k) and 3.303(a)) or “related to”. The commenter similarly, urged VA to replace “proximately caused” in proposed § 5.243(a) with “related to” and “causal link” in proposed § 5.243(a)(3) with “relationship.” The commenter acknowledged that, as we noted in the preamble to proposed § 5.243, the court in
As a preliminary matter, we note that the language “proximately caused” in proposed § 5.243(a) was merely a recitation of the title of proposed § 5.246, rather than regulation text. More fundamentally, we note that the “causal relationship” principle set forth in the
One commenter urged that, in order to comply with the standard for continuity of symptomatology contained in
Regarding the suggested additions to paragraphs (d)(1) and (2), we note that the
In sum, then, the rule here established is as follows * * * If the chronicity provision is not applicable, a claim may still be well grounded or reopened on the basis of § 3.303(b) if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology.
In initially proposed § 5.243(d)(1) we incorporated the requirement, as stated by the
We believe that the language of initially proposed § 5.243(d) accurately restates the intent of current § 3.303(b) as summarized by the
Since we published AM07, “Service-Connected and Other Disability Compensation” 75 FR 53744 (Sept. 1, 2010), VA has determined that initially proposed § 5.243 did not accurately restate current § 3.303(b) in the following respect. Section 5.243 would have made “continuity of symptomatology” a separate method of showing service connection distinct from the “chronicity” method set forth in § 3.303(b). In
In addition to misstating the role of continuity of symptomatology, we erroneously stated in initially proposed § 5.243 that the term “chronic disease” included other diseases besides those listed in current § 3.309(a). The Walker court clarified that the term “chronic disease”, as used in § 3.303(b), means only a disease listed in § 3.309(a) and no others.
Lastly, we note that initially proposed paragraph (d)(2), which stated, “The signs or symptoms continued from the time of discharge or release from active military service until the present”, omitted a presumptive period. To correct this omission, we propose to insert “or from the end of an applicable presumptive period for a disease” in § 5.243.
In AM07, we stated:
VA's long-standing practice is to apply the principles of chronicity and continuity to residuals of injury. This practice provides a fair and efficient means to determine service connection in certain cases, and it is logical to apply these principles to injuries as well as to diseases. Therefore, proposed § 5.243(c)(1) would also apply to an injury incurred or aggravated in service where the current disability is due to “the chronic residuals of the same injury.”
The court rejected the argument that § 3.303(b) applies to injuries as well as to chronic diseases, stating, “We thus reject Walker's broader argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases.”
As stated above in this preamble, our Veterans Benefits Administration's Transformation Plan will use improved technology and work methods to process disability claims more efficiently. VA has determined that significantly revising the substantive content of our service connection regulations at this time might interfere with this transformation. Moreover, further study is needed to determine the potential impact of such changes, after which VA may conduct a separate rulemaking for this purpose. We therefore propose not to include injuries in § 5.243(c).
Initially proposed § 5.244(c)(2) stated, “The presumption of sound condition is rebuttable even if an entry medical examination shows that the examiner tested specifically for a certain injury or disease and did not find that injury or disease, if other evidence of record is sufficient to overcome the presumption.”
One commenter urged that VA clarify paragraph (c)(2) by revising it to read, “The presumption of sound condition is rebuttable, in accordance with subsection (d)(1), below, even if an entry medical examination shows that the examiner tested specifically for a certain injury or disease and did not find that injury or disease, provided other evidence of record is sufficient to overcome the presumption.” The commenter asserted that this revision is needed to ensure the paragraph complies with
As we stated in the preamble to AM07, we added paragraph (c)(2), which has no part 3 counterpart, to incorporate the
We propose to exclude initially proposed § 5.244(b) because it is contrary to judicial interpretation of 38 U.S.C. 1111.
Initially proposed at 75 FR 53764, paragraph (b) described a report of entry examination not a condition for application of the presumption as a presumption of sound condition applies even if:
• The veteran did not have a medical examination for entry into active military service; or
• There is no record of the examination.
In drafting paragraph (b), we overlooked precedent decisions of the U.S. Court of Appeals for Veterans Claims (CAVC) that held that 38 U.S.C. 1111 requires an entry examination for the presumption to apply. In
The court explained that “[i]n the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based.”
In
Neither
In proposed rule AM07, “Service-Connected and Other Disability Compensation,” 75 FR 53744 (Sept. 1, 2010), we in advertently omitted the first five sentences of current § 3.303(c). We now propose to insert these sentences, with only minor stylistic changes to improve readability, as § 5.244(d).
Initially proposed § 5.245(b)(3) stated the usual effects of medical or surgical treatment in service that ameliorates a preexisting injury or disease, such as postoperative scars, or absent or poorly functioning parts or organs, are not an increase in the severity of the underlying condition and they will not be service connected unless the preexisting injury or disease was otherwise aggravated by service.
One commenter urged that VA clarify paragraph (b)(3) by revising it to read:
(3)
The commenter asserted that this revision is needed to ensure the paragraph complies with
As a preliminary matter, we note that the Hines case does not impose any requirement that there be “clear and convincing” evidence that the usual effects of treatment provided during service do not constitute an increase in the severity of the underlying condition. Likewise, there is no such requirement in current § 3.306(b)(1), the regulation on which initially proposed § 5.245(b)(3) was based. The commenter offers no explanation of how initially proposed paragraph (b)(3) is inconsistent with
One commenter urged VA to establish a new policy by revising initally proposed § 5.249 to create a presumption based on H.R. 6732, 110th Congress, 2nd session. The commenter suggested that VA include the following language in § 5.249: “(iii) Deployment during service to a theatre of combat operations or hostilities during a period of war.”
The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
One commenter expressed concern that proposed § 5.250 modifies the provision in 38 CFR 3.304(f) that states, “[i]f the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat . . . the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.” The commenter believed that proposed § 5.250 “shifts the burden to the veteran by requiring `credible evidence from any source, other than the claimant's statement, that corroborates the occurrence of the in-service stressor.' ” Another commenter also expressed the same concerns.
Proposed § 5.250 does not increase the burden of proof on veterans claiming service connection for posttraumatic stress disorder (PTSD). The provision quoted by the commenter is merely a restatement of the language in the introductory paragraph of § 3.304(f). The special provision for combat veterans that the commenter referred to is discussed in proposed § 5.250(d). That paragraph refers the reader to the rule for combat veterans contained in § 5.249. As we stated in the NPRM preamble, because § 5.249 applies to all claims, there is no need to repeat it in § 5.250. We therefore propose to make no change based on this comment.
One commenter urged that VA revise initially proposed § 5.250 to eliminate the “credible supporting evidence” requirement for PTSD stressors which would permit a VA fact-finding hearing official to consider a veteran's sworn, personal hearing testimony—if believed by the VA hearing official—as evidence that can establish that the veteran was exposed to an adequate stressor. The commenter asserted, among other things, that this requirement, which is based on an identical, long-standing provision in 38 CFR 3.304(f), is contrary to 38 U.S.C. 5107(b), which states, “The Secretary shall consider all information and lay and medical evidence of record in a case . . .”
We respectfully note that the legal arguments raised by the commenter were addressed and rejected by the U.S. Court of Appeals for the Federal Circuit in
Initially proposed § 5.250(a)(1), required that in claims for service connection for PTSD, there must be “[m]edical evidence diagnosing PTSD in accordance with § 4.125(a) of this chapter.” 75 FR at 53765.
We note that § 5.250(e)(2)(ii) was based on a provision in § 3.304(f)(3), which VA added by a separate rulemaking published July 13, 2010 (75 FR 39843) and which has been challenged in the case
Several commenters suggested that proposed § 5.250(e)(1) be changed to allow the stressor to be confirmed by any examining or treating psychiatrist or psychologist, not just a VA psychiatrist or psychologist. We note this provision is based on a provision in § 3.304(f)(3), which VA added by a separate rulemaking published July 13, 2010 (75 FR 39843) and which has been challenged in the case
Another commenter urged VA to revise proposed § 5.250 (f) “Special rules for establishing a stressor based on personal assault”, to allow veterans diagnosed with PTSD resulting from Military Sexual Trauma (MST) six months to respond to a VA request for more information about their stressor, rather than the 30 days under current VA practice pursuant to the Veterans Claims Assistance Act (VCAA). The commenter asserted that, “Without more time veterans with PTSD secondary to MST are unlikely to comply.” In support of this assertion, the commenter stated:
Veterans with PTSD as a result of MST often feel guilt or shame. Many of these veterans have not shared with family and friends that they were sexually assaulted in the military. If a veteran receives a VCAA notice asking for additional evidence, such as statements regarding changes in behavior from friends and family, the guilt and shame that they are suffering make it unlikely that the veteran will respond to the 30 day deadline of the VCAA notice. Many of ICLC's clients are in mental health treatment facilities because of the impact of their PTSD secondary to MST. These clients cannot handle day to day functions. Responding within 30 days to a VCAA notice is unrealistic. This is especially true considering that the information the Regional Office requires can be difficult to obtain. Records from rape crisis centers are destroyed after a period of time and it can take as long as nine months to obtain service treatment records from the National Personnel Records Center. We have found that our clients need significant help and time to respond to the VCAA notice.
The commenter also expressed concern that proposed § 5.250(f) does not provide enough detail as to how a veteran will be “advised that evidence from sources other than the veterans service records may constitute credible supporting evidence.” The commenter noted that although the purpose of VA's Regulation Rewrite Project is to make VA regulations more logical, claimant-focused, and user-friendly, simply adopting 38 CFR 3.304(f)(5) “wastes an opportunity to provide more concrete explanation of the type of notice that will be provided to a veteran with PTSD secondary to MST.”
As a preliminary matter, we note that the procedures VA follows for requesting evidence from claimants is explained in proposed § 5.90 (based on current 38 CFR 3.159). These procedures apply to all claims, so it would be redundant to restate them in § 5.250. Regarding the commenter's suggestion that, for military sexual trauma claims, VA expand the time permitted to respond to VA requests for evidence, we note that the commenter is correct that the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
When we initially proposed § 5.251 (see 75 FR 53744, Sept. 1, 2010), we failed to state in the preamble that proposed 5.251(c) would be new. It would incorporate and expand upon 38 CFR 4.127, which states, “Mental retardation and personality disorders are not diseases or injuries for compensation purposes, and, except as provided in § 3.310(a) of this chapter, disability resulting from them may not be service-connected. However, disability resulting from a mental disorder that is superimposed upon mental retardation or a personality disorder may be service-connected.” Proposed § 5.251(c) expands the principle to recognize that the preexistence or coexistence of disabilities for which VA cannot grant service connection does not preclude granting service connection for “superimposed” disabilities that independently meet the criteria for service connection.
In a document published in the
One commenter suggested that the proposed undesignated center heading before § 5.260 is inaccurate. As proposed, it read, “Presumptions of Service Connection for Certain Disabilities, and Related Matters.” The commenter suggested that the word “disabilities” should be replaced by the word “diseases” because the presumption of service connection attaches to the disease rather than the disability and because it conflicts with subsequent regulatory language using the word “disease”.
We agree with the commenter that it is appropriate to add “diseases” to the undesignated center heading; however, we would do so by inserting the word before the word “disabilities”, rather than by replacing that word. The proposed undesignated center heading was imprecise because it was under-inclusive; however, to change the undesignated center heading by replacing “disabilities” with “diseases” would also be under-inclusive because to simply refer in our regulations to “diseases” may not adequately identify to readers all of the medical conditions identified by the authorizing statutes.
Thus, we propose to revise both the undesignated center heading and the regulations herein in accordance with the above discussion. For example, in § 5.261, we refer to “chronic diseases” because that is the term the statute uses and because the list comprises conditions that are commonly understood to be diseases. The sole exception might be a “brain hemorrhage”, but we do not believe that including that condition on the long list of “chronic diseases” will create confusion. On the other hand, in § 5.267(b), we provide a “list [of] diseases or injuries that VA will consider associated with full-body exposure to nitrogen mustard, sulfur mustard, or Lewisite” because that list contains several items that are more commonly understood to be injuries, such as corneal opacities and scar formation.
We propose to revise the heading of § 5.260 from “General rules and definitions” to “General rules governing presumptions of service connection.” This title is more precise and more descriptive.
We received two comments regarding § 5.260(a), a new provision that describes the purpose of presumptions of service connection. Both commenters agreed that the description of presumptions and how they operate in § 5.260(a) is accurate. However, both commenters suggested that VA add language to § 5.260(a) to clearly define the term “presumption”.
One commenter suggested supplementing the explanation of how a presumption operates with a legal definition of the term “presumption”, in order to make clear that presumptions are a rule of law that must be followed unless the presumption is sufficiently rebutted. The commenter suggested two definitions. The first is from
After review, we propose not to define the term “presumption” in § 5.260(a). While both legal definitions of the term “presumption” suggested by the commenter are correct, we do not believe that regulation readers will be best served by a legal definition of the term “presumption” in § 5.260(a). Since the legal definition of a presumption is a clear concept in the law, it is not necessary to include such a definition to aid the courts in interpreting the term “presumption”. In addition, a legal definition of “presumption” in proposed § 5.260(a) would not well serve readers who may not be familiar with legal jargon in such a definition. With respect to the commenter's suggestion that VA must clarify that a presumption is a rule of law, we note that the mere existence of presumptions in both the statutes and in these regulations makes clear that these presumptions are in fact laws. With respect to the legal effect of a presumption, we have adequately explained the effect of the presumptions of service connection in proposed § 5.260(a).
Another commenter suggested that VA adopt the final sentence of § 3.303(d) as the first sentence of § 5.260(a), as it is a clear and succinct statement of the purpose of presumptions. The final sentence of § 3.303(d) reads: “The presumptive provisions of the statute and [VA] regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid.”
We agree in part, and propose to add the following as the first sentence of § 5.260(a): “Presumptions of service connection apply when the evidence would not warrant service connection without their aid.” We do not mean to include the characterization of the presumptions as liberalizations because such a characterization is not helpful. Although it is true that presumptions of service connection allow veterans who might not be able to establish direct service connection to have their disease service connected, it is misleading to refer to them as liberalizations. The effect of a liberalizing law is provided for in § 5.152, and we do not want § 5.260(a) to confuse that section with the general law governing presumptions of service connection.
In addition, we determined that in initially proposed § 5.260, we failed to include the second sentence of 38 CFR 3.303(d), which states, “Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.” We propose to restate this provision more clearly by adding this sentence at the end of § 5.260(a), “VA will not use the existence of a presumptive period to deny service connection for a presumptive disease diagnosed after the presumptive period if direct evidence shows it was incurred or aggravated during service.”
After reviewing initially proposed § 5.260(b)(1), we propose to remove the parentheses from around the last sentence of the paragraph because they are unnecessary.
Initially proposed § 5.260(b)(2) discussed “competent lay evidence”, “lay evidence”, and “medical evidence”. In § 5.1 we have defined “competent lay evidence” and “competent expert evidence” (which includes medical evidence). Our intent in initially proposed paragraph (b)(2) was to refer to competent evidence. We therefore propose to insert the word competent before lay and medical throughout this paragraph. To ensure consistency we propose to make these same changes throughout part 5.
We propose to make a minor technical change to the language of § 5.260(c). The introductory text to § 5.260(c), as initially proposed, stated: “VA cannot grant service connection under this section when the presumption has been rebutted by the evidence of record.” 69 FR 44624, July 27, 2004. We propose to change the words “this section” in this sentence to “§§ 5.261, 5.262, 5.264 through 5.268, 5.270 and 5.271”.
In addition, we propose to change initially proposed § 5.260(c) based on comments objecting to our decision not to use the term “affirmative evidence” in the description of what kind of evidence may be used to rebut a presumption of service connection for a disease. Specifically, in § 5.260(c)(2) we stated that “[a]ny evidence competent to indicate the time a disease existed or started may rebut a presumption of service connection that would otherwise
However, some commenters asserted that under no circumstances may VA rebut a presumption based on the absence of evidence. A commenter stated that a medical opinion founded on the absence of symptoms is not “affirmative evidence”. Similarly, another commenter stated that a medical opinion used to rebut the presumption of service connection for a chronic disease may not be based on the length of time between service and clinical manifestation of the disease, because Congress chose a specific period for the presumption of service connection to apply for each disease. The commenter noted that in 38 U.S.C. 1112(a)(2), Congress provided for a presumptive period of “one year from the date of separation from such service, or at a time when standard or accepted treatises indicate that the incubation period thereof commenced during such service.” According to the commenter, because Congress did not provide this alternative for chronic diseases, pure medical judgments cannot override the presumptive period allotted by Congress.
We disagree with these comments in the following respect: To rebut a presumption that a presumptive disease was incurred during service or during the post-service presumptive period, affirmative evidence would have to show that the disease did not exist at such time. A medical opinion that establishes the date of onset of the disease determined by the use of fact-based medical evidence may serve as “affirmative evidence” regarding the onset or existence of that disease, even if the mere absence of symptoms or other evidence of disease is not. In other words, it is the medical professional's qualified opinion that serves as evidence to be considered by VA's adjudicator, not the lack of evidence in the claims file. Hence, we propose to revise § 5.260(c)(2) to state that “the absence of evidence may be a basis for affirmative evidence. For example, a medical professional may conclude that a disease or disability existed or started at a particular time based on an absence of evidence of signs or symptoms of the condition before that time.”
One commenter objected to the statement in proposed § 5.260(c) which states that once a presumption has been rebutted, VA can no longer grant presumptive service connection. The commenter believes the statement is not true in all cases, and suggests that if the veteran provides medical or lay evidence, it would be possible for the veteran to establish service connection on a presumptive basis. As an example, the commenter proposes a situation where VA reviews available medical records and finds the evidence rebuts the presumption of service connection because the veteran has not received a credible diagnosis of the disease for which he or she is claiming presumptive service connection. The commenter proposes that if the veteran later obtains a credible medical opinion diagnosing the veteran with the presumptive disease, the veteran should be entitled to presumptive service connection.
We propose not to make any changes based on this comment. In the hypothetical situation posed by the commenter, the absence of a credible diagnosis of the claimed disease does not serve to rebut the presumption of service connection. In that situation, the presumption never arose because the existence of the claimed condition is one of the underlying facts necessary to give rise to the presumption. If the veteran subsequently presents evidence sufficient to prove that he or she did in fact suffer from a disease for which VA may grant presumptive service connection, then the presumption will apply.
In any event, no scenario allows VA to grant presumptive service connection after the evidence rebuts the presumption. The commenter is correct that if VA rebuts the presumption of service connection for a disease, the veteran is entitled to bring forth evidence supporting service connection. However, service connection established in this manner is granted under 38 U.S.C. 1110 (generally referred to as “direct” service connection) and is not presumptive service connection. If the presumption of service connection is rebutted, a veteran may still establish service connection by filing evidence showing the onset of the disease in service, or by any other method provided by these regulations.
In NPRM AM07, we changed “symptomatology” to “signs or symptoms” consistent with current medical terminology. For consistency, we propose to do the same in § 5.260 and throughout part 5. In paragraph (b)(1), we propose to change “symptomatology” to “signs or symptoms”. In (b)(2), we propose to replace the phrase “physical findings and symptomatology” with “signs or symptoms”. The term “signs” is equivalent to “physical findings”. Moreover, we intend this rule to include mental as well as physical signs.
In initially proposed paragraph (c)(2), we stated, “For example, a medical professional may conclude that a disease or disability existed or started at a particular time based on an absence of evidence of symptoms of the condition.” We now propose to insert “signs or” before “symptoms”. We also propose to insert “before that time” at the end of the sentence to clarify when an absence of signs or symptoms is relevant.
In initially proposed § 5.260(a) and (c) we omitted reference to § 5.263, “Presumption of Service Connection for Non-Hodgkin's Lymphoma Based on Service in Vietnam”. In reviewing the presumption regulations to respond to comments, we have noted that there is no reason to exclude § 5.263 from these provisions. We recognize that 38 CFR 3.313 contains no rebuttal provision but we do not believe that an irrebuttable presumption would be consistent with title 38 to the extent it would authorize benefits for a disease shown by clear evidence to be unrelated to service or to be attributable to the veteran's willful misconduct. We therefore propose to include § 5.263 in paragraphs (a) and (c).
In reviewing the initially proposed regulation, we noted that we included the phrase, “from a qualifying period of service”, in § 5.261(a)(1), but not in § 5.261(a)(2). To ensure that readers are aware that the presumptions apply only after a period of qualifying service, we propose to revise § 5.261(a)(2) to include the phrase, “after a qualifying period of service”. In § 5.261(a)(1), we propose to change the term, “a year” to “1 year” to ensure consistency throughout our regulations.
In initially proposed § 5.261(c), based on current §§ 3.307(a)(2) and 3.308(a), we stated, “In claims based on service ending before December 7, 1941, for purpose of determining whether a chronic disease manifested within a presumptive period under this section,
One commenter suggested that VA include a statement clarifying that the chronic diseases listed in initially proposed § 5.261(d) (now (c)) are the only conditions that will be considered chronic. Currently, § 3.307(a) states that no condition other than one listed in § 3.309(a) will be considered chronic. In addition, 38 U.S.C. 1101(3) contains a list of chronic diseases and includes “such other chronic diseases as the Secretary may add to this list”, which strongly implies that the list should be considered exclusive absent action by the Secretary. The commenter believes that stating that the list of chronic diseases in § 5.261(d) is exclusive will prevent any misconception that VA has the ability to establish presumptive service connection for any disease which appears no later than 1 year after leaving service. The commenter concluded that nothing prevents VA from stating the list of chronic conditions in § 5.261(d) is exclusive.
We agree and propose to include the sentence, “Only conditions listed in this section are chronic for purposes of this section.” The commenter is correct that only the conditions listed in § 5.261(d) will be considered chronic for purposes of presumptive service connection under § 5.261.
One commenter suggested that for clarity, § 5.261(d) should use the words “acute and transitory” instead of simply using “acute”. The commenter states that the “acute and transitory” language is “consistent with long-standing VA parlance regarding how it adjudicates claims based on chronic conditions.” Although VA has previously used the term “acute and transitory” in decisions, it is not consistent with current VA terminology used in adjudicating claims based on chronic conditions. The word “transitory” is not found in any regulation in either part 3 or part 4 of title 38 CFR. Nor is it found in “Dorland's Illustrated Med. Dictionary” (31st ed. 2007). Moreover, “acute” and “transitory” both suggest brief duration, so that “transitory” does not add to the meaning of the rule. For these reasons, we propose to make no changes based on this comment.
Initially proposed § 5.261(d) is based on § 3.307(b) and contains an exclusive list of the diseases VA considers chronic for purpose of presumptive service connection. One commenter stated that this section would “authorize adjudicators to determine that a chronic disease which has manifested to a compensable degree and which is under consideration for service connection is not chronic.” The commenter stated that VA has no lawful authority to make an independent factual determination contrary to the command of 38 U.S.C. 1101(3), which lists chronic diseases for purposes of disability compensation.
However, 38 U.S.C. 1101(3) only defines what are considered to be chronic diseases; it does not contain any requirement that service connection be granted for the listed diseases. The requirement to grant presumptive service connection for chronic diseases is found in 38 U.S.C. 1112(a), which states that a chronic disease will be considered to have been incurred in or aggravated by such service. The authority to rebut a presumption of service connection is found at 38 U.S.C. 1113(a), which states that “where there is affirmative evidence to the contrary, or evidence to establish that intercurrent injury or disease . . . has been suffered . . . service-connection . . . will not be in order.” The wording in initially proposed § 5.261(c) is a restatement of the previous wording used in § 3.307(b), which states, “Unless the clinical picture is clear otherwise, consideration will be given as to whether an acute condition is an exacerbation of a chronic disease.” As initially proposed, § 5.261(d) restated this principle as, “Unless the clinical picture clearly shows the condition was only acute, VA will consider whether an acute condition was an exacerbation of a chronic disease.” Based on the comment, we understand that the proposed rule could be misunderstood to authorize VA to treat a chronic condition as if it were acute. Neither the statute nor the current regulation authorize such treatment, and we did not propose to create such authorization in § 5.261(d). Hence, we propose to revise the sentence so that it more closely follows the language of the current regulation.
We received four comments stating that our proposed rule regarding the presumption of service connection for aggravation of certain chronic diseases and diseases associated with exposure to certain herbicide agents in proposed §§ 5.261(d) and 5.262(e) is contrary to the holding of the U.S. Court of Appeals for the Federal Circuit in
Additionally, a commenter suggested that the treatment of preexisting conditions under 38 U.S.C. 1112(a) and 1116(a) conflicts with the treatment of preexisting conditions under 38 U.S.C. 1153, the general presumption of aggravation. Commenters asserted that VA could not arbitrarily apply different rules to veterans who had preexisting disabilities that were aggravated by service than to veterans who had no preexisting disabilities. One commenter suggested that the only difference is the “formality” that the underlying pathology had its inception prior to service rather than during service.
By way of background, 38 U.S.C. 1153 provides a presumption that “[a] preexisting injury or disease will be considered to have been aggravated by active military . . . service, where there is an increase in disability during such service.” The presumptions at issue in proposed §§ 5.261 and 5.262, however, are based on 38 U.S.C. 1112(a) and 1116(a), which provide a presumption for conditions that manifest to a degree of disability of 10 percent or more during a specified period of time after service.
In the
Our proposed part 5 regulations specifically accounted for this possibility by presuming that a chronic disease or a disease associated with herbicide exposure is presumed to have been aggravated during service if the disease manifests to a compensable degree within the applicable presumptive period. Proposed § 5.261(d) stated that VA cannot presume service connection when the evidence shows that the disease existed prior to military service to a degree of 10 percent or more disabling.
Section 5.262(e) used nearly identical language. We explained our rationale in the NPRM, as follows:
The Federal Circuit held that the words “or aggravated by” indicate that Congress meant section 1112(a) to apply to those situations where multiple sclerosis predated entry into the service and became disabling to a compensable degree within the presumptive period following service. The “or aggravated by” language also appears in 38 U.S.C. 1116(a)(1)(B), which provides the authority for the presumptions based on herbicide exposure. Therefore, we propose to add language to clarify that presumptions may apply to a listed disease that preexisted service but first became manifest to a degree of 10 percent or more within the presumptive period following service.
Limiting §§ 5.261 and 5.262 presumptions to situations where the condition was not manifest to a degree of 10 percent or more disabling before service is not arbitrary, unfair, or beyond VA's statutory authority. Under 38 U.S.C. 1112(a)(1), VA must presume service connected “a chronic disease becoming manifest to a degree of 10 percent or more disabling within one year from the date of separation from . . . service,” and 38 U.S.C. 1116(a) similarly creates a presumption based on manifestation of a disease to a degree of 10 percent or more disabling within the presumptive period. Use of a 10 percent threshold would not make sense if a preexisting disease manifest to a degree of 10 percent or more disabling prior to service could trigger the presumption because the disease would already have reached the threshold before service. If Congress had intended to also presume aggravation for a veteran who already had a disease manifest to a compensable degree prior to service, the law could have been written to presume service connection for a disease that “worsens by 10 percent or more,” rather than one that “becom[es] manifest” to such a degree. Finally, we note that most of the diseases that are considered chronic are diseases that, had they been symptomatic prior to service, would have likely rendered the person ineligible for service. In fact, several of the conditions are so disabling that their symptoms cannot even be rated as merely 10 percent disabling. For example, the first signs of multiple sclerosis are rated at 30 percent under 38 CFR 4.124a, Diagnostic Code 8018. It is unlikely that VA will receive claims from persons who were compensably disabled before service, and our experience has not shown this to be a problem under the current regulations.
Lastly, we note that the
One commenter also had a comment related to the following sentence in the NPRM:
We note that if the condition preexisted service to a degree of 10 percent, for example, and after service the condition was 20 percent disabling, the veteran may be able to establish service connection using the presumption of aggravation in 38 U.S.C. 1153.
The commenter noted that 38 U.S.C. 1153 only applies to increases in disability during service. Therefore, this statement would not be correct with respect to increases in disability within the presumptive period. The commenter is correct that 38 U.S.C. 1153 only applies to aggravation during service. We clarify this statement by noting that when we said “after service”, we meant immediately after service.
The commenter stated that in some cases, VA would presume that a disease in a state of remission or inactivity was disabling to a degree of 10 percent at entry, while a draft rule for service connection indicates that VA would deny service connection for lack of current disability if a disease was in remission. The commenter objects to this dual standard for cases when diseases are in remission.
We propose to make no changes based on this comment. The provision the commenter discussed from the draft rule for service connection does not address this situation since that concerns direct service connection and not establishment of service connection through the use of the presumptions. Additionally, if there is no current disability, service connection cannot be established. Also, Congress in 38 U.S.C. 1112, mandated that the disease must manifest to a degree of 10 percent or more disabling before VA may presume service connection. A disease that is in remission and is not manifest to a degree of 10 percent or more disabling may not be service connected under the presumptions of service connection provisions.
In our initially proposed regulations on presumptions of service connection, we changed the wording found in §§ 3.307(a) and 3.317(c)(3), “. . . [certain diseases] will be considered to have been incurred in or aggravated by service . . .” to “VA will presume service connection [for certain diseases] . . .” We proposed this language in several part 5 regulations: §§ 5.262(a)(2), 5.264(b) and (c), 5.265(a) and (d), 5.267(a), and 5.268(b). This attempt to use simpler language resulted in a technical error because under its authorizing statutes, VA service connects disability or death, not injury or disease
We received four comments regarding the proposed definition of “Service in the Republic of Vietnam” in § 5.262(a)(1) for purposes of the presumption of service connection for diseases associated with exposure to certain herbicide agents. As proposed, § 5.262(a)(1) stated:
For purposes of this section, “Service in the Republic of Vietnam” does not include active military service in the waters offshore and service in other locations, but does include any such service in which the veteran had duty in or visited in the Republic of Vietnam, which includes service on the inland waterways.
Three commenters objected to the exclusion of service in the waters offshore Vietnam in the definition of “Service in the Republic of Vietnam” for purposes of § 5.262. One commenter stated that when Congress refers to a country by its name in a statute, it is referring to the entire country, including the entire area over which a country has
We propose to make no changes based on these comments. These comments are adequately addressed by
However, we do propose to revise initially proposed § 5.262(a)(1) so that it more clearly conveys the requirement that the veteran have served “on land, or on an inland waterway, in the Republic of Vietnam.”
On May 7, 2009, VA published Final Rule RIN 2900–AN01, “Presumptive Service Connection for Disease Associated With Exposure to Certain Herbicide Agents: AL Amyloidosis”, which stated the Secretary's determination of “a positive association between exposure to herbicide agents and the occurrence of AL amyloidosis” and added that disease to 38 CFR 3.309(e). 74 FR 21258. Therefore, we now propose to include AL amyloidosis in § 5.262(e) in accordance with the Secretary's finding.
On August 31, 2010, VA published RIN 2900–AN54, “Diseases Associated With Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and Other Chronic B-Cell Leukemias, Parkinson's Disease and Ischemic Heart Disease)” which stated the Secretary's determination of “a positive association between exposure to herbicide agents and the occurrence of those diseases” and added those diseases to 38 CFR 3.309(e). 75 FR 53202. Therefore, we now propose to include them in § 5.262(e) in accordance with the Secretary's finding.
We propose to change the term “acute and subacute peripheral neuropathy” in § 5.262 and instead use the term “early-onset peripheral neuropathy”. Additionally, we have removed note \1\ which provided that peripheral neuropathy must resolve within 2 years of onset. This conforms to changes made in part 3. 78 FR 54763, Sept. 6, 2013.
One commenter believed that proposed § 5.263, which was based on § 3.313 with minor changes, was unnecessary. Proposed § 5.263 provides for presumptive service connection for non-Hodgkin's lymphoma based on service in Vietnam. The commenter asserted that anyone eligible for presumptive service connection under § 5.263 would also be eligible for presumptive service connection under § 5.262 and it is therefore unnecessary to have § 5.263.
We propose to make no changes based on this comment. We agree with the commenter that many of the veterans entitled to presumptive service connection under § 5.263 may also be entitled to presumptive service connection under § 5.262. However, there are differences between §§ 5.262 and 5.263 that require two separate rules. Therefore, we propose to retain § 5.263 in our final rule. One difference is in the definition of what constitutes “service in Vietnam”.
On June 30, 2006, VA published in the
Section 106 of Public Law 110–389, 122 Stat. 4145, 4149 (2008), amended 38 U.S.C. 1112(b)(2) by adding a new subparagraph (F) that creates a presumption of service connection for osteoporosis that becomes manifest to a degree of 10 percent for prisoners of war (POWs) if the Secretary determines that the veteran has posttraumatic stress disorder (PTSD). On August 28, 2009, VA published an amendment in the
In initially proposed § 5.265(d), we stated, “For any disease service connected under this section, VA will also service connect the resultant disorders or diseases originating because of therapy administered in connection with such a disease or as a preventative measure against such a disease.” We have determined that this sentence is redundant of the basic rule on secondary service connection contained in § 5.246, “Secondary service connection—disabilities that are due to or the result of service-connected injury or disease.” Therefore, we propose to remove this sentence from § 5.265(d).
One commenter suggested a minor clarifying change to § 5.265(e). The commenter suggested revising the sentence stating that “Residence during the applicable presumptive period where the particular disease is endemic may also be considered evidence to rebut the presumption”, to refer to “post-service” residence. The commenter recognized that this addition would be redundant (because the presumptive period is post-service), but
One commenter objected to the requirement in § 5.265(f) that would require a tropical disease to manifest to a degree of 10 percent or more disabling within the presumptive period in order for the disease to be presumptively service connected. The commenter noted that the statutory authorization for this presumption, 38 U.S.C. 1133, provides no minimum degree of manifestation for the presumption of service connection to apply for veterans with peacetime service before January 1, 1947. The commenter is correct. We propose to revise § 5.265(f) so that it no longer contains the 10 percent requirement.
Moreover, we discovered that we mistakenly used the term “existed”, rather than “manifested”, in initially proposed § 5.265(f). This language was taken from 38 CFR 3.308(b), but it does not appear in any other presumption regulation in part 5. Therefore, in order to ensure consistency with the other presumption regulations in part 5, we propose to replace “existed” with “manifested”.
We also propose to change the term “accepted medical treatises” to “accepted medical literature” throughout this section because “treatise” is a specific type of scholarly literature, specifically “a systematic exposition or argument in writing including methodical discussion of the facts and principles involved and conclusions reached.” “Merriam-Webster's Collegiate Dictionary” 1258 (10th ed. 1998). “Accepted medical literature” is a broader class of literature, sufficiently authoritative and more accessible to claimants than are “treatises”. We propose to make the same change in § 5.266, Disability compensation for certain qualifying chronic disabilities.
We propose to reorganize and make technical corrections to initially proposed § 5.266. We would reorganize this section as follows. Initially proposed paragraph (a) stated that VA will compensate veterans for a qualifying chronic disability and defined that term. Initially proposed paragraphs (b) and (c) defined undiagnosed illness and medically unexplained chronic multisymptom illness, respectively. Paragraph (f) would contain the general definitions that apply to all types of qualifying chronic disabilities.
We propose to move initially proposed paragraph (a)(1)(ii), which stated, “By history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis.” This paragraph would apply only to undiagnosed illnesses, not to other qualifying chronic disabilities, so we propose to move it into new paragraph (b), which would describe undiagnosed illnesses.
For purposes of accuracy, we propose to change the title of the regulation from “Compensation for certain disabilities due to undiagnosed illnesses” to “Disability compensation for certain qualifying chronic disabilities”.
Since publication of the AL70 NPRM, VA published a Final Rule VA that made technical revisions to 38 CFR 3.317 to clarify that adjudicators have the authority to determine whether diseases in addition to the three listed in 38 U.S.C. 1117 qualify as medically unexplained chronic multisymptom illnesses in addition to the three that are listed in 38 U.S.C. 1117. 75 FR 61995, Oct. 7, 2010. VA subsequently published a final rule that replaced “irritable bowel syndrome” with “functional gastrointestinal disorders”. 76 FR 41696, Jul. 15, 2011. We propose to incorporate these regulatory amendments into § 5.266.
Current 38 CFR 3.317(c) describes situations in which the presumptions in that section will be considered rebutted. We note that § 3.307(d) (the basis for initially proposed § 5.260(c)) already contains this same rebuttal information as it applies to the various presumptions listed in § 3.309, but not to § 3.317. We now propose to expand the scope of § 5.260(c) to include § 5.266 and 5.271. To avoid duplication, we propose to exclude the duplicate provisions from § 5.266 and 5.271.
One commenter asserted that the proposed rule would have changed the current rule, § 3.316, which the commenter said requires direct service connection for exposure to mustard gas and Lewisite, to a rule that would establish presumptive service connection based on such exposure. The commenter questioned whether VA has the authority to create a new class of presumptive conditions. The commenter stated that the wording of proposed § 5.267(a) should be amended to provide for direct service connection, rather than presumptive service connection.
The commenter is incorrect that VA grants direct service connection under § 3.316. Although the regulation text does not explicitly state so, § 3.316 grants presumptive service connection and not direct service connection. The regulation presumes a medical nexus between full-body exposure to mustard gas or Lewisite and the listed diseases, thereby establishing a presumption as described in § 5.260(a).
We also note that our authority to create presumptions is explicitly set forth in 38 U.S.C. 501(a)(1), under which the Secretary may prescribe “regulations with respect to the nature and extent of proof and evidence . . . in order to establish the right to benefits”. As we noted in the preamble to the NPRM, the Secretary exercised this authority when he first promulgated § 3.316. 69 FR 44614, July 27, 2004.
We propose to revise the sentence preceding the table in § 5.267(b) so it is a complete sentence instead of a phrase and so it is consistent with other table introductions used in this regulation. We also propose to change “condition” in paragraph (a)(2) to “injury or disease” to be consistent with paragraph (b). In the table, we propose to change “disease or disability” to “injury or disease” for the same reason.
In initially proposed § 5.268 we inadvertently failed to include the provisions of current 38 CFR 3.309(d)(3)(ii)(E). We propose to correct this omission by inserting § 5.268(c)(6), which is virtually identical to current § 3.309(d)(3)(ii)(E).
In reviewing the comment received regarding this section, we have determined that both 38 CFR 3.311 and initially proposed § 5.269 use several different terms interchangeably or inconsistently. For example they refer to dose estimates as “dose assessments,” “dose information,” and “dose data”. We propose to remedy this problem by using the phrase “dose assessment” throughout § 5.269.
In initially proposed § 5.269(c)(3), we stated, “Neither the veteran nor the veteran's survivors may be required to produce evidence substantiating exposure if the information in the veteran's service records or other records maintained by the Department of Defense is consistent with the claim
In initially proposed § 5.269(b), we omitted, without explanation, a number of cancers listed in current 38 CFR 3.311(b)(2): thyroid cancer; breast cancer; lung cancer; liver cancer; skin cancer; esophageal cancer; stomach cancer; colon cancer; pancreatic cancer; kidney cancer; urinary bladder cancer; salivary gland cancer; multiple myeloma; ovarian cancer; cancer of the rectum; and prostate cancer. We omitted these because they are subsumed within the meaning of the phrase, “Cancer (any other not listed)” in initially proposed paragraph (b)(2) (based on the phrase, “Any other cancer” in current § 3.311(b)(2)(xxiv)). We provide this explanation now, to assure the public that the fact that these cancers are not specifically referenced in the part 5 rule does not represent VA's intent to alter the applicability of the presumption that the diseases in some cases were caused by exposure to ionizing radiation.
In initially proposed paragraph (c)(5)(iii) (now redesignated as (d)(2)(iii)) we referred to an estimated dose of “zero rem gamma”. The word “gamma” is not in § 3.311 and we propose to remove it because it would improperly narrow the scope of this paragraph.
In initially proposed paragraph (d)(1) (now redesignated as paragraph (c)(1)(iii)), we stated, “If neither the Department of Defense nor any other source provides VA with records adequate to permit the Under Secretary to prepare a dose estimate, then VA will ask the Department of Defense to provide a dose estimate.” We stated in the preamble that this provision would reflect the fact that it is impossible to estimate the likelihood that ionizing radiation exposure caused a claimed condition in the absence of a numerical ionizing radiation dose estimate and that VA would be unable to prepare a dose estimate if it has not received any records on which to base such an estimate.
Upon review of this provision, we have determined that it does not accurately reflect VA's procedures in such cases. Moreover, it would be impracticable to request dose assessments from the Department of Defense (DoD) in these cases. This is because if DoD lacked records adequate to permit the Under Secretary for Health to prepare a dose assessment, then presumably DoD would likewise be unable to do so. For this reason, we propose to remove this provision.
In initially proposed paragraph (f), now redesignated as paragraph (g), we stated, “With regard to any issue material to consideration of a claim, the provisions of § 3.102 of this title apply (any reasonable doubt on any issue will be resolved in favor of the claimant).” In proposed § 5.3, we state, “When the evidence is in equipoise regarding a particular fact or issue, VA will give the benefit of the doubt to the claimant and the fact or issue will be resolved in the claimant's favor.” Since this provision applies to all VA claims, there is no need to repeat it in this paragraph and so we propose to remove it.
We received one comment stating that part of initially proposed § 5.269(g), now redesignated as paragraph (h), is unnecessary. The commenter believes that there is no danger of service connection being established for a disease due to radiation exposure if the disease is due to the abuse of alcohol or drugs. The commenter believes that since § 5.269 requires competent evidence and a decision by the Under Secretary of Benefits that it is at least as likely as not that the veteran's disease resulted from ionizing radiation in service, a disease due to the abuse of alcohol or drugs could not possibly be service connected under § 5.269.
We agree that the language regarding abuse of alcohol or drugs is unnecessary in § 5.269(h) and propose to remove it. Section 5.662, “Alcohol and drug abuse”, already bars an award of service connection for disabilities resulting from such abuse. For the same reason, we propose to remove such language from § 5.266(c)(3).
In initially proposed § 5.269(g), now redesignated as paragraph (h), we referred to “a supervening, nonservice-related condition or event [that] is more likely the cause of the disease” but failed to say more likely than what. We propose to clarify this by adding “than was exposure to ionizing radiation in service” so that the sentence will read: “In no case will service connection be established if evidence establishes that a supervening condition or event unrelated to service is more likely the cause of the disease than was exposure to ionizing radiation in service.”
In addition to the changes described above, we also propose to make minor changes in format and wording for clarity and readability.
Since publication of the AL70 NPRM, VA published a Final Rule creating a presumption of service connection for amyotrophic lateral sclerosis, which was codified as 38 CFR 3.318. 73 FR 54693, Sept. 23, 2008. We propose to add the text of § 3.318 as new § 5.270, with one revision: rather than restate the rebuttal standards already contained in § 5.260(c), we simply referenced that paragraph.
Since publication of the AL70 NPRM, VA published a final rule creating presumptions of service connection for nine infectious diseases, which was codified as 38 CFR 3.317.75 FR 59968, Sept. 29, 2010. Infectious diseases are not actually within the definition of “qualifying chronic disability,” which is the purported subject of the regulation. Removing those provisions to a separate section will make the rules easier to comprehend and follow. We propose to incorporate these regulatory amendments into § 5.271.
We received two comments relating to the initial proposal in the NPRM not to repeat § 3.379 in part 5. This section concerned service connection of the disease anterior poliomyelitis. One commenter agreed with the proposal. Another commenter disagreed with both the proposal and VA's rationale for removing it.
We proposed not to include § 3.379 because it is unnecessary in light of the operation of proposed § 5.261 regarding the presumption of service connection for chronic diseases. 69 FR 44623, July 27, 2004. Congress specified myelitis as a chronic disease under 38 U.S.C. 1101(3), and anterior poliomyelitis is a subcategory of myelitis. The general rules of presumptive service connection for chronic diseases under § 5.261 would apply to anterior poliomyelitis and any veteran who would be service connected under § 3.379 would also be service connected under § 5.261. Therefore, we concluded that § 3.379 was unnecessary and we proposed not to include it in part 5. We propose to make no changes based on these comments.
One commenter stated that it is not proper to apply the general presumption of service connection to poliomyelitis without taking into account the known medical facts, specifically, that
The commenter also detailed the three possible outcomes of a poliomyelitis infection. First, there is nonparalytic poliomyelitis, which is an acute illness, which resolves with no chronic or permanently disabling residuals. Nonparalytic poliomyelitis may properly be denied service connection on that basis. Second, there is paralytic poliomyelitis. The commenter notes that the date of the antecedent illness for paralytic poliomyelitis is crucial. If it occurs no later than 35 days after separation from service, it must have occurred in service, but if it occurs more than 35 days after separation from service, it must have occurred after service (therefore rebutting the presumption of service connection). Finally, there is paralytic poliomyelitis without apparent antecedent illness. In this case, it is a matter for medical determination and opinion as to the most probable date of exposure. If the medical evidence is inconclusive, then the presumption of service connection for myelitis should apply.
We propose to make no changes based on this comment. The general rule for presumption of service connection for chronic diseases in § 5.261 would provide accurate results for all the situations the commenter described, including rebuttal by medical evidence of the type the commenter described.
First, regarding nonparalytic poliomyelitis, because this disease cannot possibly be 10 percent or more disabling, the presumption of service connection under § 5.261 cannot apply in these cases.
Second, regarding paralytic poliomyelitis, direct service connection may be established in the majority of cases based on medical knowledge that the illness occurs no later than 35 days after exposure. Where direct service connection is denied based on the fact that the illness occurred more than 35 days after separation from service, the presumption of § 5.261 will be considered. However, the presumption of service connection will be rebutted under the provisions of § 5.260(c)(1)(iii) because there will be a preponderance of evidence (based on fact-based medical evidence and the date symptoms first occurred) establishing that the disease was not incurred in service.
Finally, with respect to paralytic poliomyelitis without apparent antecedent illness as described by the commenter, where direct service connection is not in order, VA will consider the presumption of service connection for myelitis as a chronic disease. However, the Centers for Disease Control and Prevention reports that all forms of poliomyelitis have an incubation period of 3 to 35 days, so a fact-based medical opinion would be needed to establish the approximate date of onset. Poliomyelitis, Centers for Disease Control and Prevention 232, Poliomyelitis,
One commenter noted that in one part of the NPRM preamble, we “reserved” § 5.263, but elsewhere in the NPRM we proposed to repeat § 3.313 as § 5.263. The commenter felt that this was confusing. This was an error that we now propose to correct. We propose to create a new § 5.263 that has the same wording as § 3.313, except for the changes discussed in the preamble of the NPRM. We have corrected this in this proposed rule.
Initially proposed § 5.280(b)(1), based on 38 CFR 3.321, stated that for
One commenter suggested that to avoid injustice in a case where the VSC improperly fails to find that the schedular rating is inadequate, VA should revise § 5.280(b)(1) to read:
To accord justice to the exceptional case, the Under Secretary for Benefits or the Director of the Compensation and Pension Service, is authorized to approve on the basis of the criteria set forth in this paragraph, an extra-schedular rating commensurate with the average impairment of earning capacity due exclusively to the service-connected disability or disabilities.
The commenter asserted that this suggested language is consistent with
We note that the language of initially proposed 5.280(b)(1) was not substantively different from current § 3.321(b)(1), the regulation which was the basis for the courts' rulings in
We do not believe it is necessary to incorporate this line of cases into part 5. Since the
In reviewing proposed § 5.280 to respond to this comment, we have noted that it contains language (substantively the same as § 3.321(b)) that might confuse a reader. Specifically, proposed § 5.280(b)(1) stated, “To accord justice to the exceptional case where the [VA] finds the schedular ratings to be inadequate, the [VA] is authorized to approve on the basis of the criteria set forth in this paragraph (b) an extra-schedular rating commensurate with the average impairment of earning capacity due exclusively to the service-connected disability or disabilities.” The use of the plural “disabilities” might be misconstrued as allowing VA to approve an extra-schedular rating based partly on a disability for which the schedular rating is inadequate and partly on a disability for which the schedular rating is adequate, or to suggest that under § 5.280 VA must consider the combined effect of multiple disabilities in determining whether an extra-schedular award is appropriate.
VA never intended that § 3.321, nor initially proposed § 5.280, apply in either of those ways but rather that they be applied individually to each specific disability being evaluated. Therefore, we propose to use only the singular
Initially proposed § 5.281 stated:
VA may assign a 10 percent combined rating to a veteran with two or more permanent service-connected disabilities that are each rated as 0 percent disabling under the Schedule for Rating Disabilities in part 4 of this chapter, if the combined effect of such disabilities interferes with normal employability. VA cannot assign this 10 percent rating if the veteran has any other compensable rating.
One commenter suggested that for clarity, the second word in this section should be changed from “may” to “shall” to emphasize the mandatory nature of assigning the combined rating. We agree with this suggestion but we use “will” instead of “shall” throughout part 5 because the former is easier for the public to understand. We therefore propose to change “may” to “will” in § 5.281.
Initially proposed § 5.282(c) stated that, “If a veteran receives money or property of value in a judgment, settlement, or compromise from a cause of action for a qualifying nonservice-connected disability involving an organ or extremity described in paragraph (b) of this section, VA will offset the value of such judgment, settlement, or compromise against the increased disability compensation payable under this section.”
One commenter suggested that because the VA Schedule for Rating Disabilities does not provide compensation for non-economic loss, such as pain and suffering and loss of enjoyment of life, initially proposed § 5.282(c)(2) should calculate the offset of damages by first reducing the total amount recovered as damages by the amount received for pain and suffering and loss of enjoyment of life. The commenter also suggested that the amount paid for attorney fees and expenses for that recovery should be subtracted from the total amount recovered as damages.
The relevant statute, 38 U.S.C. 1151 does not allow VA to reduce the offset for any reason. Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
Initially proposed § 5.283(b) stated that, “VA will consider a total disability to be permanent when an impairment of mind or body, that makes it impossible for the average person to follow a substantially gainful occupation, is reasonably certain to continue throughout the life of the disabled person.”
One commenter asserted that it is inconsistent for VA to provide that total disability is permanent only if it is reasonably certain to continue throughout the lifetime of the veteran when the Social Security Administration considers a total disability to be permanent if it is likely to continue for 1 year or lead to death. The commenter asserted that veterans should not have a higher threshold for permanency than Social Security Disability recipients.
The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
In initially proposed § 5.300(b)(2)(ii), we stated, “Net worth of a minor family member will be considered income of the parent only if it is actually available to the veteran's parent for the minor's support.” This statement was erroneous and inconsistent with § 3.250(b)(2). In fact, a minor's net worth is not considered income. Rather it is considered as a separate matter from income. We therefore propose to revise paragraph (b)(2)(ii) to read, “Net worth of a minor family member will be considered in determining dependency of a parent only if it is actually available to the veteran's parent for the minor's support.”
In initially proposed § 5.300 we also failed to address a minor's income. We therefore propose to add a new paragraph (b)(1)(iii) which states, “Income of a minor family member from business or property will be considered income of the parent only if it is actually available to the veteran's parent for the minor's support.” This is merely a plain language restatement of the § 3.250(b)(2) provision quoted above.
Following publication of proposed § 5.304 in AM07, VA published a rulemaking to implement the “Caregivers” provisions of Public Law 111–163. 76 FR 26148 (May 5, 2011). As we stated in the preamble, “The stipend payments to Primary Family Caregivers under 38 U.S.C. 1720G(a)(3)(A)(ii)(V) constitute `payments [of benefits] made to, or on account of, a beneficiary' that are exempt from taxation under 38 U.S.C. 5301(a)(1). VA does not intend that the stipend replace career earnings.” Consistent with that interpretation, we believe that this stipend should not be counted as income when determining parental dependency. We therefore propose to add this exclusion as § 5.304(l) and redesignate previous paragraph (l) as paragraph (m).
In a document published in the
Current 38 CFR 3.352(c) states, “The performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance.” Initially proposed § 5.320(a) inadvertently omitted this paragraph. We therefore propose to insert this provision, phrased in a clearer way, into § 5.320(a).
The commenter noted that initially proposed § 5.320(b) differs from current § 3.352(a), from which it derives. The current rule defines “bedridden” as “that condition which, through its essential character, actually requires that the claimant remain in bed.” The initially proposed rule defined bedridden as requiring that the claimant “must remain in bed due to his or her disability or disabilities based on medical necessity and not based on a prescription of bed rest for purposes of convalescence or cure.” The commenter asserted that the change of language “may eliminate the possibility of using proof by lay testimony that remaining in bed is required.”
The need for aid and assistance or confinement to bed may be shown by
VA will always accept and consider lay evidence, even if such evidence cannot be dispositive of a particular factual issue. The consideration of lay evidence in the context of a determination on whether a person is bedridden is no different that the consideration of lay evidence on the context of any other factual determination. Therefore, we propose not to include an instruction regarding lay evidence.
However, the comment revealed that the initially proposed rule was unclear about the meaning of the term “bedridden”. Current § 3.352(a) states, “The fact that . . . a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice” to establish bedridden status. The gist of this qualification is to distinguish the need to stay in bed unremittingly from a need to be in bed intermittently. It is the intermittency that distinguishes being in bed “for the greater or lesser part of the day” from being bedridden, not that convalescence or cure is the reason. If a doctor forbids a person to leave bed because of the person's medical condition, the person would be bedridden, whether the prescribed confinement was for convalescence, cure, or other reason. We propose to revise § 5.320(b) to preserve this point, consistent with § 3.352(a), by stating that the person who is bedridden “must remain in bed due to his or her disability or disabilities based on medical necessity and not based on a prescription of periods of intermittent bed rest.” Because the reason for the prescribed confinement is irrelevant, we propose to remove the phrase “for purposes of convalescence or cure”.
The initially proposed rule required that, “The individual is temporarily or permanently bedridden. . . .” A person who is permanently bedridden logically meets the requirement that he or she is temporarily bedridden. Because being either temporarily or permanently bedridden satisfies the requirement of § 5.320(b), there is no need to qualify “bedridden” as either temporarily or permanently. We therefore propose to remove the phrase “temporarily or permanently” before “bedridden”. However, a finding that a veteran is permanently bedridden is significant because such a veteran's special monthly compensation (SMC) will not be reduced based on hospitalization, as we explained in the preamble to the initially proposed rule.
Initially proposed § 5.320(b) omitted the sentence from current § 3.352(a) that states, “It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made.” However, we failed to explain that omission in our preamble. We note that initially proposed 5.320(a) already provided for aid and attendance if the claimant meets “any or all” of the listed criteria. Therefore this sentence was unnecessary and we propose not to include it in § 5.320.
At the end of initially proposed paragraph (a), we propose to add a notation that the term “aid and attendance” used in that paragraph is “defined in paragraphs (b) and (c) of this section.” The notation is needed to ensure that a reader does not think that the term means only the generally applicable definition set forth in proposed § 5.320.
The commenter addressed the visual impairment criteria of automatic eligibility for regular aid and attendance. Initially proposed § 5.321(b) provided that the spouse of a veteran who is 30 percent disabled is automatically considered in need of regular aid and attendance if the spouse's visual impairment meets one of two criteria: “(1) The spouse has corrected visual acuity of 5/200 or less in both eyes; [or] (2) The spouse has concentric contraction of the visual field to 5 degrees or less in both eyes”. Section 3.351(c)(1), from which proposed § 5.321(b)(2) derives, states, “. . . or concentric contraction of the visual field to 5 degrees or less.” The proposed rule specified the bilateral requirement, which VA has long implemented, as we explained in the notice of proposed rulemaking (NPRM). We explained that VA had long used these objective vision criteria to satisfy the regulatory criteria of “blind or so nearly blind”.
The commenter asserts that there is a rational basis to construe the visual impairment criteria of the need for regular aid and attendance differently for the spouse of a 30 percent disabled veteran than for a veteran seeking disability compensation for visual impairment. The commenter stated:
To the contrary, the criterion for granting a veteran, who already has a 30% disability, additional benefits because of having a spouse with a serious visual impairment should be more relaxed than the standard for rating the veteran's own visual impairment. It follows that even a spouse with a unilateral concentric contraction of the visual field to 5 degrees or less would necessarily require regular aid and attendance which would be an additional financial burden on a veteran who is 30% disabled.
We disagree with the commenter for two reasons. First, the aid and attendance criterion of “blind, or so nearly blind” is established by statute. 38 U.S.C. 1115(1)(E)(ii). VA would exceed its authority to “relax” the statutory standard for finding the veteran's spouse in need of regular aid and attendance. As we explained in the initial NPRM, by reference to the VA Schedule for Rating Disabilities, a person with unilateral concentric contraction of the visual field to 5 degrees or less “cannot rationally be considered `so nearly blind' as to need regular aid and attendance.” Section 5.321(b) states an objective measure of vision that VA considers “so nearly blind” as to need regular aid and attendance without further inquiry. It confers the benefit of automatic eligibility without burdening the veteran to prove some other way that his or her spouse is “blind, or so nearly
Second, we disagree that because a veteran is 30 percent disabled the veteran's spouse would necessarily require regular aid and attendance with unilateral concentric contraction of the visual field to 5 degrees or less, or, by implication, with less impairment than prescribed by proposed § 5.321(b). The need for regular aid and attendance is a function of a person's ability to care for himself or herself, not of another's ability to provide financial or other support. Although the veteran's ability to provide for the spouse financially or otherwise could vary in relation to the veteran's disability, it does not logically follow that the spouse's need for regular aid and attendance varies in relation to the veteran's disability. In light of the discussion above, we propose to make no changes based on this comment.
In initially proposed § 5.322(a)(1), we stated that multiple regulations allow special monthly compensation (SMC) to veterans who have certain service-connected disabilities. In initially proposed paragraph (a)(2), we stated that certain nonservice-connected disabilities will be considered in determining entitlement to SMC, and we listed the relevant sections. To emphasize that service-connected disability is a prerequisite for SMC, we propose to add this sentence to paragraph (a)(1): “Except as specified in paragraph (a)(2) of this section, the disabilities referred to in §§ 5.323–5.333 must be service connected.”
Section 601 of Public Law 111–275, 124 Stat. 2864, 2884 (2010) amended 38 U.S.C. 1114(m) to replace the phrases “at a level, or with complications,” and “at levels, or with complications,” with the phrase “with factors”. The public law also amended section 1114(n) to replace “at levels, or with complications,” with the phrase “with factors” and to replace “so near the shoulder and hip as to” with “factors that”. It also amended section 1114(o) to replace “so near the shoulder as to” with “with factors that”. We propose to revise initially proposed §§ 5.322, 5.325–5.330, and 5.334 to conform to this new statutory language.
In the NPRM, we identified many disabilities in those sections as “service connected”. Given that service-connected disability is a requirement for all SMC benefits (except as specifically provided in certain sections), we have determined that it is unnecessary to specify each disability as service connected throughout those sections. We have therefore removed the modifier “service-connected” throughout §§ 5.321 and 5.323–5.333, except where necessary to distinguish the service-connected disability from a nonservice-connected disability.
We have reorganized initially proposed § 5.323(b) and moved one sentence from paragraph (b) into a closely related part 5 section. Initially proposed § 5.323(b) stated limitations on SMC under 38 U.S.C. 1114(k). Paragraph (b)(1) stated limitations on combining SMC under 38 U.S.C. 1114(k) with disability compensation under section 1114(a) through (j). Paragraph (b)(2) stated limitations on combining SMC under section 1114(k) with SMC under 1114(
One provision of initially proposed paragraph (b)(1)(iii) stated that the additional compensation for dependents under 38 U.S.C. 1115 is not subject to the “above limitations”, meaning the limitations in initially proposed paragraph § 5.323(b)(1). We propose to move this provision to § 5.240, “Disability compensation”, because it pertains to all disability compensation, not just to SMC.
The remainder of initially proposed paragraph (b)(1)(iii) stated that “the additional allowance for regular aid and attendance or a higher level of care provided by 38 U.S.C. 1114(r) [is] not subject to the above limitations regarding maximum monthly compensation payable under this paragraph.” To improve clarity, we therefore propose to redesignate this provision of initially proposed paragraph (b)(1)(iii) as paragraph (b)(3) and have clearly identified the excluded limitations as those of § 5.323(b). For consistency throughout part 5, we propose to revise “compensation” to read “disability compensation”. As revised, the sentence will read: “The additional allowance for regular aid and attendance or a higher level of care provided by 38 U.S.C. 1114(r) is not subject to the limitations of paragraph (b) of this section regarding maximum monthly disability compensation payable under 38 U.S.C. 1114(k) in combination with other rates.”
The commenter asserted that as initially proposed, § 5.324(d) violated the “benefit of the doubt” rule of 38 U.S.C. 5107(b) by defining “permanently bedridden” as “reasonably certain that the confinement to bed will continue throughout his or her lifetime.” The commenter noted that the benefit of the doubt rule is “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” The commenter argued that to comply with the benefit of the doubt rule, § 5.324(d) should substitute “at least as likely as not” for “reasonably certain”. That is, it should read, “It is at least as likely as not that the confinement to bed will continue throughout his or her lifetime.”
The statute that § 5.324(d) implements authorizes VA to pay special monthly compensation to a veteran who is “permanently bedridden.” 38 U.S.C. 1114(
We propose to amend the language in § 5.325 for clarity.
In initially proposed § 5.326(i), we provided an award of SMC under 38 U.S.C. 1114(m) based on the facts found “[i]f the veteran has . . . concentric contraction of the visual field to 5 degrees or less in both eyes”. This paragraph was derived from § 3.350(c)(3), which does not include the “or less” criterion.
In initially proposed § 5.330(c), we stated one combination of disabilities that qualify a veteran for an award under 38 U.S.C. 1114(o) as follows: “Total deafness in one ear, or bilateral deafness rated at 40 percent or more disabling, even if the hearing impairment in one ear is nonservice connected, in combination with service-connected blindness of both eyes having only light perception or less.” We believe the phrase “only light perception or less”, which is also contained in current 38 CFR 3.350(e)(1)(iv), may confuse readers because it fails to explain what “less” refers to. The intent of § 3.350(e)(1)(iv) is to include veterans with only light perception or less vision, so we propose to add the word vision at the end of § 5.330(c).
The preamble to initially proposed 5.330 stated, “We will not repeat § 3.350(e)(4) and the third and fourth sentences of § 3.350(e)(3). These sentences are redundant of § 3.350(e)(1)(ii) . . .” In fact, we actually omitted the second through fourth sentences, for the same reason.
Section 601 of Public Law 111–275, 124 Stat. 2864, 2884 (2010) amended 38 U.S.C. 1114 by adding a new paragraph (t) which provides:
Subject to section 5503(c) of this title, if any veteran, as the result of service-connected disability, is in need of regular aid and attendance for the residuals of traumatic brain injury, is not eligible for compensation under subsection (r)(2), and in the absence of such regular aid and attendance would require hospitalization, nursing home care, or other residential institutional care, the veteran shall be paid, in addition to any other compensation under this section, a monthly aid and attendance allowance equal to the rate described in subsection (r)(2), which for purposes of section 1134 of this title shall be considered as additional compensation payable for disability. An allowance authorized under this subsection shall be paid in lieu of any allowance authorized by subsection (r)(1).
We propose to add a new paragraph (c)(7) to initially proposed § 5.332 to implement this statutory change.
In
Special monthly compensation under 38 U.S.C. 1114(s) is payable to a veteran who has a single disability rated 100 percent disabling under subpart B of the Schedule for Rating Disabilities in part 4 of this chapter, or a disability that is the sole basis for a rating of total disability based on individual unemployability (TDIU) under § 4.16 of this chapter, and [additional disabilities as described in either paragraph (a) or (b) of § 5.333].
We propose to revise
Title 38 CFR 3.501(b)(3) states that the effective date for discontinuance of additional compensation paid based on a spouse's need for regular aid and attendance is the, “[e]nd of month in which award action is taken if need for aid and attendance has ceased.” Initially proposed paragraph (b) stated, “The effective date for the discontinuance of regular aid and attendance will be the end of the month in which VA stops paying the aid and attendance.” The proposed regulation incorrectly stated that VA will stop paying the benefit when we discontinue the benefit. It also failed to identify the reason for the discontinuance: the spouse no longer needs regular aid and attendance. We propose to remedy these two defects by revising the sentence to read, “If the veteran's spouse no longer needs regular aid and attendance, VA will discontinue additional compensation effective the end of the month in which VA takes the award action to discontinue.”
We have determined that initially proposed § 5.337 is redundant of § 5.720(f). We therefore propose to delete § 5.337 from part 5.
Initially proposed § 5.350 erroneously included applicability date rules derived from current § 3.361(a)(1) and (2). Those rules pertain, respectively, to the applicability date of § 3.361 to claims for benefits under 38 U.S.C. 1151(a) generally, and to claims for benefits related to compensated work therapy specifically. No regulation in part 5 will apply before the applicability date of part 5 as a whole, which will be on a date prescribed in the final rule. Consequently, we erred in restating in initially proposed § 5.350 the applicability dates prescribed in § 3.361. We now propose not to include them in § 5.350. We also propose to similarly revise initially proposed §§ 5.351 and 5.353, which also involve benefits under section 1151.
Section 3.800(a), “Disability or death due to hospitalization, etc.”, provides that:
Where disease, injury, death or the aggravation of an existing disease or injury occurs as a result of having submitted to an examination, medical or surgical treatment, hospitalization or the pursuit of a course of vocational rehabilitation under any law administered by the Department of Veterans Affairs and not the result of his (or her) own willful misconduct, disability or death compensation, or dependency and indemnity compensation will be awarded for such disease, injury, aggravation, or death as if such condition were service connected.
In initially proposed § 5.350, we failed to include a similar basic explanation of the benefits payable under 38 U.S.C. 1151. To correct this omission, we propose to insert similar language as new paragraph (a).
In initially proposed § 5.350(g), we stated, “The benefit payable under 38 U.S.C. 1151(a) to an eligible survivor for a veteran's death occurring after December 31, 1956, is dependency and indemnity compensation.” This paragraph is unnecessary because we use the term “dependency and indemnity compensation” in new paragraph (a), and part 5 will not govern any claims filed on or before December 31, 1956. We therefore propose to delete paragraph (g).
For the same reasons explained above as to § 3.350, we propose to delete initially proposed paragraph (a), which had stated that this rule applied to claims received after September 30, 1997. Accordingly, we propose to redesignate initially proposed paragraph (b) as paragraph (a), proposed paragraph (c) as paragraph (b), and proposed paragraph (d) as paragraph (c). We propose to remove unnecessary language from these paragraphs for clarity.
We propose to add paragraph (d), “Offset of award of benefits under 38 U.S.C. chapter 21 or 38 U.S.C. chapter 39”, to initially proposed § 5.352. Section 304(c) of the Veterans Benefits Improvement Act of 2004 amended 38 U.S.C. 1151(b) by adding section 1151(b)(2) relating to offset of chapter 21 and 39 benefits. VA amended current § 3.362 in August 2006 by adding paragraph (e) to that section to implement the part of 38 U.S.C. 1152(b) pertaining to 38 U.S.C. chapter 39. On September 23, 2010, VA amended § 3.362(e) to implement 38 U.S.C. 1151(b) pertaining to 38 U.S.C. chapter 21.
Initially proposed § 5.360 was based on 38 CFR 3.381 as it existed at the time (2008).
We propose to revise initially proposed § 5.360(a), “General Principles”, to incorporate the new introductory paragraph (a) of § 3.381 and to add a statement explaining what service connection for treatment purposes means. We likewise propose to include the second sentence of § 3.381(b) in § 5.360(c)(3). We also propose to revise initially proposed § 5.360 to simplify the provisions, to state the provisions in the active voice, to specify which Administration within VA must make which determinations, and to reorder the provisions in a more logical sequence.
We propose to change the sequence of the paragraphs, designating paragraph (b) as (c), paragraph (c) as (e), paragraph (d) as (b), and paragraph (e) as (d). It is more logical to include the paragraphs concerning what VA will service connect for treatment purposes together and in sequence and before the paragraph that provides for the conditions VA will not service connect for treatment purposes.
In proposed paragraph (c) (initially proposed paragraph (b)), we propose to rephrase the first sentence to state it in the active voice. We propose to remove the modifier, “chronic” from periodontal disease in paragraph (iv) because VA will treat any periodontal disease in a veteran who is eligible for treatment in accordance with the provisions of § 17.161 of this chapter. Periodontal disease, whether labeled acute or chronic, is classified based on the severity of the disease. Gingivitis, which is acute and treatable, is a milder form of periodontal disease. Periodontitis, which is chronic, is the condition that develops if gingivitis is untreated. Since these are essentially different stages of the same disease, VA will treat both stages.
We propose to remove the phrase, “outpatient dental” from the first sentence of paragraph (e) (initially proposed paragraph (c)) because it is redundant and unnecessary. This entire section concerns service connection of dental conditions for treatment purposes. It is immaterial whether VA treats the veteran as an outpatient or while hospitalized. We also propose to remove “acute periodontal disease” from the list of conditions that VA will not service connect for treatment purposes for the reasons stated earlier. We propose to redesignate the subsequent paragraphs accordingly.
Initially proposed § 5.365 restated § 3.300 essentially without change. Initially proposed § 5.365(b)(1) stated: “The disability or death resulted from injury or disease that is otherwise shown to have been incurred or aggravated during service, which means that the disability or death can be service connected on some basis other than the veteran's use of tobacco products during service.” The phrase “otherwise shown to have been incurred or aggravated” quotes paragraph (b) of the authorizing statute, 38 U.S.C. 1103. However, we have determined that the phrase “the disability or death can be service connected on some basis other than the veteran's use of tobacco products during service” is the premise of the paragraph. The other language in the initially proposed paragraph is superfluous. We therefore propose to remove this other language.
We also determined that the phrase, “the disability became manifest or death occurred during service”, which appeared in initially proposed (b)(1), is a separate exception to paragraph (a). We therefore propose to designate it paragraph (b)(2). Consequently, we propose to redesignate initially proposed paragraph (b)(2) as (b)(3) and initially proposed paragraph (b)(3) as (b)(4).
We further propose to change the word “appeared” in initially proposed paragraph (b)(2), redesignated paragraph (b)(3), to “manifested” because the cited sections, §§ 5.260 through 5.268, use the word “manifested”. Likewise, 38 U.S.C. 1103(b) uses the word “manifest”.
In the preamble to the initially proposed rule, we explained that we were not repeating the first clause of § 3.300, “For claims received by VA after June 9, 1998,” because all claims under part 5 will be received after 1998. We have noted that one of the authority citations listed in initially proposed § 5.365 was 38 U.S.C. 1103 note. Because this note only concerns this effective date provision, we propose to omit it from § 5.35.
Initially proposed § 5.367 was not explicit as to the purpose of the civil service preference ratings. We now propose to clarify that these ratings are for “employment by the U.S. government”. This clarification is consistent with current practice.
The second sentence stated, “Any directly or presumptively service-connected injury or disease that exhibits some extent of actual impairment may be held to exist at the level of less than 10 percent.” This implied a two-step process in which VA found “actual impairment” and then assigned a rating of less than 10 percent. In fact, there is only one step: if a veteran has any actually disabling directly or presumptively service-connected disability he or she will qualify for the civil service preference. We propose to revise the sentence to say this explicitly.
In initially proposed
In a document published in the
Although we received no comments regarding our publication on September 26, 2007, an internal review of initially proposed Subpart F revealed several drafting errors that needed to be corrected, and we propose to do so. We also propose to make organizational and technical changes to improve the clarity of the regulations, and to maintain consistency throughout part 5.
We propose to add a general definition of “Improved Pension”, as
We also propose to add a definition of “Improved Pension payment amount” as paragraph (e), which is “the monthly payment calculated under § 5.421(a)”.
In the definition of “Maximum annual pension rate”, proposed paragraph (f), we changed the reference to § 5.400 from “The various types of maximum annual pension rates are set forth at § 5.400” to “Maximum annual pension rates are described in § 5.400”. Section 5.400 does not “set forth” any rates; it merely refers the reader to title 38, United States Code.
In this revised version of § 5.370, we would add a definition of “net worth in proposed paragraph (g)” as “the value of real and personal property, as calculated under § 5.414”. This is a general definition, and is consistent with common usage of the term; however, it will be useful to provide a definition in this central location of § 5.370, where it will guide readers to the relevant (and more detailed) substantive rules in § 5.414.
In § 5.370, we initially proposed to define “special monthly pension” as:
[A] type of Improved Pension with higher maximum annual pension rates than the basic rates listed in § 5.400(a)(1) and (5). Special monthly pension is based on a veteran's or surviving spouse's disability or disabilities ratable at 60 percent or more, their housebound status, or their need of the aid and attendance of another person in performing their daily living habits.
We propose to delete the initially proposed definition of “surviving child” as unnecessary and redundant of other material in part 5.
We propose to revise § 5.371(a) so that it is in the active voice and so that it specifically refers to special monthly pension, where, in the initially proposed version, it applied only implicitly to special monthly pension. In addition, we propose to delete from paragraph (a) the material that was moved to the definition in § 5.370.
Initially proposed paragraph § 5.371(c) states the general rules for the eligibility requirements to Improved Death Pension for a surviving spouse or surviving child. We propose to add cross-references in § 5.371(c)(1) and (2) to the part 5 regulations relating to status as a surviving spouse, and surviving child.
We propose to clarify paragraph § 5.371(c) by moving the material in initially proposed § 5.371(c)(3) to the beginning of the paragraph. The purpose of the language is to explain that in determining eligibility for Improved Death Pension, it does not matter whether the veteran's death is service-connected.
We propose to add the word “nonconsecutive” to
Initially proposed § 5.372(b)(4)(ii) provided wartime service if the veteran served for any period of time during a period of war and had a disability “at the time of discharge that in medical judgment would have justified a discharge for disability”. This requirement appears in current § 3.3(a)(3)(ii). In part 5, we will remove the “medical judgment” requirement. Instead, we will require that the veteran
In addition, we propose to improve the clarity of the paragraph by specifying that the disability that existed at discharge must be one for which service connection is granted without relying on a presumption. This is consistent with current § 3.3(a)(3)(ii).
In initially proposed § 5.373, we stated that the regulation applies when age “is material to the decision of an Improved Pension claim”. It is possible to misread this language as a narrowing of the current rule, such that the new rule would apply only when age is outcome determinative. We therefore propose to remove the phrase “the decision of”. As revised, the part 5 rule will be substantively identical to the current rule.
We propose to significantly revise §§ 5.380, 5.381, and 5.382 by combining the initially proposed regulations, removing redundant material, correcting errors, and otherwise improving clarity. In addition, we propose to reserve §§ 5.381 and 5.382, and several other changes as discussed below.
In § 5.380(a), we propose to add guidance on how VA combines disability ratings to determine whether a veteran is permanently and totally disabled for Improved Pension purposes. This guidance was initially contained in proposed § 5.382(b). We now propose to move § 5.382(b) to § 5.380(a) because it is more logical to state that provision in § 5.380(a) along with the other disability requirements. We also propose to eliminate § 5.382(a) because in the case, as here, where a veteran has multiple disabilities, all disabilities are combined in the same manner, regardless of whether the disability is service or non-service connected. We now propose to mark § 5.382 as reserved.
In initially proposed § 5.380, we failed to explain our omission of current 38 CFR 3.342(b)(5). We consider that paragraph to be a comingled authority citation and cross reference and we therefore believe it is unnecessary in part 5.
Initially proposed § 5.381(b)(2), which is now § 5.380(c)(2), consisted of seven sentences that were not logically organized and were not stated clearly. We propose to reorganize the material. In sentence one, we propose to replace “consistent with the evidence in the case” with “that is shown by the evidence”, because that phrase has the same meaning as “consistent with the evidence” and is easier for the public to understand. For the same reason, we propose to use the phrase “that is shown by the evidence” in paragraphs (c)(2)(i) through (iii). The remaining material will be divided into three separate paragraphs, § 5.380(c)(2)(i) through (iii), to distinguish between generally applicable rules, rules that apply to cases involving disabilities that require hospitalization for indefinite periods, and special rules that apply only in tuberculosis cases.
In what was initially proposed as § 5.381(b)(3), which is now proposed § 5.380(c)(3), we propose to remove language requiring VA to give “special consideration” to veterans under 40 years of age. As revised, the regulation will describe how VA determines the permanence of total disability in such veterans, without suggesting that VA treats these veterans in a “special” way, that is, without suggesting that these veterans are not entitled to the same treatment as any other veteran.
In initially proposed § 5.381(b)(4), which is now § 5.380(c)(4), we propose to change “presumed” to “considered” to be consistent with the current regulation, § 3.342(b)(4), and the statute, 38 U.S.C. 1718(g). “Considered” is more favorable to veterans because it establishes a rule rather than a rebuttable presumption.
In initially proposed § 5.381(b)(4)(i), which is now § 5.380(c)(4)(i), we repeated a typographical error from § 3.342(b)(3)(i) by using “member-employer”. The correct term is “member-employee”.
In initially proposed § 5.381(b)(5), which is now § 5.380(c)(5), we had cross-referenced a part 5 regulation that would be based on current 38 CFR 3.321(b)(2) (concerning extra-schedular ratings for pension). We have since decided against establishing a separate regulation based on that current rule. Thus, in the revised § 5.380(c)(5), we propose to include a rule equivalent to current 38 CFR 3.321(b)(2).
We have determined that initially proposed § 5.383(a)(2) is an exception to the general effective date rule for Improved Disability Pension. It deals with previously denied claims, and we propose to name it as addressing such claims and redesignate it as paragraph (b). What was previously proposed paragraph (b) will now be proposed paragraph (c).
We propose to revise § 5.383(b)(3), eliminating the description of an incapacitating disability, which was circular and confusing. The revised language will also affirmatively state that a disability that requires extensive hospitalization is an incapacitating disability for Improved Disability Pension purposes, whereas the initially proposed language appeared to establish a rebuttable presumption to the same effect. Compared to current § 3.400(b)(1)(ii)(B) and to the initially proposed rule, the revised rule is easier to understand and apply. Consequently, this will be a change from both part 3 and the initially proposed rule, but it will result in a clearer regulation and will not lead to later effective dates of awards to disabled veterans.
Initially proposed § 5.390 was titled, “Special monthly pension for veterans and surviving spouses at the aid and attendance rate.” We propose to revise the title to read, “Special monthly pension for a veteran or surviving spouse based on the need for regular aid and attendance.” The revision is in part to help clarify that special monthly pension is essentially Improved Pension paid at a higher maximum annual pension rate. The revision also makes the reference to regular aid and attendance consistent with our terminology in the rest of part 5.
We propose to make significant clarifications, eliminate redundancy, and otherwise simplify the introductory paragraph, proposed as § 5.390(a).
In initially proposed § 5.390(b)(4), which is now § 5.390(d), we had cross-referenced § 5.333 for the rules to govern factual need for aid and attendance. We propose to change this citation to § 5.320 because we propose to renumber the regulation.
In initially proposed part 5, there are several regulations that define “permanently housebound” as it applies to the veteran and the surviving spouse. To ensure consistency throughout part 5, we propose to change the definition in § 5.391(a)(2), to the language used in proposed § 5.511(c). Proposed paragraph (a)(2) will now define the term to mean that the veteran is substantially confined to his or her residence (ward or clinical areas, if institutionalized) and immediate premises because of a disability or disabilities, and that it is reasonably certain that such disability or disabilities will not improve during the veteran's lifetime.
Initially proposed § 5.391(b) was a new provision intended to reconcile current VA regulations, which have not been altered since being promulgated in 1979, with
However, in 2012, the U.S. Court of Appeals for the Federal Circuit overturned
This court concludes § 1513(a) only eliminates the permanent and total disability requirement in § 1521(a), which applies to all § 1521 subsections. The language of section 1521 is structured so that subsection (a) is a threshold requirement and the other subsections recite additional requirements for a veteran to qualify for different pension rates. As such, § 1521's language and structure, when viewed in light of the statute's purpose and meaning, suggest that the parenthetical exclusion in section 1513(a) refers only to the threshold requirement found in section 1521(a) for pension benefits under § 1521 and not to the additional [housebound] requirements imposed by § 1521(e).
Although it was technically accurate, initially proposed § 5.392, “Effective dates of awards of special monthly pension”, was unnecessarily complex. In paragraph (a), we had stated the general rule that the effective date of an award of special monthly pension was the date VA received the claim for special monthly pension or the date entitlement arose, whichever date is later. This is essentially the same as the effective date of an award of Improved Pension under §§ 5.383 and 5.431, except that it does not address the eligibility or entitlement criteria for Improved Pension. It is unnecessary for the special monthly pension effective date regulation to address such criteria, because the claimant must have met those criteria as a prerequisite for the award. Moreover, in cases where a claimant who was not already receiving Improved Pension is awarded special monthly pension, the claim for Improved Pension constitutes the claim for special monthly pension, because special monthly pension is a form of Improved Pension paid at a higher maximum annual pension rate. Thus, the award of special monthly pension is predicated upon the same rules that govern the award of Improved Pension, and the award of special monthly pension will be effective on the same date as the award of Improved Pension in every situation except where entitlement to special monthly pension arose after the date of entitlement to Improved Pension. This could occur in a case where an Improved Pension beneficiary files a new claim for special monthly pension, or where a claimant seeking Improved Pension incurs, after filing the Improved Pension claim, additional disability that makes him or her eligible for special monthly pension. Hence, we propose to revise the rule to simply state that the effective date of an award of special monthly pension will be the later of either the effective date of the award of Improved Pension under § 5.383 or the award of Improved Death Pension under § 5.431, or the date entitlement to special monthly pension arose.
In initially proposed § 5.392 we failed to include the provisions of 38 CFR 3.402(c)(1), concerning aid and attendance, and housebound benefits payable to a surviving spouse. We propose to correct this omission by adding a reference to proposed § 5.431, “Effective dates of Improved Death Pension”. We also omitted the provisions of § 3.402(c)(2), concerning concurrent receipt of Improved Pension and Improved Death Pension. We propose to correct this omission by adding a new paragraph (b).
In initially proposed § 5.392(b), we stated an exception applicable “when an award of Improved Pension is effective retroactively”. This refers to the retroactive provisions in § 5.383(b). By referencing § 5.383 in its entirety in § 5.392(a), the simplified version of paragraph (a) will eliminate the need for this exception.
After reviewing initially proposed § 5.400, we propose to make several changes, including redesignating due to the removal and revision of certain paragraphs, described below.
We determined that it would be helpful for readers to know that the rates of pension are listed on the Internet. We therefore propose to add the following sentence to what is now the introductory paragraph (which, as initially proposed, was designated as paragraph (a)): “Current and historical maximum annual rates can be found on the Internet at
Also in reviewing this section, we found that what is now designated as paragraph (e) could be simplified to refer only to a surviving spouse. The authorizing statute for that paragraph addresses the different rates based on whether or not the spouse has custody of a child of the deceased veteran.
We propose to delete initially proposed § 5.400(b), pertaining to World War I veterans, because VA does not have any Improved Pensioners on its rolls who served in World War I and does not expect to receive any new claims from such veterans. If any claims are received, they may be adjudicated in accordance with 38 U.S.C. 1521(g), which provides the higher rate for such veterans.
Finally, we propose to move the information that had been contained in initially proposed § 5.400(c), concerning higher maximum annual pension rates
We propose to omit a counterpart to § 3.23(c) from § 5.401. The preamble to initially proposed
We propose to clarify § 5.410(a)(1) and make its phrasing parallel in structure to paragraph (a)(2) for consistency.
In initially proposed § 5.410(b)(3), we stated that: “The income of a surviving child includes the income of that child's custodial parent and the income of other surviving children as described in § 5.435, `Calculating annual Improved Pension amounts for surviving children.' ” The preamble to the initially proposed rule explained that the rule regarding whose income must be included in a surviving child's income was “too complex to be included in this regulation, so we propose to include a cross-reference to proposed § 5.435”. However, § 5.435 requires including the income of the surviving child's custodian, irrespective of whether the custodian is a “custodial parent”. Thus, the reference in § 5.410(b)(3) to “custodial parent” was improperly narrow. We therefore propose to change the term “custodial parent” to “custodian”. This change corrects the erroneous reference to a “custodial parent” in the proposed rule. We also propose to clarify in paragraph (b)(3) that the income of a surviving child includes that child's income, to make the provision consistent with paragraphs (b)(1) and (2).
We propose to add paragraphs (c)(3)(i) and (ii) to address overlapping irregular income. This type of income was not previously addressed. This change follows current VA practice.
In reviewing initially proposed § 5.411, we determined that this section could be much clearer, and we also identified several problems with the initially proposed regulation.
In paragraph (a), we propose to now state the general rule, which is that “VA counts as income to the parent-beneficiary (that is, the veteran or surviving spouse receiving Improved Pension) the annual income of every child of the veteran who is in the parent-beneficiary's custody”. In current § 3.23(d)(4) and (5), this rule is phrased as a presumption: “There is a rebuttable presumption that all of such a child's income is available to or for the [parent-beneficiary].” Using a presumption makes this rule far more complicated than it needs to be. Moreover, neither the current regulation nor the initially proposed part 5 regulation clearly stated that the parent-beneficiary must specifically seek to rebut the presumption. Thus, in § 5.411(a), we propose to state that the child's income is counted as income to the parent-beneficiary unless the parent-beneficiary files a claim to exclude all or part of the child's income.
We also, in paragraph (a), propose to establish a duty on the part of VA to provide the proper VA form to describe the bases for the exclusions that follow. VA uses VA Form 21–0571, “Application For Exclusion Of Children's Income”, to gather the information needed to calculate whether a parent-beneficiary qualifies for an exclusion. Much of the specificity that we have added to § 5.411 in this rulemaking is derived from that form, and using that form simplifies the process and greatly reduces the burden of seeking an exclusion under this rule.
In initially proposed § 5.411(b), we set forth the first basis for an exclusion of the child's income, which is that the income is not considered available for expenses necessary for reasonable family maintenance. We propose to change the term “reasonably available” to “considered available” for clarity. This rule is similar to the current and initially proposed rules, except that in paragraph (b)(2) we provide specific examples of common ways to establish that income is not considered available. These examples are derived from current VA practice and VA Form 21–0571.
In § 5.411(c), we describe the hardship exclusion. The calculation required under paragraphs (c)(1) through (5) was included in the initially proposed rule and is set forth in current § 3.272(m), but it is not clearly described as a mathematical formula. This subsequently proposed rule more clearly shows how VA calculates the amount of the hardship exclusion.
In paragraph (b)(1), we propose to add that annual expenses cannot include “expenses for items such as luxuries, gambling, and investments”. This guidance is based on long-standing VA practice and will clarify for VA employees what types of expenditures are, or are not, necessary to support a reasonable quality of life.
Finally, we propose to move what was initially proposed as § 5.411(c), “Child's earned income”, to § 5.412(a). This provision was mistakenly included in § 5.411, but it applied, by its terms, to calculating a child's income in all situations. Hence, we have moved it to § 5.412(a), where it is more appropriately located. We propose to redesignate the paragraphs of initially proposed § 5.412 to accommodate the new paragraph (a).
In
We therefore propose to incorporate the holding of the GC Opinion in proposed § 5.412(e). We also propose to include similar changes in §§ 5.302(d), “General income rules—parent's dependency”, 5.472, “Evaluation of income for Old-Law Pension and Section 306 Pension”, and 5.533, “Income not counted for parent's dependency and indemnity compensation.”
In initially proposing this subpart, we inadvertently omitted § 3.272(x) (listing “lump-sum proceeds of any life insurance policy on a veteran” as an item VA will not count when calculating countable income for Improved Pension), so we propose to insert § 5.412(
We propose to move the broad provision proposed as § 5.412(k)(8) to § 5.412(m).
Section 604 of Public Law 111–275, 124 Stat. 2864, 2885 (2010) amended 38 U.S.C. 1503(a) to exclude payment of a monetary amount of up to $5,000 to a veteran from a State or municipality that is paid as a veterans benefit due to injury or disease from countable income for purposes of Improved Pension. We propose to add this exclusion as § 5.412(n).
In reviewing initially proposed § 5.413, we determined that this section could be clarified. We propose to revise the language, particularly in paragraph (b), to more accurately reflect current policy. These changes will not alter the legal effect of this section. In paragraph (b), we propose to add a cross-reference to § 5.707, “Deductible Medical Expenses,” to be consistent with § 5.474, “Deductible Expenses for Section 306 Pension Only”, and § 5.532, “Deductions from income for parent's dependency and indemnity compensation.”
We propose to revise paragraphs (b)(2)(i) and (ii). As initially proposed, the provision could be interpreted to permit deductions for a member of the household “for whom there is a moral or legal obligation of support” on the part of the beneficiary, irrespective of whether that person was a relative of the beneficiary. The part 3 rule, located in § 3.272(g)(1) and (2), requires that the person be both a relative and a member of the household. We propose to revise § 5.413(b)(2) so that it accords with the current rule. We also propose to correct an error in initially proposed paragraph (b)(2)(i). The initially proposed provision and the current rule, § 3.272(g)(1)(i) and (ii), refer incorrectly to the veteran's “spouse” instead of referring to the veteran's “dependent spouse”.
In paragraphs (c)(2)(ii) and (iii), we propose to remove a reference to “just debts” because “just debts” are included in the definition of final expenses set forth in paragraph (c)(1).
We propose to remove the reference to chapter 51 and § 5.551(e) in § 5.413(c)(3)(i). The current rule, § 3.272(h)(1)(ii), and the authorizing statute, 38 U.S.C. 1503(a)(3), only reference “expenses not reimbursed under chapter 23 of this title”. We propose to revise § 5.413(c)(3)(i) so that it accords with them.
We also propose to clarify § 5.413(c)(3)(ii) to state that if “The expenses of a veteran's last illness were allowed as a medical expense deduction on the veteran's pension or parents' dependency and indemnity compensation (DIC) account during the veteran's lifetime”, then said expenses will not be deducted from a surviving spouse's award. This change will follow current VA practice.
Subsequent to the publication of proposed § 5.413, section 509 of Public Law 112–154 (2012) amended 38 U.S.C. 1503(a) by adding new provisions which set forth in detail what casualty loss reimbursements are excludable from countable income for purposes of VA Improved Pension. We propose to include these new provisions in § 5.413(d).
We propose to move § 5.413(e), concerning the treatment of gambling losses, to § 5.410(g), because it primarily concerns counting income from gambling. Initially proposed paragraph (f) of this section is redesignated paragraph (e), accordingly. Initially proposed § 5.413(g), which is now § 5.413(f), used the term “profession”. The regulation meant a professional practice. We are now clarifying this term.
In reviewing initially proposed § 5.414, we determined that this section could be clarified by the reorganization and removal of unnecessary verbiage. We also propose to provide more detailed explanations of when a dependent's net worth is considered and how net worth can bar Improved Pension.
In what is now paragraph (b)(1) (initially proposed paragraph (a)), we propose to add the word “primary” before residence to clarify that VA excludes from net worth only the value of the residence where the claimant or beneficiary usually lives, not the value of other properties where they may occasionally reside. A claimant or beneficiary can only have one primary residence at any given time. The term is well understood because a primary residence is considered as a legal residence for purpose of income tax and/or acquiring a mortgage. We also propose to clarify that the primary residence will not be counted as net worth simply because the veteran has moved into a nursing home.
In what is now paragraph (b)(3) (initially proposed paragraph (c)(3)), we propose to clarify that the “child educational exclusion” applies whether the child is a dependent or a claimant in his or her own right.
In § 5.414(d)(2)(i), we propose to clarify that a claimant's adjusted annual income includes the adjusted annual income of any person whose net worth is considered part of the claimant's net worth. These rules were not explicit in the initially proposed rule, but they comport with current VA practice and policy and are not inconsistent with the initially proposed rule.
In initially proposed § 5.414(d), we determined that there was a lack of criteria for determining whether net worth is a bar for benefits. To eliminate ambiguity, we propose to establish an $80,000 guideline and determined that “it is reasonable to expect that part of the claimant's net worth should be used for the claimant's living expenses” when the net worth is $80,000 or more. Having a specific dollar amount ensures uniformity and fairness of VA decision-making throughout the country. This change is consistent with current practice.
We also propose to revise § 5.414(e) for clarity.
We had stated in § 5.415(a) that an increase in a child's net worth requires VA to reduce the payment amount of Improved Pension. However, if the child's net worth is increased, the removal of his dependency from the beneficiary's award may cause an increase in payment. Such a situation may occur when the dependent child has income and the removal of the child's dependency and his or her income causes an increase in the beneficiary's award. We propose to clarify that regardless of whether or not the removal of such child's dependency results in a higher pension rate, the effective date based on the change in net worth is the first day of the year after the year that net worth increased. This change is consistent with current practice.
We propose to remove the sentence, “The child need not be living with the veteran or surviving spouse to be in custody”, from initially proposed § 5.416(b)(1) because the same information is provided in what was initially proposed § 5.417(d), now the definition of “custody of a child” in proposed § 5.1. The rule is appropriately located in that definition. It is not necessary to § 5.416, which pertains to persons considered as dependents.
We also propose to change “reasonably contributes” to “provides reasonable contributions” in both paragraphs (a)(3) and (b)(2), because it is the amount of the contributions that must be reasonable, not the way that the person provides those contributions.
We propose to move the definitions of “custody” and “legal responsibility” to proposed § 5.1, defining “custody of a child”. The remainder of this regulation contains four presumptions for determining dependency. We propose to simplify the regulation to eliminate redundancy without altering its meaning.
In initially proposed § 5.420, we stated, “When calculating adjusted annual income, VA counts income that is anticipated or received during a specific period, called a `reporting period.' ” We have determined that it would be helpful for readers to have a simple definition of “reporting period” so we propose to insert the following definition (based on § 3.661, the current rule regarding income reporting): “A reporting period is a time period established by VA during which a claimant or beneficiary must report to VA all income, net worth, and adjustments to income.”
We propose to revise § 5.420(a) to include that a claimant or beneficiary may report a change in income or net worth when the change occurs. The claimant or beneficiary does not have to wait until the beginning of the next reporting period to report the change. This change is consistent with current VA practice.
In paragraphs (b)(2) and (3) of initially proposed § 5.422, we used the term “required evidence” without explaining what the evidence should prove. To resolve this potential ambiguity, we propose to revise paragraph (b)(2) by replacing “required evidence” with “evidence showing the dependency”. Likewise, we propose to revise (b)(3) by replacing “required evidence” with “evidence showing the loss of a dependent”.
We propose to provide a definition for “expected annual income” in the first sentence of § 5.423(a). We propose to define the term as “the annual income a claimant or beneficiary anticipates receiving during a given reporting period.”
We propose to remove all references in this subpart to the term “anticipated income” and propose to replace it with “expected income”. This proposed change will be for consistency purposes.
In reviewing initially proposed § 5.424, we determined that this section can be clarified and shortened by minor reorganization and the removal of unnecessary verbiage. We propose to make these changes.
Initially proposed § 5.430(a)(2)(i) referred to veterans of the Mexican Border period and World War I. We propose to remove these references because there are no longer any surviving veterans of these war periods and VA does not anticipate receiving any more Improved Death Pension claims from the surviving spouses of these deceased veterans. Moreover, if VA does receive such a claim, it could process the claim under the controlling statutes, 38 U.S.C. 103(b) and 1541(f).
We also propose to remove initially proposed § 5.430(b), which had concerned the marriage-date requirements of a surviving spouse. That paragraph was based on 38 U.S.C. 103(b), which is not limited to Improved Pension. We propose to move the rule to § 5.200, “Surviving spouse: requirement of valid marriage to veteran.”
In §§ 5.432 and 5.433, we propose to delete the term “legal” as it was used in the initially proposed rule to describe a surviving spouse. Although there is no explicit definition of “legal surviving spouse” in current part 3, the term is used to denote a spouse who was legally married to the veteran at the time of the veteran's death as contrasted with a deemed valid spouse. This distinction has no legal significance in § 5.432 or § 5.433. For the same reason, we propose to delete the term “lawful” before “surviving spouse” in § 5.539.
In initially proposed § 5.434(a)(3) we stated:
When a surviving spouse establishes eligibility for Improved Death Pension but is not entitled because his or her adjusted annual income is greater than the maximum annual pension rate or because his or her net worth bars entitlement, VA will discontinue the child's pension award effective the first day of the month after the month for which VA last paid benefits to the surviving spouse.
In addition, we propose to reorganize § 5.434(b) to improve clarity.
In initially proposed § 5.435(a) we parenthetically defined the term “personal custodian” as “a person legally responsible for the child's support”. We propose to add a
In a document published in the
We mean to add the word “Pension” after “Old-Law” and “Section 306” whenever these two pension programs are mentioned together in a single sentence. For example, “Old-Law and Section 306 Pension” will be rewritten as “Old-Law Pension and Section 306 Pension.” This will help readers understand that these two pension benefits are separate and distinct programs.
For consistency purposes in describing whether particular potential sources of revenue are considered by VA in calculating a beneficiary's income or net worth, we propose to replace the word “include” with “count” (or with a commensurate substitute) and “exclude” with “does not count” (or with a commensurate substitute).
One commenter suggested that a rating decision that reduces a rating during a period of hospitalization should be considered void if notice of a prior rating decision had not been sent to a veteran at the veteran's latest address of record. The commenter used her husband's case as an example, stating that his 1990 reduction should be void because she alleges that VA did not provide her husband with notice of a 1971 rating decision. This comment deals with defective notice and the effect it has on the finality of decisions. Accordingly, this comment will be discussed with other comments received for RIN 2900–AL87, “General Provisions”, in subpart A of this part, which contains VA's definition of a “Final decision” in proposed § 5.1.
In the initially proposed rule, we proposed to include § 5.461, “Electing Improved Pension instead of Old-Law or Section 306 Pension”, in subpart F of part 5. However, upon further consideration, it would be more appropriate to place this regulation in subpart L, “Payments and Adjustments to Payments”, along with other rules on elections of veterans benefits as § 5.758. Hence, we propose to include § 5.461 in our proposed subpart L, initially published in the
Initially proposed § 5.472(b)(2) defined “payments” as “cash and cash equivalents (such as goods and other negotiable instruments) . . . ” We propose to revise our definition by replacing the term “goods” with “checks”. This change is made in order to be consistent with our definition of “payments” in § 5.370(h) and § 5.531(b).
For consistency purposes, we propose to revise the heading and the regulatory text in § 5.475(b)(2) by replacing “on or before December 31, 1978” with “before January 1, 1979”. This change will improve clarity in the application of effective dates and is consistent with the rest of part 5.
In § 5.477(b), we propose to delete the reference to “§§ 3.500 through 3.503” from the regulatory text and replace it with a reference to § 5.705, the part 5 regulation that lists all of the part 5 regulations governing the effective dates of reductions and discontinuances. We propose to revise the regulatory text by inserting the words “appropriate” and “as specified” in order to notify readers that the provisions in § 5.705 will indicate which effective dates, other than those stated in paragraph (a), are applicable to a particular case.
We propose to revise the regulatory text in § 5.478(a), Expected income appears to exceed income limit, by inserting the phrase “for that calendar year” after “annual income limit” and inserting the word “calendar” before “year effective January 1”. These revisions will remove ambiguity and clarify that VA measures income in calendar-year units.
In addition, we note that under 38 CFR 3.260(b) (the current rule upon which § 5.478(a) is based), VA has the authority to withhold payments if that income will exceed the statutory limit. However, this withholding provision only applied to new claims for Old-Law Pension and Section 306 Pension. Since such claims have been barred by statute since 1979 (
In a document published in the
Initially proposed § 5.500 described the types of evidence VA will accept as proof of death. We propose to revise this provision to explain that, where the rule lists more than one type of evidence that VA will accept as proof of death, VA requires the first-listed type of evidence, if obtainable. If the first-listed document is not obtainable, VA will accept the next-listed type of evidence that is obtainable. This clarification reflects VA's established practice. With respect to matters that are ordinarily documented by official public records, such as death, VA's long-standing practice is to require the official records that VA considers most reliable to establish those facts, if such records are available. We believe that it is helpful to state this principle in proposed
All four of the comments received concerned the provisions of initially proposed § 5.504. This proposed section defined a service-connected disability for purposes of determining entitlement to VA death benefits, and provided the rules for determining if a veteran's death is service connected. The AL89 NPRM, omitted the following sentence from 38 CFR 3.312(a), “[t]he issue involved will be determined by exercise of sound judgment, without recourse to speculation, after a careful analysis has been made of all the facts and circumstances surrounding the death of the veteran, including, particularly, autopsy reports.” This language is unnecessary in proposed § 5.504 because it mainly restates the generally applicable principle that VA decisions will be based on a review of the entire record.
One commenter was concerned with the provision in initially proposed § 5.504(b)(1)(ii) that states, “[f]or purposes of this section, VA will deem a sudden death in service from trauma to have been preceded by disability from the trauma.” This commenter stated that the sentence we initially proposed “is unnecessarily logically convoluted and restrictive, is legally insufficient, and is in fact altogether unnecessary.” He suggests as alternative language, “[f]or purposes of this section, a death in service is service-connected [sic], provided the death was in line of duty and was not due to the servicemember's own willful misconduct.”
We agree in part with the commenter's concerns. Part of this sentence is somewhat convoluted and could be read as restrictive. We propose to revise the sentence for the reasons explained in the following paragraphs.
The purpose of this sentence in the proposed rule is to preclude the interpretation that a traumatic death in service is so sudden that it does not produce a disability before death. This provision is necessary because Title 38 of the United States Code requires that to be service-connected, a death in service must result from a disability incurred or aggravated in service. “The term 'service-connected' means . . . that the death resulted from a disability incurred or aggravated, in line of duty in the active military, naval, or air service”, 38 U.S.C. 101(16). For a surviving spouse or dependent to be eligible for many VA benefits due to a servicemember's death in service, the person's death must be a result of a disability “incurred or aggravated, in line of duty in the active military, naval, or air service”. 38 U.S.C. 101(16);
We agree with the commenter that the sentence may be construed to be restrictive if not read carefully. This is due primarily to use of the words “trauma” and “sudden”. Accordingly, we propose to remove the phrases “from trauma” and “from the trauma” and the word “sudden” in the subject sentence in proposed § 5.504(b)(1)(ii).
The revised proposed sentence now reads, “[f]or purposes of this section, VA will presume that a death that occurred in line of duty was preceded by disability.” This will make clear VA's intent that the presumption applies to all deaths that occur in line of duty. We substituted “line of duty” for “in service” to reflect the requirement in 38 U.S.C. 105 and 1110 that disability must be incurred in the line of duty in order to be service connected.
Three commenters expressed concern with the provisions of initially proposed § 5.504(c), regarding service connection for the cause of death when the service-connected disability hastens death. The commenters stated that the proposed revisions in § 5.504 were more restrictive than the provisions in current 38 CFR 3.312. To avoid such a misinterpretation, we are retaining the provisions of § 3.312(c). Accordingly, we are inserting the exact wording of § 3.312(c) into proposed § 5.504(c)(2).
Initially proposed § 5.510 stated that in order to be entitled to dependency and indemnity compensation a survivor of the veteran “must be otherwise qualified” for this benefit. We propose to delete the terms “otherwise qualified” and “qualified” from proposed § 5.510. To say that a survivor of a veteran must be qualified is redundant of other VA provisions that state the requirements that must be met in order to be considered a dependent of the deceased veteran.
In proposed § 5.510(b)(2), to be consistent with the
We propose to revise initially proposed § 5.511(a) to clarify that entitlement to this benefit is determined based on whether the surviving spouse or parent needs regular aid and attendance. Determinations of the need for aid and attendance will be made under the criteria in proposed § 5.320.
We propose to revise initially proposed § 5.520(b)(1)(iii) and (b)(2)(ii) by adding the words, “was born to them” between “marriage or” and “before the marriage” in both places it appears. These changes are made to ensure that readers understand that the child VA is referring to is a child of a veteran and spouse, not a veteran's stepchild. This is the same wording used in part 3.
In the NPRM to this rulemaking we stated that “Proposed § 5.520 is based on portions of current § 3.54 and applicable statutory provisions. . .” However, it is also based on § 3.22(d), which is substantially the same as § 3.54.
In the NPRM, we reserved §§ 5.521 and 5.523 as the eventual locations for rules concerning entitlement to DIC for survivors of certain veterans rated totally disabled at the time of death and concerning the rates of DIC payments to surviving spouses. We explained that, when the NPRM was issued, rulemaking was pending to amend the provisions in part 3, Code of Federal Regulations, involving those matters, and that we would incorporate those part 3 provisions in this final rule once the pending part 3 changes were made.
VA issued a final rule in December 2005 amending its part 3 regulations in response to the decision in
VA completed another rulemaking in 2006, implementing section 301 of the Veterans Benefits Improvement Act of 2004. Section 301 amended 38 U.S.C. 1311, Dependency and indemnity compensation to a surviving spouse, by adding subsection (e) (amended to be subsection (f) by section 4 of Pub. L. 109–361, 120 Stat. 2062 (2006)), providing a $250 increase in the monthly rate of DIC to which a surviving spouse with one or more children below age 18 is entitled. The increased rate is payable for the 2-year period beginning on the date entitlement to DIC began and ends the first month after the month all children of the surviving spouse attain age 18. This statutory change was incorporated as § 3.10(e)(4).
In anticipation of these regulatory changes, VA reserved §§ 5.521 and 5.523 in the NPRM for this regulation rewrite segment. We propose to incorporate the current versions of §§ 3.22 and 3.10 (as amended), as proposed §§ 5.521 and 5.523, respectively. In addition, we propose to remove the reference to, “§ 5.521 (Reserved) and § 5.523 (Reserved)”. As noted in the NPRM and this proposed notice, the provisions of current § 3.22(d) are incorporated in proposed § 5.520 and the provisions of current § 3.22(e) and (f) are incorporated in proposed § 5.522(a), (b), and (c)(4).
Current 38 CFR 3.22(a)(2)(iii) implements 38 U.S.C. 1318(b)(3) which states that VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service-connected if the veteran's death was not the result of his or her own willful misconduct and at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of not less than 1 year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. Section 603 of Public Law 111–275, 124 Stat. 2864, 2885 (2010) amended section 1318(b)(3) by removing the requirement that the veteran have died after September 30, 1999, so we have omitted this requirement from § 5.521(a)(2)(iii).
We propose to make changes to initially proposed § 5.524 to reduce wordiness and enhance clarity. For example, paragraph (a), as initially proposed, stated: “The total amount payable to the children, which varies according to the number of children, is divided and paid to the children in equal shares.” We propose to revise that sentence to state: “The total amount VA pays to a child depends on the number of children, and the amount is paid to each child in equal shares.” Further, we propose to add the term “currently” to paragraph (a)(1) to clarify that the exception stated in proposed § 5.524 only applies when, at the time DIC is reestablished for the additional child, other children are receiving running DIC awards.
We propose to delete the term “eligible” as it applies to child in proposed § 5.524. To state that dependency and indemnity compensation is payable to an eligible child is redundant of other VA regulations that state the requirements of a dependent. For this same reason, we propose to make similar changes in proposed § 5.536 to the term “eligible parents”.
We additionally propose to reword paragraphs (a)(2) and (3) to enhance reader comprehension. The rewording of proposed § 5.524(a) will make this regulation more comprehensible to the average reader.
Proposed § 5.524(b) deals with retroactive payments and payment dates for additional children who successfully reestablish DIC entitlement. Upon further review, we determined that rewording the paragraph would make it easier to understand. We intend no change in the meaning of paragraph (b).
In NPRM AM06, “Payments and Adjustments to Payments”; 73 FR 65212, Oct. 31, 2008, we included proposed § 5.696, “Awards of dependency and indemnity compensation when not all dependents apply”. In preparing this proposed rule, we have determined that because it concerns only dependency and indemnity compensation benefits, this section more logically belongs in part 5, subpart G, which is titled, “Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary”. We therefore propose to move this section into subpart G, renumbering it as proposed § 5.525.
We propose to correct the authority citation at the end of initially proposed § 5.530 so that the United States Code sections are in chronological order.
In the preamble for initially proposed § 5.302, 70 FR 61326, 61336, (Oct. 21, 2005), we explained our omission of the first sentence of § 3.262(j)(2) as an unnecessary specific instance of a broader general rule in 5.302(a) that encompasses the specific rule. The second sentence of § 3.262(e) is analogous to § 3.262(j)(2) and unnecessary for the same reason. The preamble to initially proposed explained our omission of the third sentence of § 3.262(e)(4). Without the third sentence, the fourth sentence is moot without the third sentence, because it provides a process to implement after implementing the third sentence.
In reviewing the AL89 NPRM, we determined that we failed to incorporate § 3.660(b)(2) in initially proposed § 5.535. The concept of anticipated income is different from that of actual income. This is because a beneficiary's actual income may be less than his anticipated income. VA may learn of this in any of the following ways: (1) Actual income is reported by the parent on an eligibility verification report (EVR); (2) VA requests a statement from the parent of their actual income at anytime; or (3) The parent notifies VA of income changes on their own.
We therefore propose to insert the rules from § 3.660(b)(2) into proposed § 5.535.
In initially proposed § 5.536(d) we intended only to restate current § 3.251(a)(4), but we inadvertently misstated that provision. Section 3.251(a)(4) does not purport to apply only if there is one eligible parent. Instead, it states that if a parent's remarriage ends, the parent will be paid at the rate for one parent alone or for two parents not living together, whichever is applicable. This means that the parent will be paid at the “one parent” rate if there is no other eligible parent, or at the “two parents not living together rate” if the other parent is alive. Initially proposed § 5.536(d) limited this rule to cases where there is only one parent and stated that VA will pay at the “one parent” rate if the remarriage ends or at the “two parents not living together” rate if the parent is separated from his or her spouse. We propose to revise initially proposed paragraph (d) so that it is now consistent with § 3.251(a)(4).
In the NPRM for AL89, we included §§ 5.573 through 5.579. We received no comments on these sections. To cut down on the length of this rulemaking, we chose to include those sections in the rule segment to the companion rulemaking, RIN 2900–AL71, Accrued Benefits and Special Rules Applicable Upon Death of a Beneficiary, published as NPRM at 69 FR 59071, Oct. 1, 2004. Any technical corrections or changes in terminology made to these regulations are included there. Thus initially proposed §§ 5.573 and 5.574 have been removed from this proposed subpart, as well as the reference to reserving proposed §§ 5.575–5.579.
The changes in terminology in this proposed rulemaking are made primarily for purpose of achieving consistency throughout our part 5 regulations. Except as otherwise provided in this preamble, no substantive changes are intended by these changes made in terminology.
According to paragraph 12.9 of the Government Printing Office Style Manual, numerals rather than words are used when referring to units of measurement and time. Therefore, we substituted the numeral “7” for the word “seven” in proposed § 5.503(b). Likewise, we substituted the numeral “1” for the word “one” in proposed § 5.520(b)(1)(ii) and (b)(2)(i).
To be consistent in style with the rest of part 5, we propose to change “DIC” to “dependency and indemnity compensation” if it was used in a heading to a regulation section in the NPRM. We also propose to change the headings in proposed §§ 5.521 and 5.535 accordingly. Similarly, “dependency and indemnity compensation” was changed to “dependency and indemnity compensation (DIC)” the first time it appears in each section, if we did not do so in the NPRM. We propose to make this change in proposed § 5.531(c) and the introductory paragraph to proposed § 5.533. Likewise, we propose to change “dependency and indemnity compensation” to “DIC” the second and subsequent times it appeared in each section, if we had not already done so in the NPRM. We propose to make such changes to proposed § 5.523(a) and (e)(4).
To clarify that only one parent is required to apply for DIC, not both, we propose to change the heading of the undesignated center heading entitled, “Dependency and Indemnity Compensation—Eligibility Requirements and Payment Rules for Parents,” to, “Dependency and Indemnity Compensation—Eligibility Requirements and Payment Rules for a Parent”. Also, where appropriate to make this requirement more apparent, we propose to change references from “parents” to “a parent,” except where the context clearly encompasses both parents or all parents in receipt of DIC.
To be consistent with other regulations in part 5, we propose to change the phrases, “[t]he amount to be offset includes” and “[t]he amount to be offset excludes” to “VA will count in the amount to be offset” and “VA will not count in the amount to be offset” in each place they appeared in the NPRM in initially proposed § 5.522(c)(1) through (4). For the same reason, in (c)(1) we propose to change “excluded” to “not counted”, in (c)(2) we changed “[t]his includes” to “VA will also count”, and in (c)(3) we changed “included” to “counted”. Similarly, in § 5.531(a) and (b), we propose to change the word “included” to the phrase or word, “are counted” or “counted”, as appropriate. Finally, we propose to change the heading of initially proposed § 5.533 from “Exclusions from income” to “Income not counted for parent's dependency and indemnity compensation,” and in initially proposed § 5.533(i)(2), we propose to change the phrase, “be excluded” to “not be counted.”
In a document published in the
In initially proposed AL71, we placed all the dependency and indemnity compensation (DIC) effective date provisions at the end of subpart G, “Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary”. We have determined that they will be easier to locate if they appear after the series of regulations on DIC, rather than after the series of regulations on accrued benefits. Therefore, we propose to renumber the sections initially proposed as §§ 5.567 through 5.574 as §§ 5.538 through 5.545.
We propose to revise initially proposed § 5.538 to identify dates as “effective dates” instead of “payment dates” to be consistent with other provisions in part 5.
In § 5.538(a)(1)(i), we propose to change the phrase, “If VA receives a claim for [DIC] within one year from” to “If VA grants DIC based on a claim received no later than 1 year after”. In proposing this rule, we incorrectly omitted the relevant event of VA granting the benefit. In addition, because VA considers a claim for death pension to also be a claim for DIC, it could be misleading to imply that the claim must be for DIC. For the same reasons, we propose to make conforming changes to paragraphs (a)(2), (b)(1), (b)(2), (d)(1), and (d)(2) of § 5.538.
In § 5.538(a)(1)(ii), we propose to add the words, “based on a report of actual death” to be consistent with current § 3.400(c)(1), the part 3 equivalent to this section, and to correct an omission from the initially proposed rule. We also propose to add the words, “any of the veteran's following military entitlements” and reformat the sentence. This revision will ensure that there is no confusion between military
In § 5.538(d)(2), we propose to change cross-references to §§ 5.230 and 5.696 to exceptions, in order to be as specific as possible and eliminate confusion. We begin the proposed rule by stating “Except as otherwise provided in this part” and end with the cross-references in an attempt to imply that the cross-references are the exceptions.
In § 5.538(e), we propose to add § 5.230 as an exception to correct an omission from the initially proposed rule.
In § 5.539 (initially proposed 5.568), we propose to revise paragraph (a) so that it clearly requires the discontinuance of DIC payments to a former payee when VA recognizes that a new payee is eligible for DIC based on the same veteran. In the initially proposed rule, we inadvertently addressed the effective date of such discontinuance without also directing that such discontinuance occur.
We propose to delete from paragraph (b) language referring to periods on or after December 1, 1962. Because part 5 will apply only prospectively, not retroactively, the language is unnecessary.
We also propose to revise the language in paragraph (b)(1) that had stated that “the award to the former payee will be terminated the day preceding the effective date of the award to the new payee” to state instead that “the award to the former payee will be discontinued on the effective date of the new payee's DIC award”. We propose to revise the language to conform to our practice in part 5 of referring to the first date that a new rate or benefit is paid, instead of referring to the last date on which a prior rate or benefit is paid.
We propose to delete paragraph (b)(3), which had contained an exception to the effective-date provisions when the discontinuance of DIC payments is due to a change in, or in the interpretation of, the law or an administrative issue, from this regulation. That provision was redundant of § 5.152, which was published as proposed on May 22, 2007.
In § 5.540 (initially proposed 5.569), We propose to reorganize this section for clarity by incorporating much of the introductory material initially proposed in paragraph (a) into the paragraphs that follow. This revision simplifies the section without changing the meaning or intent.
In § 5.541, (initially proposed 5.570), we propose to delete paragraphs (a) and (b) because those paragraphs were redundant of §§ 5.197, “Effective date of reduction or discontinuance of Improved Pension, compensation, or dependency and indemnity compensation due to marriage or remarriage”, and 5.231, “Effective date of reduction or discontinuance: child reaches age 18 or 23”, which were published as proposed on September 20, 2006. 71 FR 55052, 55067, 55073. We also propose to change the title of the regulation to accurately describe the revised content.
One commenter suggested that VA should add language to § 5.541 (initially proposed § 5.570(c)) to inform readers that the reduction of DIC based on recertification of a pay grade to a level lower than the one originally certified would not result in an overpayment of monthly DIC benefits paid to a veteran's survivors based on the pay grade previously in effect. We did not include such language in the initially proposed rule because a reduction under § 5.541 will always involve a future and not a retroactive adjustment in DIC benefit payments. No overpayment is created because of the prospective nature of the reduction. However, we propose to reword the provision to clarify that the reduction will be “effective the first day of the month after the month for which VA last paid the greater benefit”.
In initially proposed § 5.571(c), we referred to time limits contained in a “regulation that [would] be published in a future Notice of Proposed Rulemaking” based on current § 3.660(b)(1). That regulation, § 5.535, was published as proposed on October 21, 2005.
In proposed § 5.543 (initially proposed 5.572), we propose to reorganize the material into two paragraphs instead of four to simplify the structure of the regulation. Also, we propose to change the language in initially proposed paragraph (b) stating that a reduction or discontinuance would be effective at “the end of the month in which income increased” to refer instead to “the first day of the month after the month in which the income increased or is expected to increase”. We propose to revise the language to conform with our practice in part 5 of referring to the first date a new rate is paid instead of referring to the last date on which a prior rate is paid.
When these initially proposed rules were published in the
We propose to move the exception (stated in initially proposed § 5.573(e)) referring to § 5.524 to the introductory paragraph of § 5.544. This prominent position will more effectively alert readers to the exception.
Also in § 5.544, we propose to delete paragraph (a)(2) and reorganize the remainder of paragraph (a) into a single paragraph. The condition contained in initially proposed paragraph (a)(2)—that
In § 5.545(a)(2), we propose to delete the word “basic” from before “DIC”. Part 5 will not use the term “basic DIC” to distinguish DIC from special monthly DIC because use of the term “basic DIC”, which is not used elsewhere in part 5, was likely to confuse a reader. Instead, we will distinguish the benefits by referring to “DIC” and “special monthly DIC”. We also propose to simplify the paragraph by eliminating initially proposed paragraph (a)(2)(i). Initially proposed paragraph (a)(2) provided that the effective date would be “the later of the following dates: (i) [t]he effective date of the . . . DIC award, or (ii) [t]he date entitlement to special monthly DIC arose.” Unless the two dates are the same, the date entitlement to special monthly DIC arose will always be the later date, so it is unnecessary to refer to the effective date of the DIC award.
We propose to redesignate initially proposed § 5.574(a)(3), which was based on current § 3.402(c)(2) and the last sentence of § 3.404, as a new paragraph § 5.545(c). We have also reworded the paragraph in order to specify that special monthly dependency and indemnity compensation based on the need for aid and attendance will not be paid if the surviving parent or surviving spouse is receiving hospital care in his or her own right as a veteran. The rewording of this paragraph is made for clarity.
When we began writing part 5, we planned to remove part 3 from title 38, CFR, such that all claims for benefits, and the administration of such benefits, would be governed by part 5. Accordingly, many of the part 5 regulations were written and proposed with that concept in mind. Since then, we determined that it would be better to retain the part 3 regulations for the adjudication of claims received before the applicability date of the part 5 regulations. Thus, we would apply the part 5 regulations only to claims received on or after the applicability date of the part 5 regulations.
Specifically, when we initially proposed the accrued-benefits regulations, we anticipated that they would apply to all claims, including those filed before December 16, 2003, and those in which death of the beneficiary occurred before December 16, 2003. The proposed rules distinguished claims for accrued benefits filed before December 16, 2003, from claims for accrued benefits filed on or after that date. The rules also contained effective dates relevant to the distinction between claims filed before versus after December 16, 2003. We received comments concerning the substance of these issues, but these comments are no longer relevant because we have removed the provisions.
Part 5 will not be in effect before 2013. A claim for accrued benefits must be filed no later than 1 year after the date of the beneficiary's death. Therefore, part 5 will not apply to claims for accrued benefits based on a death before 2004. We propose to revise the rules accordingly.
For the above reason, we propose to revise the definition of “accrued benefits” (initially proposed in § 5.550, now in proposed § 5.1) and delete initially proposed §§ 5.556, 5.558, and 5.559. As discussed further below, we also propose to delete initially proposed § 5.554. Because we are proposing to delete initially proposed §§ 5.554 and 5.556, we propose to renumber proposed § 5.555 as § 5.554, and proposed § 5.557 as § 5.555. We propose to reserve §§ 5.556, 5.557, 5.558, and 5.559.
One comment pertained to initially proposed § 5.556 and its 2-year limitation on the payment of accrued benefits on cases in which the beneficiary had died before December 16, 2003. The commenter explained that she was a surviving spouse receiving dependency and indemnity compensation under 38 U.S.C. 1151 because of a death caused by VA medical treatment and that the veteran had been receiving VA disability compensation during his lifetime. The commenter felt that where VA medical care had hastened a veteran's death so that the veteran did not live until December 16, 2003, VA should pay the full amount of accrued benefits without regard to the 2-year limitation. The Veterans Benefits Act of 2003, Public Law 108–183, sec. 104, 117 Stat. 2651, 2657, was signed into law on December 16, 2003, and removed the 2-year limitation on payment of accrued benefits with respect to deaths occurring on or after that date.
In § 5.550, we initially proposed several definitions. We have determined that the definitions are either unnecessary or more appropriately placed elsewhere in part 5. So we propose to delete the initially proposed text and reserve § 5.550.
We propose to move the definition of “accrued benefits” to § 5.1, the definition of “claim for benefits pending on the date of death” to § 5.1, and the definition of “evidence in the file on the date of death” to § 5.1 because these definitions apply to all of part 5.
We initially proposed a definition of “deceased beneficiary” to distinguish that person from the living beneficiary claiming survivor's benefits.
The initially proposed definitions of “child” and “dependent parent” contained references to the general definitions of those terms (contained elsewhere in part 5) and rules limiting the application of the general definitions for purposes of accrued benefits. The references to the general definitions are unnecessary, and the rules limiting the definitions are more appropriately placed in § 5.551(a). We therefore propose to revise the rule limiting the definition of “child” to more accurately reflect the content of current § 3.1000(d)(2) upon which the rule is based.
Similarly, the initially proposed definition of “surviving spouse” contained a reference to the general definition contained elsewhere in part 5 and a rule limiting the application of the general definition for purposes of accrued benefits. The reference to the general definition is unnecessary, and the rule limiting the definition is more appropriately placed in §§ 5.551(b) and 5.566(d)(1). In relocating the rule, we propose to not repeat the language contained in initially proposed § 5.550(h)(2)(i) regarding date-of-marriage requirements for DIC and
As stated in the preamble of the AL71 NPRM, the U.S. Court of Appeals for Veterans Claims in
In § 5.551(c)(2) and (d)(1), we propose to add the sentence, “[i]f there is no eligible claimant, such accrued benefits are payable to the extent provided in paragraph (f) of this section.” We propose to add this sentence for consistency with paragraphs § 5.551(e)(1) and (f) and to ensure proper disposition of the accrued benefits.
We propose to clarify initially proposed § 5.551(e), now redesignated as paragraph (f). Title 38 CFR 3.1000(a)(5) uses the phrase “last sickness or burial” instead of “last sickness and burial”. However, in initially proposed § 5.551(e), we used the phrase “last illness and/or burial” without providing an explanation for this change. Title 38 U.S.C. 5121(a)(6) states, “accrued benefits may be paid . . . to reimburse the person who bore the expense of last sickness and burial.” VA interprets the word “and” as used in the statute to mean “or”. We do not believe that Congress intended to require that a person have paid expenses of both the last illness and burial in order to qualify for some reimbursement. For example, if a person expended their savings paying for health care bills resulting from the veteran's last illness and therefore could not pay for the burial, it would be unfair not to reimburse them for the health care bills. We are changing the initially proposed language from “and/or” to simply “or” because this term includes “and”. For this same reason, we are making similar changes in proposed §§ 5.566(d)(4), and 5.567(a)(4).
We propose to clarify § 5.551(g) to reflect VA's long-standing policy that if a preferred potential claimant fails to file a claim, VA will not pay his or her share of accrued benefits to a person having an equal or lower preference. Similarly, if a preferred potential claimant waives rights to accrued benefits, VA will not pay his or her share of accrued benefits to a person having an equal or lower preference. VA will only pay the accrued benefits to someone else if, within the 1-year period to file a claim for accrued benefits, the preferred potential claimant dies, forfeits entitlement, or otherwise becomes disqualified. In such a case, the next-in-line (or equal) person must file a timely claim.
The statute, 38 U.S.C. 5121, authorizes VA to pay accrued benefits only to “the living person first listed” in the hierarchy set forth in section 5121(a)(2). VA has consistently interpreted “the living person first listed” as an instruction to pay only that person, so long as he or she is alive. Because a claim for accrued benefits may be filed up to 1 year after the veteran's death, however, we permit a claimant lower in the hierarchy to file a claim if the person above them dies during that 1 year. We also liberally interpret the statute to authorize payment of accrued benefits to a person lower in the hierarchy when the person(s) above them is involuntarily disqualified, not withstanding that the person is still alive because, as a legal matter, such person is treated as if he or she were dead for purposes of determining entitlement to benefits.
We propose to make similar revisions to § 5.566(e)(3) based on VA's consistent interpretation of “the following persons living at the time of settlement, and in the order named” as used in the authorizing statute, 38 U.S.C. 5502(d).
In initially proposed § 5.552(a), we noted that § 5.552 did not apply to claims for the proceeds of a benefit check that the deceased beneficiary did not negotiate before death or to awards under the
We also propose to delete the cross reference to § 3.152(b) that was contained in initially proposed § 5.552(c)(3). Cross-referencing § 3.152, or its part 5 counterpart, § 5.52, would not be useful to the reader. The portions of those regulations pertinent to claims for accrued benefits are incorporated in § 5.552(b).
We propose to delete initially proposed § 5.554. First, we propose to move the material from initially proposed § 5.554 concerning school vacation periods to § 5.551(a)(1)(ii). We propose to revise the provision to more clearly and simply state the rule.
We propose to eliminate the provision in the initially proposed rule which stated that “school confirmation of evidence of school attendance is not required to support a claim”. This provision was intended to prevent VA employees from requiring proof of school attendance in claims for accrued benefits where such evidence was already of record. This might occur, for example, when the child was already listed as a dependent on the veteran's award or was receiving educational benefits under 38 U.S.C. chapter 35. There are no similar provisions regarding other types of proof in claims for accrued benefits, and it is unnecessary to have a regulation instructing VA employees to refrain from requesting duplicate evidence.
We propose to revise the heading of § 5.554 (initially proposed as § 5.555) so that it is no longer phrased as a question, and so that it more completely identifies the subject matter of the section.
In § 5.554(a)(10), we propose to correct the citation to 10 U.S.C. chapter 1606 (as initially proposed, it was “10 U.S.C. 1606”), and we propose to add veterans' educational assistance under 10 U.S.C. chapter 1607 to the list of potentially qualifying benefits. Section 527 of Public Law 108–375 established an additional educational assistance program, educational assistance for certain reserve component members who performed active military service
We propose to revise paragraph (a) of this renumbered section (initially proposed as § 5.557) to clarify the distinction between, and relationship of, accrued-benefits claims and claims filed by the deceased beneficiary.
We propose to delete the initially proposed rules concerning death compensation (proposed §§ 5.560 through 5.562) and reserve §§ 5.560 through 5.562 for later use. There are fewer than 300 beneficiaries currently receiving death compensation. VA has not received a claim for death compensation in over 10 years, and we do not expect to receive any more claims. However, should VA receive such a claim, it could process the claim under the controlling statute, 38 U.S.C. 1121 (for survivors of wartime veterans) or 1141 (for survivors of peacetime veterans). Except for one small group of beneficiaries, death compensation is payable only if the veteran died before January 1, 1957. Because of the small number of beneficiaries of death compensation, the provisions concerning death compensation do not need to be carried forward to part 5.
Additionally, we have determined that the rule initially proposed as § 5.563, “Special rules when a beneficiary dies while receiving apportioned benefits”, relates to apportionments more than to accrued benefits so we propose to move it to subpart M, “Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries”. We propose to reserve § 5.563 for later use.
Under 38 U.S.C. 5122, VA must pay, in accordance with the hierarchy of payments of accrued benefits, the amount of benefits represented in a “check received by a payee in payment of accrued benefits . . . if the payee died on or after the last day of the period covered by the check.” In addition, VA may pay such benefits if the check was wrongly negotiated, but the funds are recovered. In all other cases, 38 U.S.C. 5121(c) would apply, such that a person wishing to receive accrued benefits must file a claim for such benefits.
We propose to revise the title and paragraph (a) of § 5.564. First, we propose to clarify that VA is only authorized to pay the accrued benefits represented in a check mailed to a deceased payee for a period during which the payee was alive up to at least the last day of the period. As initially proposed, the regulation stated that it did not apply to benefits for “the month in which the beneficiary died”, but did not clearly identify the periods to which the regulation could apply. Moreover, this language was not technically correct, because a payee could die on the last day of the period and still be covered by the statute, which explicitly applies when the payee died “on . . . the last day of the period.”
Second, we propose to clarify that this regulation may apply to multiple checks received by the deceased payee. This is clear in the current rule, 38 CFR 3.1003(a)(1), but was not clear in § 5.564 as initially proposed.
Third, the initially proposed rule referred several times to “non-negotiated” checks, which could have been read to be unnecessarily limiting because VA may also pay funds that are recovered after a check was negotiated by someone other than the payee. (In the one remaining instance, we use the term “unnegotiated” instead of “non-negotiated” to be consistent with prior opinions by VA's Office of General Counsel.
Finally, we propose to move initially proposed paragraph (d), concerning payment to the deceased payee's estate, into paragraph (a), for organizational reasons.
As revised, paragraph (a) will more closely track the statutory language and accurately represent the current rule in 38 CFR 3.1003; it will not represent a departure from VA's current practice and interpretation of 38 U.S.C. 5122.
We also propose to delete initially proposed paragraph (b) and redesignate the remaining paragraphs accordingly. As initially proposed, paragraph (b) was comprised of two unnecessary negative propositions, based on current § 3.1003(a)(1). First, proposed paragraph (b) provided that there is no limit on the retroactive period for which payment of the amount represented by the checks may be made. It is unnecessary to state this negative proposition, and this language might mislead readers into believing that there is an unstated time limit on the retroactive period of an award under other sections, when in fact there is no such time limit. Second, proposed paragraph (b) provided that there is no time limit for filing a claim to obtain the proceeds of the checks or for furnishing evidence to perfect a claim. It is unnecessary to state this negative proposition (that is, that there is no deadline) because this language might mislead readers into believing that there is a requirement to file a claim for the proceeds of VA checks under § 5.564, when in fact there is no such requirement.
In § 5.565(b)(1) and (2), we propose to add the words “in equal shares” at the end of each paragraph, to clarify that payment to the children of the veteran or children of the surviving spouse is to be in equal shares. The authorizing statute, 31 U.S.C. 3330, is not specific in this regard, but payment in equal shares is consistent with VA practice and provides a simple and fair rule for administering payments.
Current § 3.1008, on which initially proposed § 5.565 was based, contains no statutory authority. In our initially proposed rule, we listed 31 U.S.C. 3329 and 3330 and 38 U.S.C. 6104 as the authority citations. In reviewing this rule, we have determined that section 6104 does not provide statutory authority for § 5.565 and that additional authority is provided by 38 U.S.C. 5309. We propose to correct this authority citation appropriately.
We propose to clarify § 5.566(d)(3) by adding “on the date of the veteran's death”. Similar language is contained in current § 3.1009(a)(3) upon which the initially proposed rule was based, and the phrase should have been included in the proposed rule.
Paragraph 7 of VA General Counsel's opinion VAOPGCPREC 06–91, 56 FR 25156 (June 3, 1991), states that:
7. Interim Issue (CONTR–169), dated January 13, 1960, providing necessary instructions for the fiscal implementation of PL 86–146, provides in paragraph D.3 in pertinent part:
“a. Immediately upon death of a veteran who has been adjudged or rated incompetent, the balance in the Personal Funds of Patients account will be analyzed to determine the source thereof, i.e., funds derived from gratuitous benefits deposited by the VA under laws administered by the VA or from other sources. For this purpose gratuitous benefits are defined as all benefit payments
We therefore propose to replace “gratuitous benefits” with the phrase “all benefits except insurance payments” in § 5.556. For this same reason, we propose to make this change throughout part 5.
In the initially proposed rule for subpart G, we did not include the provisions from part 3 concerning payment of Old-Law Pension benefits withheld from hospitalized competent and incompetent veterans who die before payment is made, as found in §§ 3.1001 and 3.1007. This omission was inadvertent and we now propose to include these provisions as §§ 5.567 and 5.568.
In § 5.567(b), we are not including language equivalent to current § 3.1001(b)(1) stating, “[t]here is no time limit on the retroactive period of an award”. It is unnecessary to state this negative proposition, and this language might mislead readers into believing that there is an unstated time limit on the retroactive period of an award under other sections when there is no such time limit.
Current § 3.1007 states that, “The term `dies before payment' includes cases in which a check was issued and the veteran died before negotiating the check”. Although there is no such provision in § 3.1001, VA's practice has been to apply this principle to that section as well. This is reflected by the fact that payments under both §§ 3.1001 and 3.1007 are excluded from VA's general rule on unnegotiated checks.
We propose to make several changes to the wording throughout this portion of the regulations. For example, we propose to change both “prior to” and “preceding” to “before”, and we propose to change “prior” to “previous”.
We propose to change “day following the date of last payment to the beneficiary” to “first day of the month after the month for which VA last paid benefits to the beneficiary”, where “beneficiary” represents either a child, parent, spouse, or the veteran. This phrasing is easier to understand and apply.
In a document published in the
One commenter submitted a comment that states that it is intended for this regulatory package, RIN 2900–AL84, but it actually applies to RIN 2900–AL71. The issues raised in this comment are addressed in the portion of this preamble relating to RIN 2900–AL71.
Section 5.580 concerns Medal of Honor pension. Throughout § 5.580, we propose to change the initially proposed word “person” to “servicemember or veteran”, because only servicemembers and veterans can qualify for that benefit.
The second sentence of initially proposed § 5.580(a) stated, “After a person has been placed on the Medal of Honor Roll, and if such person has indicated a desire to receive the Medal of Honor pension, the Secretary concerned will provide VA with a certified copy of the certificate setting forth such person's right to the Medal of Honor pension.” We propose to delete this sentence, which seemed to delineate administrative duties of the service departments. The sentence did not require or provide for any VA action. We leave it to those departments to establish appropriate procedures to administer these duties as, for example, 32 CFR 578.9(c) does for the Department of the Army. For VA's purposes, it is necessary to note only that VA receipt of a certified copy of the certificate from the service department is a prerequisite to an award of Medal of Honor pension.
We propose to move initially proposed paragraph (b) into paragraph (a) to emphasize that VA cannot adjudicate entitlement to placement on the Medal of Honor Roll or to a certificate establishing the right to Medal of Honor pension. VA adjudicates only the amount of the initial payment (that is, the lump-sum payment) and of the effective date of the monthly pension, which is set forth in the next paragraph. We were concerned that as written, initially proposed paragraph (b), which stated that “Medal of Honor pension will be awarded by VA once the certification under paragraph (a) of this section is provided to VA”, could have been misinterpreted to provide an effective date.
In paragraph (b), we assign the effective date of monthly payment of such pension based on the date that the servicemember or veteran entitled to the pension files the appropriate form with the appropriate service department. Although we have generally interpreted 38 U.S.C. 5101(a) to require claimants for VA benefits to file a claim in the form prescribed by VA, that statute does not apply to claimants for the Medal of Honor pension, because the Secretary of the appropriate service department, and not VA, authorizes payment of the Medal of Honor pension. 38 U.S.C. 1561(c). Therefore, no additional claim to VA is necessary to establish entitlement to the Medal of Honor pension.
We propose to redesignate initially proposed paragraph (c) as (b), initially proposed paragraph (d) as (c), and initially proposed paragraph (e) as (d). We changed a phrase in proposed (c)(1) [now (b)(1)] from “application for placement on the Medal of Honor Roll” to “form requesting placement on the Medal of Honor Roll”. We have previously proposed, for VA purposes, that “`application' means a specific form required by the Secretary that a claimant must file to apply for a benefit” (§ 5.1). The statute authorizing the Medal of Honor Roll provides for placement on the roll “[u]pon written application,” 38 U.S.C. 1560(b), “in the form . . . prescribed by the Secretary concerned”. Although either “application” or “form” would be reasonable and accurate terms derived from the statute, we propose to change “application” to “form” in paragraph (b)(1) to preserve the distinction between “application” as we define it for VA purposes and any other use of the term.
Initially proposed § 5.580(c)(3) stated that VA would pay a lump sum “to each person who is receiving or who in the future receives a Medal of Honor pension”. If a veteran “is receiving” a Medal of Honor pension at the time that this regulation becomes effective, then he or she will already have received the lump-sum payment. We therefore propose to revise the sentence to provide a lump-sum payment “to each servicemember or veteran who receives a Medal of Honor pension”. This change is needed because part 5 will apply only
The initially proposed text also stated that the lump-sum payment “will be based on the monthly Medal of Honor pension rates [in effect during a prescribed period].” The phrase “will be based on” was potentially confusing. We propose to change the text to read, “VA will calculate the amount of the lump-sum payment using the Medal of Honor pension rates in effect for each year of the period for which the retroactive payment is made.”
In initially proposed § 5.581(b)(2), we had included the parenthetical definition of “pending claim”. We propose to delete this definition as we have already defined “pending claim” in § 5.57(d). In addition, we clarified that the claim must be pending “at the time that the special act becomes effective.” This change makes the provision more explicit.
We propose to change § 5.581(c)(1) to improve readability.
We propose to change § 5.581(c)(2) to make clear that the rule pertains to a period of service rather than to a specific date.
Initially proposed § 5.581(d)(1) stated, “VA will apply and will not change, . . . the rate, effective date, and discontinuance date that is specified in a special act.” We propose to remove “and will not change” because it merely restates the fact that “we will apply” the elements of the special act addressed in paragraph (d)(1). This will make the rule more readable without changing its meaning.
The initially proposed text in § 5.581(d)(2) stated that the effective date is determined in accordance with the applicable law, but it did not state which law. We propose to include a cross reference to § 5.152, which implements 38 U.S.C. 5110(g), to clarify what date to apply in these situations.
In § 5.581(e)(1), we propose to add the terms, “hospital, domiciliary, or nursing home care” to more accurately describe the content of several sections cited. Similarly, in § 5.581(e)(2), we propose to add the phrase, “or . . . while a fugitive felon” to more accurately describe the content of several sections cited. We also propose to include in § 5.581(e)(2) that payments will be suspended while the veteran is a fugitive felon. We also propose to add 38 U.S.C. 5313B, governing fugitive felons, to the authority citation for the section.
In § 5.583(d), we propose to add, “after VA receives a claim” to clarify that the claimant must file a claim to obtain the benefit.
We propose to make a few changes to § 5.583(e) to enhance clarity and reduce ambiguity. We also propose to correct the reference to Subpart E, so that the text will correctly direct the reader to Subpart K. We also propose to add the statutory authority 38 U.S.C. 107, which is the statutory authority for § 5.583(b)(2).
In § 5.584, we propose to change the initially proposed phrase “may be extended” to “will be extended” to clarify that the action is not discretionary. We also propose to insert the phrase, “all of the following conditions are met” at the end of the introductory sentence and redesignate the paragraphs to enhance clarity and reduce ambiguity of the section.
In § 5.584(b)(2), we propose to add that a veteran's death treated by VA “as if” it were service connected, under 38 U.S.C. 1318, does not qualify the veteran's surviving spouse for loan guaranty certification.
We also propose to revise initially proposed § 5.584(e) to clarify that this section does not apply if the claimant is a surviving spouse who is eligible for a loan guaranty benefit as a veteran in his or her own right.
In § 5.586, “Certification for dependents' educational assistance”, paragraph (c)(2), we propose to change the reference to 38 CFR 3.361 to its part 5 counterpart, § 5.350. Current §§ 3.358 and 3.800 apply to claims under 38 U.S.C. 1151(a) that VA received before October 1, 1997. Because part 5 will apply only to future claims, we will not repeat the provisions of current §§ 3.358 and 3.800 in part 5.
Initially proposed § 5.586(a) failed to state who is potentially eligible to receive dependents' educational assistance. Accordingly, we propose to add “payable to a veteran's spouse, surviving spouse, or child,” after “education benefit” to clarify who is potentially eligible for this benefit.
Also in § 5.586, we propose to remove paragraph (d)(2) and (3), which merely cross referenced the definitions of “spouse” and “surviving spouse”. Because these terms are defined for purposes of all benefits administered under part 5, there is no need to include this paragraph. We propose to move the language of (d)(1) into paragraph (a).
We propose to revise the regulation text of initially proposed § 5.587 for clarity.
In initially proposed § 5.587(a)(1), the reference to the citations to the sections of Public Law 92–425 were mistakenly written as “4(a)(2) and (3)”. We propose to correct this error by changing the citations to “4(a)(1) and (2)”, as stated in 38 CFR 3.811(a)(1). Further, we propose to reword the end of paragraph (c) to clarify its meaning. The initially proposed rule read, “An individual . . . shall be considered eligible for pension for purposes of determining eligibility for the minimum income annuity even though as a result of adding the amount of the minimum income annuity authorized under Public Law 92–425 as amended to any other countable income, no amount of pension is due.” The reworded version reads, “A person . . . will still be considered eligible for pension for purposes of determining eligibility for the minimum income annuity, even though no amount of pension is payable after adding the minimum income annuity, authorized under Public Law 92–425, 86 Stat. 706, as amended, to any other countable income.”
Public Law 92–425 authorizes payment of benefits for commissioned officers of the Public Health Service and the National Oceanic and Atmospheric Administration. The two agencies that govern these officers were not referenced in part 3. We propose to correct this omission in part 5 by adding the Department of Health and Human Services as well as the Department of Commerce in § 5.587(a)(1).
In § 5.588(a)(1), we propose to change the regulation text to clarify that VA makes the determination of eligibility.
In § 5.588(e), we propose to eliminate the terms “formal and informal” from the initially proposed title. We have already defined the term “claim” in § 5.1 as a formal or informal communication requesting a determination of entitlement. Likewise, we refer to filing an “application” rather than “Formal claims . . . on a form prescribed by the Secretary”, because we have already defined “application” in § 5.1.
We propose to remove the last sentence of initially proposed § 5.588(e), because it would impose a restriction
We propose to update the statutory authority citations contained in initially proposed §§ 5.589 and 5.590 to reflect that sec. 102(a)(1) of Public Law 108–183, 117 Stat. 2651, 2653, redesignated 38 U.S.C. 1822, 1823, and 1824 as 38 U.S.C. 1832, 1833, and 1834, respectively.
In § 5.589, we propose to replace the term “individual” with “person” to maintain consistency in our usage throughout the regulations. We have also modified the wording of initially proposed § 5.589(b) to clarify any ambiguity resulting from this change.
On January 25, 2011, VA published Final Rule AN27, “Herbicide Exposure and Veterans with Covered Service in Korea” to implement the Veterans Benefits Act of 2003, Public Law 108–183, 117 Stat. 2651. 76 FR 4245. We propose to incorporate these provisions as a new paragraph (c)(2) in § 5.589 and make conforming amendments to §§ 5.57(b), 5.150(a), 5.152(a) and (d), 5.228(a), 5.262(a)(1)(ii), 5.589(a) and (e), 5.590(i), and 5.591.
In redesignated § 5.589(c)(3) we propose to change the last sentence of initially proposed § 5.589(c)(2) for clarification purposes.
In § 5.590, we propose to replace the term “individual” with “person” to maintain consistency in our usage throughout the regulations. We have also modified the wording of initially proposed § 5.590(b) to clarify any ambiguity resulting from this change. We also propose to clarify the regulation text of § 5.590(b) to reflect that that provision is subject to § 5.590(a)(3), which governs the payment of monetary allowance where a covered birth defect is spina bifida. We propose to add the phrase, “[e]xcept as provided in paragraph (a)(3) of this section”.
In proposed §§ 5.589(a) and 5.590(a), we propose to add language from § 3.27(c), providing for an increase in monthly allowance rates under 38 U.S.C. chapter 18 whenever there is a cost-of-living increase in benefit amounts payable under the Social Security Act. We inadvertently failed to add this language in the initially proposed rule and propose to add it now.
We propose to delete initially proposed § 5.591(a)(6). Paragraph (a)(6) stated a general rule applicable to all effective dates. Because this general rule is stated in § 5.152(a), there is no need to restate it here.
We propose to add § 5.592. It is the counterpart to current § 3.816, which we inadvertently omitted from the March 9, 2007, notice of proposed rulemaking for these rules. 72 FR 10860. We intend to insert it here.
Paragraph (b)(2) of § 3.816 states, in pertinent part, “Covered herbicide disease means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991, Public Law 102–4, other than chloracne.” In July 2007, the U.S. Court of Appeals for the Ninth Circuit rejected VA's position that its duties under the
One commenter stated that “proposed § 5.603(b)(1)(ii) establishes limitations on the types of adaptive equipment for which an eligible person may receive financial assistance from VA to purchase.” The commenter was concerned that the list of adaptive equipment found in initially proposed § 5.603(b)(1)(ii) would exclude any equipment not listed in that section.
The commenter pointed out that parts of the authorizing statutes and parts of current VA regulations use “but is not limited to” in conjunction with “includes”. Further, other regulations in the initially proposed rule used language such as “including, but not limited to”.
In order to eliminate any confusion, we propose to adopt the commenter's suggestion and add the “but is not limited to” language to § 5.603(b)(1)(ii), to read, “Adaptive equipment includes, but is not limited to: ”. For the same reason, we propose to add similar language to §§ 5.589(d)(2), 5.590(d)(1)(xii), 5.590(d)(2), 5.590(d)(6)(ii), 5.590(e)(1)(ii)(B), 5.590(e)(1)(iii)(B), 5.590(e)(1)(iv)(D), 5.590(e)(1)(v)(C), 5.590(e)(2)(i), 5.606(b)(1), and 5.606(b)(2).
We propose to change the regulation text in initially proposed § 5.603(b)(1)(i) to conform with the language of current § 3.808(e). The initially proposed text did not include part of the required text. The text will read, “`Adaptive equipment' means equipment that must be part of or added to a vehicle manufactured for sale to the general public to:”.
Initially proposed paragraph (b)(1)(ii)(A) said, “Automatic transmission as to an eligible person who has lost, or lost the use of, a limb”. We propose to delete “as to an eligible person who has lost, or lost the use of, a limb”, because with that phrase in the regulation the eligible person with ankylosis of the knees or hips would not qualify for VA assistance to obtain an automatic transmission.
We propose to combine initially proposed § 5.603(b)(1)(ii)(D) and (F) (which were based on 38 CFR 3.808(e)(2) and (3)) as paragraph (b)(1)(ii)(D). They were substantially redundant. It was the intent of both § 3.808(e)(2) and (3) to set limits on the amount of assistance that VA may pay for adaptive equipment. We have always interpreted these two regulations in this way. This interpretation is also in accordance with 38 CFR 17.158(b), which also sets the same limitations on the amount of assistance for adaptive equipment.
We propose to delete initially proposed § 5.603(b)(1)(ii)(C) and redesignate initially proposed § 5.603(b)(1)(ii)(E) as § 5.603(b)(1)(ii)(C).
In paragraph (c)(2), we propose to change the phrase “loss or permanent loss of use [of a named body part]” to “Anatomical loss or permanent loss of use [of a named body part].” We intend to make this change throughout part 5. Part 3 uses both phrases interchangeably, sometimes in a single regulation and this resulted in confusion.
The statute defining the disabilities a person must have to be eligible for an automobile or adaptive equipment requires “loss or permanent loss of use” of particular body parts, 38 U.S.C. 3901, and VA interprets “loss” in that phrase as meaning anatomical loss. This interpretation is consistent with the qualification for certain levels of special monthly compensation for “anatomical loss or loss of use”.
We propose to revise initially proposed paragraph (c)(2)(iv) to make clear that a person with ankylosis of one or both knees, or one or both hips may only receive financial assistance to purchase adaptive equipment.
Section 803 of Public Law 111–275, 124 Stat. 2864, 2889 (2010) amended 38 U.S.C. 3901 which lists the disabilities that qualify a veteran for VA assistance to purchase a vehicle or adaptive equipment for a vehicle. We propose to add paragraph (c)(2)(v) to implement the statutory amendment by adding “[s]evere burn injury” as a qualifying disability. Section 803 indicated that what qualifies as a “severe burn injury” for purposes of obtaining automobile or adaptive equipment will be “determined pursuant to regulations prescribed by the Secretary.” VA's Compensation Service is drafting a rulemaking to comply with that provision in 38 CFR part 3. Once that has been completed, the new regulatory language will be incorporated into § 5.603.
We propose to redesignate paragraph (c)(3) as paragraph (d)(1), because the content of paragraph (c)(3) is more relevant to the subject of paragraph (d), “Limitations on assistance”, than to paragraph (c), “Eligibility criteria.” We also propose to add a provision to paragraph (d)(1)(i) based on 38 U.S.C. 3902(d), that VA will assist a person who cannot qualify to operate a vehicle to purchase a vehicle, if another person will drive the vehicle for him or her.
As a result of redesignating initially proposed paragraph (c)(3) as paragraph (d)(1), we propose to redesignate initially proposed paragraphs (d)(1) and (d)(2) as paragraphs (d)(2) and (d)(3). We propose to clarify the text in redesignated § 5.603(d)(3). As written, the initially proposed text failed to include the reference to circumstances beyond the control of the eligible person. We propose to revise the text by inserting the phrase, “due to circumstances beyond the eligible person's control,” between “a 4-year period unless,” and “one of the adapted vehicles”. We also propose to add to the second sentence the words “or reimbursements” after “payments”, because we unintentionally omitted it from the original text. We therefore propose to revise the sentence to read, “The Under Secretary for Health or designee may authorize payments or reimbursements for the repair, replacement, or reinstallation of adaptive equipment deemed necessary for the operation of the vehicle.” We also propose to delete “§§ 17.156 through” from the cross reference, which is now only to § 17.158, because §§ 17.156 and 17.157 do not pertain to the subject of the cross reference.
We have determined that initially proposed § 5.603(f), “Redemption of certificate of eligibility”, was inaccurate. Therefore, we propose to restructure this paragraph to encompass both the purchase of the vehicle and the purchase of adaptive equipment. Paragraphs (f)(1)(i) and (2)(i) address redemption of a certificate of eligibility by the seller, and paragraphs (f)(1)(ii) and (2)(ii) address redemption of a certificate of eligibility by the eligible person. Together, these paragraphs cover the scenarios where the vehicle or adaptive equipment was purchased prior to an eligible person acquiring the certificate of eligibility.
In our proposed rulemaking, 72 FR 10860, Mar. 9, 2007, we had reserved §§ 5.604 and 5.605 while VA completed a rulemaking to implement housing provisions of the Veterans Benefits Act of 2003, the Veterans Benefits Improvement Act of 2004, the Veterans' Housing Opportunity and Benefits Improvement Act of 2006, and the Housing and Economic Recovery Act of 2008. VA has now amended 38 CFR 3.809, “Specially Adapted Housing under 38 U.S.C. 2101(a)”, and § 3.809a, “Special Home Adaptation Grants under 38 U.S.C. 2101(b)”. 75 FR 57859, Sept. 23, 2010. We now propose to incorporate §§ 3.809 and 3.809a, as amended, into part 5 with several stylistic changes.
We propose to clarify initially proposed § 5.606(a) to state: “VA will pay an annual clothing allowance to a veteran with a qualifying disability. However, VA will pay more than one annual clothing allowance if VA determines that the veteran has more than one qualifying disability.” This is consistent with the decision in
We also propose to clarify the term “veteran” as it applies to a person who is eligible for clothing allowance. VA General Counsel's opinion VAOPGCPREC 4–2010, (May 25, 2010), held that the “term [veteran] includes individuals who have returned to active duty after previously meeting the definition of `veteran.' ” We propose to incorporate this holding in proposed § 5.606(a).
We propose to consolidate initially proposed § 5.606(a), (b), and (b)(1) for clarity and simplicity, without changing the meaning.
Initially proposed § 5.606(b)(2) addressed all service-connected disabilities for which the veteran wears or uses a prosthetic or orthopedic appliance that wears or tears clothing. Current § 3.810 distinguishes disabilities compensated at a rate specified in § 3.350(a) through (d) or (f) and other service-connected disabilities that require an appliance. We propose to revise the paragraph to maintain the
Initially proposed § 5.606(b)(2) did not distinguish between applications for clothing allowance that VA can grant after a required examination and those that require certification by the Under Secretary for Health or designee, as does current § 3.810. We propose to revise the paragraph to maintain this distinction, and redesignate it as paragraphs (b)(1) through (3).
In initially proposed § 5.606(b)(2), we used the term “VA determines” in place of the term “Chief Medical Director or designee”, which part 3 uses for the VA office now designated as Under Secretary for Health. We propose to revise paragraph (b)(2) to use “Under Secretary for Health or designee”. This change eliminates any ambiguity about who makes the determination.
We propose to change § 5.606(c)(1) and (2) to state the circumstances in which the veteran need not file the claim for a clothing allowance annually. VA has provided for the annual clothing allowance without requiring the filing of an annual claim, as stated in paragraphs (c)(1) and (2), since the inception of the clothing allowance benefit in 1972. VA form 10–8678, “Application for Annual Clothing Allowance (Under 38 U.S.C. 1162)”, implements this long-standing practice.
We propose to rewrite initially proposed § 5.606(d) for clarity. We propose to delete the term “anniversary date”. Although we had defined the term, we have determined that it is confusing to the reader, and have opted to use the actual date of August 1 instead. We also propose to define the “payment year” for which VA pays the annual clothing allowance as the “12-month period beginning August 1 and ending July 31 of the following year.” For this reason, we propose to delete the term “anniversary date” in § 5.606(e) as well.
We propose to rewrite initially proposed § 5.606(e) for clarity. We propose to change “within 1 year of” and “within 1 year from” to “no later than 1 year after”. This change makes clear that the time to file a claim relative to August 1 means the year after August 1. We also propose to remove the term “initial anniversary date” and instead, describe the first period for which VA pays a veteran a clothing allowance as the “initial year of payment eligibility”.
We propose to remove initially proposed § 5.606(f). Paragraph (f) contained information already in Subpart I of part 5, which pertains to Filipino veterans. One purpose of proposed Subpart I is to assemble in one place all of the adjudication regulations dealing with benefits for certain Filipino veterans. It would be redundant to repeat that information in § 5.606. Additionally, paragraph (f) stated that claims for clothing allowance by Filipino veterans are processed in Manila. This is purely a matter of internal VA administration of claims. The paragraph conferred no benefit on the veteran, and it did not require the claimant to take any action. We propose to remove the paragraph as an unnecessary regulation.
We propose to remove initially proposed § 5.606(g). Paragraph (g) informed the veteran living abroad that the VA Medical Center (VAMC) with jurisdiction over his permanent address has jurisdiction over a claim for a clothing allowance. The assignment of claims to specific facilities is purely a matter of internal VA administration of claims. The paragraph conferred no benefit on the veteran. We propose to remove the paragraph as an unnecessary regulation. As a result of removing paragraphs (f) and (g), we will redesignate paragraph (h) as paragraph (f).
In addition to considering any necessary changes to proposed part 5 regulations based on comments received from the public, we propose to make certain additional changes in this reproposed rule: adding, updating, and moving some authority citations, correcting a citation, and correcting citation format. For example, proposed § 5.584, “Loan guaranty for a surviving spouse: eligibility requirements”, lacked an authority citation at the end of the section. We intend to correct this omission by adding the authority citation, 38 U.S.C. 3701(b)(2). We also propose to add to the authority citation for § 5.587.
For consistency of terminology throughout part 5, we propose to replace the term “evaluation” with the term “rating”, and “evaluated” with “rated”, whenever either appears in §§ 5.589(d), 5.590(a)(3), and 5.590(e).
We also propose to correct our use of the terms “claim” and “application”. Under 38 CFR 3.1(p), “Claim–Application” is defined as “a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit.” Under § 5.1, “Claim” is defined as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” Under § 5.1, “Application” is defined as “a specific form required by the Secretary that a claimant must file to apply for a benefit.” Accordingly, the following changes are proposed to be made. We propose that the words “formal application” be replaced with the word “claim” every time they appear in § 5.581(b), and the phrase “in the form prescribed by VA” be removed. We also propose that the phrase “on a form prescribed” be removed from § 5.583(c). We also propose that the words “an application” be replaced with the words “a claim” in the introductory text of § 5.584. In addition, we propose that the phrases and word “on a form prescribed by the Secretary of Veterans Affairs”, “form”, and “on the prescribed form” be removed from § 5.588(e). Finally, we propose that the words “application form” and “application” be replaced with the word “claim” in every place they appeared in initially proposed §§ 5.603(d)(1), 5.606(b)(3), and 5.606(e).
In a document published in the
Although no comments were received regarding our publication on June 30, 2006, an internal review of proposed Subpart I revealed minor typographical errors and a need for further clarification in several areas. Accordingly, based on the rationale set forth in the initially proposed rule and this proposed document, we propose to adopt the provisions of proposed Subpart I, with the following changes discussed below.
The publication for proposed Subpart I also contained minor revisions to Subpart B, “Service Requirements for Veterans”, and Subpart E, “Claims for Service Connection and Disability Compensation”, which had been previously published in proposed rulemaking packages. Those revisions will be contained in this proposed rule segment. The package for Subpart I was
Initially proposed § 5.610(b)(3) incorrectly stated that service as an officer commissioned in connection with administration of Public Law 79–190 is not active military service for purposes of VA benefits. Administrator's Decision 778 (Mar. 5, 1948) concluded that service as a commissioned officer in connection with administration of Public Law 79–190 would constitute regular active military service—that is, it would qualify for all benefits available to U.S. veterans. Among other things, that opinion noted that because such commissioned service was not service pursuant to section 11 of Public Law 79–190 (relating to enlistments), it was not subject to the limitations currently codified in 38 U.S.C. 107(b). Therefore, we propose to correct this error in paragraph (a) of § 5.610.
In § 5.610(c)(1), we propose to change “General Officer, U.S. Army” to “Commander-in-Chief, Southwest Pacific Area, or other competent authority in the Army of the U.S.” to further specify the type of authority needed to establish active military service in the Commonwealth Army of the Philippines.
In order to clarify the list of acceptable items of evidence in regards to a veteran's or veteran's survivor's eligibility for compensation at the full-dollar rate under § 5.613(c)(2) and a veteran's burial benefits at the full-dollar rate under § 5.617(c)(2), a valid original or a valid copy of any of the enumerated items, such as a U.S. passport, is required. In both instances, we propose to add the modifier word “valid” to the terms “copy” and “original”, and remove the unnecessary word “valid” in front of “U.S. passport”.
We propose to divide initially proposed § 5.614(b)(3) into paragraphs (b)(3) and (b)(4) and clarify these provisions. First, we propose to insert the word “veteran's” before “survivor” in both places where the term “survivor” is used. Second, we propose to clearly set out the rules for the following classes of beneficiaries: those who were absent from the U.S. for a total of 183 days or more and returned to the U.S. during the same calendar year, and those who were absent from the U.S. for a total of 183 days or more and returned to the U.S. in a later calendar year but less than 183 days after the beginning of such calendar year. This revision does not reflect a new policy; rather it is a clarification of current § 3.405(b)(2). We also propose to redesignate the remaining paragraphs under § 5.614(b) accordingly.
We propose to make several changes to certain provisions describing the dates relevant to eligibility for burial benefits at the full-dollar rate. Initially proposed § 5.610(b)(1) and the chart in initially proposed § 5.612 referred to deaths occurring “on or after December 16, 2003”. We propose to revise this to refer to deaths occurring “after December 15, 2003” in order to conform to the format used in current 38 CFR 3.43 and the format generally used for dates throughout part 5. Initially proposed § 5.617(b) referred to deaths occurring “after November 1, 2000”. However, the corresponding provisions of the chart in proposed § 5.612 inaccurately referred to deaths occurring “on or after 11/1/00”. As stated in the notice of proposed rulemaking, the chart in § 5.612 is intended only to summarize the provisions in Subpart I and not to confer any additional rights. Accordingly, we propose to correct the inadvertent error in the chart by replacing “on or after 11/1/00” with “after 11/1/00” to ensure that the chart accurately reflects the applicable rule.
In a document published in the
One commenter expressed satisfaction with the rewritten provisions in proposed RIN 2900–AL72, “Burial Benefits”. The commenter explained that veterans have a right to these more detailed regulations with a “plain layout” that one “can read . . . without any misunderstanding.” The commenter went on to say that “there is nothing wrong with being more straight forward with the provisions especially when it comes to burial provisions. Pass the rule and be done with it, let the confusion be dismissed.” No changes to the proposed rule were suggested. Although we are pleased that the commenter finds these rules an improvement over part 3, we regret that we cannot accelerate the effective date of one subpart of part 5 because, administratively, it would be too cumbersome and costly to establish part 5 in stages. We propose not to make any changes based on this comment.
We propose to add a definition of “burial” as new paragraph (b) to ensure that readers know that VA pays burial benefits for all the legal methods of disposing of the remains of deceased persons, including, but not limited to, cremation, burial at sea, and medical school donation.
We propose to revise this paragraph by adding the phrase “or interment” after “memorialization” to clarify the distinction between interment and memorialization. Interment refers to placing a body into the ground. Memorialization honors a person whose remains have not been found.
In addition, to avoid potential confusion for readers, we propose to clarify that the burial regulations in part 5 do not apply to the benefit programs listed in paragraph (c), which operate under separate statutes and regulations.
We propose to redesignate the paragraphs of this rule according to the revisions described below. First, we propose to delete initially proposed paragraph (b), which had required that the veteran upon whom a claim for burial benefits is based to have been discharged or released from service under conditions other than dishonorable, and added such a requirement to what is now proposed paragraph (a). This makes the rule simpler to read and easier to apply.
Second, we propose to delete initially proposed paragraph § 5.631(c). This paragraph was derived from current 38 CFR 3.1600(d). The paragraph was ambiguously written, but was intended to state merely that VA can reopen a claim for service-connected death if new and material evidence is presented. This rule is not a rule concerning burial
We propose to revise
In paragraph (a)(2), we propose to revise the first sentence to eliminate any reference to the nonservice-connected burial allowance. Neither the law nor VA policy prevents providing the service-connected burial allowance to a person whose discharge is upgraded posthumously. The initially proposed regulation had not provided for such a limitation because, although this specific provision had applied only to nonservice-connected burial benefits, there was no time limit to file a claim for service-connected burial benefits and, therefore, there was no bar against filing a claim (or a claim to reopen) for a service-connected burial allowance at any time after the veteran's death. However, the regulation is clearer without the reference to nonservice-connected burial benefits in the first sentence because it cannot be misinterpreted as a rule that limits to the nonservice-connected burial allowance the applicability of an award based on a posthumously upgraded character of discharge.
In initially proposed § 5.633(b)(1), we stated, “Evidence required to substantiate a claim for burial benefits must be submitted no later than 1 year after the date VA requests such evidence.” This sentence was based on current § 3.1601(b), which was intended to implement 38 U.S.C. 2304. That statute provides, in pertinent part:
If a claimant's application is incomplete at the time it is originally submitted, the Secretary shall notify the applicant of the evidence necessary to complete the application. If such evidence is not received within one year from the date of such notification, no [non-service connected burial] allowance may be paid.
One commenter suggested that § 5.633(b)(1)(iii), regarding the information needed in a statement of account, should read “the dates of expenses incurred for services rendered” and not “the dates and expenses incurred for services rendered”. We disagree with the commenter's suggestion. By placing “of” instead of “and” in this part of § 5.633(b)(1)(iii), the meaning of the regulation would be changed. Using the word “of” in this context would restrict the information that VA requires for a statement of account to only the dates on which the expenses were incurred. In contrast, using the word “and” signifies that VA requires the dates as well as the expenses incurred for the services rendered. This interpretation is supported by the similar language found in § 3.1601(b), upon which § 5.633(b) is based. However, we propose to clarify the sentence to eliminate the possibility that it could be read to refer only to the dates of the expenses incurred.
We propose to revise initially proposed § 5.633(b)(1)(iv) for clarity, and to eliminate redundancy.
Initially proposed § 5.634(b)(2) had barred reimbursement for an item or service “previously provided or paid for by the U.S. Government.” We propose to clarify this sentence because we will, in fact, reimburse for the cost of a uniform if a new uniform was purchased because the veteran's service uniform was not in a condition suitable for burial.
A commenter suggested that the word “persons” should be replaced by the word “veterans” in the introductory sentence of § 5.635. The commenter stated that otherwise it is awkward wording since the sections referred to in the introduction, §§ 5.639 and 5.644, do refer to veterans specifically. We understood the commenter's point to be that VA will only reimburse expenses connected with the transportation of a deceased veteran. To the extent that the introductory sentence to the regulation could have been read otherwise by use of the word “persons”, we propose to revise the sentence for clarity.
Proposed paragraphs § 5.635(a) and (b) are not an exclusive list of reimbursable transportation expenses. We propose to reword and add the phrase “but are not limited to” to the introductory sentence in § 5.635, in order to be consistent with § 3.1606 and with current practice.
A commenter suggested that we replace “based upon” with “for” in §§ 5.643(b) and 5.644(b). The commenter believes that the revision would make the regulatory language plainer, simpler, and more reader-focused. We agree with the suggestion and propose to replace the words “based upon” with “for” in the introductory sentences of §§ 5.643(b) and 5.644(b).
One commenter questioned the reasoning behind referring to the Canal Zone in § 5.644(d). The commenter stated that since the U.S. returned ownership of the Canal Zone to Panama, the location should not be listed. Section 5.644 listed the Canal Zone because it is included in the applicable statute (
We received one comment regarding a proposal not to include a part 5 counterpart to § 3.1605(b), which denies eligibility for transportation expenses to “retired persons hospitalized under section 5 of Executive Order 10122 . . . issued pursuant to Public Law 351, 81st Congress, and not as Department of Veterans Affairs beneficiaries”. Section 5 of Executive Order 10122 relates to current and former servicemembers who had been hospitalized for chronic diseases between May and October of 1950. The commenter noted that, in a preliminary draft, VA proposed to delete this section. The commenter approved removing this section, but only if there was evidence that removing it would not affect any veteran's benefits.
As stated in the AL72 NPRM preamble, we proposed not to include in part 5 the rule in current § 3.1605(b) that denies eligibility for transportation expenses to “retired persons
We propose to clarify initially proposed § 5.649(e) to state that “Any claimant may waive his or her right to receive burial benefits in favor of assigning his or her right to another claimant.” This change is consistent with current VA practice.
In § 5.651(c)(2), we propose to use active voice to clarify that VA will not pay burial allowance in the circumstances stated. We also propose to improve readability by changing “in” to “occurring during” before “active military service”, and removing the comma after “service”.
One commenter pointed out several necessary technical changes and a correction that we propose to make. First, we propose to move the misplaced opening parenthesis in § 5.636(a)(2)(ii). Second, we propose to correct the grammar when referring to interment in §§ 5.638(c)(2) and 5.643(e)(2) by adding the word “a” before “State veterans cemetery”, both places these words appear. Finally, we propose to correct the date in § 5.653 from “December 1, 1957” to correctly read “December 31, 1957”, as provided in the enabling statute, 38 U.S.C. 2305.
In addition to considering any necessary changes to proposed part 5 regulations based on comments received from the public, we propose to make certain technical corrections. For example, we propose to replace “in line of duty” with “in the line of duty”. In addition, the initially proposed rule used “at the time of death” interchangeably with “on the date of death”. In most VA claims, the time of death is not relevant, only the date of death. The only exception is § 5.644(b)(6), which discusses whether a veteran was hospitalized by VA but was not at the VA facility at the time of death. We therefore propose to replace “at the time of death” with “on the date of death” throughout the burial regulations. These changes are meant to achieve consistency throughout the part 5 regulations.
In a document published in the
Initially proposed § 5.660(a) stated, “Except as provided in § 3.310 of this chapter, VA may grant service connection only for an injury, disease, or cause of death that was incurred or aggravated in line of duty.” This was a misstatement of the language in § 3.301(a) that states, “. . . service connection may be granted only when a disability or cause of death was incurred or aggravated in line of duty, and not the result of the veteran's own willful misconduct. . .” Under its authorizing statutes, VA service connects disability or death, not injury or disease
Initially proposed § 5.660(c)(4) provided that an injury was not incurred in the line of duty if it was incurred while the veteran was “Confined under a sentence of civil court for a felony as determined under the laws of the jurisdiction where the veteran was convicted by such court.” A virtually identical rule appears in 38 U.S.C. 105(b). However, we were concerned that the phrase “civil court” could be misconstrued to exclude a criminal court. Clearly, such an interpretation is incorrect as shown by the statutory and regulatory references to a felony. We interpret the statutory reference to a “civil” court to be a reference to a court other than a U.S. military court, that is, it refers to a “civilian” court, and propose to modify the paragraph accordingly.
Initially proposed § 5.660(d) read, “A service department finding that injury, disease, or death occurred in line of duty will be binding on VA unless the finding is patently (clearly) inconsistent with the laws administered by VA.” In responding to our proposed rule, a commenter opined that use of the terms “patently” and “clearly” created a new evidentiary standard, and suggested that VA “stick with evidentiary standards for which there are precedents in VA law.”
Under our current regulation, 38 CFR 3.1(m), a service department line-of-duty finding is binding on VA unless it is “patently inconsistent with” VA law. The purpose of this regulatory presumption is pro-veteran; VA does not intend to question a service department line-of-duty finding unless that finding would lead to a result that is contrary to the laws concerning the provision of veterans' benefits. An example of such an inconsistent finding might be that a veteran's injury was incurred as a result of the abuse of alcohol, but nevertheless was in the line of duty. VA could not accept such a finding because we are barred from providing service-connected disability compensation if “the disability is the result of . . . abuse of alcohol”. 38 U.S.C. 1110.
The binding nature of a service-department line-of-duty finding is a regulatory interpretation of 38 U.S.C. 105(b), which reads that, “The requirement for line of duty will not be met” if the veteran was avoiding duty, confined under sentence of court martial or for felony charges in a civil court, etcetera. These are all legal issues where, as a matter of law, the veteran was not performing a duty for the military. There is no need to weigh evidence under such circumstances because, as a matter of law, the evidence cannot overcome the statutory bar. For this reason, we reject the commenter's suggestion that we use a common evidentiary standard of proof in this situation; the question is neither about the quality of the evidence, nor the weight of the evidence. For these reasons, we also do not describe the evidentiary rule as a “presumption.” Therefore, we propose not to revise the rule to include a standard of proof.
However, based on the comment, we understand that addition of the word “(clearly)” caused confusion, leading the commenter to believe that this regulation does in fact establish an evidentiary burden. Therefore, we
We note that the above analysis does not apply in the same way to § 5.661(f), which also proposed to use the phrase, “patently (clearly)”, as discussed below.
We have determined that the definitions of “willful misconduct”, “proximately caused”, and “drugs” proposed in the NPRM should be moved into § 5.1, “General definitions”, because they relate to other sections in addition to those found in this subpart.
One commenter suggested that VA should adjudicate claims in the following manner:
• Identify the act that was the proximate cause of the disability; and then,
• Determine whether that act constituted willful misconduct.
A chronic disability first shown in service or aggravated by service is considered to have been incurred in the line of duty unless (1) it is not an injury or disease “within the meaning of applicable legislation”,
One commenter expressed the opinion that the words “substance,” “alcohol,” “addiction,” and “frequent” should be defined. We decline to do so by regulation because these words have commonly understood meanings. We propose to make no changes based on this comment.
One commenter noted that VA referred to alcohol and drugs separately, which could cause confusion because, the commenter asserted, alcohol is also a drug. In 38 U.S.C. 105(a), Congress identified the use of alcohol and drugs, separately. 38 U.S.C. 105(a) (barring a line-of-duty finding where injury or disease was a result of “abuse of alcohol or drugs”). Our regulation uses both terms for consistency with the statute.
One commenter was concerned with whether the frequency of use or the addiction of the user was to be used by VA to determine willful misconduct. The commenter suggested the regulation be amended to clarify which standard was to be used. There are two issues here. First, whether the addiction itself may be service connected, and second, whether a disability that was proximately caused by frequency of use or addiction to alcohol or drugs may be service-connected. The law is clear that primary disability of addiction, at least when such addiction is due to alcohol or drug abuse, cannot be service connected. 38 U.S.C. 1110. We propose to make no changes based on this portion of the comment.
Neither frequency of use nor addiction of the user determines whether an event is due to willful misconduct. Rather, the determination is based on whether the veteran was intoxicated by drugs or alcohol at the time of the event that caused the disability, and whether that intoxication was the proximate cause of the disability.
A commenter asserted that the use of the phrase “isolated and infrequent”, in initially proposed paragraph (c)(2)(i), was contradictory because “isolated” suggests a one-time use and “infrequent” means multiple uses. One commenter recommended that there be a regulatory requirement that addiction to alcohol, drugs, or other substances, or other use disorders, be determined by a psychiatrist on a medical basis. Because we are removing paragraph (c)(2)(i) and the reference to addiction in proposed paragraph (c)(2)(v) (now (c)(2)(iv)), these comments are moot and we propose to make no changes based upon them.
One commenter felt the regulation should be revised conceptually, and modernized to preclude a finding of “willful misconduct” on the basis of a claimant's medically documented drug addiction or drug abuse. The commenter noted that the influence of drug addiction or abuse affects a veteran's ability to formulate sufficient intent and to appreciate the consequences of his or her actions. Another commenter expressed the opinion that the determination of proximate cause should be separated in the regulatory scheme from willful misconduct and that the determination should focus on the act causing the disability. We are prohibited from amending the regulations to comply with these comments. The prohibition against granting service connection for willful misconduct and the prohibition against granting service connection for disability caused by alcohol or drug abuse is contained in 38 U.S.C. 105(a), which reads, “An injury or disease incurred during active military . . . service will be deemed to have been incurred in line of duty . . . unless such injury or disease was a result of the person's own willful misconduct or abuse of alcohol or drugs.” Thus, we cannot make any changes based on these comments because the suggested changes are beyond our statutory authority.
One commenter discussed § 5.661(c), stating that after VA determines that a person was intoxicated at the time of committing a particular act, the next step should be a determination of whether the person was mentally capable of committing the act in a deliberate or intentional manner with knowledge of, or wanton and reckless disregard of, its probable consequences. The commenter speculated that an intoxicated person may not be capable of forming the intent. While intent is an element in willful misconduct determinations, intent is not an element in determining whether alcohol or drug abuse was the proximate cause of the disability. In 38 U.S.C. 105, Congress made a distinction between willful misconduct, an act with an intent element, and abuse of alcohol or drugs, an act without an intent element. Since abuse of alcohol or drugs has no intent element, we propose to make no changes based on this comment.
One commenter stated that initially proposed “[§ ] 5.661(c) provides that ‘intoxication' can be considered ‘willful misconduct' if it is the ‘proximate cause' of the claimed disability or death.” The commenter then opined that under the
One commenter expressed the opinion that the provisions of § 5.661(a) and (b) that prohibit granting service connection, and because of that prohibition dependency and indemnity compensation, as a result of a veteran's misconduct, were an expansion of the current prohibition and unfair to innocent survivors. This commenter noted that this issue was being litigated, at the time of the preparation of the commenter's comment. However, after the commenter submitted the comment, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) decided
Initially proposed § 5.661(d)(2)(iii) read, “A reasonable, adequate motive for suicide may be established by affirmative evidence showing circumstances which could lead a rational person to self-destruction.” In § 5.3(e), we propose to state that “VA may consider the weight of an absence of evidence in support of, or against, a particular fact or issue.” Although we are not aware of any particular cases in which VA reversed a service department finding of mental unsoundness based on the absence of any evidence of record corroborating such finding of mental unsoundness, our regulation should not foreclose the possibility. We therefore propose to remove the word “affirmative” from § 5.661(d)(2)(iii) and insert the word “competent” in its place. We note as well that although this may be viewed as a restrictive change, in fact and practice, VA never intended a result other than that which is compelled by the revision.
The same commenter opined that the requirement in § 5.661(d)(2)(iii) that suicide not be considered an act of mental unsoundness if the evidence shows that the deceased had a “reasonable, adequate motive for suicide” is a “heretofore unknown[ ] standard of evidence” that requires VA to make “grim, heartless, and at their center, irrational decisions.” First, the requirement of a showing of a “reasonable, adequate motive” is not “heretofore unknown”. Section 5.661(d)(2)(iii) restates current § 3.302(b)(2), which also uses the phrase “reasonable adequate motive”. Second, this evidentiary rule has not led VA to make irrational decisions in determinations concerning suicide, and most cases involving suicide are, quite understandably, “grim”. We see no reason to change VA policy based on this comment. However, we propose to add a comma after the second word of the paragraph, changing the wording from “A reasonable adequate motive” to “A reasonable, adequate motive”. We propose this change in order to clarify that the word, “reasonable” modifies “motive” and not “adequate.”
The same commenter argued against the use of the “affirmative evidence” standard in § 5.661(d)(2)(iii) because the commenter believed that “affirmative evidence” was a quantitative level of proof that is less than a preponderance. The commenter opined that the standard of proof was too low to determine whether suicide was due to willful misconduct, and urged VA to adopt a “clear and convincing evidence” standard. We propose to make no changes based on this comment for several reasons. First, as explained above, we are eliminating the reference to “affirmative evidence”. Second, that standard is a qualitative one—it describes the nature of the evidence—and not a quantitative one. Thus, it has no effect on the burden of proof and could not be read to permit VA to find that suicide was not evidence of mental unsoundness based on less than a preponderance of the evidence. To the extent that the commenter believes that such a finding ought to be based on more than a preponderance of the evidence, we note, as discussed in the preamble to § 5.3, that the statutory default standard for rebutting findings favorable to a claimant is the preponderance standard. The application of a higher standard is appropriate only when a law mandates that higher standard.
In initially proposed § 5.661(e) we repeated current § 3.301(c)(1) which states, “[W]hether the veteran complied with service regulations and directives for reporting the disease and undergoing treatment is immaterial after November 14, 1972, and the service department characterization of acquisition of the disease as willful misconduct or as not in the line of duty will not govern.” We have determined that this provision is unnecessary because it potentially conflicts with the first sentence of § 5.661(e) (based on the first sentence of § 3.301(c)(1)), which simply states, “VA will not consider the residuals of venereal disease to be the result of willful misconduct.” Moreover, it has been decades since the military services penalized servicemembers for failing to promptly report venereal disease (see 37 FR 20336 (Sep. 29, 1972)), so the sentence is outdated. We therefore propose not to include it in § 5.661(e).
Finally, regarding § 5.661(f), we address the proposal to replace the “patently (clearly) inconsistent” standard to rebut a service-department finding that a particular injury, disease, or death was not due to willful misconduct. As to the line-of-duty presumption in § 5.660(d), discussed above, we removed the word “(clearly)” because it gave the wrong impression that that rule established an evidentiary presumption. But unlike §§ 5.660(d) and current 3.1(m), §§ 5.661(f) and current 3.1(n) do in fact establish an evidentiary presumption. The current rule reads: “A service department finding that injury, disease or death was not due to misconduct will be binding on [VA] unless it is patently inconsistent with the facts and the requirements of laws administered by [VA].” Because the presumption must be consistent with both fact and law, determining whether it has been rebutted requires factual determinations, weighing evidence, and applying the law to those factual determinations. Indeed, the mere process of determining a cause of an injury is quite different from the question presented in a line-of-duty determination, as to which the only relevant inquiry is whether there is a legal bar to VA's adoption of the service department's finding. Here, then, it does make sense for VA to adopt an evidentiary standard.
We note that §§ 3.1(n) and 5.661(f) apply only where there has been a service department finding that would tend to be favorable to a claimant, that
In this case, we mean to adopt the elevated “clearly and unmistakably” standard suggested by the commenter. Although the general standard for rebutting a presumption is the preponderance standard (
We propose to delete from the definition of alcohol abuse in § 5.662(a)(1), the requirement that the abuse be “sufficient to proximately cause injury, disease, or death to the person consuming such beverages.” The proximate cause requirement is addressed in paragraph (b), and it was redundant to include it in the definition. This makes the definition consistent with the definition of “drug abuse” in paragraph (a)(2), and with the use of the term “abuse of alcohol” throughout the regulation.
One commenter wanted VA to consider mercy killings of terminally ill veterans as a justifiable homicide. This commenter equated a mercy killing with a veteran's suicide. We propose to make no changes based on this comment. Federal law prohibits mercy killings.
One commenter objected to § 5.663(d), noting that many states permit a finding of guilty of homicide where the killing happened during the commission of another crime (the felony murder rule), or where an intoxicated person causes an automobile accident that kills someone else. The commenter suggested that we amend § 5.663(d) to accept only a court of law conviction of intentional homicide as binding on VA.
We agree that such a change would be consistent with § 5.663(a), where we define homicide as “intentionally causing the death of a person without excuse or justification.” We therefore propose to insert the phrase, “Subject to the requirement of intent in paragraph (a),” before the phrase, “VA will accept a court of law conviction of homicide as binding” in paragraph (d)(1).
A commenter noted that while we allow insanity as a defense to homicide, we did not define insanity. The commenter urged VA to revise the regulatory language to include all legally permissible excuses for homicide culpability, such as from intoxication, mental immaturity, low intelligence, and other factors. We agree that a regulatory definition of insanity is needed, but we have already provided one elsewhere in proposed Part 5. In § 5.1, RIN 2900–AL87, General Provisions, 71 FR 16461, Mar. 31, 2006, now proposed § 5.1, we proposed to define “insanity,” as a defense to commission of an act, as meaning a person was laboring under such a defect of reason resulting from injury, disease, or mental deficiency as not to know or understand the nature or consequence of the act, or that what he or she was doing was wrong. Behavior that is attributable to a personality disorder does not satisfy the definition of insanity. This definition excuses mental immaturity and low intelligence, as urged by the commenter, to the extent that these qualities prevent the affected person from knowing or understanding the nature or consequences of their act or that what he or she was doing was wrong.
We propose to decline to include intoxication as a legally permissible excuse for homicide in the definition of insanity. Congress, in 38 U.S.C. 105 and 1110, specifically prohibited VA from paying compensation for disabilities due to abuse of alcohol or drugs. It would be inconsistent with Congress' intent if we were to prohibit granting service connection to a veteran because of a disability proximately due to the abuse of alcohol or drugs, but to allow the abuse of alcohol or drugs to be an excuse for homicide or to be included in the definition of insanity for any purpose. While Congress has not prohibited VA from including abuse of alcohol or drugs in our definition of insanity, allowing the abuse of alcohol or drugs to be used as an excuse in those determinations requiring the formation of an intent to do an act would be inconsistent with Congressional intent and VA policy. This is a reasonable gap-filling decision within the Secretary's power under 38 U.S.C. 501(a) to promulgate regulations to carry out the laws administered by the Department. We therefore propose to make no changes based on this comment.
One commenter asked that VA consider including regulatory language to allow all legally permissible excuses for homicide culpability, reasoning that if intent is required to bar benefits for homicide, a lack of intent for any reason should excuse the homicide and allow eligibility for benefits. As we stated in the proposed regulation, “homicide means intentionally causing death”. This language requires that the person who caused the death have the intent to do so, and therefore we propose not to make any changes based on this comment.
One commenter suggested that we accept as binding all court decisions, civil as well as criminal, in § 5.663(d)(1). As explained in the NPRM, we chose to accept as binding a conviction in a criminal judicial proceeding because of the higher standard of proof required for a criminal conviction, which is guilt beyond a reasonable doubt. We noted in the NPRM that this is a higher standard than is applicable in civil matters. As stated in the NPRM, we chose not to use a finding of liability in a civil court proceeding because of the lower standard used in those proceedings. We therefore propose to make no changes based on this comment.
This commenter noted that, in § 5.663(e), concerning the effect of a court of law proceeding on VA findings of insanity at the time of the killing, we did not specify what type of finding must be made. The commenter noted that the finding of insanity could be expressed as a verdict, for example, not guilty by reason of insanity, or be a finding of fact within the court's decision. In § 5.663(e), we stated, “VA will accept as binding a court's determination that a person was insane at the time of the killing.” It is immaterial whether the determination is
This commenter then stated that if a court does not make the determination, then VA will need to make the determination. The commenter opined that, that determination should be based on a psychiatrist's objective review and an independent medical opinion, not solely on VA's consultation with a psychiatrist or an opinion from a psychiatrist employed by the VA. While an independent medical opinion is an option we may use when needed, one is not required in all cases. In § 5.92, we explained the situations in which VA will request an independent medical opinion. Absent a medical problem of such obscurity or complexity, or one that has generated such controversy in the medical community at large, we need not solicit an independent medical opinion. VA will determine on a case-by-case basis whether an independent medical opinion is needed for us to decide whether the veteran's actions constituted willful misconduct. As to the requirement of a non-VA psychiatric opinion, VA's psychiatrists and psychologists are experts, and we have no reason to believe that their opinions are biased against providing benefits to veterans. We propose to make no changes based on this comment because VA has an adequate system for obtaining medical opinions from VA psychiatrists or psychologists as needed, or obtaining an independent medical opinion when one is needed.
One commenter opposed the § 5.663(c)(2) requirement that the person have “no way to escape or retreat in order to” justify a finding that a killing was in self-defense. The commenter felt that this may create an unjust hardship on claimants and may deprive some claimants of benefits, even though they did not violate their state's laws or any federal criminal statute. The commenter noted that some states do not require a threatened person to flee and have “stand your ground” laws that allow a person to defend himself or herself without requiring the person to attempt to escape or retreat from the situation.
While some states have enacted “stand your ground” laws, many others have not. We note that, according to Corpus Juris Secundum, “generally, one who seeks to excuse a homicide on the ground of self-defense must show that he did all he reasonably could to avoid the killing; before resorting to the use of deadly force the person attacked must retreat if he or she is consciously aware of an open, safe, and available avenue of escape.” 40 C.J.S. 133 (2008). VA has applied the duty-to-retreat requirement for many years and has not found that it produces unjust results. Moreover, it is appropriate for VA to continue to apply this duty because it is still followed in most jurisdictions.
One commenter was concerned that this regulation does not establish procedures or standards for adjudicating whether the homicide was intentional. This issue would not be adjudicated any differently than any other factual issue presented in a particular case. There are no special procedures applicable to a finding of intentional homicide, and we propose not to adopt any based on this comment.
However, we do propose to make certain revisions based on this comment and our review of this regulation. We have determined that an elevated standard of proof should apply to determinations of intentional homicide because the generally applicable “preponderance of the evidence” standard does not afford the claimant sufficient protection. As noted in the NPRM for this regulation, we accept a criminal conviction as proof that the person convicted did the killing because of the high standard of proof (“beyond a reasonable doubt”) used in criminal prosecutions. It is inconsistent with this high standard of proof to require only a preponderance of the evidence to support a finding that a claimant intentionally committed homicide in cases where the claimant was not convicted of such a crime. Thus, we propose to adopt the “clearly and unmistakably” standard of proof in the revised regulation.
Additionally, in initially proposed § 5.663(d)(2), we stated that we will “determine whether the person was guilty” of homicide. But this is not correct. VA does not make determinations of guilt or innocence; VA makes administrative determinations concerning benefit entitlement. Hence, we propose to remove this statement from the regulation.
Additionally, § 5.663(e) stated that “VA will develop the necessary evidence” to determine whether a person is guilty. This instruction was redundant because there are other provisions of part 5 that adequately address the development of claims. We therefore propose to remove the phrase, “will develop the necessary evidence and” from the sentence.
One commenter felt that VA adjudicators were not trained and experienced enough in criminal or tort law to properly adjudicate claims involving homicide. This commenter felt that the regulation was vague and implied that this vagueness violated the due process rights of claimants. The commenter was also concerned that this regulation did not specifically provide for development of evidence except for that relied on in a court hearing. The commenter felt that documentary evidence is inherently hearsay evidence (citing the Federal Rules of Evidence, sec. 801(c)) and was not a proper basis for making a determination of this complexity and gravity, and that VA intended to make a decision based only on a paper or record review. The commenter also noted that the claimant in such a situation lacks the ability to confront an adverse witness under oath. The commenter expressed the opinion that this type of claim may only properly be determined in an adversarial proceeding with formal rules of evidence. For the following reasons, we propose to make no changes based on these comments.
This regulation is an expansion of 38 CFR 3.11, “Homicide”, and incorporates the provisions of 38 CFR 3.11 and long-standing VA procedures for determining entitlement to benefits when a killing is involved. While it does not include specific provisions for the procedures to be followed in making the determination of whether the claimant intentionally killed another without excuse or justification, the procedures in § 5.90 for developing and adjudicating a claim will be followed. There is no reason to include the procedures in this regulation when they are included elsewhere. Proposed § 5.663 is not intended to be a replacement for any criminal or civil legal proceeding concerning the death of a veteran or other beneficiary and we decline to adopt the standards applicable to a criminal or civil court proceeding. This regulation is not intended to function as a stand-alone regulation but is to be read in conjunction with the other applicable regulations concerning the provision of VA benefits. We propose not to create special provisions for procedures for this type of claim since no special procedures are needed.
We disagree that this regulation is vague. It is very specific concerning what constitutes a homicide, what is an excuse or justification for a homicide, and what impact a homicide has on claimants. The regulation provides specific notice to claimants that a killing that would otherwise provide or increase the killer's benefits, unless excused or with justification, will result
We disagree that we will make decisions based only on paper evidence. While documentary evidence is normally what VA uses in adjudicating a claim, every claimant has a right to a hearing and to present evidence at that hearing. Determinations concerning homicide are not excluded from the right to a hearing and to present testimony and evidence at the hearing. We also disagree that documentary evidence is inherently hearsay evidence and therefore not appropriate for deciding a matter of this complexity and gravity. The Federal Rules of Evidence, in addition to the definition of hearsay cited by the commenter, also provide in sections 803, 804, and 807 exceptions to the hearsay rule. Fed. R. Evid. 803, 804, and 807. Most evidence considered by VA in adjudicating claims falls within one of these exceptions. However, even if the evidence does not fall within one of these exceptions, VA is still required to “consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.” 38 U.S.C. 5107(b).
We also disagree that VA adjudicators are not trained and experienced enough to properly adjudicate claims involving homicide. First, VA adjudicators do not adjudicate claims under criminal or tort laws, so it is irrelevant whether they are trained to adjudicate such matters. VA adjudicators make administrative decisions based on the laws and regulations providing for benefits. Second, VA has an extensive training program for VA adjudicators, which includes training in determining if a killing was a homicide. Additionally, every agency of original jurisdiction has an Office of Regional Counsel available to advise the adjudicators. If criminal or tort law is involved, VA adjudicators may contact the Regional Counsel, or the Office of General Counsel, Office of the Inspector General, or other offices as appropriate, for advice and guidance. We propose to make no changes based on this comment.
In addition to the changes to § 5.663 discussed above, we propose to alphabetically reorder the definitions in paragraph (a) to make them easier to find and to be consistent with similar lists within part 5. Finally, we propose to remove the references to “benefits awarded, but unpaid at death” from § 5.663(f)(6). For the reasons stated in the preamble to § 5.550, and those that follow, we propose not to include that term in part 5.
Initially proposed § 5.676(b)(5) authorized the suspension of benefits when a case is recommended for forfeiture for fraud, but it did not clearly state the date that the suspension would begin. We propose to revise the rule by adding an effective date that is consistent with current part 3 and the manual provisions in the Manual M21–1MR. We made a similar provision in § 5.677(b)(5), concerning forfeiture for treasonable acts.
In proposed § 5.678(b)(2)(ii), we propose to change “first day of the month that follows the month for which VA last paid benefits” to “day benefits were suspended”, to improve readability.
One commenter noted a typographic error in § 5.679(b)(6). We propose to correct that error by replacing “Information about that fees” with “Information that fees”.
One commenter objected to the term “recommendation for forfeiture” used in both §§ 5.676 and 5.679, observing that the term is not defined. This commenter felt the term, without a definition, is overly broad. We propose to make no changes based on this comment. While the commenter is correct that we do not define the term “recommendation for forfeiture,” the term's use in relationship to VA benefits is explained in § 5.679. In this regulation, we explain who may file a recommendation for forfeiture, what the procedures for preparing a recommendation for forfeiture are, and who the official is that will make a decision on the recommendation for forfeiture. This procedure is largely unchanged from the previous regulations and is long-standing VA policy.
The phrase is self-explanatory. Both “forfeiture” and “recommendation” have the meanings commonly assigned them by dictionaries of the English language. We do not propose to define the phrase since there is no need to define the phrase as it is not overly broad or subject to multiple interpretations. We therefore propose to make no changes based on this comment.
One commenter was concerned that § 5.679 would deny the claimant due process of law by suspending payments of any benefits before a final decision has been made on whether to invoke forfeiture. For the following reasons, we propose to make no changes based on this comment.
The forfeiture sections of the new Part 5 regulations, §§ 5.676 and 5.679, do not change VA's procedures for determining forfeiture or for suspending payments for forfeiture. Section 5.676(b)(5) provides that benefits will be suspended if forfeiture for fraud is recommended in accordance with § 5.679. Proposed § 5.679 provides that before a recommendation for forfeiture is made, the recommending Regional Counsel, or in the Philippines, the Veterans Service Center Manager (VSCM), must provide written notice to the beneficiary or claimant of the specific charges against the person, a detailed statement of the evidence supporting the charges, a citation and discussion of the applicable statute, the right to file a statement or evidence within 60 days of the notice, the right to a hearing within 60 days after the notice with representation of the person's choosing, the limitations on fees any representative may charge the beneficiary or claimant, and information that fees for representation are limited and that VA will not pay expenses incurred by a claimant, his or her counsel, or witnesses. Only after all of these procedures are followed will a Regional Counsel, or in the Philippines, the VSCM, make a recommendation for forfeiture. These procedures provide the person subject to the forfeiture with full due process rights.
The commenter also felt that it would be impossible to determine when the suspension of benefit payments would take place since there is no definition of “recommendation for forfeiture”. The commenter also asserted that under the proposed rules, it is unclear whether a recommendation for forfeiture is different from a final decision on forfeiture. We propose to make no changes based on these comments.
The date of suspension of benefit payments based on a recommendation for forfeiture is clearly stated in § 5.676(b)(5) (regarding suspension for fraud). Benefit payments will be suspended when the recommendation for forfeiture is filed with the Director of the Compensation Service or personnel of that service designated by the Director to determine whether a claimant or payee has forfeited the right to all VA benefits except insurance payments. The regulation is clear in explaining that the suspension occurs when the recommendation for forfeiture is filed with the appropriate official by Regional Counsel or the Manila VSCM.
Likewise, the regulations are clear in explaining that a recommendation for forfeiture is different from a final
In
The term “remission” (the term used in 38 U.S.C. 6103(d)(2) and current VA regulations in part 3) may not be commonly understood by the public and we therefore propose to replace it with “revocation”. We propose to make conforming changes of “remit” to “revoke”.
In paragraphs (b)(1) and (3), we propose to change “starting date” to “effective date”. We do not use the term “starting date” in part 5.
One commenter recommended removing this section because in a situation where the person renouncing the benefit is not the guardian or custodian of the veteran's child, an unjust result may occur and the child may lose benefits.
If a surviving spouse of a veteran is receiving DIC and is not the guardian or custodian of the veteran's child, then the veteran's child's portion of the DIC would have been or would be apportioned to the veteran's child (and paid to the custodian or guardian of the child). The surviving spouse's renouncement of benefits would not affect the amount paid based on the existence of a child. The commenter was incorrect in implying that the renouncement would affect the amount paid based on the existence of a child. We therefore propose to make no changes based on this comment.
As initially proposed, § 5.683(b) stated that a fiduciary may not renounce benefits on behalf of a beneficiary. The main duties of a fiduciary are to preserve and disburse funds that the beneficiary is entitled to receive. However, if a fiduciary is court appointed or a guardian of a minor child, this person may have the authority to act in the stead of the beneficiary and renounce benefits on behalf of the beneficiary, if it is to the beneficiary's advantage. In order to avoid any confusion as to what type of fiduciary is able to renounce benefits on behalf of the beneficiary, we propose to remove the phrase “by a fiduciary” from initially proposed § 5.683(b).
In reviewing initially proposed § 5.683, we noted that it did not address renouncement by a person who VA has determined is entitled, but who is not yet receiving benefits. VA has always permitted such persons to renounce benefits, so we propose to change “beneficiary” to “a person entitled to that benefit” in (b) and (d)(1) to clarify that point.
In a document published in the
Initially proposed § 5.690 listed benefit programs as a continuous series. To aid readability, we have revised this series to read as two enumerated lists. Paragraph (a) would list the benefits for which VA publishes rates. Paragraph (b) would list the benefits for which VA publishes income limitations.
Although 38 CFR 3.21, from which § 5.690 derives, does not include death compensation in its list of benefits for which VA publishes rates, it has always been VA's practice to publish death compensation rates. We therefore propose to add the term “death compensation” to proposed § 5.690.
The commenter stated, “For consistency with section 5.691(b), section 5.691(c) should also require rounding up, rather than down, to the nearest dollar, the amount of Improved Pension or Section 306 Pension payable.” Section 5312(c)(2) of title 38 U.S.C., which governs the rounding of the rates and income limitations for the benefits listed in proposed § 5.691(b). It gives the Secretary discretion to round such rates and income limitations in a manner that he or she “considers equitable and appropriate for ease of administration.” Another statute, 38 U.S.C. 5123 of title 38 U.S.C. governs rounding of payments of the pension benefits to which proposed § 5.691(c) applies. It prescribes rounding payments down to the nearest dollar. In contrast to section 5312(c)(2), section 5123 does not authorize the Secretary to vary from that practice according to his or her discretion. Because a statute requires that the pension rates covered in § 5.691(c) be rounded down, we propose to make no change based on the commenter's suggestion.
The commenter indicated that this section “should provide for payments beginning as of the effective date, rather than as of the first day of the month after the month in which the payment becomes effective.” The commenter urged VA to make this change in order to “be consistent with section 5.705 which institutes a reduction or suspension as of the effective date.” Pursuant to 38 U.S.C. 5111(a), payment of a VA benefit “may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective.” Thus, we lack the authority to make the change suggested.
We propose to revise initially proposed § 5.693(b). We propose to replace a reference to “payment” with “award or increased award” and add “or increased award” to a reference to “award”. We made the former change to correct an error and the latter change to clarify the provision. Further, as initially proposed, the title purported to state the beginning date of certain benefits, but the regulation text actually required the reader to infer the beginning date of payments from the negative statement, “[B]enefits . . . will not be paid for any period before the first day of the month after the month in which the award or increased award becomes effective.” This preclusion against paying before a certain time does not inform the reader, or instruct VA, when payments will begin. We propose to state the rule affirmatively: “VA will pay benefits identified in this paragraph beginning the first day of the month after the month in which the award or increased award becomes effective,
We propose to revise initially proposed paragraph (c) by restating it in the active voice. We also propose to delete the statement that paragraph (b) does not apply to the benefits listed in paragraph (c). It is unnecessary, because paragraph (b) would already state that it applies, “except” to paragraph (c).
We propose to revise § 5.693(c)(4)(iii) to reflect the terminology used in VA's regulations regarding the reduction of compensation and pension based on the receipt of hospital, domiciliary, or nursing home care.
Section 605 of Public Law 111–275, 124 Stat. 2864, 2885–86 (2010), amended 38 U.S.C. 5111 to create a new exception to the general rule on the beginning date for VA benefit payments for veterans who were retired or separated from the active military service for a catastrophic disability. We propose to incorporate this exception into § 5.693 by adding new paragraphs (c)(10) and (e).
In the NPRM AM06, VA inadvertently omitted the provision in current 38 CFR 3.500(g)(1). To correct this, we propose to add this provision as § 5.694. We have renumbered initially proposed § 5.694 as § 5.695, and initially proposed § 5.695 as § 5.696. We also omitted from the initial NPRMs an equivalent to 38 CFR 3.500(g)(3) without an explanation for its exclusion. Section 3.500(g)(3) provides an effective date for discontinuance of an award of “retirement pay” administered by VA upon the death of a veteran. VA no longer administers any veteran's benefit titled “retirement pay.” VA previously paid emergency officers' retirement pay and retirement pay under Public Law 77–262, which are no longer active benefits. Although military retirement pay may also be discontinued upon the death of a veteran, VA does not administer that benefit. Therefore, we propose to not include an equivalent to § 3.500(g)(3) in part 5.
The commenter stated:
We believe that this section should provide that payments to the surviving spouse will be for the month of death and for the month immediately following the veteran's death. This would provide a more equitable transition for the surviving spouse and would not result in confusion and inadvertent overpayments where a veteran dies during the last days of the month and the notification of the veteran's death does not reach the VA or is not processed until the weeks following death. Eliminating the cost to the VA of attempting to recoup the inadvertent overpayments should cover the costs of the additional month's payments.
The month-of-death benefit is governed by 38 U.S.C. 5111(c) and 5310, and the proposed regulation is consistent with those statutes. Sections 5111 and 5310 do not authorize VA to pay a benefit for both the month of death and the next month unless VA awards the surviving spouse a death benefit for the month in which the veteran died and the amount of that benefit is less than or equal to the amount of compensation or pension the veteran would have been entitled to for the month of death but for his or her death. Barring this situation, there is no statutory authority for issuing payment for the month of the veteran's death and the month immediately following the veteran's death. We propose to make no change based on the commenter's suggestion.
In initially proposed § 5.694 (b)(2), we used the phrase, “then the surviving spouse is entitled to death pension or DIC for the month of the veteran's death”. It is more precise to say, “then VA will pay the surviving spouse death pension or DIC for the month of the veteran's death”.
In § 5.695(c), initially proposed as § 5.694(c), we propose to add language to provide that the veteran must have been receiving disability compensation or pension at the time of death for the surviving spouse to be entitled to the month-of-death benefit. Both the authorizing statute, 38 U.S.C. 5310(b)(1), and the current part 3 equivalent, § 3.20(c)(1), require the veteran to have been in receipt of disability compensation or pension at the time of death. Similar language was incorrectly omitted from the initially proposed rule. In § 5.695(c), we also propose to clarify that a provision that was inadvertently omitted from the initially proposed rule (§ 5310(b)) does not authorize a month-of-death benefit for the surviving spouse of a veteran who died on December 31, 1996. In the initially proposed rule, we addressed the deaths of veterans occurring before and after that date but not on that date.
We propose to revise initially proposed § 5.694(d), now § 5.695(d) to clarify that the payment made to a deceased veteran for the month in which the veteran died is a payment of compensation or pension, not “the month-of-death benefit”. We propose to make this change because the “month-of-death benefit”, defined in § 5.695(a), is “a payment to a deceased veteran's surviving spouse”, not a payment to a veteran.
Subsequent to the publication of proposed § 5.695, section 507 of Public Law 112–154 (2012) amended 38 U.S.C. 5310 by making surviving spouses whose spouse died on or after August 6, 2012, entitled to a benefit for the month of a veteran's death if, at the time of the veteran's death: (1) the veteran was receiving disability compensation or Improved Pension, or (2) the veteran is determined to have been entitled to receive such compensation or pension for such month. The amendment also states that if a claim for such benefits was pending on the date of a veteran's death and the pending claim is subsequently granted, any additional benefits for that month would be paid as accrued VA benefits.
We have renumbered initially proposed § 5.695 as § 5.696. Initially proposed paragraph (a) defined “approved educational institution”. Because that term is already defined in § 5.220(b)(2), we now propose to simply cross reference that definition rather than repeat it in paragraph (a).
We propose to reorganize initially proposed paragraph (b) to enhance clarity and to note the statutory requirement under 38 U.S.C. 1115 that additional disability compensation will only be paid for a qualifying child where the veteran has a service-connected disability rated at least 30 percent disabling.
We propose to reorganize initially proposed paragraph (c), pertaining to payment of dependency and indemnity compensation (DIC) directly to a child, to clarify the relationship between proposed paragraphs (c)(1) and (3). The proposed paragraphs were both derived from current § 3.667(a)(3), which applies to a child pursuing a course of instruction at an approved educational institution upon reaching age 18. Initially proposed paragraph (c)(3) has now been redesignated as § 5.696(c)(1)(i). Initially proposed paragraph (c)(1) has now been
As initially proposed, a reference to an exception for paragraph (f)(2) was placed incorrectly in paragraph (g)(1) instead of in paragraph (g)(2). We propose to correct this in paragraph (g). Further, we propose to revise paragraph (g), which pertains to the discontinuance of benefits to a child pursuing a course of instruction at an approved educational institution, consistent with the part 5 convention for describing how VA implements a reduction or discontinuance of benefits.
We propose to add 38 U.S.C. 3562 as the specific statutory authority for § 5.696(i)(1), which bars the payment of Improved Pension, additional disability compensation, and DIC to or for a child pursuing a course of instruction at an approved educational institution who has elected educational assistance under 38 U.S.C. chapter 35.
As proposed in the NPRM, § 5.696, “Awards of dependency and indemnity compensation when not all dependents apply”, pertained only to awards of dependency and indemnity compensation. Therefore, we now propose to renumber it as § 5.525 in subpart G of this part under the undesignated center heading “Dependency and Indemnity Compensation—Eligibility and Payment Rules for Surviving Spouses and Children”.
Initially proposed § 5.697(b) and (c) provided the same general rule and exception to the payment of benefits under subpart J of this part and under § 5.551(e). The same general rule and exception also apply to funds paid in accordance with §§ 5.565(b)(4), 5.566(d)(4), and 5.567(a)(4). Therefore, we propose to combine initially proposed § 5.697(b) and (c) into paragraph (b) and expand the applicability of paragraph (b) to include the payment of these other funds. We also propose to make changes to the general rule and the exception, paragraphs (b)(2) and (3) respectively, to improve readability or simplify language.
Also in new § 5.697(b), we propose to clarify language from initially proposed paragraph (c). In initially proposed § 5.697(c), we used the phrase “last illness and/or burial”. Title 38 U.S.C. 5121(a)(6) states, “[A]ccrued benefits may be paid . . . to reimburse the person who bore the expense of last sickness and burial.” VA interprets the word “and” as used in the statute to mean “or”. We do not believe that Congress intended to require that a person have paid expenses of both the last illness and burial to qualify for some reimbursement. For example, if a person expended his or her savings paying for health care bills resulting from the veteran's last illness and therefore could not pay for the burial, it would be unfair not to reimburse him or her for the health care bills. We propose to change the proposed language from “and/or” to simply “or” because this term includes “and”. Furthermore, this change is consistent with current § 3.1000(a)(5), which uses the phrase “last sickness or burial”.
The commenter indicated that for “similar reasons as what is now proposed section 5.694 [now proposed 5.695], the effective date for reduction or discontinuation of benefits should be the month following the triggering event for the reduction or discontinuance.” The effective dates for reductions and discontinuances are governed by 38 U.S.C. 5112. Under section 5112, in most circumstances reductions and discontinuances of disability compensation, pension, or dependency and indemnity compensation must be on the last day of the month in which a described event occurs. We note as well that the effect of this rule is that any new benefit that may be paid as a result of the reduction or discontinuance, such as a newly elected but exclusive benefit or a benefit to a survivor or an apportionee, can be paid in the month immediately after the month in which the benefit is reduced or discontinued. Moreover, VA reduces or discontinues benefits only when the beneficiary is no longer entitled by law to receive the benefits. The commenter's suggestion is that we continue to pay such benefits for a full month after we determined that the beneficiary is not entitled to receive them. We have no authority to adopt the commenter's suggestion.
Section 5.707 describes the medical expenses that VA will deduct for purposes of three of VA's benefit programs that are based on financial need. Paragraph (c) lists six categories of such expenses and then lists subcategories within some of them. Certain expenses may fall within more than one category or subcategory. In order to ensure that VA makes decisions that grant every benefit that the laws supports, we have added to the introductory text of paragraph (c), “If there is more than one way to categorize a medical expense under this paragraph (c), VA will categorize it in the way that is most favorable to the claimant or beneficiary.”
As initially proposed, the text of paragraph (c)(1) listed care typically provided by a licensed health care provider but failed to specify that in order for payments for the care to be deducted as medical expenses under paragraph (c)(1), the care must have been provided by a licensed health care provider. That requirement was intended in the proposed rule, as shown by the heading of paragraph (c)(1), “Care by a licensed health care provider”; nevertheless, we propose to add the requirement to the text of the paragraph for clarity.
In initially proposed § 5.707(c)(4), we specified the mileage rate for deductible medical expenses as 20 cents per mile traveled. Following the publication of the proposed rule, VA raised that mileage rate. VA publishes that mileage rate on VA Form 21–8416, Medical Expense Report, which is updated periodically. In order to ensure that the public has the most current information, we propose to change § 5.707(c)(4) to refer to “the amount stated on VA Form 21–8416, Medical Expense Report” rather than a specific rate. We also inform the reader that this form is available on the VA Web site.
Initially proposed § 5.707(c)(6) began, “The following payments are `medical expenses' that will be deducted from income:”. We determined that this introductory language is redundant because it is already stated in the introductory text of paragraph (c): “The following payments are `medical expenses' that will be deducted from income if they are not reimbursed”. We therefore propose to remove the introductory language from paragraph (c)(6).
We further propose to revise paragraph (c)(6) to more accurately describe current VA practice. In paragraph (c)(6)(ii), regarding payments for an in-home attendant, we propose to
In paragraph (c)(6)(iv), regarding payments for custodial care, we propose to delete language providing that payments made strictly for custodial care were not deductible. That language does not accurately describe VA's practice. Payments for custodial care (including room and board) are deductible if the other requirements of the paragraph are met. We also propose to add conditions that clarify the circumstances under which the paragraph permits described payments to be deducted as medical expenses.
In paragraph (c)(6)(v), regarding payments for custodial care in a government institution, we propose to add conditions to clarify the circumstances under which the paragraph permits described payments to be deducted as medical expenses.
In paragraph (c)(6)(vi), regarding payments to an adult day care facility, rest home, group home, or similar facility, we propose to delete initially proposed language stating that if the individual is not in need of regular aid and attendance and is not housebound, VA will deduct all reasonable fees paid to the facility, but only to the extent that they are for medical treatment provided by a licensed health care provider. Such language is unnecessary in paragraph (c)(6)(vi) because payments for medical treatment provided by a licensed health care provider are always deductible under paragraph (c)(1).
We also propose to delete paragraph (c)(6)(vi)(C), which provided that if the adult day care or similar facility was a government facility, paragraph (c)(6)(v) applied. The proposed revisions to paragraph (c)(6) clarify the circumstances under which each of the paragraphs applies in order to be consistent with and accurately describe VA's current practice. More specific direction is unnecessary and could be confusing or inaccurate. As discussed above regarding the introductory text of paragraph (c), to the extent that the categories and subcategories of medical expenses in paragraph (c) may overlap, VA will always categorize a medical expense in the way that is most favorable to the claimant or beneficiary.
We also propose to make a few changes to initially proposed § 5.707 to improve readability or simplify language.
Initially proposed § 5.708(a) incorrectly referred only to Improved Pension and parents' dependency and indemnity compensation (DIC). We propose to revise § 5.708(a) to clarify that eligibility verification reports (EVRs) pertain to all three VA pension programs—Old-Law Pension, Section 306 Pension, and Improved Pension—as well as parents' DIC.
Initially proposed § 5.708(b)(1) incorrectly indicated that VA may require claimants to complete an EVR annually. Only beneficiaries may be required to file an EVR annually. We have deleted the term “annually” from § 5.708(b)(1).
Initially proposed § 5.708(c) incorrectly implied that certain parents receiving parents' DIC were never required to file an EVR. Paragraph (c) should have made clear that it was an exception to the general requirement that such parents file an EVR annually. Accordingly, we propose to delete initially proposed paragraph (c) and place the material proposed in paragraph (c) in a note to revised paragraph (b)(2)(i) pertaining to the requirement for beneficiaries to file an EVR annually. We have not included in that note the sentence from initially proposed paragraph (c) stating, “However, a parent receiving parents' DIC must notify VA whenever there is a material change in his or her annual income.” That sentence is unnecessary given that similar information is provided in §§ 5.708(b)(2)(ii) and 5.709. In the note to paragraph (b)(2)(i), we propose to add two more groups who are exempted from the annual EVR requirement, beneficiaries of Old-Law Pension and Section 306 Pension and certain beneficiaries of Improved Pension. This change is consistent with current practice and facilitates VA's efficient administration of these programs.
The third sentence of initially proposed paragraph (d), redesignated as paragraph (c), described the action VA takes when expected income is uncertain. The sentence referred to other more specific provisions elsewhere in part 5. In order to avoid confusion about the purpose and meaning of the sentence, as well as its relationship to the first sentence in the paragraph, we propose to delete the sentence and provide instead a clear cross reference to the relevant specific provisions to which the deleted sentence referred. We also propose to clarify the cross reference to § 5.478 to describe more accurately the circumstances under which that provision applies. The initially proposed language described § 3.260(b), upon which § 5.478(a) is based, but it would not accurately describe the content of § 5.478(a).
We propose to clarify § 5.708(e)(2), redesignated from initially proposed paragraph (f)(2). As initially proposed, the paragraph stated that VA would notify a beneficiary that an EVR was incomplete and inform the beneficiary of the information needed to complete the EVR. We have simplified the paragraph. If VA notifies a beneficiary of additional information needed to complete an EVR, it is implicit in that notice that the EVR, as filed, is incomplete.
We propose to clarify initially proposed § 5.708(g)(1)(ii) and redesignate it as initially proposed paragraph (f)(1)(ii). As initially proposed, the rule was limited to instances in which the discontinuance of payments was effective before the date on which benefits were suspended. Such a limitation on the rule is misleading. Whether or not discontinuance of benefits was effective before the date on which benefits were suspended is irrelevant; in either case, the effective date of resumption under this paragraph is the date the benefits were discontinued. This change is consistent with current practice.
Initially proposed § 5.708(h), redesignated as § 5.708(g), stated, “A former beneficiary who owes or owed money to VA because VA discontinued payments for failure to file an EVR within the time limit . . . may submit the EVR at any time”, and further stated, “If, based on information in the EVR, VA decides that the former beneficiary was entitled to benefits for any part of the period of time in which payment had been discontinued for failure to file an EVR, VA will offset the debt for that part of the period.” We have determined that in some instances, a former beneficiary might file a new claim after VA has discontinued his or her benefits. If such a claim were granted, that person would become a current beneficiary. Nevertheless, he or she might still file the previously requested EVR, which could reduce or eliminate the debt. Therefore, in contemplation of that scenario, we propose to add the term “beneficiary” before “former beneficiary” in each sentence where “former beneficiary” was initially proposed.
We also propose to clarify paragraph (g) to state that an EVR may be accepted
Section 5.710 was initially proposed as a plain language rewrite of current § 3.651. For clarity, we propose to revise § 5.710 to describe more specifically the procedures VA uses to adjust awards of benefits that result from the reduction or discontinuance of the same benefit to another payee. Initially proposed § 5.710(b) referred to VA requesting information or evidence but failed to explain when or why VA would make such a request. We propose to revise paragraph (b) to explain that if there is sufficient information and evidence for VA to award or increase the benefit to the payee, then VA will do so. If there is not, then VA will request additional information or evidence. We also clearly state the effective date rules for the various scenarios.
Like current § 3.656(a), initially proposed § 5.711 provided that when a veteran who was receiving or entitled to receive disability compensation, Section 306 Pension, or Improved Pension disappears for 90 days or more, benefits will be paid to the veteran's dependent(s). However, neither the current rule nor the initially proposed rule defines the term “entitled to receive”. The relevant statutory authorities only refer to a veteran who is “receiving compensation” (38 U.S.C. 1158) or “receiving pension” (38 U.S.C. 1507). VA has interpreted such statutory language liberally so that “under certain circumstances” actual physical receipt of the benefit is not required.
We propose to revise initially proposed paragraphs (b) and (c), which provided similar rules, to refer to the “rate” of payment rather than the “amount” of a payment to be more consistent with terminology actually used by VA personnel. We also propose to revise these paragraphs, so that the rules are phrased similarly. In these paragraphs, we also propose to delete the initially proposed phrases “for benefits under this section” and “for benefits” in reference to a claim for benefits under § 5.711. We had used (or not used) the phrases inconsistently in initially proposed § 5.711. The uses of “claim” to refer to a claim for benefits under § 5.711 are clear in context without the deleted phrases.
We propose to add a note to initially proposed paragraph (b)(1), which states, “Note to paragraph (b)(1): If there is a dependent parent, then the rate for parents' DIC may vary depending on the parent's annual income.” By law, the amount payable for parents' DIC is based on the parent's annual income. This is different from other DIC programs, which are not income-based. We propose to add the note to ensure that readers are aware of this distinction.
In initially proposed § 5.711(b)(1)(ii), we stated, “If VA pays disability compensation pursuant to this paragraph, then it will pay benefits in equal amounts to the dependents.” However, on further review, we note that 38 U.S.C. 1158 does not permit such an equal distribution of benefits. Rather, it states that, payments to each dependent “shall not exceed the [rate of DIC] payable to each if the veteran had died from service-connected disability.” If benefits were distributed equally, it is likely that the rate payable to some dependents would exceed the rate authorized by the statute. Accordingly, we propose to revise § 5.711(b)(1)(ii) to remove the provision regarding “equal amounts”. In its place, we propose to provide that VA will pay benefits to each dependent in the same proportion as if the DIC rate were being paid. Although this revised method is more complex than the method we initially proposed, it is fair to the dependents, and it complies with section 1158 because the rate payable can never exceed the maximum rate authorized by that statute.
We propose to add two paragraphs, (c)(1)(i) and (ii), to initially proposed § 5.711(c) so that it is organized like § 5.711(b). For the same reason we have used a proportional formula for compensation benefits in paragraph (b)(1)(ii), we propose to add paragraph (c)(1)(ii) stating that pension paid under paragraph (c) at the veteran's rate will be paid using the proportional formula. Like 38 U.S.C. 1158 discussed above, 38 U.S.C. 1507 states, “Where a veteran receiving pension . . . disappears, the Secretary may pay the pension otherwise payable to such veteran's spouse and children . . . Payments made to a spouse or child under this section shall not exceed the amount to which each would be entitled if the veteran died of a non-service-connected disability.” The proportional payment method is fair to the dependents, and it complies with section 1507.
Initially proposed § 5.711(d)(1) stated the effective date for the discontinuance of payments to a veteran's dependent(s), as a result of the veteran's whereabouts being known. However, initially proposed paragraph (d)(2) did not provide information about the effective date for the discontinuance of the dependent's benefits if the veteran is presumed dead. We propose to correct this omission by stating that the date of the veteran's death is presumed to be 7 years after the date the veteran was last known to be alive. This is consistent with the provisions of paragraph (b) of § 5.503, “Establishing the date of death”, as well as the statute, 38 U.S.C. 108. We also propose to add a reference to § 5.694, which provides the effective date for the discontinuance of benefits based upon the death of a beneficiary.
In § 5.712(a), we propose to add the effective date for the suspension of benefits. Paragraph (a) would state that upon the disappearance of a payee, benefits will be suspended effective the first day of the month after the month for which VA last paid benefits to the payee. This revision is based on current § 3.500(t).
Initially proposed § 5.713(a) did not provide an effective date for discontinuance of benefits due to an alien being located in an enemy territory. We propose to correct this omission by adding a sentence stating that “VA will discontinue benefits to an alien located in territory described in this paragraph (a) of this section, effective the first day of the month after the month for which VA last paid benefits.” This statement is consistent with current VA practice, as well as the
Initially proposed § 5.714(a)(1) defined “payee” (for purposes of part 5) as a person to whom a VA benefit check is payable. However, § 5.1 defines “payee” as “a person to whom monetary benefits are payable.” We believe that the general definition of “payee” in § 5.1 properly defines “payee” for purposes of § 5.714. Having two different but very similar definitions of “payee” in part 5 might cause confusion, so we propose to remove the definition from § 5.714.
We propose to change “may” in initially proposed § 5.715, referring to claims for undelivered or discontinued benefits, to “must” in paragraph (b)(1) to clarify that filing a claim is necessary for the payment of benefits under § 5.715. In initially proposed § 5.715(b)(1), we had restated the provisions of § 3.653 using “may” because a claim need not be filed by a payee who requests the alternative means of delivery under § 5.714(d). In using “may”, we unintentionally suggested that filing a claim was permissive, not mandatory. We propose to revise § 5.715(b)(1) to clearly state that a claim is necessary unless the exception for alternative means of delivery applies. We also propose to clarify paragraph (b)(1) to specify that, for benefits discontinued under § 5.713, the paragraph applies to both the retroactive restoration of benefits not paid and the prospective resumption of benefits.
In initially proposed § 5.715(b)(2), we stated, “There is no time limit for filing such a claim.” We have determined that it is unnecessary to state this negative proposition and this language might mislead readers into believing that there is an unstated time limit for filing claims under other sections, when in fact there is no such time limit. Accordingly, we propose to delete proposed paragraph (b)(2).
Initially proposed paragraphs (b)(3)(ii) and (iii) respectively stated that amounts that were not delivered under § 5.714 will be released or a discontinued benefit resumed only if “the payee is no longer subject to the restriction in § 5.714(c)” or “the country in which the payee is located is removed from the Treasury Department list”. We have determined that with regard to any payee described in paragraph (b)(3)(iii), paragraph (b)(3)(ii) would have the same effect. Any payee described in paragraph (b)(3)(iii) would by definition no longer be subject to the restriction in § 5.714(c), which only applies if a payee is located in a country on the Treasury Department list. Paragraph (b)(3)(ii) (which we propose to redesignate as (b)(2)(ii)) encompasses other scenarios in addition to the one addressed in initially proposed paragraph (b)(3)(iii). Therefore, we propose to delete initially proposed paragraph (b)(3)(iii) as unnecessary.
Our proposal to rewrite the VA regulations governing hospital, domiciliary, and nursing home care reductions and resumptions in new 38 CFR part 5 (proposed §§ 5.720—5.730) was included in a document published in the
Concerning initially proposed § 5.720, one commenter stated that the language in current 38 CFR 3.556(f) defining a “regular discharge” as occurring when the veteran has “received maximum hospital benefits” is clearer than the new language in § 5.720(a)(3), i.e., when “there is no medical reason to continue care.” The commenter asserted that the proposed definition is problematic because it “could interject administrative or budget issues into what is intended to be a medical decision concerning necessary and reasonable medical care.”
We disagree that our proposed definition would have the effect suggested by the commenter. To the contrary, we have clarified that a “medical professional” must make the determination, and we specify that the decision must be based on whether there is a “medical reason” to continue care. Our proposed language would reduce, not increase, the risk that the commenter describes. We therefore propose to make no change based on this comment. More fundamentally, we note that neither current § 3.556(f), nor initially proposed § 5.720(a)(3) or (4), regulate the practice or procedures of VA medical staff regarding the discharge of patients. Rather, they are intended to guide VA Regional Offices staff in determining how to adjust benefits when a beneficiary is receiving hospital, domiciliary, or nursing home care.
Current 38 CFR 3.556(f) defines “irregular discharge” as “[a] discharge for disciplinary reasons or because of the patient's refusal to accept, neglect of or obstruction of treatment; refusal to accept transfer, or failure to return from authorized absence”. In initially proposed § 5.720(a)(4), we merely restated these reasons in an easier to read format. The commenter urged that we revise our definition to:
The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, because proposed § 5.720(a)(4) is merely a restatement of the current regulations, the comment is outside the scope of this rulemaking.
Initially proposed § 5.721(b) stated:
One commenter urged VA to revise this paragraph to require “clear and convincing evidence” to resume benefits at a lower rate than the rate which had been in effect prior to the reduction or discontinuation. We note that pursuant to the language “unless the evidence of record shows that a different rate is required” (which we also use in §§ 5.721(b), 5. 725(c)(1) and (2), 5.729(d)(1), and 5.730(c) and (d)), VA might increase or reduce a beneficiary's payment. Such a change would be based on a change in disability level or income, or other relevant factors. The change might be based on newly discovered evidence or the discovery of clear and unmistakable error in a prior decision. (In a reduction case, VA would of course comply with all applicable regulations concerning due process before making a reduction.) Since there are different situations where VA might change benefit payments, and these could involve various standards of proof, it would be erroneous to specify one standard of proof here. Moreover, in part 5 we have stated the default standards of proof in § 5.3 and the other standards in the appropriate specific sections (e.g., clear and unmistakable error in § 5.162). We therefore propose to make no change based on this comment.
Section 3.551(i) states, “Effective November 5, 1990, and terminating on September 30, 2011, if a veteran having neither spouse nor child, or a surviving spouse having no child, is receiving Medicaid-covered nursing home care, no pension or death pension in excess of $90 per month shall be paid to or for the veteran or the surviving spouse for any period after the month in which the Medicaid payments begin.” Section 601 of Public Law 111–275, 124 Stat. 2864, 2884 (2010) amended 38 U.S.C. 5503(d)(7) to extend that delimiting date through May 31, 2015, but we inadvertently failed to include the new date in initially proposed § 5.723(a). Subsequently, section 262 of Public Law 112–56 (2011) amended 38 U.S.C. 5503(d)(7) to extend that delimiting date through September 30, 2016. Subsequent to that, section 203 of Public Law 112–260 extended the date to November 30, 2016. We propose to update paragraph (a) to reflect this most recent amendment.
We also propose to add “surviving child” where appropriate in § 5.723 to state that the Medicare reduction pertains to a surviving child claiming or receiving pension in his or her own right, as required by section 601 of Public Law 111–275, 124 Stat. 2864, 2884 (2010).
In a document published in the
In initially proposed § 5.740(a), we stated: “Election means any writing, signed by a person authorized by § 5.741, `Persons who may make an election,' expressing a choice between two or more VA benefits to which the person is entitled, or between VA and other Federal benefits to which the person is entitled.” This language may confuse the concept of what an election is with the concept of who may file an election. An election is the written expression of choice. However, VA will only “accept” elections in accordance with § 5.741. We therefore propose to remove the language, “signed by a person authorized by § 5.741, `Persons who may make an election,'” from this section. For the same reason, we propose to remove all references to § 5.741 from § 5.740.
The election finality rules in 38 CFR part 3 pertain to reelections as well. To ensure that this concept is clear in part 5, we propose to add to the introductory paragraph on § 5.742, the sentence, “Reelections are subject to the finality rules stated in paragraphs (a) through (e) of this section.”
When provisions similar to proposed § 5.742(d) and (e) were previously proposed as § 5.461(b)(2) and (3), they provided that a request to cancel the election must be received within 1 year from the date that the election had become effective. Following internal reconsideration of this provision, we have determined that this limitation might be overly narrow in some cases. Therefore, we now propose that § 5.742(d) and (e) contain no such limitation.
In initially proposed § 5.743(a)(1), we stated:
Unless otherwise provided in this part, when a claim is pending and an election is timely filed under § 5.740(d), the effective date for an award of an elected benefit shall be the same as the effective date VA would assign for the awarded benefit if no election were required.
In § 5.745(a), we propose to clarify the references to “the Coast and Geodetic Survey” (C&GS) and “the Environmental Science Services Administration” (ESSA), because both entities became part of the National Oceanic and Atmospheric Administration (NOAA).
In the proposed rulemaking, we stated in proposed § 5.745(c)(1)(ii) that, “For veterans receiving disability compensation based on a VA determination of individual unemployability, the phase-in period ends on December 30, 2009.” According to statute 10 U.S.C. 1414, this phase-in period actually ends on September 30, 2009. We intend to correct paragraph (c)(1)(ii) to accurately reflect the statute.
We propose to revise the various provisions of § 5.745 regarding entitlement to full concurrent receipt of military retired pay and veterans disability compensation based on a VA determination of individual unemployability (IU). These proposed revisions are intended to implement section 642 of the National Defense
In initially proposed § 5.745(d)(2), we stated that, “An election filed within 1 year from the date of notification of VA entitlement will be considered as `timely filed' for effective date purposes.” We are concerned that this provision could be read out of context to apply to all elections. Because it applies only to elections involving military retired pay and VA disability compensation, we propose to insert the phrase, “between military retired pay and disability compensation under this section that is” after “An election” in the above-quoted sentence. Similarly, we note that the preamble to initially proposed § 5.740 cited § 3.750(b) for the definition of a “timely filed” election; however, § 3.750 was amended on November 20, 2006.
The commenter requested that the proposed regulation address situations where a veteran who is receiving VA disability compensation fails to notify VA when he or she returns to active duty and is later assessed with an overpayment due to the prohibition against concurrent receipt of active military service pay and VA disability compensation. In the commenter's example, a veteran receiving VA disability compensation benefits returned to active duty for two periods of service but never informed VA. He continued to receive VA disability compensation benefits during these active duty periods and for several years after discharge, at which time he notified VA of his return to active duty. The commenter said that the VA regional office, citing 38 CFR 3.654(b)(2), discontinued the veteran's disability compensation retroactively to the date of the veteran's first return to active duty, which resulted in a large overpayment. Moreover, the regional office did not reestablish entitlement to disability compensation after the veteran's discharge but before his second period of active duty because the veteran had not requested that VA do so. According to the commenter, because the veteran had continued to receive his disability compensation during his return to active military service, he obviously had no reason to request reinstatement of that compensation. The commenter said VA should have only created an overpayment in the veteran's account for the period he/she was actually receiving both active military service pay and VA disability compensation benefits. The commenter also felt that VA and the Department of Defense should do a better job in working together to ensure these types of cases do not occur. The commenter noted that VA benefits are intended to be dispersed in a clear and consistent manner and a veteran should not be adversely affected by creating an overpayment for periods the veteran is not receiving both active military service pay and VA disability compensation benefits.
For the following reasons, we propose not to make any changes based on this comment. First, we note that when VA awards disability compensation, VA regularly instructs veterans to inform VA if they return to active duty, so that VA can properly adjust their benefits. Moreover, VA annually sends letters to all veterans receiving disability compensation notifying them whenever there is a legislative increase in the amount of their benefits for the following year. In that letter, we remind them to inform VA if they return to active duty, so that VA can properly adjust their benefits. Thus, veterans are clearly informed of their duty to notify VA.
Second, the types of cases described by the commenter are very rare. This is because, in light of the procedures described above, most veterans notify VA in advance of their return to active duty in order to avoid an overpayment. Moreover, VA exchanges data with the Department of Defense, showing which veterans have returned to active duty, on a quarterly basis. VA uses this information to discontinue the disability compensation of any veteran who failed to notify VA in advance. It is not clear why this did not happen in the particular case described by the commenter, but, again, this type of oversight is very rare.
Third, VA may waive an overpayment when collection would be against “equity and good conscience”.
Proposed paragraph (a) of § 5.747 informs the reader when lump-sum readjustment pay is available to a veteran. We propose to change “on or after September 15, 1981” to “after September 14, 1981” in order to conform to the format generally used for dates throughout part 5.
In addition, we propose to add § 5.747(b)(3) to implement the National Defense Authorization Act for Fiscal Year 2008, Public Law 110–181, sec. 1646(b), 122 Stat. 3. Public Law 110–181 amended 10 U.S.C. 1212 to provide that no deduction may be made from VA disability compensation for disability severance pay received for disabilities incurred in a combat zone or in combat-related operations as designated by the Department of Defense (DoD). Also, initially proposed § 5.747(b) and (d) included as an authority citation, 10 U.S.C. 1212(c). This citation is no longer accurate based on the changes enacted by Public Law 110–181. We propose to correct the authority citations in § 5.747(b) and (d) to correctly reflect 10 U.S.C. 1212(d).
In initially proposed § 5.747(d), concerning recoupment from VA disability compensation for veterans who received lump-sum readjustment pay, disability severance pay, separation pay, or special separation pay, we inadvertently omitted language which appears in 38 CFR 3.700(a). We now propose to add the language to § 5.747.
Initially proposed § 5.750(a)(1) described an election as “irrevocable”. To be consistent with the other sections in this subpart using the term “irrevocable”, and to ensure clarity, we propose to add the parenthetical “(there is no right of reelection)” to this paragraph.
Initially proposed § 5.757(b) stated “A person who is entitled to receive both death compensation and death pension may elect or reelect at any time to receive either benefit unless otherwise provided in this part, . . . ” The reference to death compensation here refers to dependency and indemnity compensation (DIC). Once a spouse or parent elects out of death compensation, they cannot elect back into the program because DIC has replaced death compensation. We therefore propose to change the term “death compensation” with “dependency and indemnity compensation”.
We propose to add the phrase “at any time” in the first sentence of § 5.757(c), so that it now reads, “A person who is entitled to receive both disability compensation and Old-Law Pension or Section 306 Pension may elect at any time to receive either benefit.” This is necessary to clarify that, consistent with current § 3.701(a), there is no time limit for either election or reelection under this paragraph.
Initially proposed § 5.757(f) omitted an exception to the rule of elections between VA benefits, found in § 3.666(d). Such exception states that “an election to receive disability compensation in lieu of pension is not required for an incarcerated veteran who does not have a dependent spouse or child.” We propose to correct this omission by adding § 5.757(f)(2).
Initially proposed § 5.760 stated that a surviving spouse who is entitled to receive dependency and indemnity compensation (DIC) may elect to receive Improved Death Pension instead of DIC. However, it did not explicitly state that the election was revocable. Generally, all elections are revocable unless specifically stated otherwise. To clarify this point, we propose to add the sentence, “Such surviving spouse may subsequently reelect either benefit” to this section.
Initially proposed § 5.762(c)(4) stated that a child has the right to elect or reelect one or more times to receive benefits based on the death of either parent in the same parental line. We propose to remove the phrase “one or more times” because it is unnecessary and possibly confusing in light of the general rule that there is no limit on the number of times a person may reelect a different benefit. However, this general rule is subject to exceptions stated in certain sections in this subpart.
In initially proposed § 5.764, “Payment of Survivors' and Dependents' Educational Assistance and VA death pension or dependency and indemnity compensation for the same period”, we proposed to restate current § 3.707(a) and (b) and add the statement that a child who is eligible for death pension and dependents' educational assistance (DEA), “must elect between VA death pension and DEA”. We now propose to consolidate the rule on dependency and indemnity compensation (initially proposed § 5.764(a)(1)(i)) with the rule on death pension (initially proposed § 5.764(a)(1)(ii)) to improve readability. We note that current § 3.707(a) and (b) refers to “compensation” as one of the benefits to a child or spouse that cannot be paid concurrently with DEA. In the initially proposed rule, we had simply eliminated the reference to “compensation” because a dependent of a veteran has no right to disability compensation. Further review indicated that in § 3.707(a) and (b) the references to “compensation” are to the additional disability compensation payable to a veteran based on a dependent. Hence, we propose to insert into § 5.764(a)(1)(ii) and (iii), rules governing this issue.
In the initially proposed rule, we reserved § 5.765. However, we inadvertently omitted § 3.700(b)(3) and now propose to add it as § 5.765, “Payment of compensation to a parent based on the service or death of multiple veterans.”
Other technical corrections will include changes based on typographical errors or changes in wording that are necessary to maintain consistency throughout part 5. For example, we mean to add either “disability” or “death” in front of the term “compensation,” where doing so would specify the type of compensation at issue. We also propose to replace the term “helpless,” as it relates to a child, with the more descriptive term, “became permanently incapable of self-support before reaching age 18” for purposes of conformity with § 5.227. Section 5.227 pertains to the considerations that VA will use in determining whether a person can be recognized as a “child” for benefit purposes. As another example, we propose to substitute the word “if” for “when” where appropriate and vice versa. We use the word “when” to describe instances where an event is certain to occur, such as the eventual death of a veteran. We use the word “if” to describe instances where an event is not certain to occur, such as the marriage or divorce of a veteran.
In a document published in the
The preamble to initially proposed § 5.770 discussed the omission of death compensation provisions from part 5. The preamble said that 3.450(d) refers to § 3.459, a death compensation provisions to which part 5 would have no counterpart. We failed to state that § 5.770(d) would restate the § 3.450(d) rule of apportionment among children, for DIC benefits.
Two of the commenters addressed initially proposed §§ 5.790(c) and (d). In the AL74 preamble to initially proposed § 5.790, “Determinations of incompetency and competency,” we stated:
Proposed § 5.790 is based on current §§ 3.353 and 3.400(x) and (y). Proposed § 5.790(c) is based on current 38 CFR 3.353(c) which begins, “Unless the medical evidence is clear, convincing and leaves no doubt as to the person's incompetency, the [agency of original jurisdiction] will make no determination of incompetency without a definite expression regarding the question by the responsible medical authorities.” The phrase “clear, convincing and leaves no doubt” is inconsistent with traditional legal evidentiary standards. Traditionally, “clear
Initially proposed § 5.790(d) was an exact restatement of current 38 CFR 3.353(d), except that we had proposed to update the citation from the part 3 citation, § 3.102, to the part 5 equivalent, § 5.3(b)(2) (now § 5.3(b)(3)).
Regarding initially proposed § 5.790(c), the first commenter asserted that VA should never make a determination of incompetency without medical evidence that the claimant is mentally incompetent to manage his or her affairs. The commenter also urged that VA establish a higher burden of proof for incompetency: “beyond a reasonable doubt.” The commenter asserted that this standard is necessary to preserve consistency with the evidentiary standard in initially proposed § 5.790(d), which stated, “Where reasonable doubt arises regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, such doubt will be resolved in favor of competency.” The commenter also asserted that the higher standard was needed “to protect claimants from incorrect administrative incompetency decisions made by lay VA employees.” The commenter asserted that a declaration of incompetency has implications for many activities, including potentially criminalizing firearms ownership.
The second commenter similarly urged VA not to omit “leaves no doubt” from its rewrite of § 3.353(c) and “to maintain `leaves no doubt' as a standard for showing incompetence.” The commenter asserted that omitting “leaves no doubt” from the standards for determining incompetency would prove beneficial only to VA and not to beneficiaries. While acknowledging VA's heavy administrative burden, the commenter asserted that allowing VA to “independently determine” whether an individual is incompetent to receive benefits without requiring a medical examination would be a violation of the individual's constitutional due process rights. Citing
These comments demonstrate an apparent misunderstanding of proposed § 3.353(c) and (d) and initially proposed §§ 5.790(c) and (d). Both commenters appear to mistakenly think that “clear, convincing and leaves no doubt” is the general evidentiary standard for showing incompetency under current § 3.353. It is not. It is an evidentiary standard that VA, under current § 3.353(c), requires medical evidence to meet for an agency of original jurisdiction to make an incompetency determination without first obtaining “a definite expression regarding the question by the responsible medical authorities.” In accordance with § 3.353(d), the standard of proof to find a beneficiary incompetent when a medical opinion is of record is the preponderance of the evidence. Contrary to the first commenter's assertion, the standard in initially proposed § 5.790(c) is not inconsistent with the standard in initially proposed paragraph (d). Each standard serves a different purpose: the standard in paragraph (c) must be met for VA to make an incompetency determination without a medical opinion on competency; the standard in paragraph (d) applies to weighing all the evidence if a medical opinion is of record.
Similarly, the comments demonstrate an apparent misinterpretation of the language of § 3.353(d) to mean that VA's standard for finding incompetency is “beyond a reasonable doubt”, a standard which is used for criminal cases. In fact, the intent of this provision is to state that VA's “reasonable doubt” (or benefit of the doubt) doctrine applies to competency determinations, in the same manner that it applies to VA benefit determinations that are the subject of 38 CFR 3.102. In order to clarify this point, we propose to replace the language of initially proposed § 5.790(d) with language that is substantially the same as proposed § 5.3(b)(3), so that it would read, “When the evidence is in equipoise regarding a beneficiary's mental capacity to contract or to manage his or her own affairs, including the disbursement of funds without limitation, VA will give the benefit of the doubt to the beneficiary and find that he or she is competent.”
As to the concerns of both commenters about the standard of proof in proposed § 5.790(c), for the reasons stated in the AL74 NPRM preamble, we decline to include “leaves no doubt” in § 5.790(c) as a standard of proof of incompetency in addition to clear and convincing evidence.
In this regard, the first commenter does not refute any of the statements we made regarding § 5.790(c) in the preamble. We construe the second commenter's statement that “the Supreme Court acknowledged the legitimacy of a medical examination as an appropriate procedural indicator for welfare benefits” as an assertion that VA violates an individual's due process rights if it makes an incompetency determination without requiring a medical examination.
The second commenter's reliance on
Though a VA incompetency determination is not a termination (or even a reduction) of benefits, initially proposed § 5.790(e) affords an evidentiary hearing prior to making the determination. We cannot agree that initially proposed § 5.790 violates any person's right to due process; it would afford beneficiaries the very process that the Court determined to be necessary only when the beneficiary of a government benefit program is most burdened by termination of the benefit. 424 U.S. at 339–43.
The commenter apparently construes the Court's mention of physical examinations in
To the extent that the second commenter means that VA should simply obtain an examination in every incompetency determination, and that failure to do so violates constitutional due process, the commenter essentially argues for part 5 to create a new requirement for incompetency determinations. The purpose of the Regulation Rewrite program is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
For the sake of complete discussion of the comment, we also interpret it to mean that VA violates a beneficiary's right to due process to allow an AOJ to make an incompetency determination based on merely “clear and convincing evidence” without first obtaining a medical opinion. The commenter would have us include “leaves no doubt”, asserting that due process requires that the AOJ obtain a medical opinion unless the evidence “leaves no doubt” about incompetency. We disagree.
Even if the evidentiary standard for when an AOJ must obtain a medical opinion prior to making an incompetency determination were a matter of due process, the “clear and convincing evidence” standard is sufficient. “Leaves no doubt” would be an excessively high evidentiary standard.
As we explained in the prior NPRM, 76 FR 2777, “clear and convincing” and “leaves no doubt” are inconsistent evidentiary standards, the latter amounting to a standard higher even than that required for criminal conviction, that is, beyond a reasonable doubt. “Leaves no doubt” is a higher evidentiary standard than in any other regulation governing VA compensation or pension benefits. The Supreme Court has held that a “clear and convincing” standard of proof meets the due process requirements for such significant deprivation of liberty as involuntary indefinite commitment to a state mental hospital, and that the “beyond a reasonable doubt” standard is not required.
The result of a VA determination of incompetency is appointment of a fiduciary to receive VA funds for the beneficiary. Clear and convincing medical evidence as to a person's incompetency is sufficient for the specific purpose of authorizing the AOJ to make an incompetency determination without first obtaining an additional medical opinion. The clear and convincing standard provides a beneficiary adequate protection against an erroneous finding of incompetency resulting from a determination made without obtaining “a definite expression as to the question by the responsible medical authorities.” We propose to make no change in response to an assertion that due process requires that the AOJ obtain a medical opinion before determining incompetency unless medical the evidence “leaves no doubt” of incompetency.
The second commenter asserted that omitting “leaves no doubt” would benefit only VA and not beneficiaries. We think the omission benefits both VA and its beneficiaries. Including “leaves no doubt” would cause needless delay in making incompetency determinations that conserve the benefits of those who cannot manage them. That delay is a detriment to beneficiaries. Eliminating that delay would be a benefit to persons who need the protection of a fiduciary to manage their funds. Including “leaves no doubt” in § 5.790(c) would increase administrative costs and consume scarce VA human resources to obtain medical opinions that are unlikely to bring helpful new information to the determination, and the risk of erroneous determinations without those opinions is slight. Consequently, we propose to make no change based on this comment.
Finally, we agree with the first commenter that VA should always have medical evidence in order to determine competency. Nothing in initially proposed § 5.790 contradicts that premise. Indeed, proposed § 5.790(c) and (d) both make clear that medical evidence is required to find a beneficiary incompetent. Under these provisions, either clear and convincing “medical evidence” of incompetency is already of record or a medical opinion addressing competency is obtained. Accordingly, we need make no change to address this concern of the commenter. Further, regarding the first commenter's sweeping comment about the need to protect beneficiaries from incorrect competency decisions by lay VA employees, we note that there is an administrative remedy if a beneficiary believes he or she has been wrongly declared incompetent: appeal to the Board of Veterans' Appeals and, if he or she disagree with that decision, to the U.S. Court of Appeals for Veterans Claims. Accordingly, we make no change based on this concern of the commenter.
One commenter on initially proposed § 5.810 urged VA to include felony convictions from foreign countries in the definitions governing incarcerations in § 5.810(b) only if the courts of the foreign country are subject to a standard Status of Forces Agreement or have due process and procedural rights equivalent to those which apply in courts in the U.S. As discussed in the AL74 preamble, initially proposed § 5.810 incorporates significant protections with regard to foreign convictions: it excludes incarceration in a foreign prison and includes incarceration in a U.S. prison based on a foreign conviction only if the offense is equivalent to a felony (or a misdemeanor for purposes of 38 U.S.C. 1505) under the laws of the U.S. Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
Initially proposed § 5.810(c) stated, “The 60-day periods of incarceration described in §§ 5.811 through 5.813 begin on the day after the beneficiary is convicted of a felony (or misdemeanor for pension), if the beneficiary is incarcerated as of that date, even if the beneficiary is not sentenced on that date.” One commenter urged that the incarceration period in paragraph (c) not begin on the date of conviction “in recognition of the realities of sentencing.” The commenter added “[a]t the sentencing hearing, the trial judge might impose an alternate sentence involving no incarceration, such as home confinement or probation.”
As we stated in the preamble to AL74, “This [paragraph (c)] accords with 38 U.S.C. 1505 and 5313, which are concerned with the time spent imprisoned for a felony, or for a misdemeanor in pension cases, and not with the amount of time that the beneficiary is sentenced to serve. It also
One commenter objected to the rule set forth in initially proposed § 5.810(d), requiring that claimants or beneficiaries inform VA if they are incarcerated. The commenter asserted that the rule puts an undue burden on incarcerated veterans because they are “often impoverished or unfamiliar with system procedures” and that VA's promulgation of this rule fails to “take full account of the social, educational, and societal contexts that many incarcerated veterans come from.” The commenter also asserted that “VA should be able to gather that information from the Bureau of Prisons or the state.”
As stated in the preamble to initially proposed § 5.810, we believe the rule established in paragraph (d) is logical, fair, and consistent with other current provisions that require claimants or beneficiaries to inform VA of changes in circumstances affecting entitlement to benefits.
Regarding the suggestion that “VA should be able to gather that information from the Bureau of Prisons or the state,” we note that VA already has data sharing agreements with the Federal Bureau of Prisons (BOP) and the Social Security Administration (SSA). Under our agreement with BOP, that agency periodically provides VA with a master record of all federal prisoners. Under our agreement with SSA, that agency provides VA with a master record of all prisoners who are incarcerated in state or local facilities. Although these records are intended to be comprehensive, errors or delays may prevent VA from learning of a veteran's incarceration in a timely manner. Requiring veterans to inform VA adds an additional means for VA to obtain this information, thus reducing the frequency and amount of erroneous payments. We therefore make no change based on this comment.
Initially proposed § 5.811 implemented the statutory requirement from 38 U.S.C. 5313 that VA limit the amount of disability compensation paid to a veteran who has been incarcerated for more than 60 days after conviction of a felony if the veteran committed the felony after October 7, 1980. One commenter noted that VA's Adjudication Manual, M21–1MR, requires VA employees to limit payments when notified by one of our federal data sharing agreements that a veteran is incarcerated. The commenter, a non-profit organization that represents veterans in their VA claims, stated that in their experience, when VA receives such notice, it presumes that the veteran has been convicted of a felony rather than a misdemeanor and remains incarcerated 60 days later. The commenter urged VA to add a provision to § 5.811(a) stating that VA will not limit benefits “until it receives official verification that the veteran has been incarcerated for more than 60 days after a conviction of a felony.”
As a preliminary matter, we note that VA does not limit benefits based on incarceration without providing due process under 38 CFR 3.103. Under that provision, VA notifies the veteran that it proposes to limit benefits based on information indicating that he or she is incarcerated. Before VA will take action to limit benefits, the veteran has 60 days in which to respond (e.g., provide evidence to VA showing that he or she was incarcerated for less than 61 days or incarcerated for conviction of a misdemeanor, not a felony).
Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment recommending additional, new procedures is outside the scope of this rulemaking.
Initially proposed § 5.812(d) stated, “Whenever DIC is awarded to an incarcerated person, any amounts due for periods prior to the date of reduction under this section shall be paid to the incarcerated person.” This language is restated for compensation (§ 5.811(b)). It is nearly identical to the wording found in current 38 CFR 3.665(k).
One commenter urged, “In order to clarify that there will be no reduction for amounts due prior to the date of reduction, the language in subsection (d) should read as follows: `Any amounts due for periods prior to the date of limitation under this section shall be paid to the incarcerated person without the limitation imposed under this section.' ”
We believe the language of §§ 3.665(k), 5.811(b), and 5.812(d) are entirely clear that “amounts due for periods prior to the date of reduction under this section” means the normal amount payable to an unincarcerated beneficiary. We therefore propose to make no change based on this comment.
Initially proposed § 5.813(b)(2) stated, in part:
If the veteran has a spouse or child but elects to receive disability compensation after VA has notified the veteran of the effect of electing disability compensation on the amount available for apportionment, then the award of disability compensation will be effective on the later of the date VA received the veteran's election or the date of discontinuance of pension under paragraph (a) of this section.
Regarding this proposed language, one commenter stated, “The applicability of the `mailbox rule' is not readily apparent in the proposed language” and suggested that the following language be added: “If the veteran's election is submitted by U.S. Mail, the date received will be considered to be the postmark date.” The commenter offered no reason why this rule should be incorporated into paragraph (b)(2).
We did not imply nor intend that the “mailbox rule” apply in § 5.813. Current VA regulations in 38 CFR part 3 do not contain such a rule. The purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
One commenter approved of the regulations in AL74 limiting payments to incarcerated veterans and urged that VA stop apportioning such payments to the families of incarcerated veterans. The commenter did not explain the
Congress specifically authorized VA to make apportionments of compensation and dependency and indemnity compensation to dependents of incarcerated beneficiaries in 38 U.S.C. 1505(b) and (c) and 5313(b), and such apportionments may be important in avoiding hardship to the beneficiary's dependents during the beneficiary's incarceration. Further, the purpose of the reduction of benefits is not to further punish the incarcerated beneficiary, but to prevent unnecessary expenditure of government funds to persons otherwise supported at government expense and to avoid accumulation of funds with prisoners who might use those funds to purchase contraband. Prohibiting apportionment to an incarcerated beneficiary's dependents would not further those objectives.
Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
One commenter urged VA to remove the requirement in initially proposed §§ 5.815–5.816 that the veteran inform VA when he or she is released from incarceration, in order for VA to restore benefits by a certain date. The commenter noted that there is a link between military service during wartime and subsequent incarceration and asked that VA thank veterans for their service by not requiring them “to re-legitimize their standing as war veterans.”
We note that these provisions are not new; they have existed in 38 CFR 3.665(i) and 3.666(c) for decades. We do not believe it is unduly burdensome for veterans to inform VA when they are released from incarceration; as stated above regarding proposed § 5.810, this can be easily done through a variety of methods—via mail, email through
Consistent with 38 U.S.C. 5313B and current 38 CFR 3.665–3.666, initially proposed § 5.817 stated that VA will not pay or apportion benefits to, for, or on behalf of a person for any period during which that person is a fugitive felon. Also consistent with those provisions, initially proposed § 5.817 defined fugitive felon as a person who is “(i) Fleeing to avoid prosecution for a felony or for an attempt to commit a felony; (ii) Fleeing custody or confinement after conviction of a felony or conviction of an attempt to commit a felony; or (iii) Fleeing to avoid custody or confinement for violating a condition of probation or parole imposed for commission of a felony under Federal or State law.”
One commenter noted that, although the proposed language mirrors the statutory language, VA's Adjudication Manual, M21–1MR, states that a person is presumed to be a fugitive felon if there is an outstanding arrest warrant against them. This is problematic, the commenter asserted, because “the warrant may be many years old and it is possible the veteran has no idea that a warrant was even issued, let alone outstanding.” The commenter noted that the Social Security Administration (SSA) has a similar statutory requirement and previously operated under such a presumption. The commenter noted that “multiple lawsuits forced SSA to alter enforcement of [its] regulation and pay back millions of dollars in benefits to affected individuals.” The commenter urged VA to revise § 5.817 to define a fugitive felon as “one who has a specific intent to flee or avoid prosecution for a felony, specific intent to flee or avoid custody after conviction of a felony, or specific intent to flee or avoid a condition of felony probation or parole.”
As with limitations of benefits for incarcerated benefits under § 5.811, VA provides the same type of due process for veterans who may be fleeing felons. These due process procedures would mitigate the situations that the commenter is concerned with. That is, the veteran has the opportunity to present evidence showing that he or she was not actually fleeing, and if that is shown, then VA will take no action to limit benefits.
Moreover, the purpose of the Regulation Rewrite Project is to make VA's compensation and pension regulations more logical, claimant-focused, and user-friendly, not to serve as a vehicle for making major changes to VA policies. Thus, the comment is outside the scope of this rulemaking.
We intend to ultimately remove part 3 entirely, but we are not including amendatory language to accomplish that at this time. VA will provide public notice before removing part 3.
This document contains no provisions constituting a new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501–3521).
The Secretary hereby certifies that this proposed 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. This proposed amendment would not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this proposed amendment is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.
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. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the
VA has determined that there are no direct costs or savings associated with this proposed rulemaking, because it will neither expand nor restrict the rights or benefits of VA claimants or beneficiaries and will not change the way VA develops, processes, or pays a claim for benefits. VA has not yet determined the exact manner in which it will transition from the current part 3 regulations to the part 5 regulations. Prior to publication of the final rule, VA will determine this and estimate the costs associated with this transition.
Executive Order 13563 also requires federal agencies to make regulations “accessible, consistent, written in plain language, and easy to understand” and requires “retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them . . .” This NPRM is the cornerstone of VA's compliance with this Executive Order. See
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 1 year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.
The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.115, Veterans Information and Assistance; and 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida.
The Secretary of Veterans Affairs, or designee, approved this document 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. John R. Gingrich, Chief of Staff, approved this document on January 30, 2013, for publication.
Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam.
For the reasons set forth in the preamble, VA proposes to amend 38 CFR part 3 and further amend 38 CFR part 5, as proposed to be added at 69 FR 4820, Jan. 30, 2004, and as further proposed to be amended at 69 FR 44614, July 27, 2004; 69 FR 59072, Oct. 1, 2004; 73 FR 19021, Apr. 8, 2008; 71 FR 37790, June 30, 2006; 70 FR 24680, May 10, 2005; 69 FR 77578, Dec. 27, 2004, 72 FR 10860, Mar. 9, 2007; 71 FR 16464, Mar. 31, 2006; 70 FR 61326, Oct. 21, 2005; 71 FR 55052, Sept. 20, 2006; 72 FR 56136, Oct. 2, 2007; 72 FR 28770, May 22, 2007; 72 FR 54776, Sept. 26, 2007; 71 FR 31056, May 31, 2006; and 73 FR 20136, Apr. 14, 2008, as follows:
38 U.S.C. 501(a), unless otherwise noted.
This part applies only to claims for benefits filed before [EFFECTIVE DATE OF FINAL RULE]. See § 5.0 of this chapter, Scope and applicability.
38 U.S.C. 501(a) and as noted in specific sections.
(a)
(b)
(1) This part will apply to all claims for benefits VA receives on or after [INSERT THE EFFECTIVE DATE OF THE FINAL RULE].
(2) This part will apply to new actions VA or a claimant or beneficiary initiated on or after [EFFECTIVE DATE OF THE FINAL RULE] that pertain to either a running award of benefits or, subject to § 5.162, to a prior final decision. Such new actions include, but are not limited to, actions involving reduction or discontinuance of benefits, pension maintenance, adjustment of awards based on dependents, and apportionments.
(3) Part 3 of this chapter will continue to apply to all claims VA received before [EFFECTIVE DATE OF THE FINAL RULE] and all actions VA or a claimant or beneficiary initiated before that date that were not finally decided by that date.
(4) Part 3 of this chapter will continue to apply to death compensation and Spanish-American War benefits.
The following definitions apply to this part:
Cross Reference: § 5.554(a) (identifying benefits that VA may pay as accrued benefits).
(1)
(2)
In VA's nonadversarial system, all evidence is admitted into the record. VA does not exclude from the record evidence that is not “competent” under this section; however, such evidence may not be probative because it is not competent.
(1) Retirement from the active military service; or
(2) Completion of active military service for the period of time a person was obligated to serve at the time of entry into that period of service in cases where both of the following elements are true:
(i) The person was not discharged or released at the end of that period of time due to an intervening change in military status, as defined in § 5.37; and
(ii) The person would have been eligible for a discharge or release under conditions other than dishonorable at the end of that period of time except for the intervening change in military status.
(1) The claimant did not file a timely Notice of Disagreement in compliance with § 20.302(a) of this chapter or, with respect to simultaneously contested claims, in compliance with § 20.501(a) of this chapter;
(2) The claimant filed a timely Notice of Disagreement, but did not file a timely Substantive Appeal in compliance with § 20.302(b) of this chapter or, with respect to simultaneously contested claims, in compliance with § 20.501(b) of this chapter; or
(3) In the case of a decision by the Board of Veterans' Appeals, the decision is final under § 20.1100 of this chapter.
(1) As used in § 5.676,
(2) As used in §§ 5.196 and 5.203,
(3) As used in §§ 5.172, 5.174, and 5.175,
(1) A written communication VA sends a claimant or beneficiary at his or her latest address of record, and to his or her designated representative and fiduciary, if any; or
(2) An oral communication VA conveys to a claimant or beneficiary.
(1) Any extended care facility licensed by a State to provide skilled or intermediate-level nursing care;
(2) A nursing home care unit in a State veterans' home approved for payment under 38 U.S.C. 1742, Inspections of such homes; restrictions on beneficiaries; or
(3) A VA Nursing Home Care Unit.
(1) Brief Psychotic Disorder;
(2) Delusional Disorder;
(3) Psychotic Disorder Due to General Medical Condition;
(4) Psychotic Disorder Not Otherwise Specified;
(5) Schizoaffective Disorder;
(6) Schizophrenia;
(7) Schizophreniform Disorder;
(8) Shared Psychotic Disorder; and
(9) Substance-Induced Psychotic Disorder.
(1) The Secretary of the Army, with respect to matters concerning the Army;
(2) The Secretary of the Navy, with respect to matters concerning the Navy or the Marine Corps;
(3) The Secretary of the Air Force, with respect to matters concerning the Air Force;
(4) The Secretary of Homeland Security, with respect to matters concerning the Coast Guard;
(5) The Secretary of Health and Human Services, with respect to matters concerning the Public Health Service; or
(6) The Secretary of Commerce, with respect to matters concerning the Coast and Geodetic Survey, the Environmental Science Services Administration, and the National Oceanic and Atmospheric Administration.
(1) A person who had active military service and who was discharged or released under conditions other than dishonorable.
(2) A person who died in active military service and whose death was not due to willful misconduct.
(3) For death pension purposes, a person who died in active military service under conditions that prevent payment of service-connected death benefits. The person must have completed at least 2 years of honorable military service, as certified by the Secretary concerned. See subpart F of this part for eligibility information.
Unless otherwise provided, a singular noun in this part that refers to a person also includes the plural of that noun (for example, “child” includes “children”). Nouns that follow this rule include, but are not limited to, the following:
(a) Veteran;
(b) Claimant;
(c) Beneficiary;
(d) Dependent;
(e) Spouse;
(f) Child;
(g) Parent; and
(h) Survivor.
(a)
(b)
(2)
(3)
(4)
(5)
(6)
(c)
(d)
(e)
(a)
(b)
(a)
(b)
This section explains what periods of service VA recognizes as wartime service, beginning with World War I. See 38 U.S.C. 101 for information concerning earlier periods of war. A veteran who served during one of these periods had wartime service.
(a)
(1) Active duty: See § 5.22.
(2) The service of a person certified by the Secretary of Defense as serving on active military service. See § 5.27.
(3) The service of a group listed in § 5.28.
(4) Active duty for training during which the person was disabled or died from an injury or disease incurred or aggravated in the line of duty.
(5) Inactive duty training during which the person was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident.
(6) Active or Reserve duty for a person who was injured or died while assigned to the Postmaster General for the aerial transportation of mail from February 10, 1934, through March 26, 1935.
(b)
(1) Time spent on industrial, agricultural, or indefinite furlough;
(2) Time lost when absent without leave and without pay;
(3) Time while under arrest without a subsequent acquittal or dismissal of charges;
(4) Time during desertion; or
(5) Subject to 10 U.S.C. 875 (concerning the restoration of rights, privileges, and property affected by certain court-marital sentences that are set aside or disapproved), time while serving a sentence of confinement imposed by a court-martial.
Cross Reference: § 5.1(ee), for the definition of “reserve”.
(a)
(1) Full-time duty in the Armed Forces, other than active duty for training.
(2) Certain duty performed by:
(i) Reserve and National Guard members. See § 5.23.
(ii) Armed Services Academy cadets, midshipmen, attendees at the preparatory schools of the Armed
(iii) Commissioned officers of the Public Health Service, Coast and Geodetic Survey and its successor agencies, and temporary members of the Coast Guard Reserves. See § 5.25.
(3) Certain service of persons ordered to service but who did not serve. See § 5.26.
(b)
(c)
Cross Reference: § 5.1, for the definition of “reserve”.
(a)
(2)
(3)
(b)
(2)
(i) When detailed as a rifle instructor for civilians (see 32 U.S.C. 316);
(ii) During required drills and field exercises (see 32 U.S.C. 502);
(iii) While participating in field exercises as directed by the Secretary of the Army or the Secretary of the Air Force (see 32 U.S.C. 503);
(iv) While attending schools or small arms competitions as prescribed by the Secretary of the Army or the Secretary of the Air Force (see 32 U.S.C. 504);
(v) While attending any service school (except the U.S. Military Academy or the U.S. Air Force Academy), or attached to an organization of the Army or the Air Force for routine practical instruction during field training or other outdoor exercise (see 32 U.S.C. 505); or
(vi) When performed under prior provisions of law that correspond to 32 U.S.C. 316, 502, 503, 504, or 505, for each of paragraphs (b)(2)(i) through (v) of this section.
(3)
(i) When detailed as a rifle instructor for civilians (see 32 U.S.C. 316);
(ii) During required drills and field exercises (see 32 U.S.C. 502);
(iii) While participating in field exercises as directed by the Secretary of the Army or the Secretary of the Air Force (see 32 U.S.C. 503);
(iv) While attending schools or small arms competitions as prescribed by the Secretary of the Army or the Secretary of the Air Force (see 32 U.S.C. 504);
(v) While attending any service school (except the U.S. Military Academy or the U.S. Air Force Academy), or attached to an organization of the Army or the Air Force for routine practical instruction during field training or other outdoor exercise (see 32 U.S.C. 505); or
(vi) When performed under prior provisions of law that correspond to 32 U.S.C. 316, 502, 503, 504, or 505, for each of paragraphs (b)(3)(i) through (v) of this section.
(4)
(c)
Cross Reference: § 5.1, for the definition of “reserve”.
(a)
(b)
(i) The person was an enlisted active-duty member who was reassigned to a preparatory school without a release from active duty; or
(ii) The person has a commitment to perform active duty in the Armed Forces that would be binding upon disenrollment from the preparatory school.
(2)
(c)
(i) Paragraph (c)(1) of this section is effective October 1, 1982, for death or disability resulting from injury or disease incurred or aggravated after September 30, 1982.
(ii) Paragraph (c)(1) of this section is effective October 1, 1983, for death or disability resulting from injury or disease incurred or aggravated before October 1, 1982.
(iii) For duty after September 30, 1988, the duty must be a prerequisite to the member being commissioned and must be for at least 4 continuous weeks.
(2)
(3)
(d)
Cross Reference: § 5.1, for the definition of “reserve”.
(a)
(A) After July 28, 1945;
(B) Before July 29, 1945, under circumstances affording entitlement to full military benefits; or
(C) At any time, for purposes of dependency and indemnity compensation (DIC).
(ii) Such active duty continues until midnight of the date of discharge or release from active duty.
(2)
(i) After July 28, 1945;
(ii) Before July 29, 1945, under circumstances affording entitlement to full military benefits, as determined by the Secretary of the Department of Defense; or
(iii) At any time, for purposes of DIC.
(3)
(i) Duty, other than full-time duty, prescribed for a commissioned officer of the Reserve Corps of the Public Health Service by the Secretary of Health and Human Services under 37 U.S.C. 206, “Reserves; members of National Guard: inactive-duty training”, or any other provision of law; or
(ii) Special additional duties authorized for a commissioned officer of the Reserve Corps of the Public Health Service by an authority designated by the Secretary of Health and Human Services and performed by him or her on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which he or she is assigned.
(b)
(i) After July 28, 1945;
(ii) Before July 29, 1945, while on transfer to one of the Armed Forces;
(iii) Before July 29, 1945, in time of war or National emergency declared by the President, while assigned to duty on a project for one of the Armed Forces in an area that the Secretary of Defense has determined to be of immediate military hazard;
(iv) In the Philippine Islands on December 7, 1941, and continuously in such islands thereafter until July 29, 1945; or
(v) At any time, for purposes of DIC.
(2) Such active duty continues until midnight of the date of discharge or release from active duty.
(c)
(d)
Cross Reference: § 5.1, for the definitions of “reserve” and “reservist”.
(a)
(1)
(2)
(3)
(b)
(a)
(b)
(1) American Merchant Marine in Oceangoing Service any time during the period December 7, 1941, to August 15, 1945. Recognized effective January 19, 1988.
(2) The approximately 50 Chamorro and Carolinian former native policemen who received military training in the Donnal area of central Saipan and were placed under the command of Lt. Casino of the 6th Provisional Military Police Battalion to accompany U.S. Marines on active, combat-patrol activity any time during the period August 19, 1945 to September 2, 1945. Recognized effective September 30, 1999.
(3) Civilian Crewmen of the U.S. Coast and Geodetic Survey (U.S.C.GS) vessels, who performed their service in areas of immediate military hazard while conducting cooperative operations with and for the U.S. Armed Forces any time during the period December 7, 1941, to August 15, 1945. Qualifying U.S.C.GS vessels specified by the Secretary of Defense, or his or her designee, are the Derickson, Explorer, Gilbert, Hilgard, E. Lester Jones, Lydonia, Patton, Surveyor, Wainwright,
(4) Civilian employees of Pacific Naval Air Bases who actively participated in Defense of Wake Island during World War II. Recognized effective January 22, 1981.
(5) Civilian Navy Identification Friend or Foe (IFF) Technicians, who served in the Combat Areas of the Pacific any time during the period December 7, 1941, to August 15, 1945. Recognized effective August 2, 1988.
(6) Civilian personnel assigned to the Secret Intelligence Element of the Office of Strategic Services (OSS). Recognized effective December 27, 1982.
(7) Engineer Field Clerks (WWI). Recognized effective August 31, 1979.
(8) Guam Combat Patrol. Recognized effective May 10, 1983.
(9) Honorably discharged members of the American Volunteer Group (Flying Tigers), who served any time during the period December 7, 1941, to July 18, 1942. Recognized effective May 3, 1991.
(10) Honorably discharged members of the American Volunteer Guard, Eritrea Service Command, who served any time during the period June 21, 1942, to March 31, 1943. Recognized effective June 29, 1992.
(11) Male Civilian Ferry Pilots. Recognized effective July 17, 1981.
(12) The Operational Analysis Group of the Office of Scientific Research and Development, Office of Emergency Management, which served overseas with the U.S. Army Air Corps any time during the period December 7, 1941, to August 15, 1945. Recognized effective August 27,1999.
(13) Quartermaster Corps Female Clerical Employees serving with the AEF (American Expeditionary Forces) in World War I. Recognized effective January 22, 1981.
(14) Quartermaster Corps Keswick Crew on Corregidor (WWII). Recognized effective February 7, 1984.
(15) Reconstruction Aides and Dietitians in World War I. Recognized effective July 6, 1981.
(16) Signal Corps Female Telephone Operators Unit of World War I. Recognized effective May 15, 1979.
(17) Three scouts/guides, Miguel Tenorio, Penedicto Taisacan, and Cristino Dela Cruz, who assisted the U.S. Marines in the offensive operations against the Japanese on the Northern Mariana Islands from June 19, 1944, through September 2, 1945. Recognized effective September 30, 1999.
(18) U.S. civilian employees of American Airlines, who served overseas as a result of American Airlines' contract with the Air Transport Command any time during the period December 14, 1941, to August 14, 1945. Recognized effective October 5, 1990.
(19) U.S. civilian female employees of the U.S. Army Nurse Corps while serving in the defense of Bataan and Corregidor any time during the period January 2, 1942, to February 3, 1945. Recognized effective December 13, 1993.
(20) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Braniff Airways, who served overseas in the North Atlantic or under the jurisdiction of the North Atlantic Wing, Air Transport Command (ATC), as a result of a contract with the ATC any time during the period February 26, 1942, to August 14, 1945. Recognized effective June 2, 1997.
(21) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Consolidated Vultree Aircraft Corporation (Consairway Division), who served overseas as a result of a contract with the Air Transport Command any time during the period December 14, 1941, to August 14, 1945. Recognized effective June 29, 1992.
(22) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Northeast Airlines Atlantic Division, who served overseas as a result of Northeast Airlines' Contract with the Air Transport Command any time during the period December 7, 1941, to August 14, 1945. Recognized effective June 2, 1997.
(23) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Northwest Airlines, who served overseas as a result of Northwest Airline's contract with the Air Transport Command any time during the period December 14, 1941, to August 14, 1945. Recognized effective December 13, 1993.
(24) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Pan American World Airways and Its Subsidiaries and Affiliates, who served overseas as a result of Pan American's Contract with the Air Transport Command and Naval Air Transport Service any time during the period December 14, 1941, to August 14, 1945. Recognized effective July 16, 1992.
(25) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Transcontinental and Western Air (TWA), Inc., who served overseas as a result of TWA's contract with the Air Transport Command any time during the period December 14, 1941, to August 14, 1945. The “Flight Crew” includes pursers. Recognized effective May 13, 1992.
(26) U.S. Civilian Flight Crew and Aviation Ground Support Employees of United Air Lines (UAL), who served overseas as a result of UAL's contract with the Air Transport Command any time during the period December 14, 1941, to August 14, 1945. Recognized effective May 13, 1992.
(27) U.S. civilian volunteers, who actively participated in the Defense of Bataan. Recognized effective February 7, 1984.
(28) U.S. civilians of the American Field Service (AFS), who served overseas operationally in World War I any time during the period August 31, 1917, to January 1, 1918. Recognized effective August 30, 1990.
(29) U.S. civilians of the American Field Service (AFS), who served overseas under U.S. Armies and U.S. Army Groups in World War II any time during the period December 7, 1941, to May 8, 1945. Recognized effective August 30, 1990.
(30) U.S. Merchant Seamen who served on blockships in support of Operation Mulberry. Recognized effective October 18, 1985.
(31) Wake Island Defenders from Guam. Recognized effective April 7, 1982.
(32) Women's Air Forces Service Pilots (WASP). Recognized effective November 23, 1977.
(33) Women's Army Auxiliary Corps (WAAC). Recognized effective March 18, 1980.
(c)
(i) Pension;
(ii) Disability compensation;
(iii) Dependency and indemnity compensation; and
(iv) Monetary allowances for a child of:
(A) A Vietnam veteran under § 5.589;
(B) A Vietnam veteran under § 5.590; or
(C) A veteran of covered service in Korea under 38 U.S.C. 1821, “Benefits for a child of certain Korea service veterans born with spina bifida”.
(2)
(i) The date entitlement arose, as defined in § 5.150; or
(ii) The effective date of recognition.
(3)
(i) The date entitlement arose, as defined in § 5.150; or
(ii) One (1) year prior to the date of receipt of the claim.
(4)
(i) The date entitlement arose, as defined in § 5.150; or
(ii) The effective date of recognition.
(5)
(i) The date entitlement arose, as defined in § 5.150; or
(ii) One (1) year before the date of the VA rating decision awarding the benefit, or if no rating decision is required, 1 year before the date VA otherwise determines that the claimant is entitled to the benefit.
The following groups are considered to have performed active military service:
(a)
(2) Benefits cannot be paid for this service for any period prior to August 9, 2000.
(b)
(c)
(1)
(2)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(2)
(l)
(m)
(n)
(o)
(p)
Cross Reference: § 5.1, for the definition of “reserve”.
(a)
(2)
(3)
(b)
(i) Authorized or required by competent authority designated by the Secretary concerned to perform such duty; and
(ii) Disabled or died from an injury, an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident incurred during that travel.
(2)
(i) The hour at which the person began to proceed to or return from the duty;
(ii) The hour at which the person was scheduled to arrive for, or at which the person ceased to perform, such duty;
(iii) The method of travel employed;
(iv) The itinerary;
(v) The manner in which the travel was performed; and
(vi) The immediate cause of disability or death.
(3)
(a)
(b)
(2)
(c)
(1) An honorable discharge;
(2) A general discharge under honorable conditions; or
(3) An uncharacterized administrative entry level separation in the case of separation of enlisted personnel based on administrative proceedings begun after September 30, 1982.
(d)
(e)
(1) An other than honorable discharge (formerly an “undesirable” discharge);
(2) A bad conduct discharge; or
(3) In the case of separation of enlisted personnel based on administrative proceedings begun after September 30, 1982, uncharacterized administrative separations for:
(i) A void enlistment or induction; or
(ii) Dropped from the rolls (that is, administrative discontinuance of military status and pay).
(f)
(1) Acceptance of an other than honorable discharge (formerly an “undesirable” discharge) to avoid trial by general court-martial.
(2) Mutiny or spying.
(3) Commission of one or more offenses involving moral turpitude. For purposes of this section, an offense involves “moral turpitude” if it is unlawful, it is willful, it is committed without justification or legal excuse, and it is an offense which a reasonable person would expect to cause harm or loss to person or property. This includes, generally, conviction of a felony.
(4) Engaging in willful and persistent misconduct during military service. A discharge because of a minor offense will not be considered willful and persistent misconduct if service was otherwise honest, faithful, and meritorious. If the misconduct includes absences without leave, see also § 5.32.
(5) Sexual acts involving aggravating circumstances or other factors affecting the performance of duty. Examples of sexual acts involving aggravating circumstances or other factors affecting the performance of duty include child molestation, prostitution, sexual acts or conduct accompanied by assault or coercion, and sexual acts or conduct taking place between servicemembers of disparate rank, grade, or status when the servicemember has taken advantage of his or her superior rank, grade, or status.
Cross Reference: § 5.1, for the definition of “willful misconduct”.
(a)
(b)
(2)
(c)
(1)
(2)
(3)
(4)
(i) Was awarded an honorable or general discharge under one of the programs listed in § 5.36(a) (concerning certain special 1970s-era discharge upgrades) prior to October 8, 1977; or
(ii) Had not otherwise established basic eligibility to receive VA benefits prior to October 8, 1977. For purposes of this paragraph (c)(4)(ii), the term
(5)
(6)
(d)
(e)
(f)
Cross Reference: § 5.1, for the definition of “alien” and § 5.1, for the definition of “insanity”.
(a)
(b)
(1)
(2)
(3)
If VA determines that a servicemember was insane at the time of the commission of an act, or acts, leading to separation from the service, the commission of such act(s) will not be a basis for denying status as a veteran under § 5.30, or for barring the payment of benefits under § 5.31.
Cross Reference: § 5.1, for the definition of “insanity”.
(a)
(b)
(c)
(d)
(1) The date of filing with the service department of the request for change, modification, or correction of the discharge or dismissal in the case of either an original claim filed with VA or
(2) The date VA received a previously denied claim; or
(3) One (1) year prior to the date of reopening of the previously denied VA claim.
(a)
(b)
(1)
(2)
(i) The previous discharge was executed by reason of the sentence of a general court-martial, or
(ii) The discharge review board was acting under the authority of one of the programs specified in § 5.36.
(c)
(d)
(2)
(i) The discharge was upgraded as a result of an individual case review;
(ii) The discharge was upgraded under uniform published standards and procedures that generally apply to all persons administratively discharged or released from active military service under conditions other than honorable; and
(iii) Such published standards are consistent with standards for determining honorable service historically used by the service department concerned and do not contain any provision for automatically granting or denying an upgraded discharge. VA will accept a report of the service department concerned that the discharge review board proceeding met these conditions.
(e)
(1) The date of filing with the service department of the request for change, modification, or correction of the discharge or dismissal in the case of either an original claim filed with VA or a previously denied claim filed with VA;
(2) The date VA received a previously denied claim; or
(3) One (1) year before the date of reopening of the previously denied VA claim.
(a)
(1) The President's directive of January 19, 1977, implementing Presidential Proclamation 4313 of September 16, 1974;
(2) The Department of Defense's special discharge review program effective April 5, 1977; or
(3) Any discharge review program implemented after April 5, 1977, that does not apply to all persons administratively discharged or released from active military service under other than honorable conditions.
(b)
(c)
(a)
(b)
(i) A discharge for acceptance of an appointment as a commissioned officer or warrant officer;
(ii) Change from a Reserve commission to a Regular commission;
(iii) Change from a Regular commission to a Reserve commission;
(iv) Reenlistment; or
(v) Voluntary or involuntary extensions of a period of obligated service.
(2)
(c)
(d)
(1) Completed active military service for the period he or she was initially obligated to serve; and
(2) Due to an intervening change in military status was not discharged or released at the end of the initial period but would have been eligible for a discharge or release under conditions other than dishonorable at the end of the initial period if not for the intervening change in military status.
Cross Reference: § 5.1, for the definition of “reserve”.
(a)
(b)
(c)
(1) Lack of legal capacity to contract, other than on the basis of minority, such as a lack of mental capacity to contract; or
(2) A statutory prohibition to enlistment, including, but not limited to:
(i) Desertion; or
(ii) Conviction of a felony.
(a)
(b)
(1) Any person who originally enlisted in a regular component of the Armed Forces and entered on active duty after September 7, 1980 (time spent during temporary assignment to a reserve component awaiting entrance on active duty because of a delayed entry enlistment contract does not count; this section applies if the actual date of entry on active duty is after September 7, 1980); and
(2) Any other person (enlisted or officer) who entered on active duty after October 16, 1981, who had not previously completed a continuous period of active duty of at least 24 months.
(c)
(i) Twenty-four (24) months of continuous active duty; or
(ii) The full period of service for which the person was called or ordered to active duty.
(2) If it appears that a person has not met the length of service requirement, VA will request service department records to determine if any of the exclusions described in paragraph (d) of this section apply.
(d)
(1) Any person who was discharged under an early out program described in 10 U.S.C. 1171.
(2) Any person who was discharged because of a hardship as described in 10 U.S.C. 1173.
(3) Any person who was discharged or released from active duty because of a disability incurred or aggravated in the line of duty:
(i) That, at the time of discharge or release, was determined to be service connected without presumptive provisions of law; or
(ii) That, at the time of discharge, was documented in official service records and, in VA's medical judgment, would have justified a discharge.
(4) Any person who has any disability that is currently compensable under 38 U.S.C. chapter 11 because:
(i) VA evaluates the disability as 10 percent or more disabling according to the Schedule for Rating Disabilities in part 4 of this chapter;
(ii) Special monthly compensation is payable for the disability; or
(iii) The disability, together with one or more other disabilities, is compensable under § 5.282 for paired organs and extremities, of this chapter.
(5) The provision of a benefit for or in connection with a service-connected disability, condition, or death.
(6) Insurance benefits under 38 U.S.C. chapter 19.
(7) Any person who performed active military service under the provisions of § 5.21(a)(4) or (5), VA recognizes as active military service.
(e)
(1) Time lost due to an industrial, agricultural, or indefinite furlough;
(2) Time lost while absent without leave and without pay;
(3) Time lost while under arrest (without acquittal or a dismissal of charges);
(4) Time lost while a deserter; or
(5) Subject to 10 U.S.C. 875(a) (concerning the restoration under certain circumstances of “all rights, privileges, and property affected by an executed part of a court-martial sentence which has been set aside or disapproved”), time lost while serving a court-martial sentence.
(f)
(2)
(i) Insurance benefits under 38 U.S.C. chapter 19;
(ii) Housing or small business loans under 38 U.S.C. chapter 37;
(iii) Benefits described in paragraph (d)(5) of this section; or
(iv) Dependency and indemnity compensation based on the person's death in service.
Cross Reference: § 5.1, for the definition of “reserve component”.
(a)
(1) A DD Form 214; or
(2) A Certificate of Release or Discharge from Active Duty.
(b)
(1) The length of service;
(2) The dates of service; and
(3) The character of discharge or release.
(c)
(1) Was issued by a service department;
(2) Is certified by a public custodian of records as a true and exact copy of a document in the custodian's possession; or
(3) Is certified by an accredited agent, attorney, or service organization representative as a true and exact copy of either an original document or of a copy issued by the service department or a public custodian of records. This accredited agent, attorney, or service organization representative must have successfully completed VA-prescribed training on military records.
(d)
(1) The record does not include satisfactory evidence showing the information described in paragraph (b) of this section;
(2) The evidence of record does not meet the requirements of paragraph (c) of this section; or
(3) There is a material discrepancy in the evidence of record.
(a)
(b)
(c)
(a)
(b)
Cross Reference: §§ 5.1, for the definition of “claim”; 5.54, “Informal claims”.
(a)
(b)
(1) For DIC is also a claim for death pension; and
(2) For death pension is also a claim for DIC.
(c)
(2)
(3)
VA will consider any communication in writing indicating an intent to file a claim for disability compensation or dependency and indemnity compensation for disability or death due to VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program to be a claim for benefits under 38 U.S.C. 1151 and § 5.350.
Cross Reference: §§ 5.350–5.353.
(a)
(b)
(1) The claimant;
(2) The claimant's accredited or authorized representative, if appointed before VA received the informal claim (see §§ 14.630 and 14.631 of this chapter for criteria for authorization of representatives);
(3) A Member of Congress; or
(4) A person acting as next friend of the claimant if the claimant does not have the capacity to manage his or her affairs.
(c)
(2)
(ii)
(a)
(b)
(c)
(d)
(1)
(i) Evidence the claimant presented or VA secured since VA last made a final decision denying the claim the claimant seeks to reopen; and
(ii) Not cumulative or redundant of evidence of record at that time.
(2) For purposes of paragraph (d)(1)(i) of this section, evidence that was submitted with, but not considered by, the Board of Veterans' Appeals (the Board) under the circumstances described in § 20.1304(b)(1) of this chapter will be treated as evidence received after VA last made a final decision on the claim.
(3)
(i) Relates to an unestablished fact necessary to substantiate the claim; and
(ii) Raises a reasonable possibility of substantiating the claim.
(e)
Cross Reference: § 20.1304(b)(1)(i) of this chapter for the rule on effective date assigned when evidence is submitted to the Board during a pending appeal.
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(d)
(i)
(ii)
(A) The date of a veteran's examination, treatment, or hospitalization at a VA or uniformed services medical facility;
(B) The date of pre-authorized admission to a non-VA hospital at VA expense;
(C) The date of a uniformed service examination that is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list; or
(D) The date VA received notice of admission to a non-VA hospital, if VA authorized the admission at VA expense after the date of admission.
(2)
(ii)
(3)
(ii)
(e)
The following definitions apply to claims for disability benefits, death benefits, and monetary allowance under 38 U.S.C. chapter 18.
(a)
(b)
(c)
(d)
Subject to the provisions of §§ 14.626 through 14.637 of this chapter, a claimant or beneficiary is entitled to the representation of his or her choice at every stage in the claims process. When VA initially contacts a claimant or beneficiary by mail, VA will also include written notice of his or her right to representation.
Cross Reference: § 19.25 of this chapter, “Notification by agency of original jurisdiction of right to appeal,” which includes notification of the right to representation.
VA will include in the evidence of record any document, testimony, argument, or other information in any form that a claimant provides VA in support of a claim or of an issue raised in the claim.
(a)
(1)
(2)
(i) He or she has discovered a new witness or new evidence to substantiate the claim;
(ii) He or she can present that witness or evidence only at an oral hearing; and
(iii) The witness or evidence could not have been presented at the original hearing.
(b)
(c)
(d)
(2) The VA employee or employees conducting the hearing will explain fully the issues and suggest the submission of evidence the claimant or beneficiary may have overlooked that would tend to prove the matter. To ensure clarity and completeness of the hearing record, questions directed to the claimant or beneficiary, or to witnesses, will be framed to explore fully the basis for entitlement rather than with intent to refute evidence or to discredit testimony. The employee, or employees, conducting the hearing will ensure that all testimony is given under oath or affirmation.
(3) If a hearing is conducted, VA will make a decision based upon evidence and testimony presented during the hearing in addition to all other evidence of record.
(e)
(2) All expenses incurred by the claimant or beneficiary in conjunction with the hearing are the responsibility of the claimant or beneficiary.
(3) If a claimant or beneficiary is unable to attend a scheduled hearing, he or she may contact VA in advance to reschedule the hearing for a date and time which is acceptable to both parties.
(4) If a claimant or beneficiary fails to report for a scheduled hearing
(i) Without good cause, VA will decide the claim based on the evidence of record without a hearing.
(ii) With good cause, VA will reschedule the hearing after the claimant or beneficiary informs VA that the cause of the failure to report has resolved and requests that VA reschedule the hearing. Examples of good cause include, but are not limited to, illness or hospitalization of the claimant or beneficiary, or death of an immediate family member.
(f)
(1) If the beneficiary does not timely request a hearing, or fails without good cause to report for a scheduled hearing, VA will make the decision on the proposed action based on the evidence of record.
(2) If VA receives a request for a hearing no later than 30 days after the date of the notice of the proposed action, VA will send the beneficiary written notice of the time and place for the hearing.
(3) VA will send the written notice of the time and place of the hearing at least 10 days before the scheduled hearing date. The beneficiary may waive the 10-day advance notice requirement.
(4) If a beneficiary timely requests a hearing, VA will not make the decision reducing, discontinuing, or otherwise adversely affecting benefits before the scheduled date of the hearing.
(5) If a hearing is conducted, VA will make the decision based upon evidence and testimony presented during the hearing in addition to all other evidence of record.
Cross Reference: See §§ 5.162, 5.163, 5.175, 5.83(a), and 5.177 for the procedures VA follows when revising decisions and the effective date of these decisions.
(a)
(i) Detailed reasons for the proposed adverse action and a statement of the material facts;
(ii) The right to a hearing on the proposed adverse action as provided in § 5.82(f); and
(iii) Notification that the beneficiary has 60 days to submit evidence or argument to show why VA should not take the proposed adverse action.
(2) If VA receives no additional evidence or argument within the 60-day period, or the evidence or argument received does not demonstrate that the proposed adverse action should not be taken, then VA will take the action and provide notice to the beneficiary in accordance with paragraph (b) of this section.
(b)
(1) If a claim is not fully granted, the reason for the decision and a summary of the evidence considered;
(2) The effective date of the decision;
(3) The right to a hearing on any issue involved in the claim, in accordance with § 5.82;
(4) The right to representation in accordance with § 5.80; and
(5) The right to appeal, including how and when to exercise this right to appeal. (Appellate procedures are found in part 20 of this chapter.)
Cross Reference: See §§ 5.162, 5.163, 5.175, 5.83(a), and 5.177 for procedures applicable to the type of action VA is taking.
(c)
(1)(i) The adverse action results solely from information or statements, provided orally or in writing to VA by the beneficiary or the fiduciary, as to income, net worth, dependency, or marital status;
(ii) The information or statements are factual and unambiguous; and
(iii) The beneficiary or fiduciary has knowledge or notice that such information or statements may be used to calculate benefit amounts. See § 5.130 for procedures governing the submission by a beneficiary or by his or her fiduciary of oral or written information or statements.
(2) The adverse action results from the beneficiary's or fiduciary's failure to return an eligibility verification report as required by § 5.708.
(3) VA receives credible evidence indicating that a beneficiary has died. However, VA is not required to send a notice of discontinuance of benefits (contemporaneous or otherwise) if VA receives:
(i) A death certificate;
(ii) A terminal hospital report verifying the death of a beneficiary;
(iii) A claim for VA burial benefits;
(iv) An “Application for United States Flag for Burial Purposes”; or
(v) A “Record of Interment” from the National Cemetery Administration.
(4) The adverse action results from a beneficiary's written and signed statement renouncing benefits (see § 5.683 on renouncement).
(5) The adverse action results from a veteran's written and signed statement that he or she has returned to active military service. The statement must include each of the following:
(i) The branch of service;
(ii) The date of reentry into service;
(iii) The veteran's acknowledgement that receipt of active military service pay precludes receipt for the same period of VA disability compensation or pension. See § 5.746 regarding active service pay.
(6) The adverse action results from a garnishment order issued under 42 U.S.C. 659(a), allowing the U.S. to consent to garnishment or withholding of pay for members of the Armed Forces and, in certain circumstances, disability compensation, to enforce child support and alimony obligations. See 42 U.S.C. 659(h)(1)(A)(ii)(V) for the limited circumstance of garnishing certain disability pay.
(a) (1) If VA reduces or discontinues benefits, or takes other action adverse to a beneficiary, based upon written information or an oral statement provided by the beneficiary or fiduciary, VA will retroactively restore such benefits if the beneficiary or fiduciary asserts, no later than 30 days after the date of the VA notice of adverse action, either of the following:
(i) The written information or oral statement is inaccurate.
(ii) The written information or oral statement was not provided by the beneficiary or his or her fiduciary.
(2) This paragraph (a) does not limit the right of a beneficiary to have benefits retroactively restored based on evidence submitted within the 1-year appeal period under § 5.153.
(b) Restoration of benefits under this section does not preclude VA from later taking action that adversely affects the beneficiary's receipt of benefits based on the written information or oral statements referred to in paragraph (a) of this section.
(a)
(1)
(i) The claimant's name; his or her relationship to the veteran, if applicable;
(ii) Sufficient service information for VA to verify the claimed service, if applicable;
(iii) The benefit claimed and any medical condition(s) on which it is based;
(iv) The claimant's signature; and
(v) In claims for nonservice-connected disability or death pension and parents' dependency and indemnity compensation, a statement of income.
(2) For purposes of paragraph (c)(4)(i) of this section,
(3) Information means non-evidentiary facts, including, but not limited to the following:
(i) The claimant's Social Security number or address;
(ii) The name and military unit of a person who served with the veteran; or
(iii) The name and address of a medical care provider who may have evidence pertinent to the claim.
(b)
(ii) The provisions of this paragraph (b) apply to all applications for benefits under part 5 of this chapter unless VA awards the claimant the maximum benefit without providing notice of any information and evidence that is necessary to substantiate the claim. (For purposes of this section, the term “maximum benefit” means the highest evaluation assignable in accordance with the evidence of record, as long as such evidence is adequate for rating purposes and sufficient to grant the earliest possible effective date in accordance with 38 U.S.C. 5110.) If substantiating evidence is required with respect to the veracity of a witness or the authenticity of documentary evidence timely filed, there will be allowed for the submission of such evidence 1 year after the date of the request therefor. However, any evidence to enlarge the proofs and evidence originally submitted is not considered substantiating evidence.
(2) If VA receives an incomplete application for benefits, it will send written notice to the claimant of the information necessary to complete the application and will defer assistance to substantiate the claim until the claimant submits this information.
(3) If the information VA requests under paragraph (b)(1) or (2) of this section, or the evidence requested under paragraph (b)(1) of this section, is not received by 1 year after the date of the notice, pension, compensation, or dependency and indemnity compensation may not be paid by reason of that application. If a claimant submits information or evidence concerning his or her mailing address, that is not considered information or evidence under this paragraph (b).
(4) No duty to provide the notice described in paragraph (b)(1) of this section arises:
(i) Upon receipt of a Notice of Disagreement; or
(ii) When, as a matter of law, entitlement to the benefit claimed cannot be established.
(c)
(1)
(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from non-Federal agency or department custodians. The claimant must provide enough information to identify and locate the existing records, including the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided.
(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the person, company, agency, or other custodian holding the records.
(2)
(i) The claimant must cooperate fully with VA's reasonable efforts to obtain relevant records from Federal agency or department custodians. If requested by VA, the claimant must provide enough information to identify and locate the existing records, including the custodian or agency holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided. In the case of records requested to corroborate a claimed stressful event in service, the claimant must provide information sufficient for the records custodian to conduct a search of the corroborative records.
(ii) If necessary, the claimant must authorize the release of existing records in a form acceptable to the custodian or agency holding the records.
(3)
(4)
(A) Contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability;
(B) Establishes that the veteran suffered an event, injury or disease in service, or has a disease or symptoms of a disease listed in §§ 5.261 through 5.268 manifesting during an applicable presumptive period provided the claimant has the required service or triggering event to qualify for that presumption; and
(C) Indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.
(ii) Paragraph (c)(4)(i)(C) of this section could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service.
(iii) This paragraph (c)(4) applies to a claim to reopen a finally adjudicated claim only if new and material evidence is presented or secured.
(d)
(1) The claimant's ineligibility for the benefit sought because of lack of qualifying service, lack of veteran status, or other lack of legal eligibility;
(2) Claims that are inherently incredible or clearly lack merit; and
(3) An application requesting a benefit to which the claimant is not entitled as a matter of law.
(e)
(i) The identity of the records VA was unable to obtain;
(ii) An explanation of the efforts VA made to obtain the records;
(iii) A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and
(iv) A notice that the claimant is ultimately responsible for providing the evidence.
(2) If VA becomes aware of the existence of relevant records before deciding the claim, VA will send notice to the claimant of the records and request that the claimant provide a release for the records. If the claimant does not provide any necessary release of the relevant records that VA is unable to obtain, VA will request that the claimant obtain the records and provide them to VA.
(f)
(g)
(a)
(b)
(a)
(b)
(c)
(d)
(a)
(b)
(1)
(2)
(c)
(1) A claimant's personal copies of discharge papers, service treatment records, or other evidence of military service;
(2) State Adjutant Generals' offices or State historical commissions;
(3) The Office of Personnel Management (if the veteran was employed by a Federal or State agency), a private employer, or the Railroad Retirement Board (if the veteran was employed by a railroad);
(4) The Social Security Administration;
(5) VA or military files or records relating to an earlier claim filed with VA;
(6) Service medical personnel or people who knew the veteran during his or her service;
(7) State or local accident and police reports from the time and place the veteran served;
(8) Employment physical examinations or insurance examinations;
(9) Hospitals, clinics, or private physicians who treated a veteran, especially soon after separation, or pharmacies that filled prescriptions;
(10) Letters written during service or photographs taken during service.
(a)
(b)
(c)
(d)
(a) In computing the time limit for any action required of a claimant or beneficiary, including the filing of claims or evidence requested by VA, the first day of the specified period will be excluded and the last day included. This rule is applicable in cases in which the time limit expires on a workday. Where the time limit would expire on a Saturday, Sunday, or Federal holiday, the next succeeding workday will be included in the computation.
(b) The first day of the specified period referred to in paragraph (a) of this section will be the date of mailing of notice to the claimant or beneficiary of the action required and the time limit therefor. The date of the letter of notice will be considered the date of mailing for purposes of computing time limits. Regarding appeals, see §§ 20.302 and 20.305 of this chapter.
(a)
(b)
(1) If the beneficiary fails to provide his or her own Social Security number or TIN, then VA will discontinue benefits.
(2) If the beneficiary fails to provide the Social Security number or TIN of any dependent to or for whom benefits are being paid, then VA will reduce the benefits payable by the amount payable to or for such dependent. However, VA may still consider that dependent's income for purposes of determining entitlement to income-based benefits.
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(1)
(2)
(i) The disability is static;
(ii) Medical examinations or hospital reports show that the symptoms and findings of the disability have persisted without significant improvement for at least 5 years;
(iii) The beneficiary has reached age 55, except in unusual circumstances;
(iv) The disability in question is rated at a prescribed mandatory minimum level under the Schedule for Rating Disabilities in part 4 of this chapter; or
(v) The combined disability rating would not decrease even if a reexamination for the specific disability at issue would result in a decreased rating for that disability; however, if a reexamination potentially would reduce an award of special monthly compensation, reexamination may be warranted even if the combined disability rating would not be reduced. See § 4.25 of this chapter for information on “combined ratings” and how they are calculated.
(3)
(d)
(1) If the beneficiary has reached age 55, VA will schedule a reexamination only in unusual circumstances.
(2) VA generally will not schedule a reexamination if it is obvious that the disability is unlikely to improve over the long term or the medical history has confirmed the presence of a permanent and total nonservice-connected disability. In other cases, VA will reexamine only in unusual circumstances.
(a)
(b)
(1) For an original disability compensation claim, VA will make a decision based on the evidence of record.
(2) For any other original claim, reopened claim, or a claim for increase, VA will deny the claim.
(c)
(2)
(i) The highest disability rating assigned to that disability that is protected under § 5.170(a).
(ii) The rating specified as the minimum rating permitted for that disability under the Schedule for Rating Disabilities in part 4 of this chapter.
(iii) Zero percent, unless the rating is protected under the provisions of § 5.170 or the Schedule for Rating Disabilities in part 4 of this chapter prescribes a minimum rating for the disability or disabilities.
Cross Reference: See § 5.170, “Calculation of 5-year, 10-year, and 20-year protection periods”.
(d)
(2)
(3)
(4)
(5)
(e)
(f)
Except as otherwise provided, the following rules govern the certification of continuing eligibility.
(a)
(b)
(c)
(d)
(a)
(2)
(3)
(b)
(2)
(3)
(4)
(i) Identifies himself or herself as a VA employee who is authorized to receive the statement, which means the VA employee must be authorized to take actions under § 2.3 of this chapter or § 5.5;
(ii) Verifies the identity of the provider as the beneficiary or his or her fiduciary or authorized representative by obtaining specific information about the beneficiary that is contained in the beneficiary's VA records, such as Social Security number, date of birth, branch of military service, dates of military service, or other information;
(iii) Informs the provider that VA will use the statement to determine entitlement and to calculate benefit amounts; and
(iv) During or following the conversation in which the beneficiary, representative, or fiduciary provides the statement, the VA employee documents in the beneficiary's VA record all of the following elements:
(A) The specific statement provided;
(B) The date such statement was provided;
(C) The identity of the provider;
(D) The steps taken to verify the identity of the provider as the beneficiary or his or her fiduciary or authorized representative; and
(E) The employee's statement that he or she informed the provider that VA will use the statement to determine entitlement and to calculate benefit amounts.
(c)
(1) Made at a VA hearing; or
(2) Recorded by VA personnel in reports of medical treatment or examination.
(a)
(b)
(c)
(a)
(b)
(1)
(2)
(c)
(1) Documents approved by the Deputy Minister of Veterans Affairs for the Department of Veterans Affairs, Ottawa, Canada;
(2) Documents bearing the signature and seal of an officer authorized to administer oaths for general purposes;
(3) Documents signed before a VA employee authorized to administer oaths under § 2.3 of this chapter;
(4) Affidavits prepared in the Republic of the Philippines that are certified by a VA representative who is located there and who has the authority to administer oaths; and
(5) Copies of public, church, or other religious-context records from any foreign country used to establish birth, adoption, marriage, annulment, divorce, or death, provided that the documents have the signature and seal of the custodian of these records and there is no contrary evidence of record that tends to cast doubt on the correctness of the documents.
(d)
(1) An officer of the Department of State authorized to authenticate documents; or
(2) The Consul of a friendly government whose signature and seal is verified by the Department of State.
(e)
(a)
(b)
(c)
(1) Use information obtained from a financial institution for any purpose other than the administration of benefits programs; or
(2) Share this information with any other person, group, or government entity.
VA will accept a signature by mark or thumbprint if it is:
(a) Witnessed by two people who sign their names and give their addresses;
(b) Witnessed by an accredited agent, attorney, or service organization representative;
(c) Certified by a notary public or any other person having the authority to administer oaths for general purposes; or
(d) Certified by a VA employee who has been delegated authority by the Secretary under 38 CFR 2.3.
(a)
(b)
Cross Reference: § 5.1, for the definition of “certified statement” and § 5.1 for the definition of “State”.
Except as provided in § 5.104(a), Certifying continuing eligibility to receive benefits, if a claimant does not furnish evidence in connection with a claim within 1 year after the date VA requests it, the claim will be considered
Cross Reference: § 5.150 General effective dates of awards or increased benefits.
(a)
(2)
(i) The service department determined that the veteran was not a POW;
(ii) The service department did not make a determination regarding POW status; or
(iii) The detention or internment of the veteran occurred during a period other than a period of war.
(3)
(b)
(i) An enemy, the agents of an enemy, or a hostile force, during a period of war; or
(ii) A foreign government or its agents, or a hostile force, under circumstances comparable to the circumstances under which a veteran generally has been forcibly detained or interned by enemy governments during periods of war. Such circumstances include, but are not limited to, physical hardships or abuse, psychological hardships or abuse, malnutrition, and unsanitary conditions. In the absence of evidence to the contrary, VA will consider that each individual member of a particular group of detainees or internees experienced the same circumstances as those the group experienced generally.
(iii)
(2)
(3)
Cross Reference: § 5.1, for the definition of “agency of original jurisdiction”, and § 5.1 for the definition of “willful misconduct”. § 5.611, Philippine service: Determination of periods of active military service, including, but not limited to, periods of active military service while in prisoner of war status.
(a)
(b)
(c)
(1) The former POW's physical condition before capture;
(2) The circumstances during the former POW's detention or internment;
(3) The changes in the former POW's physical condition following release from detention or internment; or
(4) The existence of signs and symptoms consistent with a claimed disability following the former POW's release from detention or internment.
(d)
(e)
(f)
Cross References: § 5.140(b), concerning definition of “former POW”; § 5.264(b) and (c), concerning diseases VA presumes are service connected in former prisoners of war.
(a)
(1) The date of receipt of the claim for the benefit; or
(2) The date entitlement arose. For purposes of this part,
(b)
(c)
(a)
(1) Paragraph (b) of this section;
(2) Provisions for claims or evidence received in a foreign country by a Department of State representative (§ 5.132(a));
(3) Provisions for applications, claims, and exchange of evidence with the Social Security Administration (§ 5.131(a) or (b)); or
(4) Provisions of the Department of Defense relating to initial claims filed at or before separation.
(b)
(a)
(b)
(1) The claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue; and
(2) Such eligibility existed continuously from that date to the date of the administrative determination of entitlement or of the claimant's request for review.
(c)
(i) The effective date of the liberalizing law or VA issue; or
(ii) The date entitlement arose.
(2)
(3)
(4)
(d)
(1)
(2)
VA will consider information or evidence received before the expiration of the period for initiating or perfecting an appeal to the Board of Veterans' Appeals (the Board), or before the Board renders a decision (if a timely appeal was filed), without regard to whether the information or evidence is “new and material”. The effective date of an award based on such evidence will be as though the former decision had not been rendered.
Cross Reference: § 5.150, General effective dates of awards or increased benefits. For information on how to appeal to the Board, see 38 CFR parts 19 and 20.
(a)
(b)
(1) Line of duty;
(2) Character of discharge;
(3) Relationship;
(4) Dependency;
(5) Domestic relations issues such as marriage, divorce, adoption, and child custody and support;
(6) Homicide; and
(7) Findings of fact of death or presumption of death.
Cross Reference: § 5.1, for the definition of “agency of original jurisdiction”.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Cross Reference: § 5.1, for the definition of “agency of original jurisdiction”.
(a)
(1) Where an award was based on an act of commission or omission by the payee, or with his or her knowledge, see §§ 5.164 and 5.175;
(2) Where there is a change in law or VA issue, or a change in interpretation of law or VA issue, see § 5.152;
(3) Where the evidence establishes that service connection was clearly illegal; or
(4) As otherwise provided in this part.
(b)
(c)
(2) To be reviewable under paragraph (b) of this section, the decision may, but need not, be final as defined in § 5.1.
(3) VA may reverse or revise a final decision only if there was CUE in that decision.
(d)
(e)
(1) Overlooking facts;
(2) Clerical errors; or
(3) Failure to follow or properly apply VA regulations or statutes.
(f)
Cross Reference: § 5.1, for the definition of “agency of original jurisdiction”.
If the Veterans Service Center Manager (VSCM) within an agency of original jurisdiction (AOJ) believes that revision of a previous AOJ decision is warranted, the VSCM will recommend the revision to the Director of the Compensation Service of the Veterans Benefits Administration for a binding determination. This section only applies to the revision of an AOJ decision that is not final and has not been the subject of a substantive appeal. The revision must be based on the VSCM's difference of opinion with the previous decision, and must lead to a decision more favorable to the claimant than the previous decision.
Cross Reference: § 5.1, for the definition of “agency of original jurisdiction”.
(a)
(b)
(1) An erroneous statement by a veteran regarding income;
(2) Failure to notify VA of a changed circumstance (such as death or marriage of a dependent);
(3) Failure to notify VA of an increase in income; or
(4) Obtaining a benefit by fraud.
Cross Reference: § 5.1, for the definition of “agency of original jurisdiction”, and § 5.1, for the definition of “fraud.”
(a)
(1) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of this section are met;
(2) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and
(3) Declassified records that could not have been obtained because the records were classified when VA decided the claim.
(b)
(c)
(d)
If VA revises a decision based on difference of opinion under § 5.163,,the effective date of the revision is the date the benefits would have been paid if the previous decision had been favorable.
(a)
(b)
(1) The effective date of the award;
(2) The day preceding the act of commission or omission; or
(3) The date entitlement to the benefit ceased.
(c)
(a)
(b) A qualifying period for protection of service connection or of a disability rating begins on the date the award or grant of benefits is effective and ends, after due process has been provided, on the date that service connection would be severed or the rating would be reduced.
(c)
Cross Reference: § 5.746, Prohibition against receipt of active military service pay and VA benefits for the same period.
(d)
(e)
(a)
(b)
(c)
(1) An examination shows material improvement in the disability under the ordinary conditions of life, as explained in paragraph (d) of this section; and
(2) The evidence shows that it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life.
(d)
(1)
(2)
(i) Arteriosclerotic heart disease;
(ii) Bronchial asthma;
(iii) Epilepsy;
(iv) Gastric or duodenal ulcer;
(v) Bipolar disorders or other psychotic reaction;
(vi) Anxiety disorders; and
(vii) Many skin diseases.
(3)
(4)
(5)
(i) The entire case history;
(ii) Medical-industrial history;
(iii) Records related to treatment of intercurrent diseases and exacerbations, including, but not limited to, hospital reports, bedside examinations, examinations by designated physicians, and examinations that reflect the results of tests conducted by laboratory facilities and the cooperation of specialists in related lines;
(iv) Private and VA medical examination records; and
(v) Special examinations indicated as a result of general examination.
(6)
(e)
Cross Reference: § 5.102, concerning VA criteria for scheduling reexaminations.
(a)
(b)
(c)
Cross Reference: §§ 5.1, for the definition of “fraud”; 5.164, Standard of proof for reducing or discontinuing a benefit payment or for severing service connection based on a beneficiary's act of commission or omission.
VA will not apply a revision of the schedule for rating disabilities to reduce a disability rating existing on the effective date of the revision unless medical evidence establishes that the disability has actually improved.
(a)
(b)
Cross Reference: § 5.1, for the definition of “fraud”.
(a)
(i) The original grant was obtained by fraud; or
(ii) It is clear from military records that the person identified as a veteran did not have the requisite qualifying military service or the veteran's discharge from service is of a type to preclude service connection as described in § 5.30.
(2) The protection afforded in this section applies to determinations of service connection that were the basis for grants of entitlement to dependency and indemnity compensation (DIC), and to disability compensation or DIC granted under 38 U.S.C. 1151.
(b)
(2) A change in diagnosis may be accepted as a basis for severance of service connection if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis that was the basis of the award of service connection is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion that the diagnosis is erroneous.
(c)
Cross Reference: § 5.1, for the definition of “fraud”.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(1) A change in law or a VA administrative issue or a change in interpretation of law or VA issue; if so, apply § 5.152;
(2) An award that was erroneous due to an act of commission or omission by the beneficiary or with the beneficiary's knowledge; if so, apply § 5.167(b), regarding effective dates for reducing or discontinuing a benefit payment, or for severing service connection, based on commission or omission, or based on administrative error or error in judgment; or
(3) An award that was based solely on administrative error or an error in judgment by VA; if so, apply § 5.166. However, this paragraph (i)(3) does not apply to severance of service connection under paragraph (c) of this section or to reduction of disability compensation under paragraph (e) of this section.
(a)
(b)
(1) The date (month, day, and year) and place (city and state, or country if outside of a state) of the:
(i) Marriage;
(ii) Marriage termination; or
(iii) Birth;
(2) The full name of the person whose dependency is asserted, and the person's relationship to the claimant;
(3) The Social Security number of the person whose dependency is asserted; and
(4) The name and address of the person who has custody of any child whose dependency is asserted, if the child does not reside with the claimant.
(c)
(1) The statement does not contain all of the applicable information required by paragraphs (b)(1) through (4) of this section;
(2) The claimant or beneficiary does not reside in a State;
(3) VA questions the accuracy of all or part of the statement;
(4) The statement conflicts with other evidence in the record; or
(5) There is a reasonable indication, either in the statement or in other evidence in the record, of fraud or misrepresentation of the relationship in question.
(d)
Cross Reference: § 5.1, for the definitions of “custody of a child,” “fraud,” and “State.”
(a)
(1) Marriage;
(2) Annulment of marriage;
(3) Divorce;
(4) Death of a dependent; or
(5) Change in status of a living child affecting his or her status as a dependent.
(b)
Cross Reference: § 5.104, “Certifying continuing eligibility to receive benefits
(a)
(1)
(2)
(3)
(b)
(1)
(2)
(3)
(i) The date of the adoption placement agreement;
(ii) The date of the interlocutory (temporary) adoption decree; or
(iii) The date of the final adoption decree.
(4)
(5)
(i) Benefits for a dependent are claimed on the same benefit application used to file the claim for the original award of benefits; or
(ii) VA receives information to establish a dependent no later than 1 year after the effective date of the original award of benefits.
Cross Reference: § 5.235, Effective date of an award of benefits due to termination of a child's marriage.
Except for Old-Law Pension or Section 306 Pension, the effective date of a reduction or discontinuance based on an event that changes the status of a dependent will be determined as follows:
(a)
(b)
(c)
(1) Child reaches age 18 or 23. See § 5.231.
(2) Child no longer qualifies as adopted child. See § 5.232.
(3) Stepchild leaves veteran's household. See § 5.233.
(4) Child no longer permanently incapable of self support. See § 5.234.
(d)
Cross Reference: § 5.477, Effective dates of reductions and discontinuances of Old-Law Pension and Section 306 Pension.
A valid marriage for VA purposes is one between persons of the opposite sex that was:
(a) Valid under the law of the place where the persons lived at the time of the marriage;
(b) Valid under the law of the place where the persons lived at the time entitlement to benefits arose; or
(c) Deemed valid under § 5.200, for claims involving a surviving spouse.
(a)
(b)
(c)
(1) A copy or abstract of the public record of marriage, or a copy of the church or other religious-context record of marriage. The copy or abstract must include the names of the persons married, the date and place of the marriage, and the number of any prior marriages if shown on the official record.
(2) An official report from the service department if the veteran is a party to the marriage and the marriage took place during the veteran's military service.
(3) An affidavit from the official or clergyman who performed the ceremony.
(4) The original marriage certificate if VA is satisfied that it is genuine and free from alteration.
(5) The affidavits or certified statements of two or more eyewitnesses to the ceremony.
(6) For informal or common-law marriages in jurisdictions where marriages other than by ceremony are recognized:
(i) A copy of the State's acknowledgement of registration, if the State has a procedure for registering informal or common-law marriages; or
(ii) The affidavit or certified statement of one of the parties to the marriage, giving all the facts and circumstances concerning the marriage. This includes details of the agreement made by the parties at the time they began living together, the length of time in months and years they have lived together, the location of each residence and the dates the parties lived there, and whether a child was born of the relationship. Such affidavits or certified statements must be accompanied by affidavits or certified statements from two or more persons who know from personal observation the relationship that existed between the parties. The affidavits or statements of these persons must include when the parties lived together, the places of the parties' residence, whether they referred to themselves as married in the communities they lived in, and whether those communities generally accepted them as being married.
(7) Any other evidence that would reasonably allow a VA decisionmaker to conclude that a valid marriage did occur.
Cross Reference: § 5.1, for the definition of “certified statement,” “child born of the marriage,” and “State.” § 5.200, Surviving spouse: requirement of valid marriage to veteran.
If there is conflicting evidence of record regarding marriage termination, or the evidence of record is contested by an interested party, a claimant must file a statement under § 5.181. If the statement is insufficient under § 5.181(c), VA will accept as additional supporting evidence any of the following items:
(a) Proof of the former spouse's death;
(b) Proof of divorce as specified in § 5.194(b) or (c), as applicable; or
(c) A court-certified copy of the final decree of annulment or a court-certified abstract of such a decree.
(a)
(i) One of the parties named in the divorce decree; or
(ii) Any person whose entitlement to benefits would be affected if VA recognizes the decree as valid.
(2) In case of such a challenge, VA will make an independent decision about the validity of the divorce decree based on the criteria in paragraph (b) or (c) of this section, as applicable.
(b)
(1) The person who obtained the divorce had a permanent residence in the place where the divorce decree was issued;
(2) The person satisfied all the legal requirements for obtaining a divorce in the place in which the divorce decree was issued; and
(3) VA has the original divorce decree, a court-certified copy of the original decree, or a court-certified abstract of the original decree.
(c)
(i) The law of the place where the parties were living when they were married recognizes the validity of the divorce decree; or
(ii) The law of the place where the parties were living when the right to benefits arose recognizes the validity of the divorce decree.
(2)
(i) The law of the State in which the persons lived at the time they obtained the divorce decree recognizes the decree as valid; and
(ii) No court of last resort has found the divorce decree invalid in the places where the persons lived when they were married or when the right to benefits arose.
Cross Reference: § 5.1, for the definition of “State.”
(a)
(2)
(b)
(1) The copy or abstract of the decree discloses irregularities;
(2) VA has reason to question the court's authority to issue the annulment decree; or
(3) There is evidence to show that the annulment might have been obtained by fraud of either party or by collusion of the parties.
Cross Reference: § 5.1, for the definition of “certified statement”, and § 5.1 for the definition of “fraud”.
When a reduction or discontinuance of Improved Pension, disability compensation, or dependency and indemnity compensation is required based on marriage or remarriage, VA will pay the reduced rate or discontinue benefits as follows:
(a)
(b)
Cross Reference: § 5.477, Effective dates of reductions and discontinuances of Old-Law Pension and Section 306 Pension.
(a)
(1) The requirements of § 5.191; or
(2) The requirements of paragraph (b) of this section
(b)
(1)
(2)
(i) Only the person's knowledge at the time of the attempted marriage, but not knowledge acquired after the marriage, is relevant.
(ii) Legal impediments include, but are not limited to:
(A) One of the parties being underage;
(B) One of the parties lacking mental capacity to contract marriage;
(C) The parties being too closely related to marry under state law;
(D) Failing to comply with procedural prerequisites under State law, such as obtaining a blood test or marriage license, or fulfilling a length-of-residence requirement;
(E) One of the parties having a prior undissolved marriage at the time of the attempted marriage; or
(F) In a jurisdiction that does not recognize common-law marriages, the parties' failing to marry through a marriage ceremony.
(iii) If the person files a signed statement that he or she had no knowledge of the impediment to the marriage but there is evidence showing otherwise, VA will not deem the marriage valid.
(3)
(4)
Cross Reference: § 5.1, for the definition of “State”. § 5.432, Deemed valid marriages and contested claims for Improved Death Pension.
(a)
(1) The person was married to the veteran at the time of the veteran's death;
(2) The marriage was valid under § 5.191; and
(3) The person “lived continuously” with the veteran under paragraph (b) of this section, from the date of marriage to the date of the veteran's death.
(b)
(1)
(2)
(A) The person was not at fault in causing the separation; and
(B) The veteran brought about the separation or the veteran's misconduct caused the separation.
(ii)
(3)
(4)
(5)
(6)
Cross Reference: § 5.1, for the definition of “State”.
(a)
(1) The person has remarried. In determining eligibility for benefits, VA will accept the decision of a Federal court that a person has not remarried if the decision was in a case to which the U.S. Government was a party.
(2) The person has held himself or herself out to the public as the spouse of another person as described in paragraph (b) of this section.
(b)
(i) Lived with a person of the opposite sex; and
(ii) Held himself or herself out to the public, through a pattern or course of conduct, as the spouse of that person.
(2)
(3)
(i) The date the surviving spouse no longer held himself or herself out under paragraph (b)(1) of this section; or
(ii) The date VA receives a claim for benefits from the surviving spouse.
(c)
(1) Void (see § 5.196); or
(2) Annulled by a court having authority to annul the marriage, unless VA determines that the annulment was obtained through fraud by either party or by collusion of the parties.
(d)
(1) Remarriage that ended by death before November 1, 1990;
(2) Remarriage that ended by divorce provided that proceedings began before November 1, 1990, unless VA determines that the divorce was obtained through fraud by the surviving spouse or by collusion of the parties;
(3) Remarriage that was dissolved by a court with authority to render divorce decrees in legal proceedings begun by the surviving spouse before November 1, 1990, unless VA determines that the divorce was obtained through fraud by the surviving spouse or by collusion of the parties; or
(4) The surviving spouse has held himself or herself out as the spouse of another person, if competent, credible evidence shows that the surviving spouse stopped living with that person and holding himself or herself out as that person's spouse before November 1, 1990. Such evidence may consist of the surviving spouse's certified statement of the fact.
(e)
(i) Remarriage ended by death;
(ii) Remarriage ended by divorce, unless VA determines that the divorce was obtained through fraud by the surviving spouse or by collusion of the parties; or
(iii) The surviving spouse has held himself or herself out as the spouse of another person, if competent, credible evidence shows that the surviving spouse stopped living with that person and holding himself or herself out as that person's spouse. Such evidence may consist of the surviving spouse's certified statement of the fact.
(2)
(f)
(2) No payment may be made under this paragraph (f) for any period before January 1, 2004.
Cross Reference: § 5.1, for the definition of “competent evidence” and § 5.1, for the definition of “fraud”.
(a)
(1) The date the surviving spouse and the other person stopped living together; or
(2) The date VA receives a claim from the surviving spouse for resumption of benefits.
(b)
(1) The date the annulment became effective, if the surviving spouse files a claim for resumption of benefits no later than 1 year after that date; or
(2) The date VA receives a claim for resumption of benefits, if the surviving spouse files a claim for resumption of benefits more than 1 year after the date the annulment became effective.
(c)
(1) The date the divorce became effective if the surviving spouse files a claim for resumption of benefits no later than 1 year after that date; or
(2) The date VA receives a claim for resumption of benefits, if the surviving spouse files a claim for resumption of benefits more than 1 year after the date the divorce became effective.
(d)
(1) The date of death, if the surviving spouse files a claim for resumption of benefits no later than 1 year after that date; or
(2) The date VA receives a claim for resumption of benefits, if the surviving spouse files a claim for resumption of benefits more than 1 year after the date of death.
A person must meet the following criteria to be recognized as a child of the veteran for benefit purposes:
(a)
(b)
(1) The person, before reaching 18 years of age, became permanently incapable of self-support because of physical or mental disability (see § 5.227); or
(2) The person is under 23 years of age and is pursuing a course of instruction at an educational institution approved by VA. For purposes of this section, the term
(c)
(1)
(2)
(3)
(i) The veteran's surviving spouse after the veteran's death under circumstances described in § 5.223;
(ii) The veteran before the person reached 18 years of age;
(iii) The veteran and became permanently incapable of self-support before reaching 18 years of age and was a member of the veteran's household at the time he or she became 18 years of age; or
(iv) The veteran before the person reached 23 years of age, and who is pursuing a course of instruction as described in paragraph (b)(2) of this section.
(d)
Cross Reference: § 5.1, for the definition of “State”. § 5.222, Evidence to establish an adopted child relationship.
(a)
(1)
(2)
(b)
(1)
(2)
(i) A man's statement in writing and signed by him acknowledging himself as the natural father of the child;
(ii) Evidence showing that a specific man has been identified as the child's father by judicial decree; or
(iii) Other competent evidence showing that a child is the natural child of a specific man, including any of the following evidence:
(A) A copy of the public record of birth or a religious-context record documenting the birth of the child (such as a church record of baptism), showing that a specific man was the informant and was named as the father of the child;
(B) Statements from persons who know that a specific man accepted the child as his own; or
(C) Service department records or public records, such as records from schools or welfare agencies, showing that, with his knowledge, a specific man was named as the child's father.
Cross Reference: § 5.1, for the definition of “competent evidence”.
This section states how to establish an adopted child relationship. A claimant or beneficiary cannot establish an adopted child relationship with a statement alone. See also § 5.220(c)(3). VA will require the first type of evidence listed in this section as proof of this status, if obtainable. If this type of evidence is unobtainable, then the relationship may still be proven by the next type of obtainable evidence listed.
(a) A final adoption decree.
(b) A revised birth certificate showing the child as the child of the adopting parent in cases where release of adoption documents or information is prohibited or requires petition to a court, such as records sealed by a court.
(c) An interlocutory adoption decree, provided that the decree has not been rescinded or superseded and the child remains in the custody of the adopting parent during the interlocutory period.
(d) An adoption placement agreement between the adopting parent and an agency authorized by law to arrange adoptions. VA will recognize such an agreement for the duration of its term, provided that the adopting parent maintains custody of the child.
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(b)
(1) The adoption took place under a decree issued no later than 2 years after the date of the veteran's death;
(2) The person adopted was a member of the veteran's household at the time of the veteran's death; and
(3) At the time of the veteran's death the person adopted was not receiving regular contributions from any public or private welfare organization that furnishes services or assistance for children or from a person other than the veteran or the veteran's spouse that were sufficient to provide for the major portion of the child's support.
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(b)
(1)
(i) A statement over the signature of the judge or the clerk of the court setting forth the child's former name and the date of adoption;
(ii) A certified statement by the veteran, the veteran's surviving spouse, a person receiving an apportionment of benefits, or any of their fiduciaries setting forth the child's former name, the child's date of birth, and the date and fact of adoption together with evidence indicating that the child's original public record of birth has been removed from such records.
(2)
Cross Reference: § 5.1, for the definition of “certified statement”.
(a)
(2)
(3)
(b)
(i) The person was under age 18 when adopted;
(ii) The veteran provides one-half or more of the person's support;
(iii) The person's natural parent does not have custody of the person unless the natural parent is also the veteran's spouse; and
(iv) The person lives with the veteran or with the divorced spouse of the veteran if the divorced spouse is also the natural or adoptive parent. This requirement does not apply when the person is attending an educational institution full-time, or when the person, the veteran, or the divorced spouse is confined in a hospital, nursing home, other institution, or other health-care facility.
(2)
(c)
(d)
(2)
(i) The person was under age 18 when adopted; and
(ii) All of the following conditions were met for at least 1 year before the veteran's death:
(A) The veteran provided one half or more of the person's support;
(B) The person's natural parent did not have custody of the person unless the natural parent is the veteran's surviving spouse; and
(C) The person lived with the veteran or with the divorced spouse of the veteran if the divorced spouse is also the natural or adoptive parent. This requirement does not apply when the person is attending an educational institution full-time, or when the person, the veteran, or the divorced spouse is confined in a hospital, nursing
(3)
Cross Reference: § 5.1, for the definition of “nursing home” and § 5.1, for the definition of “State”.
(a)
(1)
(2)
(b)
(1) The stepchild is a member of the veteran's household, as described in paragraph (c) of this section;
(2) The stepchild is related to the spouse of the veteran by birth or adoption; and
(3) The veteran is, or was at the time of his or her death, married to the natural or adoptive parent of the stepchild.
(c)
(1) The stepchild became the veteran's stepchild before reaching 18 years of age and is residing with the veteran or was residing with the veteran at the time of the veteran's death;
(2) The stepchild is pursuing a course of instruction as described in § 5.220(b)(2) who became the veteran's stepchild after reaching 18 years of age, but before reaching 23 years of age; and who is residing with the veteran or was residing with the veteran at the time of the veteran's death; or
(3) The stepchild receives, or at the time of the veteran's death was receiving, at least half of his or her support from the veteran. This includes a stepchild not residing with the veteran solely for medical, school, or similar reasons, and a stepchild who is residing with another person who has custody of the stepchild.
(d)
(i) The stepchild continues to reside with the veteran; or
(ii) The veteran continues to provide at least half of the stepchild's support.
(2)
(i) The validity of the marriage can be proved; and
(ii) The stepchild continues to be a member of the veteran's household under paragraph (c) of this section after termination of the marriage.
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(b)
(1)
(ii)
(iii)
(iv)
(2)
(A) Whether the nature and extent of disability would render the average person incapable of self-support;
(B) The impact of the disability on the person's ability to care for himself or herself and to perform the ordinary tasks expected of a person of the same age; and
(C) Whether the person attended school, and the highest grade completed.
(ii) Rating criteria applicable to a disabled veteran set out in the Schedule for Rating Disabilities in part 4 of this chapter are not controlling.
(c)
(i) The nature and extent of disability;
(ii) Whether the disability has worsened or improved over time; and
(iii) Whether there is a reasonable possibility that the disability will improve in the future.
(2)
(i) VA medical examinations or treatment records;
(ii) Private medical examination reports or treatment records;
(iii) Statements of persons having knowledge of the child's condition through personal observation, such as teachers, tutors, or social workers; or
(iv) Statements from representatives of institutions where the child received care, schooling, or other related services.
(d)
(2)
(3)
(4)
Cross Reference: § 5.1, for the definition of “competent evidence”.
The marriage of a child generally terminates his or her child status for VA purposes, except in the following circumstances.
(a)
(b)
(1) Was void, under § 5.196;
(2) Was annulled by a court having authority to annul the marriage, unless VA determines that the annulment was obtained through fraud by either party or by collusion of the parties;
(3) Ended by death before November 1, 1990; or
(4) Ended by divorce before November 1, 1990, by a court with authority to render the divorce decree, unless VA determines that the divorce was obtained through fraud by either party or by collusion of the parties.
Cross Reference: § 5.1, for the definition of “fraud”.
In order to prove age or birth, a claimant must file a statement under § 5.181. If the statement is insufficient under § 5.181(c), VA will require the first type of evidence listed in this section as proof of age or birth, if obtainable. If this type of evidence is unobtainable, then age or birth may still be proven by the next type of obtainable evidence listed:
(a) A copy or abstract of the public record of birth (such as a birth certificate). A copy or abstract of the public record of birth established more than 4 years after the birth must be consistent with material on file with VA or must show on its face that it is based upon evidence that would be acceptable under this section.
(b) A copy of the public record of birth or a religious-context record documenting the birth of the child (such as a church record of baptism). An original or a copy of such a document created more than 4 years after the birth must be consistent with material on file with VA. The document must include at least one reference to age or relationship made when the reference was not essential to establishing entitlement to the benefit claimed.
(c) Service department records of birth.
(d) An affidavit or certified statement of the physician or midwife who was in attendance at birth.
(e) A copy of a Bible or other family record containing reference to the birth. The copy must be accompanied by a statement from a notary public, or other officer who has authority to administer oaths, certifying all the following criteria:
(1) The year the Bible or other book in which the record appears was printed;
(2) Whether it appears the record has been erased or changed in any way; and
(3) Whether it appears the entries were made on the date noted in the record.
(f) Affidavits or certified statements of two or more persons, preferably disinterested, who have knowledge of the name of the person born; the month, year, and place of birth of that person; and the parents' names. These persons must also provide VA with their own ages and an explanation as to how they came to know the facts surrounding the birth.
(g) Other reliable and convincing evidence that provides relevant information. This includes, but is not limited to:
(1) Census records;
(2) Hospital records;
(3) Insurance policies;
(4) School records;
(5) Employment records;
(6) Naturalization records; and
(7) Immigration records.
Cross Reference: § 5.1, for the definition of “certified statement”.
(a) The effective date of an award, or an increased award, of pension or of dependency and indemnity compensation (DIC) to or for a child born after the parent/veteran's death is the date the child was born if VA receives either of the following types of evidence within the time specified:
(1) Proof of birth received no later than 1 year after the date of birth; or
(2) Notification of the expected or actual birth received no later than 1 year after the veteran's death, provided that the notice is sufficient to indicate an intent to claim pension or DIC benefits described in this section.
(b) If the evidence described in paragraph (a) of this section is received more than 1 year after the child's birth in the case of paragraph (a)(1) of this section or the veteran's death in the case of paragraph (a)(2) of this section, then the effective date of the award or increase is the first of the month after the month of receipt of the claim.
A reduction or discontinuance of pension, disability compensation, or dependency and indemnity compensation because a person no longer qualifies as a child for benefit purposes based on age will be effective on the child's 18th or 23rd birthday, as applicable under § 5.220(b). For effective dates of reductions or discontinuance applicable when a child completes the course of education or otherwise discontinues school
A reduction or discontinuance of pension, disability compensation, or dependency and indemnity compensation because a person no longer qualifies as an adopted child under § 5.220(c)(3) or § 5.222, will be effective the earliest of the following dates:
(a) The day after the date the child left the custody of the adopting parent during the interlocutory period;
(b) The day after the date the child left the custody of the adopting parent during the term of an adoption placement agreement;
(c) The day after the date of rescission of the adoption decree; or
(d) The day after the date of termination of the adoption placement agreement.
Cross Reference: § 5.1, for the definition of “custody of a child”.
If a reduction or discontinuance of pension, disability compensation, or dependency and indemnity compensation is because a person no longer qualifies as a stepchild under § 5.220(c)(2), because he or she is no longer a member of the veteran's household, the effective date of a reduction or discontinuance will be the day after the date the stepchild ceased being a member of the veteran's household.
(a)
(1) An award of pension, disability compensation, or dependency and indemnity compensation to or for a person who is a child for VA purposes under § 5.220(b)(1), because the person became permanently incapable of self-support before reaching age 18.
(2) A reduction, or a discontinuance of pension, disability compensation, or dependency and indemnity compensation to or for a person who is a child for VA purposes under § 5.220(b)(1), because the person is no longer permanently incapable of self-support.
(b)
(1)
(2)
(ii) If VA receives a claim for the continuation of the benefits more than 1 year after the child's 18th birthday, then the effective date of a continuation is the date VA receives a claim for benefits.
(c)
(2)
(a)
(b)
(i) The date the child and the other person stopped living together; or
(ii) The date VA receives a claim for benefits.
(2)
(i) The date the annulment decree became final, if VA receives a claim for benefits no later than 1 year after that date; or, if not,
(ii) The date VA receives a claim for benefits.
(3)
(a)
(1) A veteran's natural mother or father;
(2) A veteran's mother or father through adoption; or
(3) A person who stands in the relationship of a parent to a veteran, subject to the following requirements:
(i) The person stood in the relationship of a parent to the veteran for no less than 1 year at any time before the veteran's entry into active military service; and
(ii) The relationship began before the veteran's 21st birthday, although it may have ended at any time.
(b)
(c)
(d)
(2)
(i) If two or more persons qualified as a veteran's mother or father under this section at different times, VA will recognize the person who last qualified before the veteran's last entry into active military service.
(ii) VA will recognize a veteran's natural parent as the mother or father of the veteran, if he or she was the last person to have a parental relationship with the veteran before the veteran last entered active military service. This is true even if that parent's parental rights have been terminated by a court.
(e)
Unless the natural or adoptive mother or father relinquished parental control of the veteran, VA will not recognize a person identified in paragraph (a)(3) of this section as the veteran's mother or father if the natural or adoptive mother or father was living during the period the person claims to have stood in the relationship of a mother or father to the veteran. For purposes of this paragraph (e),
(a)
(b)
A
(a) The disability was caused by an injury or disease incurred, or presumed to have been incurred, in the line of duty during active military service. See §§ 5.260 through 5.269 (concerning presumptions of service connection).
(b) The disability was caused by a preservice injury or disease aggravated, or presumed to have been aggravated, in the line of duty during active military service. See § 5.245.
(c) The disability is secondary to a service-connected disability, pursuant to §§ 5.246 through 5.248 (governing awards of secondary service connection).
When a veteran seeks service connection:
(a) VA will give due consideration to any evidence of record concerning the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence; and
(b) VA will not consider a statement that a veteran signed during service that:
(i) Pertains to the origin, incurrence, or aggravation of an injury or disease; and
(ii) Was against the veteran's interest at the time he or she signed it.
(a)
(1) A current disability;
(2) Incurrence or aggravation of an injury or disease in active military service; and
(3) A causal link between the injury or disease incurred in, or aggravated by, active military service and the current disability.
(b)
(c)
(2)
Proof that a disease was chronic in service requires a combination of manifestations in service sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis in service including the word “chronic.” See also § 5.260(c). Isolated findings in service, such as joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, would not alone establish the presence in service of a chronic disease, such as arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clear-cut clinical entity at some later date.
(3)
(i) The veteran had signs or symptoms of a chronic disease during active military service or during an applicable presumptive;
(ii) The signs or symptoms continued from the time of discharge or release from active military service, or from the end of an applicable presumptive period until the present; and
(iii) The signs or symptoms currently demonstrated are signs or symptoms of a chronic disease.
(a)
(b)
(2)
(c)
(1) For veterans with any wartime service and for veterans with peacetime service after December 31, 1946, VA can rebut the presumption only with clear and unmistakable evidence that the injury or disease resulting in the disability for which the veteran claims service connection both:
(i) Preexisted service; and
(ii) Was not aggravated by service, which means that during service there was no increase in disability due to the preexisting injury or disease, or that any such increase was due to the natural progress of the disease.
(2) To determine whether there was an increase in the severity of disability during service (or during any applicable presumptive period) resulting from a preexisting injury or disease, see § 5.245(b).
(3) If there was an increase in the severity of disability during service (or during any applicable presumptive period) resulting from a preexisting injury or disease, to determine whether the increase was due to the natural progress of the disease, see § 5.245(c).
(d) Medical principles regarding preexisting conditions. There are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. If residual conditions (scars; fibrosis of the lungs; atrophies following disease of the central or peripheral nervous system; healed fractures; absent, displaced or resected parts of organs; supernumerary parts; congenital malformations or hemorrhoidal tags or tabs, etc.) are shown during service but there is no evidence of the relevant antecedent active disease or injury during service, that is satisfactory proof that they preexisted service. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close to such date that the disease could not have originated in so short a period, will be satisfactory proof that they existed preservice. VA will consider conditions of an infectious nature with regard to the circumstances of the infection and if manifested in less than the respective incubation periods after reporting for duty, VA will consider them to have preexisted service. VA will consider the following to have existed preservice:
(1) Personality disorders if they are characterized by developmental defects or pathological trends in the personality structure manifested by a lifelong pattern of action or behavior;
(2) Chronic psychoneurosis of long duration; or
(3) Other psychiatric symptomatology shown to have existed prior to service with the same manifestations during service, which were the basis of the service diagnosis.
(a)
(b)
(2)
(3)
(4)
(c)
Except as provided in § 5.365(a), VA will grant service connection for a disability that is due to or the result of a service-connected disability.
VA will grant service connection for any increase in severity of a nonservice-connected disability if the increase was due to or the result of a service-connected disability, and the increase was not due to the natural progress of the nonservice-connected disease. However, VA cannot grant service connection under this section without medical evidence establishing the severity of the nonservice-connected disability before or contemporaneous with the increase in severity due to the service-connected disability. The agency of original jurisdiction (AOJ) will use the Schedule for Rating Disabilities in part 4 of this chapter to rate the severity level of the nonservice-connected disability prior to the increase in severity, any increase in severity due to the natural progress of the disease, and
VA will grant secondary service connection for ischemic heart disease or other cardiovascular disease that develops after a veteran has a service-connected amputation of one lower extremity at or above the knee or service-connected amputations of both lower extremities at or above the ankles.
(a)
(2)
(b)
Cross Reference: §§ 5.141 (evidence in claims of former prisoners of war), 5.245(b)(4), Service connection based on aggravation of preservice injury or disease, and 5.250(b)(2), Service connection for posttraumatic stress disorder.
(a)
(1) Medical evidence diagnosing PTSD in accordance with § 4.125(a) of this chapter;
(2) A link, established by medical evidence, between current signs or symptoms and an in-service stressor; and
(3) Except as provided in paragraphs (c), (d), and (e) of this section, credible supporting evidence that the claimed in-service stressor occurred. For purposes of this section,
(b)
(c)
(d)
(e)(1)
(i) The stressor is related to the veteran's fear of hostile military or terrorist activity; and
(ii) A VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor.
(2) For purposes of this paragraph (e),
(i) That a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as:
(A) From an actual or potential improvised explosive device;
(B) Vehicle-imbedded explosive device;
(C) Incoming artillery, rocket, or mortar fire;
(D) Grenade;
(E) Small arms fire, including suspected sniper fire; or
(F) Attack upon friendly military aircraft, and
(ii) The veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.
(f)
(i) Advising the veteran that evidence from sources other than the veteran's service records, including evidence described in paragraph (c)(2) of this section, may constitute credible supporting evidence of the stressor; and
(ii) Providing the veteran with an opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.
(2) Evidence that may establish a stressor based on in-service personal assault includes, but is not limited to, the following:
(i) Records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians;
(ii) Pregnancy tests or tests for sexually transmitted diseases;
(iii) Statements from family members, roommates, fellow servicemembers, or clergy; or
(iv) Evidence of behavioral changes following the claimed assault (which may be shown in any of the following sources), including: A request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes.
(3) VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.
(a)
(1) Congenital or developmental defects (such as congenital or developmental refractive error of the eye);
(2) Developmental personality disorders; or
(3) Developmental intellectual disability (mental retardation).
(b)
(1) Malignant or pernicious myopia;
(2) Personality change (as distinguished from personality disorder) as part of, or due to or the result of, an organic mental disorder or a service-connected general medical condition (such as psychomotor epilepsy), or due to injury. See § 5.246.
(3) Nondevelopmental intellectual disability as part of, or due to or the result of, a service-connected disability. See § 5.246.
(c)
(d)
(e)
(a)
(b)
(2)
(c)
(i) An intervening or nonservice-related injury or disease caused the injury, disease, or disability;
(ii) The veteran's willful misconduct caused the injury, disease, or disability (see § 5.661);
(iii) The injury or disease was not incurred in service or, in the case of a preexisting condition, was not aggravated during service; or
(iv) A cancer (for which service connection is claimed under § 5.262 or § 5.268) originated in another area of the body and then spread to one of the specific areas listed in § 5.262(e) or § 5.268(b).
(2)
Cross Reference: § 5.1, for the definition of “competent lay evidence” and “willful misconduct”.
(a)
(1) No later than 1 year after separation from a qualifying period of service; or
(2) No later than such other time after a qualifying period of service as provided in paragraph (d) of this section.
(b)
(1) A period of 90 days or more of active, continuous service that began before December 31, 1946, and included service during a period of war; or
(2) Any period of 90 days or more of active, continuous service after December 31, 1946.
(c)
(d)
(e)
(a)
(ii)
(2)
(b)
(c)
(d)
(e)
(a)
(b)
(a)
(1) Is a former POW under § 5.140; and
(2) Is diagnosed as having a disease listed in paragraph (b) or (c) of this section that first became manifest to a degree of 10 percent or more disabling at any time after discharge or release from active military service, even if there is no record of such disease during such service.
(b)
(1) Any of the anxiety disorders as listed in § 4.130 of this chapter, including, but not limited to, posttraumatic stress disorder (PTSD);
(2) Atherosclerotic heart disease or hypertensive vascular disease (including, but not limited to, hypertensive heart disease) and their complications (including, but not limited to, myocardial infarction, congestive heart failure, and arrhythmia);
(3) Dysthymic disorder (or depressive neurosis);
(4) Organic residuals of frostbite, if the Secretary determines that the veteran was detained or interned in climatic conditions consistent with the occurrence of frostbite;
(5) Osteoporosis if the Secretary determines that the veteran has PTSD;
(6) Post-traumatic osteoarthritis;
(7) Psychosis; and
(8) Stroke and its complications.
(c)
(1) Beriberi;
(2) Beriberi heart disease, including ischemic heart disease if localized edema experienced during captivity;
(3) Chronic dysentery;
(4) Cirrhosis of the liver;
(5) Helminthiasis;
(6) Irritable bowel syndrome;
(7) Nutritional deficiency, including, but not limited to, avitaminosis and malnutrition;
(8) Optic atrophy associated with malnutrition;
(9) Osteoporosis;
(10) Pellagra;
(11) Peptic ulcer disease; and
(12) Peripheral neuropathy except where directly related to infectious causes.
Cross Reference: § 5.1, for the definition of “psychosis”. § 5.140, Determining former prisoner of war status, for the definition of “former prisoner of war”.
(a)
(1) No later than 1 year after separation from a qualifying period of service; or
(2) Within a period that indicates (based on accepted medical literature) that the incubation period began during a qualifying period of service.
(b)
(1) A period of 90 days or more of continuous active military service that began before December 31, 1946, and included service during a period of war; or
(2) Any period of 90 days or more continuous active military service after December 31, 1946.
(c)
(d)
(1) Amebiasis;
(2) Blackwater fever;
(3) Cholera;
(4) Dracontiasis;
(5) Dysentery;
(6) Filariasis;
(7) Leishmaniasis, including, but not limited to, kala-azar;
(8) Loiasis;
(9) Malaria;
(10) Onchocerciasis;
(11) Oroya fever;
(12) Pinta;
(13) Plague;
(14) Schistosomiasis;
(15) Yaws; and
(16) Yellow fever.
(e)
(f)
(1) No later than 1 year after discharge or release from active military service; or
(2) At a time when accepted medical literature indicates that the incubation period commenced during active military service unless clear and unmistakable evidence shows that the tropical disease was not contracted as the result of active military service.
(a)
(i)
(ii)
(2)
(i) An undiagnosed illness;
(ii) A medically unexplained chronic multisymptom illness that is defined by a cluster of signs or symptoms; or
(iii) Any diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C. 1117(d) warrants a presumption of service connection.
(3)
(4)
(b)
(2)
(i) Abnormal weight loss;
(ii) Cardiovascular signs or symptoms;
(iii) Fatigue;
(iv) Gastrointestinal signs or symptoms;
(v) Headache;
(vi) Joint pain;
(vii) Menstrual disorders;
(viii) Muscle pain;
(ix) Neurologic signs and symptoms;
(x) Neuropsychological signs or symptoms;
(xi) Signs or symptoms involving the respiratory system (upper or lower);
(xii) Signs or symptoms involving skin; and
(xiii) Sleep disturbances.
(c)
(2)
(i) Chronic fatigue syndrome;
(ii) Fibromyalgia;
(iii) Functional gastrointestinal disorders (excluding structural gastrointestinal diseases).
Functional gastrointestinal disorders are a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract. Specific functional gastrointestinal disorders include, but are not limited to, irritable bowel syndrome, functional dyspepsia, functional vomiting, functional constipation, functional bloating, functional abdominal pain syndrome, and functional dysphagia. These disorders are commonly characterized by symptoms including abdominal pain, substernal burning or pain, nausea, vomiting, altered bowel habits (including diarrhea, constipation), indigestion, bloating, postprandial fullness, and painful or difficult swallowing. Diagnosis of specific functional gastrointestinal disorders is made in accordance with established medical principles, which generally require symptom onset at least 6 months prior to diagnosis and the presence of symptoms sufficient to diagnose the specific disorder at least 3 months prior to diagnosis.
(3)
(i) Abnormal weight loss;
(ii) Cardiovascular signs or symptoms;
(iii) Fatigue;
(iv) Gastrointestinal signs or symptoms;
(v) Headache;
(vi) Joint pain;
(vii) Menstrual disorders;
(viii) Muscle pain;
(ix) Neurologic signs and symptoms;
(x) Neuropsychological signs or symptoms;
(xi) Signs or symptoms involving the respiratory system (upper or lower);
(xii) Signs or symptoms involving skin; and
(xiii) Sleep disturbances.
(d)
(1)
(2) The
(a)
(1) Underwent full-body exposure to nitrogen mustard, sulfur mustard, or Lewisite during active military service; and
(2) Subsequently developed an injury or disease associated with a specific agent, as shown in paragraph (b) of this section.
(b)
(a)
(b)
(1) Bronchiolo-alveolar carcinoma;
(2) Cancer of the bile ducts;
(3) Cancer of the bone;
(4) Cancer of the brain;
(5) Cancer of the breast;
(6) Cancer of the colon;
(7) Cancer of the esophagus;
(8) Cancer of the gall bladder;
(9) Cancer of the lung;
(10) Cancer of the ovary;
(11) Cancer of the pancreas;
(12) Cancer of the pharynx;
(13) Cancer of the salivary gland;
(14) Cancer of the small intestine;
(15) Cancer of the stomach;
(16) Cancer of the thyroid;
(17) Cancer of the urinary tract (for purposes of this section, the term
(18) Leukemia (other than chronic lymphocytic leukemia);
(19) Lymphomas (except Hodgkin's disease);
(20) Multiple myeloma; and
(21) Primary liver cancer (except if cirrhosis or hepatitis B is indicated).
(c)
(1) Onsite participation in a test involving the atmospheric detonation of a nuclear device. For purposes of this section,
(i) During the official operational period of a nuclear test, defined in paragraph (e) of this section, presence at the test site, or performance of official military duties in connection with ships, aircraft or other equipment used in direct support of the nuclear test;
(ii) During the 6-month period following the official operational period of a nuclear test, presence at the test site or other test staging area to perform
(iii) Service as a member of the garrison or maintenance forces on Eniwetok during the periods June 21, 1951 through July 1, 1952; August 7, 1956 through August 7, 1957; or November 1, 1958 through April 30, 1959; and
(iv) Assignment to official military duties at Naval Shipyards involving the decontamination of ships that participated in Operation Crossroads.
(2) Service during the occupation of Hiroshima or Nagasaki, Japan, by U.S. forces during the period beginning on August 6, 1945, and ending on July 1, 1946. This includes official military duties within 10 miles of the city limits of either Hiroshima or Nagasaki, Japan, that were required to perform or support military occupation functions such as occupation of territory, control of the population, stabilization of the government, demilitarization of the Japanese military, rehabilitation of the infrastructure, or deactivation and conversion of war plants or materials.
(3) Internment as a prisoner of war in Japan during World War II, or service on active duty in Japan immediately following such internment, resulting in an opportunity for exposure to ionizing radiation comparable to that of the U.S. occupation forces in Hiroshima or Nagasaki, Japan, during the period beginning August 6, 1945, and ending July 1, 1946. This includes a former prisoner of war who at any time during the period August 6, 1945, through July 1, 1946:
(i) Was interned within 75 miles of the city limits of Hiroshima or within 150 miles of the city limits of Nagasaki;
(ii) Can affirmatively show that he or she worked within an area described in paragraph (c)(3)(i) of this section although not interned in either area;
(iii) Immediately following internment, performed official military duties described in paragraph (c)(2) of this section; or
(iv) Was repatriated through the port of Nagasaki.
(4) Official military duties on the grounds of a gaseous diffusion plant located in Paducah, Kentucky, Portsmouth, Ohio, or the area identified as K25 at Oak Ridge, Tennessee, for a total of at least 250 days before February 1, 1992, if, during such service the veteran:
(i) Was monitored for exposure to radiation of external parts of the body by a dosimetry badge each of the 250 days at the plant; or
(ii) For each of the 250 days, served in a position that had exposures comparable to a job that is or was monitored through the use of dosimetry badges.
For purposes of this paragraph (c)(4), the term
(5) Service before January 1, 1974, on Amchitka Island, Alaska, if the veteran was exposed to ionizing radiation in the performance of duty related to the Long Shot, Milrow, or Cannikin underground nuclear tests.
(6) Service in a capacity that would qualify the person for inclusion as a member of the Special Exposure Cohort under section 3621(14) of the Energy Employees Occupational Illness Compensation Program Act of 2000, 42 U.S.C. 7384l(14) if it had been performed as an employee of the Department of Energy.
(d)
(e)
(1) For Operation TRINITY, the period July 16, 1945, through August 6, 1945;
(2) For Operation CROSSROADS, the period July 1, 1946, through August 31, 1946;
(3) For Operation SANDSTONE, the period April 15, 1948, through May 20, 1948;
(4) For Operation RANGER, the period January 27, 1951, through February 6, 1951;
(5) For Operation GREENHOUSE, the period April 8, 1951, through June 20, 1951;
(6) For Operation BUSTER-JANGLE, the period October 22, 1951, through December 20, 1951;
(7) For Operation TUMBLER-SNAPPER, the period April 1, 1952, through June 20, 1952;
(8) For Operation IVY, the period November 1, 1952, through December 31, 1952;
(9) For Operation UPSHOT-KNOTHOLE, the period March 17, 1953, through June 20, 1953;
(10) For Operation CASTLE, the period March 1, 1954, through May 31, 1954;
(11) For Operation TEAPOT, the period February 18, 1955, through June 10, 1955;
(12) For Operation WIGWAM, the period May 14, 1955, through May 15, 1955;
(13) For Operation REDWING, the period May 5, 1956, through August 6, 1956;
(14) For Operation PLUMBBOB, the period May 28, 1957, through October 22, 1957;
(15) For Operation HARDTACK I, the period April 28, 1958, through October 31, 1958;
(16) For Operation ARGUS, the period August 27, 1958, through September 10, 1958;
(17) For Operation HARDTACK II, the period September 19, 1958, through October 31, 1958;
(18) For Operation DOMINIC I, the period April 25, 1962, through December 31, 1962; and
(19) For Operation DOMINIC II/PLOWSHARE, the period July 6, 1962, through August 15, 1962.
If this section does not apply in a particular case, VA will consider service connection under § 5.269, Direct service connection for diseases associated with exposure to ionizing radiation.
Cross Reference: § 5.1, for the definition of “reserve component”. § 5.140, Determining former prisoner of war status, for the definition of “former prisoner of war”.
(a)
(1) The veteran was exposed to ionizing radiation as a result of participation in the atmospheric testing of nuclear weapons, the occupation of Hiroshima or Nagasaki, Japan, from September 1945 until July 1946 or any other claimed in-service event;
(2) The veteran subsequently developed a radiogenic disease listed in paragraph (b) of this section; and
(3) The disease first became manifest within the period specified in paragraph (b) of this section.
(b)
(1)
(2)
(3)
(c)
(i)
(ii)
(iii)
(2) When a dose assessment obtained under paragraph (c)(1) of this section is reported as a range of doses to which a veteran may have been exposed, VA will presume exposure at the highest level of the range reported.
(3)
(4)
(d)
(2) After the development in paragraphs (c)(1) through (4) of this section has been completed, the AOJ will decide the claim based on general principles of service connection without forwarding the claims file to the Under Secretary for Benefits for review if the evidence establishes that any of the following is true:
(i) The claimed disability or disease is not radiogenic (as provided in paragraphs (b)(1) through (3) of this section);
(ii) The disease did not become manifest during the time period specified in paragraph (b)(1) of this section; or
(iii) The veteran was either not exposed to ionizing radiation in service as claimed or the actual or estimated dose exposure was reported to be 0 rem.
(e)
(2)
(ii)
(A) The difference between the claimant's assessment and the dose assessment derived from official military records will ordinarily be considered material if one assessment is at least double the other assessment.
(B) A dose assessment will be considered to be from a “credible source” if prepared by a person or persons certified by an appropriate professional body in the field of health physics, nuclear medicine or radiology and if based on analysis of the facts and circumstances of the particular claim.
(f)
(i) The probable dose, in terms of dose type, rate, and duration as a factor in inducing the disease, taking into account any known limitations in the dosimetry devices employed in its measurement or the methodologies employed in its estimation;
(ii) The relative sensitivity of the involved tissue to induction of the specific pathology by ionizing radiation;
(iii) The veteran's gender and pertinent family history;
(iv) The veteran's age at time of exposure;
(v) The time between exposure and onset of the disease; and
(vi) The extent to which exposure to ionizing radiation, or other carcinogens, outside of service may have contributed to development of the disease.
(2)
(3)
(4)
(i) The disease, including the specific cell type and stage, if known, and when the disease first became manifest;
(ii) The circumstances, including date, of the veteran's exposure;
(iii) The veteran's age, gender, and pertinent family history;
(iv) The veteran's history of exposure to known carcinogens, occupationally or otherwise;
(v) Evidence of any other effects ionizing radiation exposure may have had on the veteran; and
(vi) Any other information relevant to determination of causation of the veteran's disease.
(5)
(6)
(g)
(h)
Cross Reference: § 5.1,for the definition of “agency of original jurisdiction,”,”competent evidence,” “service treatment records.”
(a)
(b)
(1) The veteran did not have active, continuous service of 90 days or more; or If there is affirmative evidence that amyotrophic lateral sclerosis was not incurred during or aggravated by active military service;
(2) The presumption of service connection is rebutted in accordance with § 5.260(c).
(a) A disease listed in paragraph (b) of this section will be service connected if it becomes manifest in a veteran with a qualifying period of service, provided the provisions of paragraph (c) of this section are also satisfied.
(b) The diseases referred to in paragraph (a) of this section are the following:
(1) Brucellosis.
(2) Campylobacter jejuni.
(3) Coxiella burnetii (Q fever).
(4) Malaria.
(5) Mycobacterium tuberculosis.
(6) Nontyphoid Salmonella.
(7) Shigella.
(8) Visceral leishmaniasis.
(9) West Nile virus.
(c) The diseases listed in paragraph (b) of this section will be considered to have been incurred in or aggravated by service under the circumstances outlined in paragraphs (c)(1) and (2) of this section even though there is no evidence of such disease during the period of service.
(1) With three exceptions, the disease must have become manifest to a degree of 10 percent or more disabling no later than 1 year after the date of separation from a qualifying period of service as specified in paragraph (c)(2) of this section. Malaria must have become manifest to a degree of 10 percent or more disabling no later than 1 year after the date of separation from a qualifying period of service or at a time when standard or accepted medical literature indicate that the incubation period commenced during a qualifying period of service. There is no time limit for visceral leishmaniasis or tuberculosis to have become manifest to a degree of 10 percent or more disabling.
(2) For purposes of this section, the term
(i) A period of active military service in Afghanistan after September 18, 2001; or
(ii) A period of active military service in the Southwest Asia theater of operations during the Persian Gulf War. The
(d)
(2) If a veteran presumed service connected for one of the diseases listed in paragraph (b) of this section has one of the health effects listed in the table, which manifests within the period specified, or at any time if no period is specified, VA will request a medical opinion as to whether it is at least as likely as not that the veteran's infectious disease actually caused the associated health effect.
(a)
(b)
(i) Marked interference with employment, or
(ii) Frequent periods of hospitalization.
(2)
(c)
VA will assign a 10-percent combined rating to a veteran with two or more permanent service-connected disabilities that are each rated as 0 percent disabling under the Schedule for Rating Disabilities in part 4 of this chapter, if the combined effect of such disabilities interferes with normal employability. VA cannot assign this 10 percent rating if the veteran has any other compensable rating.
(a)
(b)
(1) Service-connected impairment of vision in one eye and nonservice-connected impairment of vision in the other eye if:
(i) The impairment of vision in each eye is rated at a visual acuity of 20/200 or less; or
(ii) The peripheral field of vision for each eye is 20 degrees or less.
(2) Service-connected anatomical loss or loss of use of one kidney and nonservice-connected involvement of the other kidney.
(3) Service-connected hearing impairment in one ear compensable to a degree of 10 percent or more disabling and nonservice-connected hearing impairment in the other ear that meets the provisions of § 5.366.
(4) Service-connected anatomical loss or loss of use of one hand or foot and nonservice-connected anatomical loss or loss of use of the other hand or foot.
(5) Permanent service-connected disability of one lung rated as 50 percent or more disabling and nonservice-connected disability of the other lung.
(c)
(2)
(3)
(4)
(a)
(2)
(i) The Schedule prescribes a 100 percent rating, or
(ii) In a case in which VA assigns a rating of less than 100 percent, if the veteran meets the requirements of § 4.16 of this chapter or, in pension cases, the requirements of § 4.17 of this chapter.
(3)
(i) That the disability was severe enough in the past to warrant a total disability rating;
(ii) That the disability:
(A) Required extended, continuous, or intermittent hospitalization;
(B) Produced total industrial incapacity for at least 1 year; or
(C) Results in recurring, severe, frequent, or prolonged exacerbations; and
(iii) That it is the opinion of the agency of original jurisdiction (AOJ) that, despite the recent improvement of the physical condition, the veteran will be unable to adjust into a substantially gainful occupation. The AOJ will consider the frequency and duration of totally incapacitating exacerbations since incurrence of the original injury or disease and the periods of hospitalization for treatment in determining whether the average person could reestablish himself or herself in a substantially gainful occupation.
(b)
(1) VA will consider the following disabilities or conditions as constituting a permanent total disability:
(i) The permanent anatomical loss or loss of use of both hands, or of both feet, or of one hand and one foot;
(ii) The anatomical loss or loss of sight of both eyes;
(iii) Being permanently so significantly disabled as to need regular aid and attendance; or
(iv) Being permanently bedridden.
(2) VA will consider an injury or disease of long-standing that is actually totally incapacitating as a permanent total disability, if the probability of permanent improvement under treatment is remote.
(3) VA may not assign a permanent total disability rating as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present the permanent anatomical loss or loss of use of extremities or the permanent anatomical loss or loss of sight of both eyes, as described in paragraph (b)(1) of this section, the person is permanently so significantly disabled as to need regular aid and attendance or permanently bedridden, or when it is reasonably certain that following a decrease of the acute or temporary symptoms the person will continue to be totally disabled due to residuals of the disease, accident, or injury.
(4) VA may consider the age of the disabled person in determining whether a total disability is permanent.
(c)
(a)
(b)
(c)
(a)
(1) VA will consider examination reports showing material improvement in conjunction with all the facts of record, including whether:
(i) The veteran improved under the ordinary conditions of life, i.e., while working or actively seeking work; or
(ii) The symptoms have been brought under control by prolonged rest or by following a regimen which precludes work.
(2) If either circumstance in paragraph (a)(1)(ii) of this section applies, VA will not reduce a total disability rating until VA has reexamined the person after a period of 3 to 6 months of employment.
(3) Paragraphs (a) introductory text, (a)(1), and (a)(2) of this section do not apply to a total rating that was purely based on hospital, surgical, or residence treatment, or individual unemployability.
(b)
(2) When a veteran with a total disability rating based on individual unemployability is undergoing vocational rehabilitation, education, or training, VA will not reduce the rating because of that rehabilitation, education, or training unless the AOJ receives:
(i) Evidence of marked improvement or recovery in physical or mental conditions that demonstrates affirmatively the veteran's capacity to pursue the vocation or occupation for which the training is intended to qualify him or her;
(ii) Evidence of employment progress, income earned, and prospects of economic rehabilitation that demonstrates affirmatively the veteran's capacity to pursue the vocation or occupation for which the training is intended to qualify him or her; or
(iii) Evidence that the physical or mental demands of the course are obviously incompatible with total disability.
(3) Neither participation in, nor the receipt of remuneration as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718 will be considered evidence of employability.
(4) If a veteran with a total disability rating based on individual unemployability begins a substantially gainful occupation, VA may not reduce the veteran's rating solely on the basis of having secured and followed such substantially gainful occupation unless the veteran maintains the occupation for a period of 12 consecutive months. For purposes of this paragraph (b)(4), VA will not consider brief interruptions in employment to be breaks in otherwise continuous employment.
Cross Reference: §§ 5.170, Calculation of 5-year, 10-year, and 20-year periods to qualify for protection, and 5.172, protection of continuous 20-year ratings.
(a)
(i) $400 for a mother or father, or a remarried parent and parent's spouse, not living together, or $660 for a mother and father, or a remarried parent and parent's spouse, living together; or
(ii) $185 for each additional family member, as defined by paragraph (c) of this section.
(2) If a parent meets the requirements of paragraph (a)(1) of this section, VA will not consider net worth.
(b)
(1)
(i) Reasonable maintenance includes not just basic necessities such as housing, food, clothing, and medical care, but also other items generally necessary to provide those conveniences and comforts of living consistent with the parent's reasonable style of life.
(ii) A finding that the parent's income includes financial contributions from the veteran does not establish that the parent is the veteran's dependent. VA will consider such contributions in connection with all of the other evidence when deciding factual dependency.
(iii) Income of a minor family member from business or property will be considered income of the parent only if it is actually available to the veteran's parent for the minor's support.
(2)
(ii) Net worth of a minor family member will be considered in determining dependency of a parent only if it is actually available to the veteran's parent for the minor's support.
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
(1)
(ii) If the parent purchased the property before VA established the veteran's entitlement to additional disability compensation based on the parent's dependency, VA will deduct the value of the property on the date of entitlement from the selling price to determine net profit.
(2)
(a)
(b)
(1) Commercial disability, accident, life, or health insurance;
(2) The Office of Workers' Compensation Programs of the U.S. Department of Labor;
(3) The Social Security Administration;
(4) The Railroad Retirement Board;
(5) Any workmen's compensation or employer's liability statute; or
(6) Legal damages collected for personal injury or death.
(c)
VA will exclude the following when calculating income for the purpose of establishing a parent's dependency:
(a)
(b)
(1) Civil Service Retirement and Disability Fund;
(2) Railroad Retirement Board;
(3) District of Columbia for firemen, policemen, or public school teachers; or
(4) Former U.S. Lighthouse Service.
(c)
(d)
(1) Payments under 38 U.S.C. chapter 11, Compensation for Service-Connected Disability or Death;
(2) Payments under 38 U.S.C. chapter 13, Dependency and Indemnity Compensation for Service-Connected Death;
(3) Nonservice-connected VA disability and death pension payments;
(4) Payments under 38 U.S.C. 5121, Payment of certain accrued benefits upon death of a beneficiary;
(5) Payments under 38 U.S.C. 2302, Funeral expenses; and
(6) The veteran's month-of-death rate paid to a surviving spouse under § 5.695.
(e)
(f)
(g)
(h)
(1)
(2)
(3)
(i)
(j)
(k)
(l)
(m)
(a)
(1) The day after such discharge or release from active military service; or
(2) The date entitlement arose.
(b)
(a)
(1) A higher disability rating under subpart B of the Schedule for Rating Disabilities in part 4 of this chapter.
(2) A higher disability rating under the extra-schedular provision in § 5.280(b).
(3) A higher disability rating under § 4.16 of this chapter.
(4) An award or a higher rate of special monthly compensation.
This section does not establish the effective date of an award of secondary service connection under § 5.246 or § 5.247 which is governed by § 5.311.
(b)
(2)
(a)
(b)
(c)
(a)
(b)
(1)
(2)
(c)
(d)
(a)
(1) VA previously denied a claim or discontinued payments of additional disability compensation based upon parental dependency because of a parent's net worth;
(2) The denial or discontinuation became final; and
(3) Entitlement to additional disability compensation based upon parental dependency was subsequently established, or reestablished, because of a decrease in the parent's net worth.
(b)
(1) For claims filed before the actual decrease in net worth, effective the first day of the month after the month of the decrease; or
(2) For claims filed after the actual decrease in net worth, effective the first day of the month after the receipt of a new claim for additional disability compensation.
For purposes of this part, a person needs regular aid and attendance if he or she meets either of the following conditions:
(a)
(1) Getting dressed or undressed.
(2) Keeping clean and presentable.
(3) Making frequent and necessary adjustments to a prosthetic or orthopedic appliance. This does not include the adjustment of appliances that able persons also cannot adjust without assistance, such as lacing at the back, supports, and belts.
(4) Eating or drinking, as a result of the loss of coordination of the upper extremities or extreme weakness.
(5) Attending to bowel and bladder needs.
(6) Protecting himself or herself from the hazards or dangers of his or her daily environment.
(b)
(a)
(b)
(1) The spouse has corrected visual acuity of 5/200 or less in both eyes;
(2) The spouse has concentric contraction of the visual field to 5 degrees or less in both eyes; or
(3) The spouse is a patient in a nursing home because of mental or physical incapacity.
(c)
Cross Reference: § 5.1, for the definition of “nursing home”.
(a)
(i) Needs regular aid and attendance (see § 5.320);
(ii) Is permanently bedridden;
(iii) Has certain disabilities or combinations of disabilities; or
(iv) Has a spouse who needs regular aid and attendance.
(2)
(3)
(b)
(c)
(1) Extremely unfavorable complete ankylosis of the knee, that is, the knee fixed in flexion at an angle of 45 degrees or more;
(2) Complete ankylosis of two major joints of the lower extremity, that is, of the hip, knee, or ankle;
(3) Shortening of the lower extremity of 3.5 inches or more; and
(4) Complete paralysis of the external popliteal nerve (common peroneal) and resulting foot drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants that confirm complete paralysis of the nerve.
(d)
(e)
(1)
(2)
(f)
(g)
(a)
(1) Anatomical loss or loss of use of one hand;
(2) Anatomical loss or loss of use of one foot;
(3) Anatomical loss or loss of use of both buttocks;
(4) Anatomical loss or loss of use of one or more creative organs;
(5) Blindness of one eye having only light perception;
(6) Deafness of both ears having absence of air and bone conduction;
(7) Complete organic aphonia with constant inability to communicate by speech; or
(8) In the case of a female veteran, either of the following factors:
(i) Anatomical loss of 25 percent or more of tissue from a single breast or both breasts in combination (including, but not limited to, loss by mastectomy or partial mastectomy); or
(ii) Treatment of breast tissue with radiation (“treatment” includes therapeutic procedures but not diagnostic procedures).
Cross References: §§ 5.322(b) and (c), respectively (criteria to determine anatomical loss or loss of use of a hand or of a foot); 5.322(g) (criteria to determine loss of use or blindness of one eye, having only light perception).
(b)
(2)
(ii) A disability for which SMC is paid under 38 U.S.C. 1114(k) may not be a basis for a higher level of SMC under 38 U.S.C. 1114(
(3)
(c)
(2)
(i) Acquired absence of one or both testicles (other than undescended testicles);
(ii) Acquired absence of one or both ovaries; or
(iii) Acquired absence of other creative organs.
(3)
(i) The diameters of the affected testicle are reduced to one-third of the corresponding diameters of the normal testicle;
(ii) The diameters of the affected testicle are reduced to one-half or less of the corresponding normal testicle with changes in consistency of the affected testicle (harder or softer) when compared to the normal testicle;
(iii) Absence of spermatozoa proven by biopsy performed with the informed consent of the veteran; or
(iv) Medical evidence shows that, due to injury or disease, reproduction is not possible without medical intervention. This could occur if the veteran has:
(A) In the case of paired creative organs, the loss of function of at least one such organ; or
(B) In the case of an unpaired creative organ, loss of function.
(4)
(5)
(i) The veteran had a vasectomy before military service with the anatomical loss or loss of use of one testicle during military service;
(ii) The veteran had a vasectomy following military service with a subsequent prostatectomy as a result of service-connected prostate cancer;
(iii) The veteran had impotence as a result of a nonservice-connected psychiatric condition with subsequent prostatectomy due to service-connected prostate cancer; or
(iv) The veteran had a tubal ligation before service with a subsequent oophorectomy due to service-connected injury or disease.
(6)
(7)
(d)
(2)
(e)
(f)
Special monthly compensation (SMC) under 38 U.S.C. 1114(
(a) Anatomical loss or loss of use of both feet.
(b) Anatomical loss or loss of use of one hand and one foot.
(c) Each eye having either:
(1) Blindness with visual acuity of 5/200 or less under § 5.322(f); or
(2) Concentric contraction of the visual field to 5 degrees or less.
(d) Disability or disabilities causing the veteran to be permanently bedridden, which means evidence shows that the veteran must remain in bed and that the confinement to bed will continue throughout his or her lifetime.
(e) Disability or disabilities establishing the veteran's need for regular aid and attendance under § 5.320. Unless the veteran is entitled to additional SMC under 38 U.S.C. 1114(r) (see § 5.332), VA will award SMC under 38 U.S.C. 1114(
Cross References: See §§ 5.320(b), Person is bedridden; 5.322(b), (c), Special monthly compensation: general information and definitions of disabilities; 5.330, Special monthly compensation under 38 U.S.C. 1114(
VA will pay special monthly compensation at the intermediate rate between 38 U.S.C. 1114(
(a) Anatomical loss or loss of use of one leg with factors preventing natural knee action with prosthesis in place and anatomical loss or loss of use of the other foot.
(b) Anatomical loss or loss of use of one arm with factors preventing natural elbow action with prosthesis in place and anatomical loss or loss of use of one foot.
(c) Anatomical loss or loss of use of one leg with factors preventing natural knee action with prosthesis in place and anatomical loss or loss of use of one hand.
(d) Blindness of one eye with visual acuity of 5/200 or less, or concentric contraction of the visual field to 5 degrees or less of one eye; and blindness of the other eye, having only light perception.
Cross Reference: § 5.322, Special monthly compensation: General information and definitions of disabilities (criteria for the disabilities listed in § 5.325).
Special monthly compensation under 38 U.S.C. 1114(m) is payable for any of the following combinations of disabilities:
(a) Anatomical loss or loss of use of both hands.
(b) Anatomical loss or loss of use of both legs with factors preventing natural knee action with prosthesis in place.
(c) Anatomical loss of one leg with factors preventing the use of a prosthetic appliance and anatomical loss or loss of use of the other foot.
(d) Anatomical loss or loss of use of one arm with factors preventing the use of a prosthetic appliance and anatomical loss or loss of use of one foot.
(e) Anatomical loss or loss of use of one arm with factors preventing natural elbow action with prosthesis in place and anatomical loss or loss of use of one leg with factors preventing natural knee action with prosthesis in place.
(f) Anatomical loss of one leg with factors preventing the use of a prosthetic appliance and anatomical loss or loss of use of one hand.
(g) Blindness in both eyes having only light perception.
(h) Blindness of one eye with visual acuity of 5/200 or less or with concentric contraction of the visual field to 5 degrees or less; and
(1) Anatomical loss of the other eye; or
(2) Blindness without light perception of the other eye.
(i) Blindness in both eyes leaving the veteran so significantly disabled as to need regular aid and attendance. If the veteran has visual acuity of 5/200 or less in both eyes or concentric contraction of the visual field to 5 degrees or less in both eyes, then entitlement to compensation at the 38 U.S.C. 1114(m) rate will be determined on the facts in the individual case.
Cross References: §§ 5.320, Determining need for regular aid and attendance; 5.322, Special monthly compensation: general information and definitions of disabilities (criteria for the disabilities listed in § 5.326); 5.330, Special monthly compensation under 38 U.S.C. 1114(
VA will pay special monthly compensation at the intermediate rate between 38 U.S.C. 1114(m) and (n) for any of the combinations of disabilities listed in paragraphs (a) through (e) of this section. The intermediate rate is the arithmetic mean between the rates for 38 U.S.C. 1114(m) and (n), rounded down to the nearest dollar.
(a) Anatomical loss or loss of use of one arm with factors preventing natural elbow action with prosthesis in place and anatomical loss or loss of use of the other hand.
(b) Anatomical loss or loss of use of one leg with factors preventing natural knee action with prosthesis in place and anatomical loss of the other leg with factors preventing the use of a prosthetic appliance.
(c) Anatomical loss of one arm with factors preventing the use of a prosthetic appliance and anatomical loss or loss of use of one leg with factors preventing natural knee action with prosthesis in place.
(d) Anatomical loss or loss of use of one arm with factors preventing natural elbow action with prosthesis in place and anatomical loss of one leg with
(e) Blindness of one eye, having only light perception; and
(1) Anatomical loss of the other eye; or
(2) Blindness without light perception of the other eye.
Cross References: §§ 5.322, Special monthly compensation: General information and definitions of disabilities; 5.326, Special monthly compensation under 38 U.S.C. 1114(m).
VA will pay special monthly compensation under 38 U.S.C. 1114(n) for any of the combinations of disabilities listed in paragraphs (a) through (e) of this section.
(a) Anatomical loss or loss of use of both arms with factors preventing natural elbow action with prosthesis in place.
(b) Anatomical loss of one arm with factors preventing the use of a prosthetic appliance and anatomical loss or loss of use of one hand.
(c) Anatomical loss of both legs with factors preventing the use of prosthetic appliances.
(d) Anatomical loss of one arm with factors preventing the use of a prosthetic appliance and anatomical loss of one leg with factors preventing the use of a prosthetic appliance.
(e) Anatomical loss of both eyes, blindness without light perception in both eyes, or anatomical loss of one eye and blindness without light perception in the other eye.
Cross References: §§ 5.322, Special monthly compensation: General information and definitions of disabilities; 5.326, Special monthly compensation under 38 U.S.C. 1114(m); 5.327, Special monthly compensation at the intermediate rate between 38 U.S.C. 1114(m) and (n) (criteria for the disabilities listed in § 5.328); 5.330, Special monthly compensation under 38 U.S.C. 1114(
VA will pay special monthly compensation at the intermediate rate between 38 U.S.C. 1114(n) and (
Cross References: §§ 5.322, Special monthly compensation: General information and definitions of disabilities; 5.328, Special monthly compensation under 38 U.S.C. 1114(n) (criteria for the disabilities listed in § 5.329).
VA will pay special monthly compensation (SMC) under 38 U.S.C. 1114(
(a) Anatomical loss of both arms with factors preventing the use of prosthetic appliances.
(b) Bilateral deafness rated at 60 percent or more disabling, even if the hearing impairment in one ear is nonservice connected, in combination with blindness with bilateral visual acuity of 20/200 or less.
(c) Total deafness in one ear, or bilateral deafness rated at 40 percent or more disabling, even if the hearing impairment in one ear is nonservice connected, in combination with service-connected blindness of both eyes having only light perception or less vision.
(d) Loss of use of both lower extremities together with loss of anal and bladder sphincter control. VA will consider that the requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation training and/or other auxiliary measures.
(e) Disabilities entitling the veteran to two or more of the monetary rates provided in 38 U.S.C. 1114(
(1)
(2)
Cross References: §§ 5.320, Determining need for regular aid and attendance; 5.322, Special monthly compensation: General information and definitions of disabilities; 5.328, Special monthly compensation under 38 U.S.C. 1114(n); 5.329 Special monthly compensation at the intermediate rate between 38 U.S.C. 1114(n) and (
(a)
(b)
(2)
(3)
(c)
(1)
(2)
(3)
(d)
(2)
(3)
(e)
(2)
(3)
(f)
(a)
(b)
(1) The veteran is entitled to the maximum rate under 38 U.S.C. 1114(
(2) The veteran needs regular aid and attendance under § 5.320; and
(3) The veteran is not hospitalized at U.S. Government expense.
(c)
(i) The veteran is entitled to the maximum rate under 38 U.S.C. 1114(
(ii) The veteran needs regular aid and attendance under § 5.320;
(iii) The veteran needs a “higher level of care” (as defined in paragraph (c)(2) of this section);
(iv) Without the higher level of care, the veteran would require hospitalization, nursing home care, or other residential institutional care; and
(v) The veteran is not hospitalized at U.S. Government expense.
(2)
(3)
(4)
(5)
(6)
(7)
Cross Reference: § 5.1, for the definition of “State”.
Special monthly compensation under 38 U.S.C. 1114(s) is payable to a veteran who has a single disability rated 100 percent disabling under subpart B of the Schedule for Rating Disabilities in part 4 of this chapter, or a disability that is the sole basis for a rating of total disability based on individual unemployability (TDIU) under § 4.16 of this chapter, and either:
(a) Has an additional disability, or combination of disabilities, rated 60 percent disabling, without consideration of the single disability that was either rated 100 percent or served as the basis for a TDIU rating; or
(b) Is permanently housebound as a result of disability or disabilities, including the single disability that was either rated 100 percent or served as the basis for a TDIU rating. For purposes of this paragraph (b), a veteran is permanently housebound if he or she is substantially confined to his or her residence (ward or clinical areas, if institutionalized) and immediate premises because of a disability or disabilities, and it is reasonably certain that such disability or disabilities will remain throughout the veteran's lifetime.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a)
(b)
(a)
(2) When VA awards disability compensation based on an original or reopened claim retroactive to an effective date that is earlier than the date of receipt of the claim, VA will also award additional compensation for any part of the retroactive period during which the spouse needed regular aid and attendance.
(b)
(a)
(b)
(c)
(a)
(2)
(b)
(c)
(d)
When service connection is granted initially on an original or reopened claim for pulmonary or nonpulmonary tuberculosis and there is satisfactory evidence that the condition was active previously but is now inactive (arrested), it will be presumed that the disease continued to be active for 1 year after the last date of established activity, provided there is no evidence to establish activity or inactivity in the intervening period. For a veteran entitled to receive disability compensation on August 19, 1968, the beginning date of graduated ratings will commence at the end of the 1-year period. For a veteran who was not receiving or entitled to receive disability compensation on August 19, 1968, ratings will be assigned in accordance with the Schedule for Rating Disabilities in part 4 of this chapter. This section is not applicable to running award cases.
(a)
(b)
(c)
(a)
(b)
(c)
A permanent and total disability rating in effect during hospitalization will not be discontinued before hospital discharge based on a change in classification from active. At hospital discharge, the permanent and total rating will be discontinued unless the medical evidence does not support a finding of complete arrest (see § 5.344) or where complete arrest is shown but the medical authorities recommend that employment not be resumed or be resumed only for short hours (not more than 4 hours a day for a 5-day week). If either of the two aforementioned conditions is met, discontinuance will be deferred pending examination in 6 months. Although complete arrest may be established upon that examination, the permanent and total rating may be extended for a further period of 6 months provided the veteran's employment is limited to short hours as recommended by the medical authorities (not more than 4 hours a day for a 5-day week). Similar extensions may be granted under the same conditions at the end of 12- and 18-month periods. At the expiration of 24 months after hospitalization, the case will be considered under § 5.280 if continued short hours of employment are recommended or if other evidence warrants submission.
(a)
(b)
(ii) The effective date of SMC under paragraph (b)(1)(i) of this section will be the date the graduated rating of the disability or compensation for that degree of disablement combined with other service-connected disabilities provides compensation payable at a rate less than $67.
(2)
In service-connected cases, ratings for active or inactive tuberculosis will be governed by the Schedule for Rating Disabilities in part 4 of this chapter. Where in the opinion of the agency of original jurisdiction the veteran, at the expiration of the period during which a total rating is provided, will not be able to maintain inactivity of the disease process under the ordinary conditions of life, the case will be considered under § 5.280.
Cross Reference: § 5.1, for the definition of “agency of original jurisdiction”.
(a)
(2) VA will not pay the benefits described in paragraph (a)(1) of this section if the injury, disease, death, or the aggravation of an existing injury or disease was the result of the veteran's willful misconduct.
(b)
(c)
(1)
(2)
(3)
(d)
(1)
(i) VA failed to exercise the degree of care that would be expected of a reasonable health-care provider; or
(ii) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health-care providers substantially complied with the requirements of § 17.32 of this chapter. Minor deviations from the requirements of § 17.32 of this chapter that are immaterial under the circumstances of a case will not defeat a finding of informed consent. Consent may be express (that is, given orally or in writing) or implied under the circumstances specified in § 17.32(b) of this chapter, as in emergency situations.
(2)
(3)
(e)
(i) Who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. 2105;
(ii) Who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and
(iii) Whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs.
(2) A
(f)
(1) Hospital care or medical services furnished under a contract made under 38 U.S.C. 1703;
(2) Nursing home care furnished under 38 U.S.C. 1720; and
(3) Hospital care or medical services, including, but not limited to, examination, provided under 38 U.S.C. 8153, in a facility over which the Secretary does not have direct jurisdiction.
Cross Reference: § 5.1, for the definition of “nursing home,” “proximately caused,” and “willful misconduct”.
The effective date of an award of disability compensation under 38 U.S.C. 1151(a) (see § 5.350) will be one of the following:
(a)
(b)
(a)
(b)
(c)
(1)
(2)
(d)
Cross References: (§§ 5.604, Specially adapted housing under 38 U.S.C. 2101(a); 5.605, Special Home Adaptation Grants under 38 U.S.C. 2101(b); § 5.603, Financial assistance to purchase a vehicle or adaptive equipment.
(2) If the amount described in paragraph (d)(1) of this section is greater than the amount of an award under 38 U.S.C. chapters 21 or 39, VA will offset the excess amount received under the judgment, settlement, or compromise against benefits otherwise payable under 38 U.S.C. chapter 11.
If a veteran's disability or death was the basis of an administrative award under 28 U.S.C. 1346(b) made, or a settlement or compromise under 28 U.S.C. 2672 or 2677 finalized, before December 1, 1962, VA may not award benefits under 38 U.S.C. 1151(a) for any period after such award, settlement, or compromise was made or became final. If a veteran's disability or death was the basis of a judgment under 28 U.S.C. 1346(b) that became final before December 1, 1962, VA may award benefits under 38 U.S.C. 1151(a) for the disability or death unless the terms of the judgment provide otherwise.
(a)
(2) VA's Veterans Benefits Administration (VBA) will adjudicate a claim for service connection of a dental condition for treatment purposes after the Veterans Health Administration (VHA) determines a veteran meets the basic eligibility requirements of § 17.161 of this chapter and VHA requests that VBA make a determination on questions that include, but are not limited to any of the following:
i. Former Prisoner of War status;
ii. Whether the veteran has a compensable or non-compensable service-connected dental condition or disability;
iii. Whether the dental condition or disability is a result of combat wounds;
iv. Whether the dental condition or disability is a result of service trauma; or
v. Whether the veteran is totally disabled due to a service-connected disability.
(b)
(1) VBA will consider the condition of teeth and periodontal tissues at the time of entry into active duty.
(2) VBA will consider each defective or missing tooth and each disease of the teeth and periodontal tissue separately to determine whether the condition was incurred or aggravated in line of duty during active military service.
(c)
(i) Treatable carious teeth.
(ii) Replaceable missing teeth.
(iii) Dental or alveolar abscesses.
(iv) Periodontal disease.
(2) VBA will grant service connection for treatment purposes under this section if the evidence of record shows that the dental condition meets the requirements of paragraph (d) of this section.
(3) These conditions and other dental conditions or disabilities that are noncompensably rated under § 4.150 of this chapter may be service connected for purposes of Class II or Class II (a) dental treatment under § 17.161 of this chapter.
(d)
(1) Teeth noted as normal at entry will be service connected for treatment purposes if they were filled or extracted 180 days or more after entry into active military service.
(2) Teeth noted as filled at entry will be service connected for treatment purposes if they were extracted, or if the existing filling was replaced, 180 days or more after entry into active military service.
(3) Teeth noted as carious but restorable at entry will not be service connected for treatment purposes on the basis that they were filled during service. Service connection may be established for treatment purposes if new caries developed 180 days or more after such teeth were filled.
(4) Teeth noted as carious but restorable at entry will be service connected for treatment purposes if extraction was required 180 days or more after entry into active military service.
(5) Third molars will not be service connected for treatment purposes unless disease or pathology of the tooth developed 180 days or more after entry into active military service.
(6) Impacted or malposed teeth and other developmental defects will not be service connected for treatment purposes unless disease or pathology of the teeth developed 180 days or more after entry into active military service.
(7) Teeth extracted because of chronic periodontal disease will be service connected for treatment purposes if they were extracted 180 days or more after entry into active military service.
(e)
(1) Teeth noted at entry as nonrestorable, regardless of treatment during service.
(2) Teeth noted as missing at entry, regardless of treatment during service.
(3) Calculus.
Cross Reference: § 17.161 Authorization of outpatient dental treatment; § 5.140, Determining former prisoner of war status, for the definition of “former prisoner of war”.
(a)
(b)
(c)
(a)
(b)
Cross References: §§ 5.1, for the definitions of “nursing home” and “psychosis”; 5.20, Dates of periods of war.
For purposes of entitlement to VA medical care under 38 U.S.C. 109(c), the agency of original jurisdiction will determine whether a former member of the Armed Forces of Czechoslovakia or Poland has a service connected disability. This determination will be made using the same criteria that apply to determinations of service connection based on service in the Armed Forces of the U.S.
Cross Reference: § 5.1, for the definition of “agency of original jurisdiction”.
(a)
(b)
(1) The disability or death can be service connected on some basis other than the veteran's use of tobacco products during service; or
(2) The disability became manifest or death occurred during service; or
(3) The disability or death resulted from injury or disease that manifested to the required degree of disability within any applicable presumptive period under §§ 5.260 through 5.268, § 5.270, or § 5.271; or
(4) Service connection is established for ischemic heart disease or other cardiovascular disease under § 5.248 as secondary to a disability not caused by the use of tobacco products during service.
VA will consider impaired hearing to be a disability when any of the following three criteria is satisfied:
(a) The auditory threshold in any of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater;
(b) The auditory thresholds for at least three of the frequencies of 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or
(c) Speech recognition scores using the Maryland CNC Test are less than 94 percent.
For certifying civil service disability preference for purpose of employment by the U.S. government, a service-connected disability may be assigned a rating of less than 10 percent disabling. Any directly or presumptively service-connected disability resulting in actual impairment will qualify the veteran for the civil service preference. For disabilities incurred in combat, however, no actual impairment is required.
(a)
(i) He or she was discharged or released because of a service-connected disability; or
(ii) The official service department records show that he or she had a service-connected disability at the time of separation from service that in VA's medical judgment would have warranted a discharge for disability.
(2) The determinations in paragraph (a)(1)(i) and (ii) of this section are subject to the presumptions of soundness under §§ 5.244(a) and 5.245. This paragraph is also applicable, in determining eligibility to the maximum period of entitlement based on discharge or release for a service-connected disability, regardless of length of service. See § 5.39.
(3)
(i) A veteran of World War II, the Korean conflict, or the Vietnam era who served for less than 90 days; or
(ii) A veteran who served less than 181 days on active duty as defined in §§ 36.4301 and 36.4501, and whose dates of service were:
(A) After July 25, 1947, and before June 27, 1950;
(B) After January 31, 1955, and before August 5, 1964; or
(C) After May 7, 1975.
(b)
(i) The veteran applies for benefits under 38 U.S.C. chapter 32, the minimum active duty service requirements of 38 U.S.C. 5303A apply to him or her, and the veteran would be eligible for such benefits only if:
(A) He or she was discharged or released from active duty for a disability incurred or aggravated in the line of duty; or
(B) He or she has a disability that VA has determined to be compensable under 38 U.S.C. chapter 11; or
(ii) The veteran applies for benefits under 38 U.S.C. chapter 30; and
(A) The evidence of record does not clearly show either that the veteran was discharged or released from active duty for disability or that the veteran's discharge or release from active duty was unrelated to disability; and
(B) The veteran is eligible for basic educational assistance except for the minimum length of active duty service requirements of § 21.7042(a) or § 21.7044(a) of this chapter.
(2)
(i) The veteran would be eligible for basic educational assistance under that chapter only if he or she was discharged from the Selected Reserve for a service-connected disability or for a medical condition that preexisted the veteran's having become a member of the Selected Reserve and which VA finds is not service connected; or
(ii) The veteran is entitled to basic educational assistance and would be entitled to receive it at the rates stated in § 21.7136(a) or § 21.7137(a) of this chapter only if he or she was discharged from the Selected Reserve for a service-connected disability or for a medical condition which preexisted the veteran's having become a member of the Selected Reserve and which VA finds is not service connected.
(3)
(i) The reservist is otherwise entitled to educational assistance under 10 U.S.C. chapter 1606; and
(ii) He or she applies for an extension of his or her eligibility period.
(4) The determinations required by paragraphs (b)(1) through (3) of this section are subject to the presumptions of soundness under §§ 5.244(a) and 5.245, based on service rendered after May 7, 1975.
Cross Reference: § 5.1, for the definition of “reservist”. See 38 CFR part 21, for further information on veterans educational assistance.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(a)
(b)
(1) Had wartime service under § 5.372; and
(2) Is either:
(i) Age 65 or older; or
(ii) Permanently and totally disabled under § 5.380.
(c)
(1) A surviving spouse is eligible for Improved Death Pension if the deceased veteran had wartime service under § 5.372. For the requirements to establish status as a surviving spouse, see §§ 5.200 and 5.430.
(2) A surviving child is eligible for Improved Death Pension if the deceased veteran had wartime service under § 5.372 and the child is not in the custody of a surviving spouse eligible to receive Improved Death Pension. For the requirements to establish status as a child and the custody rules for Improved Pension, see §§ 5.220(b) and 5.417.
(d)
(1)
(2)
(a)
(b)
(1) A period of 90 consecutive days or more, at least 1 day of which was during a period of war.
(2) 90 nonconsecutive days or more during a period of war. Separate periods of service within the same period of war can be added together to meet the 90-day requirement.
(3) A total of 90 days or more in 2 or more separate periods of service during more than 1 period of war.
(4) Any period of time during a period of war if:
(i) The veteran was discharged or released for a disability that VA later determines to be service-connected without presumptive provisions of law; or
(ii) Official service records show that the veteran had such a service-connected disability at the time of discharge that would have justified discharge.
(c)
(1) The veteran had wartime service as specified in paragraph (b) of this section; or
(2) The veteran was, at the time of his or her death, receiving or entitled to receive disability compensation or military retired pay for a service-connected disability based on service during a period of war.
Where the age of a veteran or surviving spouse is material to an Improved Pension claim, VA will accept as true the veteran's or surviving spouse's statement of age where it is consistent with all other statements of age in the record. If the record contains inconsistent statements of age, VA will use the youngest age of record unless the veteran or surviving spouse can file documentation of an older age in one of the ways outlined in § 5.229.
(a)
(b)
(1) A patient in a nursing home for long-term care because of disability; or
(2) Determined disabled by the Commissioner of Social Security for purposes of any benefits administered by the Commissioner.
(c)
(1)
(2)
(i) The need for hospitalization lasting any period of time may be a proper basis for determining permanence. If VA cannot determine whether a disability was permanent before the beginning of a period of hospitalization, but evidence shows that the disability was permanent at some time during the hospitalization and has not improved after such time, VA will establish permanence beginning on the date of admission into the hospital. In other cases, permanence will be established on the earliest date that it is shown by the evidence.
(ii) In cases involving disabilities that require hospitalization for indefinite periods not otherwise established as permanently and totally disabling, VA will establish that the disability was permanent as of the date of admission into the hospital if the claimant is hospitalized for at least 6 months without improvement. In other cases, permanence will be established on the earliest date that it is shown by the evidence.
(iii) In cases involving active pulmonary tuberculosis not otherwise established as permanently and totally disabling, VA will establish that the disability was permanent as of the date of admission into the hospital if the claimant is hospitalized for at least 6 months without improvement. If such active pulmonary tuberculosis improves after 6 months of hospitalization, but is still diagnosed as active after 12 months of hospitalization, permanence will also be established as of the date of admission into the hospital. In other cases, permanence will be established on the earliest date that it is shown by the evidence.
(3)
(4)
(i) Employment as a member-employee or similar employment obtained only in competition with disabled persons; and
(ii) Participation in, or the receipt of a distribution of funds as a result of participation in, a therapeutic or rehabilitation activity under 38 U.S.C. 1718.
(5)
Cross Reference: § 5.1, for the definitions of “nursing home” and “willful misconduct”.
(a)
(1) The date of receipt of claim; or
(2) The date the veteran became eligible (by attaining age 65 or by becoming permanently and totally disabled) and entitled (by meeting the income and net worth requirements).
(b)
(c)
(1) The veteran specifically requests a retroactive award;
(2) VA receives the claim for a retroactive award not more than 1 year after the date the veteran became permanently and totally disabled; and
(3) Due to disability, the veteran was unable to file a claim for at least the first 30 days after the date that the veteran became permanently and totally disabled. The disability preventing the veteran from filing a claim need not be the same disability that made the veteran permanently and totally disabled, and need not require extensive hospitalization, but a disability that requires extensive hospitalization is a disability that would prevent a veteran from filing a claim. A veteran will not be found to have been unable to file a claim due to disability if the disability resulted from the veteran's willful misconduct.
Cross Reference: § 5.1, for the definition of “willful misconduct”.
A veteran or surviving spouse who is eligible for Improved Pension may receive special monthly pension based on the need for regular aid and attendance if the claimant:
(a) Has 5/200 visual acuity or less in both eyes with corrective lenses;
(b) Has concentric contraction of the visual field to 5 degrees or less in both eyes;
(c) Is a patient in a nursing home because of mental or physical incapacity; or
(d) Establishes a factual need for regular aid and attendance under § 5.320.
Cross Reference: § 5.1, for the definition of “nursing home”.
A veteran who is eligible for Improved Pension may receive special monthly pension at the housebound rate if he or she does not need regular aid and attendance and meets the criteria of paragraph (a) of this section. A surviving spouse who is eligible for Improved Pension may receive special monthly pension at the housebound rate if he or she does not need regular aid and attendance and meets the criteria of paragraph (b) of this section.
(a)
(1) Has an additional disability or disabilities independently rated at 60 percent or more disabling under VA's Schedule for Rating Disabilities in part 4 of this chapter. The additional disability or disabilities must be separate and distinct from the disability rated 100 percent disabling and must involve different anatomical segments or bodily systems than the disability rated 100 percent disabling; or
(2) Is “permanently housebound” because of disability or disabilities.
(b)
(a) The effective date of an award of special monthly pension will be the later of either:
(1) The effective date of the award of Improved Pension under § 5.383 or the award of Improved Death Pension under § 5.431; or
(2) The date entitlement to special monthly pension arose.
(b)
The maximum annual rates of Improved Pension for the following categories of beneficiaries are the amounts specified in 38 U.S.C. 1521, 1541, and 1542. The rates are higher if a veteran has a spouse or dependent child, or if a surviving spouse has custody of the child of the deceased veteran. To see the maximum annual rate for each category, see the authority citation under paragraphs (a) through (h) of this section. Current and historical maximum annual rates can be found on the Internet at
(a) A veteran who is permanently and totally disabled or age 65 or older.
(b) A veteran who is housebound.
(c) A veteran who needs regular aid and attendance.
(d) Two veterans who are married to one another; combined rates.
(e) A surviving spouse.
(f) A surviving spouse who is housebound.
(g) A surviving spouse who needs regular aid and attendance.
(h) A surviving child of a deceased veteran, when the child has no custodian or is in the custody of an institution.
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(b)
(a)
(2)
(b)
(2)
(3)
Cross Reference: See § 5.416, Persons considered as dependents for Improved Pension.
(c)
(1)
(i)
(ii)
(2)
(3)
(i)
(ii)
(d)
(e)
(f)
(1)
(2)
If a beneficiary's income includes that of his or her spouse, and both the beneficiary and spouse are co-owners of a property that produces income, then income representing both co-owned shares is included as income to the beneficiary.
(3)
(g)
(a)
(b)
(2)
(i) The child's income is being saved in an account for the child's education;
(ii) The child did not reside in the parent-beneficiary's household for all or part of the year;
(iii) The child's income is automatically routed into a trust account under a court order; or
(iv) The child lives with the parent-beneficiary, but the child's income is being received by someone outside of that parent's household.
(c)
(1)
(2)
This number will include the child's adjusted annual income, because such income is countable to the parent-beneficiary with custody of such child under paragraph (a) of this section.
(3)
(4)
(5)
(A) The resulting amount in paragraph (c)(4) of this section; or
(B) The amount of the child's income that is considered available to the parent-beneficiary, that is, the child's adjusted annual income minus any amount calculated under paragraph (b) of this section.
(ii) If the amount of the hardship exclusion is zero or a negative number, then no hardship exclusion is permitted.
(6)
Cross Reference: § 5.1, for the definition of “custody of a child”.
VA will not count income from the following sources when calculating countable income for Improved Pension:
(a)
(1) The least amount of gross income for which an unmarried person must file a Federal Income Tax return if the person is not a surviving spouse or a head of household. For the law regarding this amount, see 26 U.S.C. 6012. For the definitions of the terms “unmarried person”, “surviving spouse”, and “head of household” for purposes of this paragraph (c), see 26 U.S.C. 2(a) and (b), 7703. See also
(2) The amount that the child pays for educational expenses, if the child is pursuing post-secondary education or vocational rehabilitation, including, but not limited to, tuition, fees, books, and materials.
(b)
(1) The value of maintenance furnished by a relative, friend, or a civic or governmental charitable organization, including, but not limited to, money paid to an institution for care due to a person's impaired health or advanced age. However, if the maintenance is excluded as income under this provision, VA cannot deduct it as an unreimbursed medical expense under § 5.413.
(2) Benefits received under means-tested programs, for example, Supplementary Security Income payments.
(3) Payments from the VA Special Therapeutic and Rehabilitation Activities Fund for participating in VA-approved therapy or rehabilitation under 38 U.S.C. 1718, or in a program of rehabilitation which is conducted by a VA-approved State home and which conforms to the requirements of 38 U.S.C. 1718.
(c)
(1) VA nonservice-connected disability or death pension payments, including, but not limited to, accrued benefits.
(2) The veteran's month-of-death rate paid to a surviving spouse under § 5.695.
(d)
(2) Any theft or loss (as defined by the Secretary), but the amount excluded under this subclause shall not exceed the greater of the fair market value or reasonable replacement value of the item or the amount of the money (including legal tender of the United States or of a foreign country) involved at the time immediately preceding the theft or loss; or
(3) Any casualty loss (as defined by the Secretary), but the amount excluded under this subclause shall not exceed the greater of the fair market value or reasonable replacement value of the property involved at the time immediately preceding the casualty loss.
(e)
(1)
(2)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(1) Dividends from commercial insurance policies and cash surrender of life insurance to the extent that they represent return of premiums. However, interest earned is considered a payment.
(2) Income tax refunds.
(3) Interest on Individual Retirement Accounts that cannot be withdrawn without incurring a penalty.
(4) Interest on prepaid burial plans that is added to the value of the policy and is not available to the policy holder.
(5) Royalties received for extracting minerals.
(6) School scholarships and grants earmarked for specific educational purposes to the extent they are used for those purposes.
(7) Benefits payable but withheld, such as Social Security withheld to recoup an overpayment. This does not apply to VA benefits withheld to recoup an overpayment.
(8) Lump-sum proceeds of any life insurance policy on a veteran.
(m) Payments listed in § 5.706.
(n) State compensation for veterans. Payment of a monetary amount of up to $5,000 to a veteran from a State or municipality that is paid as a veterans benefit due to injury or disease.
(a)
(b)
(1)
(2)
(i)
(ii)
(iii)
(c)
(ii)
(iii)
(2)
(ii)
(iii)
(iv)
(A) The amounts were paid by the surviving spouse before the veteran's death for the veteran's last illness;
(B) The surviving spouse made the payments no earlier than 1 year before the veteran died; and
(C) VA received the surviving spouse's Improved Death Pension claim no later than 1 year after the veteran's death.
(3)
(i) The expenses are reimbursed under 38 U.S.C. chapter 23 (see subpart J of this part concerning VA burial benefits); or
(ii) The expenses of a veteran's last illness were allowed as a medical expense deduction on the veteran's pension or parents' dependency and indemnity compensation (DIC) account during the veteran's lifetime.
(d)
See also § 5.412(a)(2) (concerning deducting a child's educational expenses from his or her earned income).
(e)
(1) Commercial insurance proceeds (disability, accident, life, or health);
(2) The Office of Workers' Compensation Programs of the U.S. Department of Labor;
(3) The Social Security Administration;
(4) The Railroad Retirement Board;
(5) Any worker's compensation or employer's liability statute; or
(6) Legal damages collected for personal injury or death.
(f)
(2)
(3)
(a)
(2)
(i)
(ii)
(b)
(1)
(i)
(ii)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c)
(1)
(2)
(3)
(ii)
(d)
(2)
(i) The adjusted annual income and the adjusted annual income of any person whose net worth is considered part of the claimant's or beneficiary's net worth.
(ii) Living expenses. However, in considering the claimant's or beneficiary's living expenses, VA cannot consider expenses it excluded or deducted in determining adjusted annual income.
(iii) The average life expectancy for a person of the same age as the claimant or beneficiary and the potential rate of depletion of net worth.
(iv) The value of liquid assets (assets that the claimant or beneficiary can readily convert into cash).
(v) The number of family members (as defined in § 5.300) who depend on the claimant or beneficiary for support.
(e)
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(2)
(b)
Cross Reference: § 5.57, Claims definitions.
(a)
(1) The veteran lives with the spouse;
(2) The veteran and the spouse live apart but are not estranged; or
(3) The veteran and the spouse live apart and are estranged, but the veteran provides reasonable contributions to the spouse's support. Whether support contributions are reasonable is a factual matter that VA determines.
(b)
(1) The child is in the veteran's or surviving spouse's custody; or
(2) The veteran provides reasonable contributions to the child's support. Whether support contributions are reasonable is a factual matter that VA determines.
(c)
Cross Reference: § 5.1, for the definition of “custody of a child”.
For purposes of Improved Pension:
(a)
(b)
(i) The child's stepparent and natural or adoptive parent are estranged and living apart; or
(ii) Custody is legally removed from the natural or adoptive parent.
(c)
(d)
Cross Reference: § 5.1, for the definitions of “custody of a child” and “State”. § 5.220(b)(2), Status as a child for benefit purposes, (enumerating situations in which a person is recognized as a child after attaining age 18).
When calculating adjusted annual income, VA counts income that is reported by a claimant or beneficiary during a “reporting period.” A “reporting period” is a time period established by VA during which a claimant or beneficiary must report to VA all income, net worth, and adjustments to income. However, the claimant or beneficiary may report a change in income or net worth when the change occurs. There are two types of reporting periods: The initial reporting period and the annual reporting period.
(a)
(i) The date VA receives a pension claim;
(ii) The date VA receives an election under § 5.460 or § 5.463; or
(iii) The date the claimant becomes eligible to receive Improved Pension.
(2)
(3)
(4)
(b)
(a)
(b)
(c)
(a)
(2)
(b)
(2)
(3)
Cross Reference: § 5.177(g), Effective dates for reducing or discontinuing a benefit payment or for severing service connection, (concerning reducing or discontinuing pension payments because of a change in disability or employability status).
(a)
(1) Count the greatest amount of expected annual income the claimant or beneficiary estimates or that is indicated by the evidence and adjust or pay benefits based on that amount. If that amount is greater than the maximum annual pension rate, Improved Pension will not be paid;
(2) Send notice to the claimant or beneficiary concerning the time limit provisions of § 5.424; and
(3) Adjust or pay benefits when complete income information is received, according to the provisions of § 5.424.
(b)
(1) Determine the maximum annual pension rate without consideration of the claimed dependent;
(2) Count the claimed dependent's income as income of the claimant or beneficiary for purposes of determining entitlement to Improved Pension and determining the annual Improved Pension amount; and
(3) Adjust the annual Improved Pension amount using the applicable maximum annual pension rate when evidence necessary to establish the dependent's relationship has been received. (For the evidence necessary to establish dependency, see Subpart D of this part.)
(a)
(b)
(2)
(c)
(d)
VA issues payments of Improved Pension as provided in this section. Except as provided in paragraph (e) of this section, a beneficiary may choose to receive monthly payments if other Federal benefits would be denied because pension payments are issued less frequently than monthly.
(a)
(b)
(c)
(d)
(e)
A surviving spouse may qualify for Improved Death Pension if the marriage to the veteran occurred before or during his or her service or, if the marriage meets one of the following criteria:
(a) The veteran and surviving spouse were married for 1 year or more (multiple marriage periods may be added together to meet the 1-year requirement).
(b) A veteran of one of the following wartime periods and the surviving spouse were married before one of the following delimiting dates:
(1) World War II: January 1, 1957.
(2) Korean Conflict: February 1, 1965.
(3) Vietnam Era: May 8, 1985.
(4) Persian Gulf War: January 1, 2001.
(c) A child was born of the marriage or born to them before the marriage.
Cross Reference: § 5.1(j), for the definition of “child born of the marriage” and “child born before the marriage”.
(a)
(2)
(b)
(1)
(2)
(3)
(i) An allowance;
(ii) An allotment; or
(iii) Service pay.
(a)
(b)
(1) Develop the claims of both the surviving spouse and the claimant seeking recognition as the surviving spouse; then
(2) Afford each claimant the applicable time period provided in § 5.424(b) to show his or her adjusted annual income is less than the maximum annual pension rate; and then
(3) If the surviving spouse does not establish entitlement to Improved Death Pension before the end of the applicable time limit under § 5.424(b), VA will recognize the claimant seeking recognition as a surviving spouse of a deemed valid marriage and award Improved Death Pension if that claimant meets eligibility and entitlement requirements. If the surviving spouse later claims Improved Death Pension and establishes entitlement, VA will then process the claim under § 5.433.
(a)
(b)
(2)
(i) The date of receipt of the new surviving spouse's claim; or
(ii) The first day of the month after the month VA last paid benefits.
(3)
(a)
(1)
(ii)
(2)
(3)
(b)
(1)
(i)
(ii)
(2)
(i)
(ii)
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(b)
(i) The maximum annual pension rate for a surviving spouse and one dependent surviving child, reduced by the adjusted annual income of the surviving child and that of the surviving child's custodian; or
(ii) The maximum annual pension rate for a surviving child alone, reduced by the surviving child's adjusted annual income.
(2)
(i) The maximum annual pension rate for a surviving spouse and the number of remaining surviving children, reduced by the total adjusted annual income of the remaining surviving children and that of the custodian; or
(ii) The maximum annual pension rate for a surviving child alone times the number of remaining surviving children, reduced by the total adjusted annual income of the remaining surviving children.
(3)
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(b)
An election to receive Improved Pension is effective on the date VA receives the election.
If a veteran is entitled to Improved Pension on the basis of his or her service and is also entitled to pension under any other VA pension program based on another person's service, VA will pay only the greater benefit.
(a)
(1) A veteran pension beneficiary ceases to be permanently and totally disabled;
(2) A surviving spouse pension beneficiary no longer meets the definition of “surviving spouse”, as provided in § 5.200;
(3) A child pension beneficiary no longer meets the definition of “child”, as provided in § 5.220;
(4) A pension beneficiary's income exceeds the annual income limit; or
(5) A Section 306 Pension beneficiary has a net worth of such value that it is reasonable that some part of it be consumed for the beneficiary's maintenance. Rating of net worth will be made under § 5.476.
(b)
(c)
(a)
(b)
(1) The annual income limits applicable to continued receipt of Old-Law Pension and Section 306 Pension; and
(2) The dollar amount of the spousal income not counted under § 5.473(b)(2)(ii)(A) in determining the income of a veteran for Section 306 Pension purposes.
(a)
(b)
(2)
(i)
(ii)
(A) Civil Service Retirement and Disability Fund;
(B) Railroad Retirement Board;
(C) District of Columbia for firemen, policemen, or public school teachers; and
(D) Former U.S. Lighthouse Service.
(3)
(4)
(c)
(2)
(3)
(d)
(2)
(3)
(4)
(5)
(ii)
(iii)
(6)
(ii)
(iii)
(7)
(i)
(ii)
(e)
(2)
(i) Subsistence allowance under 38 U.S.C. 3100 through 3121;
(ii) Special allowance under 38 U.S.C. 1312(a);
(iii) Accrued benefits, unless paid as a reimbursement; and
(iv) World War I adjusted disability compensation.
(f)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(i) Public or private health or hospitalization plan for a retired employee; or
(ii) Retired employee as reimbursement for premiums for supplementary medical insurance benefits under the Social Security program.
(12)
(i) Annuities or endowments paid under a Federal, State, municipal, or private business or industrial plan.
(ii) Old age and survivor's insurance and disability insurance under title II of the Social Security Act.
(iii) Retirement benefits received from the Railroad Retirement Board. However, if the beneficiary is a veteran receiving Old-Law Pension, payments from this source do not count at all.
(iv) Payments for permanent and total disability or death received from the Office of Workers' Compensation
(v) The proceeds of commercial annuity, endowment, or life insurance.
(vi) The proceeds of disability, accident, or health insurance. This 10 percent income reduction applies after the income from the specified payments is reduced by the deductions described in paragraph (c)(2) of this section.
(13)
(g)
(1)
(2)
(3)
(h)
Cross Reference: § 5.1, for the definitions of “political subdivision of the U.S.” and “State”.
(a)
(b)
(2)
(A) That the spouse's income is available to the veteran. The veteran may rebut this presumption by filing evidence showing that all or part of the spouse's income is not available.
(B) That counting the spouse's income would not cause the veteran hardship. The veteran may rebut this presumption by filing evidence showing that there are expenses beyond the usual family requirements. Examples of such expenses include special training for a handicapped child and expenses for the prolonged illness of a family member. However, if the spouse's income is not counted because it is needed to pay for unusual medical expenses, the same medical expenses cannot be deducted as unusual medical expenses under § 5.474(b).
(ii)
(A) The amount of spousal income not counted under Public Law 95–588, section 306(a)(2)(B) (as increased by amounts published in the “Notices” section of the
(B) All of the spouse's earned income.
(c)
(2)
(ii) If the child's income is paid or given to the surviving spouse, VA will only count as much of the child's income as remains after deducting the child's living expenses.
(d)
(2)
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(b)
(ii)
(2)
(3)
(4)
(5)
(6)
(c)
(2)
(3)
(4)
(5)
(d)
(2)
(a)
(2)
(b)
(2)
(i) If the recalculated rate is higher than the previous rate, VA will continue the previous rate.
(ii) If the rate payable to a surviving spouse with one child is less than the rate payable for a child alone, the surviving spouse will be paid the child's rate unless paragraph (b)(2)(i) of this section applies.
(c)
(a)
(b)
(c)
(1) The value of liquid assets;
(2) The ability of the beneficiary to dispose of property if limited by community property laws;
(3) The number of family members (as described in § 5.474(b)(1)(i)) who depend on the beneficiary for support; and
(4) The beneficiary's average life expectancy, and the potential rate of depletion of the beneficiary's net worth.
(d)
(a)
(1)
(2)
(3)
(b)
(a)
(b)
(c)
(a)
(2) Where more than one paragraph of this section applies, VA will accept the evidence described in any relevant paragraph as proof of death. For example, if the person died in a U.S. Government hospital located within a State, VA would accept the evidence establishing death specified in either paragraph (b) or (d) of this section.
(b)
(1) A copy of the public record of the State or community where death occurred.
(2) A copy of a coroner's report of death, or of a verdict of a coroner's jury, from the State or community where death occurred, provided the report or verdict properly identifies the deceased.
(c)
(1) A U.S. consular report of death bearing the signature and seal of the U.S. consul.
(2) A copy of the public record of death authenticated by the U.S. consul or other agency of the State Department or which is exempt from such authentication as provided in § 5.132(c)(5) (concerning certain copies of public or church records).
(3) An official report of death of a civilian employee of the U.S. Government from the employing U.S. Government entity.
(d)
(1) A death certificate signed by a medical officer.
(2) A clinical summary, or other report, signed by a medical officer showing the fact and date of death.
(e)
(a)
(b)
(c)
(d)
(1)
(2)
(i) The affidavits or certified statements of persons who witnessed the event in which the missing person is alleged to have perished, describing the event and, if applicable, why they believe the missing person perished in the event, or
(ii) If the testimony of eyewitnesses is not obtainable, the affidavits or certified statements of persons who have the most reliable information available concerning why the missing person is believed to have been at the event in which the missing person is alleged to have perished, why the missing person was in imminent peril at the time the event occurred, and the basis on which they concluded that death was caused by the event.
(3)
(a)
(1) The person has been continuously absent from home and family for at least 7 years without explanation; and
(2) A diligent search disclosed no evidence of the person's continued existence after the absence.
(b)
(c)
(2) A finding of death by another Federal agency meeting the criteria described in paragraphs (a)(1) and (2) of this section is acceptable for VA purposes if there is no credible evidence to the contrary.
(a)
(b)
(c)
(a)
(b)
(i) Except as provided in paragraph (b)(2) of this section, a disability that was service connected at the time of the veteran's death, or
(ii) A disability that is service connectable under the provisions of subpart E of this part, Claims for service connection and disability compensation. For purposes of this section, VA will presume that a death that occurred in line of duty was preceded by disability.
(2)
(c)
(1)
(2)
(ii) Generally, minor service-connected disabilities, particularly those of a static nature or not materially affecting a vital organ, would not be held to have contributed to death primarily due to unrelated disability. In
(iii) Service-connected diseases or injuries involving active processes affecting vital organs should receive careful consideration as a contributory cause of death, the primary cause being unrelated, from the viewpoint of whether there were resulting debilitating effects and general impairment of health to an extent that would render the person materially less capable of resisting the effects of other disease or injury primarily causing death. Where the service-connected condition affects vital organs as distinguished from muscular or skeletal functions and is evaluated as 100 percent disabling, debilitation may be assumed.
(iv) There are primary causes of death which by their very nature are so overwhelming that eventual death can be anticipated irrespective of coexisting conditions, but, even in such cases, there is for consideration whether there may be a reasonable basis for holding that a service-connected condition was of such severity as to have a material influence in accelerating death. In this situation, however, it would not generally be reasonable to hold that a service-connected condition accelerated death unless such condition affected a vital organ and was of itself of a progressive or debilitating nature.
(a)
(b)
(1)
(ii) DIC is not payable unless the service-connected death occurred after December 31, 1956, except in the case of certain persons receiving or eligible to receive death compensation who elect to receive DIC in lieu of death compensation. See §§ 5.742 and 5.759.
(2)
(3)
(c)
(d)
(a)
(b)
(1) Is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes;
(2) Has concentric contraction of the visual field in both eyes to 5 degrees or less; or
(3) Is a patient in a nursing home because of mental or physical incapacity.
(c)
(a)
(b)
(a)
(b)
(i) The surviving spouse married the veteran before or during the veteran's military service.
(ii) The surviving spouse was married to the veteran for 1 year or more. Multiple periods of marriage may be added together to meet the 1-year marriage requirement.
(iii) The surviving spouse was married to the veteran for any length of time and a child was born of the marriage or was born to them before the marriage. See § 5.1 for the definition of, child born of the marriage and child born before the marriage.
(iv) The surviving spouse married the veteran no later than 15 years after the date of termination of the period of service in which the injury or disease causing the veteran's death was incurred or aggravated. For purposes of paragraph (b)(1) of this section,
(2)
(i) The surviving spouse was married to the veteran continuously for 1 year or more immediately preceding the veteran's death.
(ii) The surviving spouse was married to the veteran for any length of time and a child was born of the marriage or was born to them before the marriage. See § 5.1 for the definition of child born of the marriage and child born before the marriage.
(a) Even though a veteran died of non-service-connected causes, VA will pay death benefits to the surviving spouse or child in the same manner as if the veteran's death was service connected, if:
(1) The veteran's death was not the result of his or her willful misconduct; and
(2) At the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was:
(i) Rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death;
(ii) Rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or
(iii) Rated by VA as totally disabling for a continuous period of not less than 1 year immediately preceding death, if the veteran was a former prisoner of war.
(b) For purposes of this section,
(1) The veteran would have received total disability compensation at the time of death for a service-connected disability rated totally disabling for the period specified in paragraph (a)(2) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or
(2) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 5.166 and 5.55(b), for the relevant period specified in paragraph (a)(2) of this section; or
(3) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (a)(2) of this section, but was not receiving compensation because:
(i) VA was paying the compensation to the veteran's dependents;
(ii) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran;
(iii) The veteran had not waived retired or retirement pay in order to receive compensation;
(iv) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2);
(v) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or
(vi) VA was withholding payments under 38 U.S.C. 5308 but determined that benefits were payable under 38 U.S.C. 5309.
(c) For purposes of this section, “rated by VA as totally disabling” includes total disability ratings based on unemployability (§ 4.16 of this chapter).
(a)
(1) Is eligible for dependency and indemnity compensation (DIC) on the basis described in § 5.510(b)(2), concerning veterans with a service-connected disability rated as totally disabling at the time of death under 38 U.S.C. 1318; and
(2) Receives any money or property of value pursuant to an award in a judicial proceeding based upon, or a settlement or compromise of, any cause of action for damages for the wrongful death of the veteran whose death is the basis for such benefits.
(b)
(c)
(1) VA will count in the amount to be offset damages typically recoverable under wrongful death statutes, such as reimbursement for the loss of support,
(2) VA will count in the amount to be offset amounts paid to a third party to satisfy a legal obligation of the surviving spouse or child. VA will also count the payment of the claimant's proportional share of attorney's fees, court costs, and other expenses incident to the civil claim.
(3) VA will not count in the amount to be offset money or property payable to a person or entity other than the spouse or child under the terms of the judgment, settlement, or compromise agreement unless the spouse or child receives the benefit of such a payment. For example, wrongful death damages paid to a veteran's estate or into a trust or similar arrangement will be counted in the amount to be offset to the extent that they are distributed to, or available for the use and benefit of, the surviving spouse or child.
(4) VA will not count in the amount to be offset benefits received under Social Security or worker's compensation even though such benefits may have been awarded in a judicial proceeding.
(5) The value of property received is that property's fair market value at the time it is received by the claimant.
(d)
(a)
(b)
(c)
(d)
(e)
(1)
(2)
(3)
(4) For a 2-year period beginning on the date entitlement to DIC commenced, the DIC paid monthly to a surviving spouse with one or more children under age18 will be increased by the amount set forth in 38 U.S.C. 1311(f), regardless of the number of such children. The DIC payable under this paragraph (e) is in addition to any other DIC payable. The increase in DIC of a surviving spouse under this paragraph (e) will cease beginning with the first of the month after the month in which the youngest child of the surviving spouse has attained age 18.
(f)
(1)
(2)
(3)
(i) The veteran would have received total disability compensation for the period specified in paragraph (c) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or
(ii) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected
(iii) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (c) of this section, but was not receiving compensation because:
(A) VA was paying the compensation to the veteran's dependents;
(B) VA was withholding the compensation under the authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran;
(C) The veteran had not waived retired pay in order to receive compensation;
(D) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2);
(E) VA was withholding payments because the veteran's whereabouts were unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or
(F) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309.
(a)
(1) DIC is currently being paid to one or more children;
(2) DIC had previously been paid to an additional child, but payment was discontinued because that child reached age 18;
(3) DIC has been reestablished for that child because he or she is attending an approved educational institution; and
(4) The effective date of the additional child's reestablished entitlement is prior to the date VA received that child's application to reestablish entitlement.
(b)
(2)
(c)
Cross-reference: Sections 5.693 Beginning date for certain VA payments, and 5.696 Payments to or for a child pursuing a course of instruction at an approved educational institution.
Except as provided in § 5.536(e), in any case where a dependency and indemnity compensation (DIC) claim has been filed by or on behalf of at least one dependent but VA believes that other dependents may be entitled to DIC based on the death of the same veteran, the award (original or amended) to all dependents who have filed claims will be made for all periods at the rates and in the same manner as if there were no dependents other than the dependents who filed claims. However, if the file reflects that there are additional potential DIC claimants and less than 1 year has passed since the veteran's death, the award to a dependent who has filed a claim will be made at the rate which would be payable as if all dependents were receiving benefits. If, at the expiration of the 1-year period, claims have not been filed for such dependents, VA will pay the full rate to the dependents already receiving DIC. This payment will include any retroactive amounts to which they are entitled.
(a)
(b)
(c)
(a)
(b)
(2)
(i) The value of a parent's use of his or her property, such as the rental value of a home a parent owns and lives in.
(ii) Dividends from commercial insurance policies.
(iii) Retirement benefits from the following sources (or to the following persons), if the benefits have been waived pursuant to Federal statute:
(A) Civil Service Retirement and Disability Fund;
(B) Railroad Retirement Board;
(C) District of Columbia, for firemen, policemen, or public school teachers;
(D) Former U.S. Lighthouse Service.
(c)
(d)
(2)
(3)
(4)
(e)
(a)
(b)
VA will deduct from sums recovered under disability, accident, or health insurance medical, legal, or other expenses incident to the insured injury or illness. However, VA will not deduct the same medical expenses under this paragraph (b) and paragraph (d) of this section.
(c)
(i) A deceased spouse's just debts, excluding debts secured by real or personal property.
(ii) The expenses of the spouse's last illness and burial to the extent such expenses are not reimbursed by VA under 38 U.S.C. chapter 23 (see subpart J of this part concerning VA burial benefits) or 38 U.S.C. chapter 51 (see § 5.551(e) concerning the use of accrued benefits to reimburse the person who bore the expense of a deceased beneficiary's last sickness or burial).
(2)
(3)
(4)
(d)
(ii)
(2)
(3)
(4)
(5)
(6)
(e)
VA will not count payments from the following sources when calculating a parent's income for dependency and indemnity compensation (DIC) purposes:
(a)
(b)
(1) The value of maintenance furnished by a relative, friend, or a civic or governmental charitable organization, including money paid to an institution for the care of the parent due to impaired health or advanced age.
(2) Benefits received under noncontributory programs, such as Supplemental Security Income payments.
(c)
(1) Payments under 38 U.S.C. chapter 11, Compensation for Service-Connected Disability or Death.
(2) Payments under 38 U.S.C. chapter 13, Dependency and Indemnity Compensation for Service-Connected Death. However, payments under 38 U.S.C. 1312(a), described in § 5.583 are counted as income.
(3) Nonservice-connected VA disability and death pension payments.
(4) VA benefit payments listed in § 5.472(e).
(d)
(e)
(f)
(g)
(1) Annuities or endowments paid under a Federal, State, municipal, or private business or industrial plan.
(2) Old age and survivor's insurance and disability insurance under title II of the Social Security Act.
(3) Retirement benefits received from the Railroad Retirement Board.
(4) Permanent and total disability or death benefits received from the Office of Workers' Compensation Programs of the U.S. Department of Labor, the Social Security Administration, or the Railroad Retirement Board, or pursuant to any worker's compensation or employer's liability statute, including damages collected incident to a tort suit under employer's liability law of the U.S. or a political subdivision of the U.S. This ten percent exclusion applies after the income from the specified payments is reduced by the deductions described in § 5.532(b) concerning expenses associated with disability, accident, or health insurance recoveries.
(5) A commercial annuity, endowment, or life insurance proceeds.
(6) Disability, accident or health insurance proceeds. This ten percent exclusion applies after the income from the specified payments is reduced by the deductions described in § 5.532(b) concerning expenses associated with disability, accident, or health insurance recoveries.
(h)
(i)
(2) If payments are received in installments, the sums received (including principal and interest) will not be counted until the parent has received an amount equal to the sale price. Any amounts received after the sale price has been recovered will be counted as income.
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(a)
(2) The calendar year for which VA will count income is the calendar year in which the parent received the income, or anticipates receiving it.
(3) VA will count a parent's total income for the calendar year except as provided in this section.
(b)
(2)
(3)
(i) Determine income from the effective date of the award of a parent's DIC to the end of the calendar year, disregarding income received and expenses paid before the effective date of the award.
(ii) Divide the result by the number of days from the effective date of the award of parent's DIC to the end of the calendar year.
(iii) Multiply that result by 365. This result, rounded down to the nearest dollar, is the proportionate annual income.
(c)
(a) (1)
(2)
(i) Satisfactory evidence shows that income was actually less than anticipated for that calendar year; and
(ii) VA receives such evidence no later than the end of the calendar year after the calendar year to which the evidence pertains. Otherwise, payment or increased payments may not be made for the applicable calendar year on the basis of such evidence.
(b) (1)
(2)
Cross-Reference: Sections 5.708 Eligibility verification reports and 5.709 Claimant and beneficiary responsibility to report changes.
(a)
(b)
(c)
(d)
(e)
(f)
(2)
(g)
(h)
(2)
(a)
(b)
(a)
(1)
(ii)
(2)
(b)
(1)
(2)
(c)
(d)
(1)
(2)
(e)
(a)
(b)
(1)
(2)
(a)
(b)
(1)
(ii)
(2)
(c)
(1)
(2)
(ii)
(3)
(ii)
If recertification of a veteran's military pay grade results in reduced dependency and indemnity compensation, VA will reduce the benefit effective the first day of the month after the month for which VA last paid the greater benefit.
(a)
(b)
(a)
(b)
This section does not apply to cases governed by § 5.524.
(a)
(b)
(2)
(i) The date VA received the additional survivor's claim; or
(ii) The first day of the month after the month for which VA last paid benefits to the original survivor.
(c)
(d)
(a)
(i) The date VA receives the claim for special monthly DIC; or
(ii) The date entitlement arose (as defined in § 5.150).
(2)
(b)
(2)
(c)
Cross Reference: § 5.511, Special monthly dependency and indemnity compensation.
(a)
(1)
(ii) This paragraph (a)(1)(ii) applies in a claim by a veteran's child who is at least age 18 but not yet age 23 and who was pursuing a course of instruction on the date of the deceased beneficiary's death. If such death occurred during a school vacation period and if school records show that the child was on the school rolls on the last day of the regular school term immediately before the date of the deceased beneficiary's death, then VA will consider the child to have been pursuing a course of instruction on the date of the death.
(2)
(b)
(c)
(i) The veteran's surviving spouse. If the marriage between the veteran and the surviving spouse met the definition of marriage in § 5.191, then the continuous cohabitation requirement in § 5.200(b)(3) does not apply.
(ii) The veteran's surviving children (in equal shares).
(iii) The veteran's surviving dependent parents (in equal shares).
(2)
(d)
(2)
(e)
(2)
(3)
(f)
(g)
(2)
(3)
Cross Reference: § 5.1, for the definition of “political subdivision of the U.S.”; § 5.784, Special rules for apportioned benefits on death of beneficiary or apportionee.
(a)
(b)
(1) Death pension; or
(2) Dependency and indemnity compensation.
If an application for accrued benefits is incomplete because the claimant has not furnished information necessary to establish that he or she is within the category of persons eligible for benefits under § 5.551, and if the claimant might be entitled to payment of any benefits that may have accrued, then VA will notify the claimant:
(a) Of the type of information required to complete the application;
(b) That VA will take no further action on the claim unless VA receives the required information; and
(c) That if VA does not receive the required information no later than 1 year after the date of the original VA notification of information required, no benefits will be awarded on the basis of that application.
(a)
(1) Clothing allowance under 38 U.S.C. 1162;
(2) Service-connected disability compensation under 38 U.S.C. chapter 11;
(3) Dependency and indemnity compensation under 38 U.S.C. chapter 13;
(4) Survivors' and dependents' educational assistance allowance or special restorative training allowance under 38 U.S.C. chapter 35;
(5) Medal of Honor pension under 38 U.S.C. 1562;
(6) Monetary benefits for an eligible child under 38 U.S.C. chapter 18;
(7) Pension, including death pension under 38 U.S.C. chapter 15;
(8) Restored Entitlement Program for Survivors (REPS) benefits (Sec. 156, Public Law 97–377, 96 Stat.1920–22);
(9) Subsistence allowance under 38 U.S.C. chapter 31; and
(10) Veterans' educational assistance under 38 U.S.C. chapter 30, 32, or 34 or 10 U.S.C. chapter 1606 or 1607.
(b)
(1) Assistance in acquiring automobiles and adaptive equipment under 38 U.S.C. chapter 39;
(2) Assistance in acquiring specially adapted housing under 38 U.S.C. chapter 21;
(3) Insurance under 38 U.S.C. chapter 19;
(4) Naval pension under 10 U.S.C. 6160; and
(5) Special allowance under 38 U.S.C. 1312(a).
(a)
(b)
(a)
(2)
(3)
(b)
(c)
(a)
(b)
(1) If the deceased payee was the veteran, to the surviving spouse or, if there is no surviving spouse, to children
(2) If the deceased payee was the veteran's surviving spouse, to children of the spouse under 18 years of age on the date of the spouse's death in equal shares;
(3) If the deceased payee was the recipient of an apportioned share of the veteran's pension or disability compensation, to the veteran to the extent the special deposit account consists of such apportionment payments; or
(4) In any other case, to the person who bore the expense of the burial of the payee, but only to the extent necessary to reimburse that person for such expenses.
(c)
(2) The claimant must file necessary evidence in support of the claim no later than 6 months after the date VA requests that evidence.
(d)
(2) Payment will be made under this section only if both the deceased beneficiary and the claimant have not been guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the U.S. or an enemy of any ally of the U.S.
(a)
(b)
(c)
(1) Amounts resulting from funds deposited in the PFOP account by the veteran or others besides VA, regardless of the source of the deposit; or
(2) Amounts, such as interest, representing an increase in the value of funds originally deposited by VA.
(d)
(1) The veteran's surviving spouse. If the marriage between the veteran and the surviving spouse meets the definition of marriage in § 5.191, then the continuous cohabitation requirement in § 5.200(b)(3) does not apply.
(2) The veteran's surviving children, as defined in § 5.220 in equal shares, but without regard to their age or marital status.
(3) The veteran's parents, as defined in § 5.238, who on the date of the veteran's death were dependent within the meaning of § 5.300, in equal shares.
(4) If no recipient listed in paragraphs (d)(1) through (3) of this section is living at the time of settlement, the person who bore the expense of the veteran's last sickness or burial, but only to the extent necessary to reimburse that person for such expense.
(e)
(2)
(3)
(ii) If there is a living person within a category of potential claimants (children, for example), VA will not pay that person's share of funds governed by this section to anyone else within that category unless, within 5 years after the veteran's death, that person dies, forfeits entitlement, or otherwise becomes disqualified. The other potential claimants must file timely claims.
(iii) Paragraphs (e)(3)(i) and (ii) apply even if the “living person” referred to in those paragraphs fails to file a timely claim or waives rights to funds governed by this section.
(a)
(1) The veteran's surviving spouse. If the marriage between the veteran and the surviving spouse meets the definition of marriage in § 5.191, then the continuous cohabitation requirement in § 5.200(b)(3), does not apply.
(2) The veteran's surviving children, as defined in § 5.220 in equal shares, but without regard to their age or marital status.
(3) The veteran's parents, as defined in § 5.238, who on the date of the veteran's death were dependent within the meaning of § 5.300, in equal shares.
(4) If no recipient listed in paragraphs (a)(1) through (3) of this section is living at the time of settlement, the person who bore the expense of the veteran's last sickness or burial, but only to the extent necessary to reimburse that person for such expense.
(b)
(2)
(3)
(ii)
(iii)
(c)
(d)
(a)
(b)
(c)
Cross Reference: § 5.1, for the definition of “political subdivision of the U.S.”
(a)
(b)
(2)
(3)
(4)
(c)
(d)
(a)
(b)
(1) Is currently receiving benefits; or
(2) Has a pending claim for any benefit at the time that the special act becomes effective.
(c)
(2)
(d)
(2) When a special act does not provide the effective date VA will determine the effective date according to § 5.152.
(e)
(2)
(f)
(a)
(b)
(c)
(d)
(a)
(1) Served after September 15, 1940;
(2) Died after December 31, 1956, as a result of such service; and
(3) Was not a fully and currently insured person under title II of the Social Security Act.
(b)
(1) Where the veteran's death is not service connected but is treated “as if” it were service connected under the provisions of 38 U.S.C. 1151. See § 5.510(b)(2) and (3); or
(2) Where the veteran's death was due to service in the Commonwealth Army of the Philippines while such forces were in the service of the Armed Forces pursuant to the military order of the President dated July 26, 1941, or in the New Philippine Scouts under sec. 14 of Public Law 79–190, 59 Stat. 543.
(c)
(d)
(e)
(i) While on active duty, active duty for training, or inactive duty training as a member of a uniformed service (regardless of whether the death occurred in the line of duty); or
(ii) As the result of a service-connected disability incurred after September 15, 1940.
(2) Where the veteran died after separation from service:
(i) Discharge from service must have been under conditions other than dishonorable, as outlined in § 5.30; and
(ii) Line of duty and service connection will be determined as outlined in Subpart K, Matters Affecting the Receipt of Benefits, of this part.
Cross Reference: § 5.1, for the definition of “uniformed services”.
VA will provide a certification of loan guaranty benefits to a surviving spouse based on a claim filed after December 31, 1958, if all of the following conditions are met:
(a) The veteran served in the Armed Forces of the U.S. (Allied Nations are not included) at any time after September 15, 1940;
(b)(1) The veteran died in service; or
(2) The veteran died after separation from service and the separation was under conditions other than dishonorable, provided the veteran's death was the result of injury or disease incurred in or aggravated by service in the line of duty rendered after September 15, 1940, regardless of the date of entrance into such service (cases where the veteran's death is not service connected but is treated “as if” it were service connected, under 38 U.S.C. 1318, or where disability compensation is payable because of death resulting from hospitalization, treatment, examination, or training, under 38 U.S.C. 1151, are not included);
(c) The surviving spouse meets the requirements of the term “surviving spouse” as outlined in § 5.200(a);
(d) The surviving spouse is unmarried or remarried after reaching age 57; and
(e) The surviving spouse is not eligible for a loan guaranty certification as a veteran in his or her own right.
Section 1476, title 10 United States Code authorizes a service department to pay a death gratuity for death of a servicemember after discharge or release from training. Entitlement to the death gratuity is contingent upon the findings in this section, certified by the Secretary of Veterans Affairs to the Secretaries of the Departments of the Army, Navy, Air Force, or Homeland Security.
(a)
(1) The veteran died after December 31, 1956;
(2) The veteran died during the 120-day period that began on the day after the day of his or her discharge or release from duty as described in 10 U.S.C. 1476;
(3) Death resulted from injury or disease incurred or aggravated while on such duty, or travel to or from such duty; and
(4) The veteran was discharged or released from such service under conditions other than dishonorable.
(b)
(a)
(b)
(c)
(2)
(a)
(1) Who the Department of Defense, the Department of Homeland Security, the Department of Health and Human Services, or the Department of Commerce has determined meets the eligibility criteria of sec. 4(a) of Public Law 92–425, 86 Stat. 712, as amended, other than sec. 4(a)(1) and (2);
(2) Who is eligible for pension under subchapter III of 38 U.S.C. chapter 15, or section 306 of the Veterans' and Survivors' Pension Improvement Act of 1978; and
(3) Whose annual income, as determined in establishing pension eligibility, is less than the maximum annual rate of pension in effect under 38 U.S.C. 1541(b).
(b)
(2)
(3)
(4)
(c)
(d)
(e)
A surviving spouse or child of a veteran who either died on active duty before August 13, 1981, or died as a result of a service-connected disability that was incurred or aggravated before August 13, 1981, may be entitled to receive a special allowance to replace social security benefits that were reduced or discontinued by the Omnibus Budget Reconciliation Act of 1981.
(a)
(2)
(b)
(2)
(3)
(4)
(5)
(6)
(c)
(1) A claimant eligible for death benefits under 38 U.S.C. 1151. The death in such a case is not service connected.
(2) A claimant eligible for death benefits under 38 U.S.C. 1318. The death in such a case is not service connected.
(3) A claimant whose claim is based on a person's service in:
(i) The Commonwealth Army of the Philippines while such forces were in the service of the Armed Forces pursuant to the military order of the President dated July 26, 1941, including recognized guerrilla forces (see 38 U.S.C. 107);
(ii) The New Philippine Scouts under sec. 14 of Public Law 79–190, 59 Stat. 543 (see 38 U.S.C. 107);
(iii) The commissioned corps of the Public Health Service (specifically excluded by sec. 156, Public Law 97–377, 96 Stat. 1920); or
(iv) The National Oceanic and Atmospheric Administration (specifically excluded by sec. 156, Public Law 97–377, 96 Stat. 1920).
(d)
(e)
(f)
(a)
(b)
(c)
(2) Veteran with
(3)
(4)
(d)
(i)
(ii)
(A) Walks with braces or other external support as his or her primary means of mobility in the community;
(B) Has sensory or motor impairment of the upper extremities, but is able to grasp a pen, feed himself or herself, and perform self care;
(C) Has an IQ of at least 70 but less than 90;
(D) Requires medication or other means to control the effects of urinary bladder impairment and no more than two times per week is unable to remain dry for at least 3 hours at a time during waking hours;
(E) Requires bowel management techniques or other treatment to control the effects of bowel impairment, but does not have fecal leakage severe or frequent enough to require wearing of absorbent materials at least 4 days a week; or
(F) Has a colostomy that does not require wearing a bag.
(iii)
(A) The person uses a wheelchair as his or her primary means of mobility in the community;
(B) Has sensory or motor impairment of the upper extremities severe enough to prevent grasping a pen, feeding himself or herself, and performing self care;
(C) Has an IQ of 69 or less;
(D) Despite the use of medication or other means to control the effects of urinary bladder impairment, at least three times per week is unable to remain dry for 3 hours at a time during waking hours;
(E) Despite bowel management techniques or other treatment to control the effects of bowel impairment, has fecal leakage severe or frequent enough to require wearing of absorbent materials at least 4 days a week;
(F) Regularly requires manual evacuation or digital stimulation to empty the bowel; or
(G) Has a colostomy that requires wearing a bag.
(2)
(3)
(4)
(5)
(6)
(e)
(a)
(2)
(3)
(b)
(c)
(2)
(3)
(i) Familial disorder;
(ii) Birth-related injury; or
(iii) Fetal or neonatal infirmity with well-established causes.
(d)
(1)
(i) Achondroplasia;
(ii) Cleft lip and cleft palate;
(iii) Congenital heart disease;
(iv) Congenital talipes equinovarus (clubfoot);
(v) Esophageal and intestinal atresia;
(vi) Hallerman-Streiff syndrome;
(vii) Hip dysplasia;
(viii) Hirschprung's disease (congenital megacolon);
(ix) Hydrocephalus due to aqueductal stenosis;
(x) Hypospadias;
(xi) Imperforate anus;
(xii) Neural tube defects (including, but not limited to, spina bifida, encephalocele, and anencephaly);
(xiii) Poland syndrome;
(xiv) Pyloric stenosis;
(xv) Syndactyly (fused digits);
(xvi) Tracheoesophageal fistula;
(xvii) Undescended testicle; and
(xviii) Williams syndrome.
(2)
(i) Albinism;
(ii) Alpha-antitrypsin deficiency;
(iii) Crouzon syndrome;
(iv) Cystic fibrosis;
(v) Duchenne's muscular dystrophy;
(vi) Galactosemia;
(vii) Hemophilia;
(viii) Huntington's disease;
(ix) Hurler syndrome;
(x) Kartagener's syndrome (Primary Ciliary Dyskinesia);
(xi) Marfan syndrome;
(xii) Neurofibromatosis;
(xiii) Osteogenesis imperfecta;
(xiv) Pectus excavatum;
(xv) Phenylketonuria;
(xvi) Sickle cell disease;
(xvii) Tay-Sachs disease;
(xviii) Thalassemia; and
(xix) Wilson's disease.
(3)
(i) Medulloblastoma;
(ii) Neuroblastoma;
(iii) Retinoblastoma;
(iv) Teratoma; and
(v) Wilm's tumor.
(4)
(i) Down syndrome and other Trisomies;
(ii) Fragile X syndrome;
(iii) Klinefelter's syndrome; and
(iv) Turner's syndrome.
(5)
(i) Brain damage due to anoxia during or around time of birth;
(ii) Cerebral palsy due to birth trauma,
(iii) Facial nerve palsy or other peripheral nerve injury;
(iv) Fractured clavicle; and
(v) Horner's syndrome due to forceful manipulation during birth.
(6)
(i) Asthma and other allergies;
(ii) Effects of maternal infection during pregnancy, including, but not limited to, maternal rubella, toxoplasmosis, or syphilis;
(iii) Fetal alcohol syndrome or fetal effects of maternal drug use;
(iv) Hyaline membrane disease;
(v) Maternal-infant blood incompatibility;
(vi) Neonatal infections;
(vii) Neonatal jaundice;
(viii) Post-infancy deafness/hearing impairment (onset after the age of 1 year);
(ix) Prematurity; and
(x) Refractive disorders of the eye.
(7)
(i) Attention deficit disorder;
(ii) Autism;
(iii) Epilepsy diagnosed after infancy (after the age of 1 year);
(iv) Learning disorders; and
(v) Mental retardation (unless part of a syndrome that is a covered birth defect).
(8)
(i) Conditions rendered non-disabling through treatment;
(ii) Congenital heart problems surgically corrected or resolved without disabling residuals;
(iii) Heart murmurs unassociated with a diagnosed cardiac abnormality;
(iv) Hemangiomas that have resolved with or without treatment; and
(v) Scars (other than of the head, face, or neck) as the only residual of corrective surgery for birth defects.
(e)
(1)
(ii)
(A) The person has residual physical or mental effects that only occasionally or intermittently limit or prevent some daily activities; or
(B) The person has disfigurement or scarring of the head, face, or neck without gross distortion or gross asymmetry of any facial feature including, but not limited to, the nose, chin, forehead, eyes, eyelids, ears (auricles), cheeks, or lips.
(iii)
(A) The person has residual physical or mental effects that frequently or constantly limit or prevent some daily activities, but the person is able to work or attend school, carry out most household chores, travel, and provide age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene, and communication, behavior, social interaction, and intellectual functioning are appropriate for his or her age; or
(B) The person has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of one facial feature or one paired set of facial features including, but not limited to, the nose, chin, forehead, eyes, eyelids, ears (auricles), cheeks, or lips.
(iv)
(A) The person has residual physical or mental effects that frequently or constantly limit or prevent most daily activities, but the person is able to provide age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene;
(B) The person is unable to work or attend school, travel, or carry out household chores, or does so intermittently and with difficulty;
(C) The person's communication, behavior, social interaction, and intellectual functioning are not entirely appropriate for his or her age; or
(D) The person has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of two facial features or two paired sets of facial features including, but not limited to, the nose, chin, forehead, eyes, eyelids, ears (auricles), cheeks, or lips.
(v)
(A) The person has residual physical or mental effects preventing age-appropriate self-care, such as eating, dressing, grooming, and carrying out personal hygiene;
(B) The person's communication, behavior, social interaction, and intellectual functioning are grossly inappropriate for his or her age; or
(C) The person has disfigurement or scarring of the head, face, or neck with either gross distortion or gross asymmetry of three facial features or three paired sets of facial features including, but not limited to, the nose, chin, forehead, eyes, eyelids, ears (auricles), cheeks, or lips.
(2)
(i) Mobility (ability to stand and walk, including, but not limited to, balance and coordination);
(ii) Manual dexterity;
(iii) Stamina;
(iv) Speech;
(v) Hearing;
(vi) Vision (other than correctable refraction errors);
(vii) Memory;
(viii) Ability to concentrate;
(ix) Appropriateness of behavior; and
(x) Urinary and fecal continence.
(f)
(2)
(g)
(h)
(i)
Cross Reference: § 5.1, for the definition of “competent evidence”.
This section provides the effective date of an award, reduction, or discontinuance of the monthly monetary allowance payable under § 5.589 to a Vietnam veteran or a veteran with covered service in Korea whose biological child is suffering from spina bifida or under § 5.590 to a female Vietnam veteran's biological child who suffers from one or more covered birth defects.
(a)
(1) An allowance payable under § 5.589 will not be effective before October 1, 1997;
(2) An allowance payable under § 5.590 will not be effective before December 1, 2001;
(3) Subject to paragraphs (a)(1) and (2) of this section, the effective date will be the child's date of birth, if VA received the claim no later than 1 year after the birth date;
(4) Subject to paragraphs (a)(1) and (2) of this section, if a previously denied claim is reopened and granted based on corrected military records, VA assigns an effective date in accordance with §§ 5.34(d) and 5.35(e); and
(5) Subject to paragraphs (a)(1) and (2) of this section, if a beneficiary is awarded an increase of a monetary allowance due to an increase in disability, VA will assign an effective date in accordance with § 5.312(b).
(b)
(1) If the monetary allowance was paid erroneously because of beneficiary error, VA will assign an effective date in accordance with § 5.167(b).
(2) If the monetary allowance was paid erroneously because of administrative error by VA, VA will assign an effective date in accordance with § 5.167(c).
(3) If a discontinuance is due to the beneficiary's death, VA will discontinue benefits effective the first day of the month of the beneficiary's death.
(4) If a reduction or discontinuance is warranted by a change of law or VA issue, or by a change in interpretation of a law or VA issue, VA will assign an effective date in accordance with § 5.152(c).
(5) If a reduction or discontinuance is warranted by a change in the beneficiary's physical condition, VA will pay a reduced rate or discontinue the monetary allowance effective the first day of the month that begins after the end of the 60-day period following the notice of the proposed reduction or discontinuance. The 60-day period is to be calculated in the same way as the notice period described in § 5.83(a).
(a)
(b)
(1)
(i) A Vietnam veteran who has a covered herbicide disease; or
(ii) A surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease.
(2)
(c)
(1)
(2)
(i) The claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing disability compensation claims, as indicating an intent to apply for disability compensation for the covered herbicide disability; or
(ii) VA issued a decision on the claim, between May 3, 1989, and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied disability compensation for a disease that reasonably may be construed as the same covered herbicide disease for which disability compensation has been awarded.
(3)
(4)
(d)
(1)
(2)
(3)
(4)
(e)
(2)
(f)
(i) The class member's spouse, regardless of current marital status.
For purposes of this paragraph (f), a “spouse” is the person who was legally married to the class member at the time of the class member's death.
(ii) The class member's child, regardless of age or marital status (if more than one child exists, payment will be made in equal shares, accompanied by an explanation of the division).
For purposes of this paragraph (f), the term “child” includes a natural and an adopted child, and also includes any stepchild who was a member of the class member's household at the time of the class member's death.
(iii) The class member's parent, regardless of dependency (if both parents are alive, payment will be made in equal shares, accompanied by an explanation of the division).
For purposes of this paragraph (f), the term “parent” includes a natural and an adoptive parent, but in the event of successive parents, the persons who last stood as parents in relation to the class member will be considered the parents.
(iv) The class member's estate.
(2)
(3)
(4)
(g)
(a)
(b)
(1)
(A) Make it safe for use by the eligible person; and
(B) Assist the eligible person in meeting applicable standards of licensure by the proper licensing authority.
(ii) Adaptive equipment includes, but is not limited to:
(A) Automatic transmission;
(B) Power steering, power brakes, power window lifts, and power seats;
(C) Modification of the interior space if necessary for the eligible person to enter or travel in the vehicle; and
(D) Special equipment that the Under Secretary for Health or designee has deemed to be ordinarily necessary to assist an eligible person into or out of a vehicle, even if another person operates the vehicle for the eligible person, or for an eligible person to operate the vehicle.
(2)
(c)
(i) A veteran who is entitled to disability compensation under 38 U.S.C. chapter 11, including disability compensation under 38 U.S.C. 1151, for a qualifying disability described in paragraph (c)(2) of this section; or
(ii) A member of the Armed Forces serving on active duty who has a qualifying disability described in paragraph (c)(2) of this section that is the result of an injury incurred or disease contracted in or aggravated by active military service.
(2)
(i) Anatomical loss or permanent loss of use of one or both feet;
(ii) Anatomical loss or permanent loss of use of one or both hands;
(iii) Permanent impairment of vision of both eyes: central visual acuity of 20/200 or less in the better eye, with corrective glasses, or central visual acuity of more than 20/200 if there is a field defect in which the peripheral field has contracted to such an extent that the widest diameter of visual field subtends an angular distance no greater than 20 degrees in the better eye;
(iv) Ankylosis of one or both knees or of one or both hips; however, VA will provide to a person with ankylosis only financial assistance to purchase adaptive equipment, and will not provide financial assistance to purchase a vehicle; or
(v) Severe burn injury.
(d)
(ii) A claim for financial assistance to purchase a vehicle will also be considered a claim for adaptive equipment necessary to operate the vehicle according to the safety standards of the licensing authority.
(iii) There is no time limit in which the claimant must apply for benefits under this section.
(iv) For a claimant applying while still on active duty, the claim will be deemed filed with VA on the date the application is shown to be in possession of military authorities for transmittal to VA.
(2)
(3)
(e)
(f)
The eligible person must give the certificate of eligibility to the seller of the vehicle. The seller must send the purchase receipt and certificate of eligibility to a VA regional office for reimbursement of the purchase price, or the statutory limit set in 38 U.S.C. 3902(a), whichever is less.
(2)
(i)
(ii)
A certificate of eligibility for assistance in acquiring specially adapted housing under 38 U.S.C. 2101(a) or 2101A(a) may be extended to a veteran or a member of the Armed Forces serving on active duty if the following requirements are met:
(a)
(b)
(1) The anatomical loss or loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair;
(2) Blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity;
(3) The anatomical loss or loss of use of one lower extremity together with residuals of organic injury or disease which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair;
(4) The anatomical loss or loss of use of one lower extremity together with the anatomical loss or loss of use of 1 upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair;
(5) The anatomical loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow; or
(6) Full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk.
(c)
Cross Reference: Assistance to certain disabled veterans in acquiring specially adapted housing. See §§ 36.4400 through 36.4410 of this chapter.
A certificate of eligibility for assistance in acquiring necessary special home adaptations, or, after October 27, 1986, for assistance in acquiring a residence already adapted with necessary special features, under 38 U.S.C. 2101(b) or 2101A(a) may be issued to a veteran who served after April 20, 1898, or to a member of the Armed Forces serving on active duty who is eligible for the benefit under this section after December 15, 2003, if the following requirements are met:
(a)(1) The veteran or member of the Armed Forces serving on active duty is not entitled to a certificate of eligibility for assistance in acquiring specially adapted housing under § 5.604, nor had the veteran or member of the Armed Forces serving on active duty previously received assistance in acquiring specially adapted housing under 38 U.S.C. 2101(a).
(2) A veteran or member of the Armed Forces serving on active duty who first establishes entitlement under this section and who later becomes eligible for a certificate of eligibility under § 5.604 may be issued a certificate of eligibility under § 5.604.
(b) A member of the Armed Forces serving on active duty must have a disability rated as permanent and total that was incurred or aggravated in the line of duty in active military service. A veteran must be entitled to compensation under 38 U.S.C. chapter 11 for a disability rated as permanent and total. In either case, the disability must:
(1) Include the anatomical loss or loss of use of both hands; or
(2) Be due to:
(i) Blindness in both eyes with 5/200 visual acuity or less; or
(ii) Deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk; or
(iii) Full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk; or
(iv) Residuals of an inhalation injury, including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease.
Cross Reference: Assistance to certain disabled veterans in acquiring specially adapted housing. See §§ 36.4400 through 36.4410 of this chapter.
(a)
(b)
(1) Is the anatomical loss or loss of use of a hand or foot compensable at a rate specified in §§ 5.322 through 5.329, § 5.331, or § 5.332 that requires the veteran to wear or use a prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) that tends to wear or tear the veteran's clothing, which is shown on VA examination, or by a hospital or examination report from a facility specified in § 5.91(a);
(2) The Under Secretary for Health or designee certifies that the veteran wears or uses a prosthetic or orthopedic appliance (including, but not limited to, a wheelchair) that tends to wear or tear the veteran's clothing; or
(3) Is a skin condition that the Under Secretary for Health or designee certifies requires the veteran to use prescription medication that causes irreparable damage to the veteran's outer garments.
(c)
(1) The clothing allowance was granted according to the criteria in paragraph (b)(1) of this section; or
(2) The Under Secretary for Health or designee finds that a clothing allowance granted according to the criteria in paragraph (b)(2) or (3) of this section is static.
(d)
(e)
(i) VA notifies the veteran of his or her entitlement to service connection for a qualifying disability before August 1 of the initial year of payment eligibility, and the veteran files a claim for clothing allowance no later than 1 year after August 1 of the initial year of payment eligibility; or
(ii) VA notifies the veteran of his or her entitlement to service connection for a qualifying disability after August 1 of the initial year of payment eligibility, and the veteran files a claim for clothing allowance no later than 1 year after the date of the notice.
(2)
(i) VA notified the veteran of his or her entitlement to service connection for a qualifying disability before August 1 of the initial year of payment eligibility, and the veteran filed the claim for clothing allowance more than 1 year after August 1 of the initial year of payment eligibility; or
(ii) VA notified the veteran of his or her entitlement to service connection for a qualifying disability after August 1 of the initial year of payment eligibility, and the veteran filed the claim for clothing allowance more than 1 year after the date of the notice.
(f)
Cross Reference: § 5.1, for the definition of “State”.
(a)
(2)
(3)
(b)
(2)
(3)
(c)
(2)
(3)
(4)
(d)
(2)
(3)
(i) Recognized guerrilla service; or
(ii) Unrecognized guerrilla service under a recognized commissioned officer only if the person was a former member of the U.S. Armed Forces (including the Old Philippine Scouts), or the Commonwealth Army of the Philippines. This excludes civilians.
(4)
(e)
Cross Reference: § 5.21, Service VA recognizes as active military service. § 5.28, Other groups designated as having performed active military service. § 5.39, Minimum active duty service requirement for VA benefits. § 5.40, Service records as evidence of service and character of discharge that qualify for VA benefits.
(a)
(1) Leaving one's organization in anticipation of, or due to, the capitulation.
(2) Escape from prisoner of war status.
(3) Parole by the Japanese.
(4) Beginning of missing-in-action status, except if factually shown that at that time he or she was with his or her unit or if death is presumed to have occurred while carried in such status. However, if there is credible evidence that he or she was alive after commencement of his or her missing-in-action status, then the presumption of death will not apply for VA purposes.
(5) Capitulation on May 6, 1942, except that periods of recognized guerrilla service, unrecognized guerrilla service under a recognized commissioned officer, or periods of service in units which continued organized resistance against the Japanese prior to formal capitulation will be considered return to active duty for the period of such service.
(b)
(c)
(d)
Cross Reference: § 5.40, Service records as evidence of service and character of discharge that qualify for VA benefits. § 5.140, Determining former prisoner of war status, for the definition of “former prisoner of war”.
(a)
(b)
(2)
(3)
(4)
Cross Reference: § 5.1, for the definition of “fraud”.
(a)
(1)
(2)
(3)
(4)
(b)
(1) A citizen of the U.S.; or
(2) An alien lawfully admitted for permanent residence in the U.S.
(c)
(A) A valid driver's license issued by the State of residence;
(B) Employment records, which may consist of pay stubs, W–2 forms, and certification of the filing of Federal, State, or local income tax returns;
(C) Residential leases, rent receipts, utility bills and receipts, or other relevant documents showing dates of utility service at a leased residence;
(D) Hospital or medical records showing medical treatment or hospitalization, and showing the name
(E) Property tax bills and receipts; and
(F) School records.
(ii) A Post Office box mailing address in the veteran's or veteran's survivor's name does not constitute evidence showing that the veteran or veteran's survivor is lawfully residing in the U.S.
(2)
(i) A U.S. passport;
(ii) A birth certificate showing that he or she was born in the U.S.; or
(iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate.
(3)
(4)
(d)
(2)
(3)
(4)
Cross Reference: § 5.1, for the definitions of “alien” “State”.
Public Laws 106–377 and 108–183, which provide disability compensation and dependency and indemnity compensation (DIC) at full-dollar rates to certain Filipino veterans and their survivors, are considered liberalizing laws. Accordingly, the provisions of § 5.152, apply when determining the effective date of an award. If the requirements of § 5.152 are not satisfied, then the effective date of an award or increased award of benefits at the full-dollar rate under § 5.613 will be determined as follows:
(a)
(1) Date entitlement arose;
(2) Date on which the veteran or the veteran's survivor first met the residency and citizenship or permanent resident alien status requirements in § 5.613, if VA receives evidence of this no later than 1 year after that date; or
(3) Effective date of service connection, provided that no later than 1 year after VA notifies the veteran or the veteran's survivor that it has granted service connection, VA receives evidence that he or she meets the residency and citizenship or permanent resident alien status requirements in § 5.613.
(b)
(1) The date the beneficiary regains his or her U.S. citizenship or lawful permanent resident alien status as required in § 5.613;
(2) The date the veteran or the veteran's survivor returned to the U.S. after an absence of more than 60 consecutive days;
(3) In the case of a veteran or veteran's survivor who was absent from the U.S. for a total of 183 days or more and returned to the U.S. during the same calendar year, the first day of the following calendar year; or
(4) In the case of a veteran or veteran's survivor who was absent from the U.S. for a total of 183 days or more and returned to the U.S. in a later calendar year but less than 183 days after the beginning of such calendar year, the day following their return.
(5) In the case of resumption of the full-dollar rate under § 5.613(d)(3), the date the requested evidence of continued eligibility is received by VA; or
(6) In the case of resumption of the full-dollar rate under § 5.613(d)(4), the date VA receives evidence of a valid U.S. mailing address.
(c)
Cross Reference: § 5.1, for the definition of “alien”.
(a)
(1) Service in the Commonwealth Army of the Philippines;
(2) Service as a guerrilla; and
(3) Service as a New Philippine Scout.
(b)
Cross Reference: §§ 5.530 through 5.537, for eligibility requirements and payment rules for parents' DIC.
Hospitalization in the Philippines under 38 U.S.C. 1731, 1732, and 1733 does not qualify the deceased for burial benefits based on death while properly hospitalized by VA.
Cross Reference: §§ 5.630 through 5.653, for burial benefits.
(a)
(1)
(2)
(3)
(4)
(b)
(1) Residing in the U.S.; and was
(2) Either:
(i) A citizen of the U.S.; or
(ii) An alien lawfully admitted for permanent residence in the U.S.; and was
(3) Either:
(i) Receiving disability compensation under 38 U.S.C. chapter 11; or
(ii) Meeting the disability, income, and net worth requirements of § 5.371,and would have been eligible for pension if the veteran's service had been deemed to be active military service.
(c)
(A) A valid driver's license issued by the State of residence;
(B) Employment records, which may consist of pay stubs, W–2 forms, and certification of the filing of Federal, State, or local income tax returns;
(C) Residential leases, rent receipts, utility bills and receipts, or other relevant documents showing dates of utility service at a leased residence;
(D) Hospital or medical records showing medical treatment or hospitalization of the veteran or the veteran's survivor, and showing the name of the medical facility or treating physician;
(E) Property tax bills and receipts; and
(F) School records.
(ii) A Post Office box mailing address in the veteran's name does not constitute evidence showing that the veteran was lawfully residing in the U.S. on the date of death.
(2)
(i) A U.S. passport;
(ii) A birth certificate showing that he or she was born in the U.S.; or
(iii) A Report of Birth Abroad of a Citizen of the U.S. issued by a U.S. consulate.
(3)
(4)
Cross Reference: § 5.1, for the definitions of “alien” and “State”.
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(5)
Cross Reference: § 5.1, for the definition of “alien”. § 5.705, General effective dates of reduction or discontinuance of benefits.
(a)
(1) Burial allowance based on service-connected death;
(2) Burial allowance based on nonservice-connected death;
(3) Burial allowance for a veteran who died while hospitalized by VA;
(4) Burial plot or interment allowance; and
(5) Allowance for transportation of remains.
(b)
(c)
(A) Burial in a national cemetery (see §§ 38.600 through 38.629 of this chapter);
(B) Presidential memorial certificates (see 38 U.S.C. 112);
(C) Burial flags (see § 1.10 of this chapter); and
(D) Headstones or markers (see §§ 38.630 through 38.633 of this chapter).
(2) The provisions of §§ 5.631 through 5.653 do not apply to any of the programs listed in paragraph (c)(1) of this section.
For purposes of providing burial benefits under subpart J of this part, a “veteran” is a person who:
(a) Had active military service and who was discharged or released under conditions other than dishonorable;
(b) Died during authorized travel to or from a period of active duty under § 5.29(a)(1); or
(c) Is entitled to a burial benefit based on a specific provision of law.
VA may grant a claim for burial benefits that any person files for a burial expense that is reimbursable under subpart J of this part, up to the amount of the applicable statutory burial allowance or a plot or interment allowance. Except in claims a State or an agency or political subdivision of a State files under § 5.636(a)(2) or § 5.645(a), such persons generally include (but are not limited to) the following:
(a) The funeral director, if all or any part of the bill is unpaid.
(b) Any person who used personal funds to pay or help pay burial expenses.
(c) The executor or administrator of the estate of any person, including the estate of the deceased veteran, who prepaid the burial expenses. If no executor or administrator has been appointed, VA may pay burial benefits based on a claim filed by a person acting for such estate who will make distribution of the burial benefits to the person or persons entitled to such distribution under the laws of the veteran's last State of residence.
(d) In a claim for a plot or interment allowance under § 5.645(b), the person or entity from whom the burial plot was purchased, if all or any part of the bill is unpaid.
Cross Reference: § 5.1, for the definition of “State”.
(a)
(2)
(b)
(i) A claim.
(ii) Proof of the veteran's death in accordance with § 5.500.
(iii) A statement of account, preferably on letterhead or in the form of an invoice from the funeral director or cemetery owner, showing: The name of the deceased veteran; the plot or interment expenses incurred; the dates of, and expenses incurred for, services rendered; the expenses incurred for any merchandise provided; any credits or payments received; and the unpaid balance.
(iv) A receipt, preferably on letterhead directly from the funeral director or cemetery owner, or such person's representative, showing by whom payment was made, and the name of the deceased veteran. Receipts for transportation charges must also show the dates of the services rendered.
(v) If an heir files the claim for burial expenses paid using funds from the veteran's estate or some other deceased person's estate, the claim must include waivers or evidence of unconditional consent from all other heirs, and the identity and right of all other persons to share in that estate must have been established at the time that each such person executed the waiver or gave consent.
(2)
(a)
(b)
(1)
(2)
(3)
“Transportation expenses” for purposes of §§ 5.639 and 5.644 include, but are not limited to, the following expenses:
(a)
(2)
(3)
(4)
(5)
(6)
(7)
(b)
(2)
(a)
(1) Under § 5.643, if the requirements of that section are met; or
(2) If a deceased veteran either served during wartime (as defined in § 5.20) or was discharged or released from active military service for a disability incurred or aggravated in the line of duty and the following conditions are met:
(i) The remains of the deceased veteran are being held by a State (or a political subdivision of a State); and
(ii) An appropriate official of the State (or a political subdivision of the State) where the remains are being held certifies in writing that:
(A) There is no next of kin or other person claiming the remains of the deceased veteran; and
(B) There are not sufficient resources available in the veteran's estate to cover the burial expenses.
(b)
(c)
(d)
Cross Reference: § 5.1, for the definition of “State”.
(a)
(b)
(1) Disability compensation for the cause of death is payable only under 38 U.S.C. 1151 (which provides compensation where a disability or death was caused by VA hospital care, medical or surgical treatment, examination, training and rehabilitation
(2) The basis of the claim for burial allowance is entitlement to dependency and indemnity compensation under 38 U.S.C. 1318 (which provides for benefits for a survivor of certain veterans rated totally disabled on the date of death as if the cause of death were service connected).
(c)
(1) VA may reimburse for transportation expenses related to burial in a national cemetery under § 5.639; and
(2) VA may pay the plot or interment allowance for burial in a State veterans cemetery under § 5.645(a).
Cross Reference: § 5.1, for the definition of “State”.
(a)
(1) Died as the result of a service-connected disability;
(2) Was receiving service-connected disability compensation on the date of death; or
(3) Would have been receiving service-connected disability compensation on the date of death, but for the receipt of military retired pay or nonservice-connected disability pension.
(b)
(1) Disability compensation for the cause of death is payable only under 38 U.S.C. 1151 (which provides compensation where a disability or death was caused by VA hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program); or
(2) The basis of the claim for transportation expenses is entitlement to dependency and indemnity compensation under 38 U.S.C. 1318 (which provides for benefits for a survivor of certain veterans rated totally disabled on the date of death as if the cause of death was service connected).
(c)
(a)
(b)
(1) Was receiving VA pension or disability compensation;
(2) Would have been receiving disability compensation but for the receipt of military retired pay; or
(3) Had any of the following claims pending:
(i) An original claim for pension or disability compensation, and the evidence in the claims file on the date of death and any evidence received under paragraph (d) of this section was sufficient to grant pension or disability compensation effective before the date of death; or
(ii) A claim to reopen a pension or disability compensation claim, based on new and material evidence, and the evidence in the claims file on the date of the veteran's death and any evidence received under paragraph (d) of this section was sufficient to reopen the claim and grant pension or disability compensation effective before the date of death.
(c)
(d)
(e)
(1) VA may reimburse for transportation expenses related to burial in a national cemetery under § 5.639, but only if entitlement under paragraphs (b)(1) through (3) of this section is based on a claim for or award of disability compensation, rather than a claim for or award of pension; and
(2) VA may pay the plot or interment allowance for burial in a State veterans cemetery under § 5.645(a).
Cross Reference: § 5.1, for the definition of “State”.
(a)
(b)
(1) Was admitted to a VA facility (as described in 38 U.S.C. 1701(3)) for hospital, nursing home, or domiciliary care under the authority of 38 U.S.C. 1710 or 1711(a);
(2) Was transferred or admitted to a non-VA facility (as described in 38 U.S.C. 1701(4)) for hospital care under the authority of 38 U.S.C. 1703;
(3) Was transferred or admitted to a nursing home for nursing home care at the expense of the U.S. under the authority of 38 U.S.C. 1720;
(4) Was transferred or admitted to a State nursing home for nursing home care for which payment is authorized under the authority of 38 U.S.C. 1741;
(5) Died while traveling under proper prior authorization, and at VA expense,
(6) Was hospitalized by VA pursuant to paragraphs (b)(1) through (4) of this section but was not at the VA facility at the time of death and was:
(i) On authorized absence that did not exceed 96 hours at the time of death;
(ii) On unauthorized absence for a period not in excess of 24 hours at the time of death; or
(iii) Absent from the hospital for a period not in excess of 24 hours of combined authorized and unauthorized absence at the time of death.
(c)
(d)
(1) Within a State; or
(2) Within a State but the burial is to be outside of a State, except that reimbursement for the expense of transportation of the remains will be authorized only from the place of death to the port of embarkation, or to the border limits of the U.S. where burial is in Canada or Mexico.
Cross Reference: § 5.1, for the definitions of “nursing home” and “State”.
(a)
(1) The veteran was eligible for burial in a national cemetery under 38 U.S.C. 2402, but was not buried in a national cemetery or other cemetery under the jurisdiction of the U.S.;
(2) The State is claiming the plot or interment allowance for burial of the veteran in a cemetery, or section of a cemetery, owned by the State or agency or subdivision of the State;
(3) The State or agency or political subdivision of the State did not charge for the expense of the plot or interment; and
(4) The state uses the cemetery, or section of a cemetery solely for the interment of any or all of the following:
(i) Persons eligible for burial in a national cemetery;
(ii) In a claim based on a veteran dying after October 31, 2000, deceased members of a reserve component of the Armed Forces not otherwise eligible for interment in a national cemetery; or
(iii) In a claim based on a veteran dying after October 31, 2000, deceased former members of a reserve component of the Armed Forces not otherwise eligible for interment in a national cemetery who were discharged or released from service under conditions other than dishonorable.
(b)
(1) Is eligible for a burial allowance under § 5.643 or § 5.644;
(2) Was discharged from active military service for a disability incurred in or aggravated in the line of duty (because in such cases, VA will accept the official service record as proof of eligibility for the plot or interment allowance and VA will disregard any previous VA determination made in connection with a claim for monetary benefits that the disability was not incurred or aggravated in the line of duty); or
(3) Who, at the time of discharge from active military service, had a disability, shown by official service records, which in medical judgment would have justified a discharge for disability.
(c)
Cross Reference: § 5.1, for the definition of “State”.
(a)
(b)
(c)
(d)
(2) Notwithstanding paragraphs (a) through (c) of this section, VA will provide the entire plot or interment allowance under § 5.645(a), to an eligible State, or an agency or political subdivision of a State, rather than any other claimant for plot or interment allowance.
(e)
Cross Reference: § 5.1, for the definition of “State”.
VA will not pay burial benefits when the payment would escheat (that is, would be turned over to the State because there are no heirs to the estate of the person to whom such benefits would be paid).
(a)
(1) The allowable statutory amount; or
(2) The amount of the total burial expenses minus the amount of burial expenses paid by any or all of the organizations described in this paragraph (a).
(b)
(c)
(2)
(3)
(d)
Cross Reference: § 5.1, for the definitions of “political subdivision of the U.S.” and “State”.
(a)
(b)
Cross Reference: § 5.1, for the definition of “fraud”.
When any person dies who had a status under any law in effect on December 31, 1957, that afforded entitlement to burial benefits, the burial allowance will be paid, if otherwise in order, even though such status does not meet the service requirements of 38 U.S.C. chapter 23.
(a)
(b)
(1) The veteran's willful misconduct under § 5.661; or
(2) The veteran's abuse of alcohol or drugs under § 5.662.
(c)
(1) Avoiding duty by desertion;
(2) Absent without leave, which materially interfered with the performance of military duty;
(3) Confined under a sentence of court-martial involving an unremitted dishonorable discharge; or
(4) Confined under sentence of a court other than a U.S. military court for a felony under the laws of the jurisdiction of such court.
(d)
Cross Reference: § 5.1, for the definitions of “drugs” and “willful misconduct”. § 5.140(b), Determining former prisoner of war status, (concerning whether the detention or internment of a former prisoner of war was in the line of duty).
(a)
(b)
(2) VA may not grant disability or death pension for any condition proximately caused by the veteran's willful misconduct.
(c)
(ii) Organic diseases and injuries that are proximately caused by the chronic use of alcohol as a beverage will not be considered of willful misconduct origin. However, § 5.662(b), may preclude VA from awarding service connection for such diseases or injuries.
(2)
(ii) Organic diseases that are proximately caused by the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. However, VA may be precluded by § 5.662(b) from awarding service connection for such diseases.
(iii) The use of drugs as directed for therapeutic purposes is not willful misconduct.
(iv) The use of drugs proximately caused by a service-connected disability is not willful misconduct.
(d)
(ii) A person of unsound mind is incapable of forming an intent (mens rea, or guilty mind, which is an essential element of crime or willful misconduct).
(iii) In order for a death resulting from suicide to be service connected, the precipitating mental unsoundness be service connected.
(2)
(ii) VA considers the act of suicide or a bona fide attempt to be evidence of mental unsoundness. Therefore, where the evidence shows no reasonable, adequate motive for suicide, VA will consider the act to have resulted from mental unsoundness.
(iii) Competent evidence showing circumstances which could lead a rational person to self-destruction may establish a reasonable, adequate motive for suicide.
(3)
(ii) In all instances, reasonable doubt should be resolved in favor of supporting a finding of service connection (see § 5.249).
(e)
(f)
(a)
(2)
(b)
(c)
(2) VA will consider the effect of the abuse of alcohol or drugs in evaluating the severity of a service-connected disability under the Schedule for Rating Disabilities in part 4 of this chapter if competent evidence shows that the service-connected disability proximately caused the abuse of alcohol or drugs.
(d)
(1) Alcohol abuse;
(2) Drug abuse; or
(3) The use of alcohol or drugs constituting willful misconduct under § 5.661(c), Willful misconduct.
Cross Reference: § 5.1, for the definitions of “drugs,” “proximately caused,” and “willful misconduct”.
(a)
(1)
(2)
(3)
(b)
(c)
(1) He or she, or another person, was in immediate danger of death or serious bodily harm from the deceased;
(2) There was no way to escape or retreat in order to avoid the danger of death or serious bodily harm; and
(3) The action causing the death was necessary to avoid the danger of death or serious bodily harm.
(d)
(2)
(e)
(f)
(2)
(3)
(i) VA will pay to the veteran's surviving spouse any additional benefits to which the spouse is entitled on account of that child, if the surviving spouse has actual or constructive custody of the child.
(ii) If the surviving spouse does not have actual or constructive custody of the child, VA will pay death benefits to the eligible surviving spouse as if the child did not exist.
(iii) VA will pay death benefits to any other child of the veteran (including apportionments of benefits based on the veteran's death) as if the child who committed the homicide did not exist.
(4)
(5)
(6)
Cross Reference: § 5.1, for the definitions of “custody of a child” and “insanity”.
(a)
(b)
(a)
(b)
(i) The person committing the fraud was not residing or domiciled in a State at the time of the commission of the fraud;
(ii) The person committing the fraud ceased to be a resident of or domiciled in a State before expiration of the period during which criminal prosecution could be instituted; or
(iii) The fraud was committed in the Philippine Islands.
(2)
(3)
(ii)
(iii)
(4)
(5)
(c)
(2)
(B)
(C)
(ii)
(3)
(d)
(2)
(e)
Cross Reference: § 5.1, for the definitions of “fraud” “State”. § 5.679, Forfeiture decision procedures.
(a)
(b)
(i) The person committing the treasonable act was not residing or domiciled in a State at the time of the commission of the treasonable act;
(ii) The person committing the treasonable act ceased to be a resident of or domiciled in a State before expiration of the period during which criminal prosecution could be instituted; or
(iii) The treasonable act was committed in the Philippine Islands.
(2)
(3)
(i) An apportionment award of the forfeited benefits; or
(ii) An award of benefits provided under this part to the veteran's dependent based on a period of the veteran's active military service that began before the date of commission of the treasonable acts.
(4)
(5)
(c)
(2)
(B)
(C)
(D)
(ii)
(A) The forfeiture was found before September 2, 1959;
(B) The specified death benefits were authorized before September 2, 1959; and
(C) The payee of the specified death benefits did not participate in the treasonable acts that caused the forfeiture.
(d)
(e)
Cross Reference: § 5.1, for the definitions of “custody of a child” and “State”. § 5.679, Forfeiture decision procedures.
(a)
(1)
(i) Section 894 (Art. 94, Mutiny or sedition).
(ii) Section 904 (Art. 104, Aiding the enemy).
(iii) Section 906 (Art. 106, Spies).
(2)
(i) Section 792, Harboring or concealing persons.
(ii) Section 793, Gathering, transmitting, or losing defense information.
(iii) Section 794, Gathering or delivering defense information to aid foreign government.
(iv) Section 798, Disclosure of classified information.
(v) Section 2381, Treason.
(vi) Section 2382, Misprision of treason.
(vii) Section 2383, Rebellion or insurrection.
(viii) Section 2384, Seditious conspiracy.
(ix) Section 2385, Advocating overthrow of Government.
(x) Section 2387, Activities affecting armed forces generally.
(xi) Section 2388, Activities affecting armed forces during war.
(xii) Section 2389, Recruiting for service against U.S.
(xiii) Section 2390, Enlistment to serve against U.S.
(xiv) Chapter 105, Sabotage.
(3)
(i) Section 175, Prohibitions with respect to biological weapons.
(ii) Section 229, Prohibited activities.
(iii) Section 831, Prohibited transactions involving nuclear materials.
(iv) Section 1091, Genocide.
(v) Section 2332a, Use of certain weapons of mass destruction.
(vi) Section 2332b, Acts of terrorism transcending national boundaries.
(4)
(i) Section 2272, Violation of specific sections.
(ii) Section 2273, Violation of sections.
(iii) Section 2274, Communication of Restricted Data.
(iv) Section 2275, Receipt of Restricted Data.
(v) Section 2276, Tampering with Restricted Data.
(5)
(b)
(2)
(ii)
(3)
(ii)
(iii)
(iv)
(c)
(2)
(a)
(2)
(3)
(i) The director of a Veterans Benefits Administration service;
(ii) The Chairman, Board of Veterans' Appeals; or
(iii) The General Counsel.
(b)
(1) The specific charges against the person;
(2) A detailed statement of the evidence supporting the charges (subject to regulatory limitations on disclosure of information);
(3) A citation and discussion of the applicable statute;
(4) The right to file a statement or evidence no later than 60 days after the date of the notice, either to rebut the charges or explain the person's position;
(5) The right to request a hearing no later than 60 days after the date of the notice, with representation by counsel of the person's choosing; and
(6) Information that fees for representation are limited in accordance with 38 U.S.C. 5904, Recognition of agents and attorneys generally, and that VA will not pay expenses incurred by a claimant, his or her counsel, or witnesses.
(c)
(2)
(d)
(e)
Cross Reference: § 5.1, for the definitions of “agency of original jurisdiction,” “final decision,” and “fraud.”
(a)
(b)
(1) Upon a showing that the forfeiture decision was the product of clear and unmistakable error under § 5.162;
(2) Upon the submission of new and material evidence under § 5.55; or
(3) When a forfeiture for fraud was imposed before September 2, 1959, as provided in paragraph (c) of this section.
(c)
(2)
(ii)
(3)
(A) VA revoked a forfeiture under paragraph (c)(1) of this section;
(B) During the period of time that the forfeiture was in effect, VA apportioned some or all of the forfeited benefits to the beneficiary's dependent as provided in § 5.676(c)(2), Forfeiture for fraud; and
(C) The revocation results in payments being due to the beneficiary for periods during which VA paid the apportionment to the beneficiary's dependent.
(ii)
Cross Reference: § 5.1, for the definition of “fraud”.
(a)
(2)
(b)
(2)
(3)
Cross Reference: § 5.1, for the definition of “fraud”.
(a)
(b)
(1) If an application is filed no later than 1 year after the date of the pardon, VA will restore payments effective the date of the pardon; or
(2) If an application is filed more than 1 year after the date of the pardon, VA will restore payments effective the date of receipt of the application.
(c)
(d)
(a)
(b)
(c)
(d)
(2)
(e)
(ii) Except as otherwise provided in paragraph (e)(2) of this section, the effective date of the award of benefits resulting from the new application will be the date of receipt of that application.
(2)
Cross Reference: § 5.83(c)(4) (concerning when VA will send a contemporaneous notice of reduction, discontinuance, or other adverse action).
(a)
(1) Disability compensation;
(2) Death compensation;
(3) Dependency and indemnity compensation;
(4) Old-Law Pension;
(5) Section 306 Pension;
(6) Improved Pension; and
(7) Monthly allowances under 38 U.S.C. chapter 18 for children disabled from spina bifida or with certain birth defects.
(b)
(1) Old-Law Pension;
(2) Section 306 Pension;
(3) Improved Pension; and
(4) Parents' dependency and indemnity compensation.
(c) Whenever there is an increase in the rates listed in this section, VA will publish notice in the
(a)
(b)
(1) Improved Pension maximum annual pension rates;
(2) Old-Law Pension and Section 306 Pension annual income limits;
(3) Income of a spouse when excluded from a veteran's countable annual income for Old-Law Pension and Section 306 Pension purposes;
(4) Parents' DIC annual rates and income limits; or
(5) The monthly allowance rates under 38 U.S.C. chapter 18 for children disabled from spina bifida or with certain birth defects.
(c)
VA will not pay fractions of a cent when paying any benefit.
(a)
(1) An added dependent;
(2) An increase in disability or disability rating, including, but not limited to, a temporary increased rating;
(3) A reduction in income;
(4) An election of Improved Pension under § 5.463, Effective dates of Improved Pension elections;
(5) Except as provided in paragraph (c)(6) of this section, a temporary total rating under § 4.29 of this chapter; or
(6) A temporary total rating under § 4.30 of this chapter.
(b)
(1) Disability compensation;
(2) Pension;
(3) Dependency and indemnity compensation (DIC); or
(4) The monetary allowances under 38 U.S.C. chapter 18 for children disabled from spina bifida or with certain birth defects.
(c)
(1) Awards that provide only for continuity of entitlement with no increase in the rate of payment.
(2) Awards restoring a previously reduced benefit because the circumstances requiring reduction no longer exist.
(3) Awards to a surviving spouse at the veteran's rate for the month of the veteran's death.
(4) Awards that change any withholding, reduction, or suspension because of:
(i) Recoupment;
(ii) An offset to collect indebtedness;
(iii) Receipt of hospital, domiciliary, or nursing home care;
(iv) Incompetency;
(v) Incarceration; or
(vi) Discontinuance of apportionment.
(5) Benefit increases resulting solely from the enactment of certain types of legislation, including, but not limited to, the following:
(i) Cost-of-living increases for disability compensation and DIC for surviving spouses and children;
(ii) Increases in the maximum annual pension rate for Improved Pension;
(iii) Increases in the income limits and maximum monthly rate for parents' DIC;
(iv) Increases in the monetary allowances under 38 U.S.C. chapter 18 for children disabled from spina bifida or with certain birth defects; and
(v) Statutory changes in the criteria for the award of special monthly compensation.
(6) Awards based on temporary total ratings under § 4.29 of this chapter when the entire period of hospitalization or treatment, including any period of post-hospitalization convalescence, begins and ends within the same calendar month. In such cases the period of payment will begin on the first day of the month in which the hospitalization or treatment began.
(7) Apportionments of benefits.
(8) Certain awards of disability compensation to a veteran who is also eligible for retired pay, as described in paragraph (d)(1) of this section.
(9) Awards to a veteran's dependent of benefits that the veteran was receiving or entitled to receive when the veteran disappeared for 90 days or more.
(10) Certain awards of disability compensation to a veteran who was retired or separated for a catastrophic disability, as described in paragraph (e) of this section.
(d)
(2) If the amount of VA disability compensation payable is greater than the veteran's retired pay, VA's payment
(3) Nothing in this section precludes the veteran from receiving retired pay before the effective date of waiver of such pay.
(e)
When VA discontinues benefits because the beneficiary has died, the discontinuance will be effective the first day of the month in which the beneficiary died.
(a)
(b)
(2)
(c)
(d)
(e) When a veteran dies on or after August 6, 2012, the veteran's surviving spouse is entitled to the month-of-death benefit if: (1) The veteran was receiving disability compensation or pension when he or she died; or
(2) VA determines under §§ 5.551 through 5.555 that the veteran was entitled to receive such compensation or pension, or a higher rate of compensation or pension that the veterans was receiving when he or she died. If VA determines that the veteran was entitled to a higher rate of compensation or pension than VA had previously paid as a month-of-death benefit to the surviving spouse, then VA will pay the difference to the surviving spouse.
(a)
(b)
(i) VA will pay the veteran additional disability compensation if the veteran has service-connected disability rated at least 30 percent disabling;
(ii) VA may pay the veteran a higher rate of Improved Pension;
(iii) VA may pay a surviving spouse a higher rate of Improved Death Pension; or
(iv) VA may pay the child Improved Death Pension if no surviving spouse is eligible to receive Improved Death Pension or if the surviving spouse does not have custody of the child. See § 5.1, for the definition of “custody of a child”.
(2)
(ii)
(c)
(1)
(A) Immediately before the child's 18th birthday, the child was a dependent on a surviving spouse's DIC award;
(B) The child began the course of instruction on or before the child's 18th birthday; and
(C) VA receives a claim for DIC on, before, or no later than 1 year after the child's 18th birthday.
(ii)
(A) Immediately before the child's 18th birthday, the child was not a dependent on a surviving spouse's DIC award;
(B) The child began the course of instruction at an approved educational institution on or before the child's 18th birthday; and
(C) VA receives a claim for DIC on, before, or no later than 1 year after the child's 18th birthday.
(2)
(i) The child began the course after the child's 18th birthday; and
(ii) VA receives a claim for DIC no later than 1 year after the date the child began the course.
Cross Reference: § 5.573, Effective date for dependency and indemnity compensation rate adjustments when an additional survivor files an application, for information on the impact on awards to other children.
(d)
(i) VA paid DIC to the child before the child's 18th birthday; and
(ii) The child is pursuing a course of instruction at an approved educational institution.
(2)
(i)
(A) The child began the course of instruction on or before the child's 18th birthday; and
(B) VA receives evidence of such school attendance on, before, or no later than 1 year after the child's 18th birthday.
(ii)
(A) The child began the course of instruction after the child's 18th birthday; and
(B) VA receives evidence of such school attendance no later than 1 year after the date the child began the course of instruction.
Cross Reference: § 5.524, Awards of dependency and indemnity compensation benefits to children when there is a retroactive award to a schoolchild, for the rate of payment.
(e)
(f)
(i) Was pursuing a course of instruction at an approved educational institution immediately before the vacation or holiday period; and
(ii) Resumes the course at the beginning of the next term either at the same or a different approved educational institution.
(2)
(g)
(2)
(h)
(i)
(1) The child has elected to receive educational assistance under 38 U.S.C. chapter 35 (see § 5.764 and § 21.3023 of this chapter); or
(2) The child is pursuing a course of instruction at an approved educational institution where the child is completely supported at the expense of the Federal Government, such as a military service academy.
(a)
(1)
(2)
(ii) If income or expenses are reported for a prior reporting period, VA will calculate any retroactive benefit rate adjustment using the average of the four
(b)
(i) Monetary burial benefits paid under subpart J of this part;
(ii) Accrued benefits paid in accordance with § 5.551(e), as reimbursement to the person who bore the expense of the deceased beneficiary's last sickness or burial;
(iii) Funds in the special deposit account paid in accordance with § 5.565(b)(4), as reimbursement to the person who bore the expense of the burial of the payee;
(iv) Funds in a personal-funds-of-patients account paid in accordance with § 5.566(d)(4); and
(v) Funds paid in accordance with § 5.567(a)(4).
(2)
(3)
(a)
(b)
(a)
(b)
(a)
Cross References: For the rules governing how such medical expenses are deducted, see §§ 5.413, Income deductions for calculating adjusted annual income, (regarding Improved Pension), 5.474, Deductible Expenses for Section 306 Pension Only, and 5.532 Deductions from income for parent's dependency and indemnity compensation.
(b)
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(ii)
(A) If the person needs regular aid and attendance or is housebound, then the attendant need not be a licensed health care provider.
(B) Except as provided in paragraph (c)(6)(ii)(C) of this section, if the person neither needs of regular aid and attendance nor is housebound, then the attendant must be a licensed health care provider.
(C) If the person is neither a surviving spouse nor a veteran and a physician has stated that the person requires the level of medical or nursing care provided by the in-home attendant, then the attendant need not be a licensed health care provider.
(iii)
(A) The veteran is a patient (as opposed to a resident) in the State home; and
(B) The veteran is receiving hospital, domiciliary, or nursing home care in the State home.
(iv)
(A) The person needs regular aid and attendance or is housebound; or
(B) A licensed physician has certified that the person needs to live in a protected environment because of a medical condition.
(v)
(A) A licensed physician has certified that the person needs to live in a protected environment because of a medical condition; or
(B) The person is participating in a physician-supervised program of therapy or rehabilitation.
(vi)
(A) The person needs regular aid and attendance or is housebound; or
(B) A licensed physician has certified that the person needs the care provided by the facility.
(a)
(2) A reporting period is a period established by VA for which a claimant or beneficiary reports income, adjustments to income, and net worth to VA.
(b)
(1)
(2)
VA does not require the following beneficiaries to file EVRs annually: a beneficiary in receipt of Old-Law Pension or Section 306 Pension, a beneficiary in receipt of Improved Pension whose only income is Social Security benefits, or a parent who has reached age 72 and has been receiving parents' DIC for 2 consecutive calendar years.
(ii)
(A) The Social Security Administration has not verified the social security number of the beneficiary or, if applicable, the beneficiary's spouse;
(B) Evidence suggests that the beneficiary or, if applicable, the beneficiary's spouse or child, may have received income from sources other than the Social Security Administration during the current or previous calendar year; or
(C) The Secretary decides completion of an EVR is necessary to ensure accurate and timely reporting of changes in the factors that affect entitlement or to protect the pension and parents' DIC programs from fraud.
(c)
Cross Reference: §§ 5.423(a); 5.531(e); and 5.478(a), Time limit to establish continuing entitlement to Old-Law Pension or Section 306 Pension (regarding the action VA takes when expected annual income exceeds income limits for Old-Law Pension or Section 306 Pension).
(d)
(e)
(2)
(3)
(i) If the reporting period is the initial reporting period, the effective date of discontinuance is the first day of that period; or
(ii) If the reporting period is a subsequent reporting period, the effective date of discontinuance is the first day of the calendar year for which VA requested the beneficiary provide the information in the EVR.
(f)
(1) If VA receives the completed EVR no later than 1 year after the end of the reporting period for which VA requested the beneficiary provide the EVR, then VA will resume payment of benefits as follows:
(i)
(ii)
(2) If VA receives the completed EVR more than 1 year after the end of the reporting period, VA will treat the EVR as a new claim.
(g)
(a)
(b)
(a)
(b)
(2)
(i) If VA receives the information or evidence no later than 1 year after the date of VA's request, then VA will award or increase the payee's benefit and pay the appropriate rate effective the day of the reduction or discontinuance of the benefit to the other payee.
(ii) If VA does not receive the information or evidence within 1 year after the date of VA's request, then the payee must file a new claim. The effective date of the award or increase will be the date VA receives the new claim.
(c)
(a)
(2)
(b)
(1)
(i)
(ii)
(A) Determine the DIC rate for each dependent.
(B) Combine those rates together to determine the total rate of DIC that would be payable.
(C) For each dependent, divide the rate in paragraph (b)(1)(ii)(A) of this section by the rate in paragraph (b)(1)(ii)(B) of this section. Calculate the result to four decimal places.
(D) For each dependent, multiply the result from paragraph (b)(1)(ii)(C) of this section by the veteran's rate.
(E) For each dependent, round the final result down to the nearest dollar.
(2)
(ii)
(c)
(1)
(i)
(ii)
(A) Determine the Improved Death Pension rate for each dependent.
(B) Combine those rates together to determine the total rate of Improved Death Pension that would be payable.
(C) For each dependent, divide the rate in paragraph (c)(1)(ii)(A) of this section by the rate in paragraph (c)(1)(ii)(B) of this section. Calculate the result to 4 decimal places.
(D) For each dependent, multiply the result from paragraph (c)(1)(ii)(C) of this section by the veteran's rate.
(E) For each dependent, round the final result down to the nearest dollar.
(2)
(ii)
(d)
(2)
(a)
(b)
(a)
(b)
(1) The amount payable to each dependent may not exceed the amount that would be payable to the dependent if the alien had died.
(2) VA will discontinue payments to the dependent(s) effective the date it receives notice that the alien is no longer located in territory described in paragraph (a) of this section.
(3) VA will reduce or discontinue payments to the dependent(s) upon the death of the alien or dependent, upon reduction or discontinuance of the alien's benefits, or when dependent status ends.
Cross Reference: § 5.715, Claims for undelivered or discontinued benefits.
(a)
(1)
(2)
(b)
(c)
(d)
(e)
Cross Reference: § 5.715, Claims for undelivered or discontinued benefits.
(a)
(b)
(i) Any amounts not paid because awarded benefits were discontinued under § 5.713;
(ii) Resumption of benefits discontinued under § 5.713; or
(iii) Any undelivered benefit payments deposited to the payee's credit in the special deposit account or into the U.S. Treasury as miscellaneous receipts as described in § 5.714(e).
(2) Undelivered amounts will be released or a discontinued benefit
(i) For a payee whose benefits were discontinued under § 5.713, the payee is no longer subject to the restriction in § 5.713(a);
(ii) For a payee whose benefit checks were withheld under § 5.714, the payee is no longer subject to the restriction in § 5.714(c); or
(iii) For a payee whose benefit checks were withheld under § 5.714, the payee requests the alternative means of delivery described in § 5.714(d).
(c)
(d)
(1) Satisfactory evidence that the payee has not been guilty of mutiny, treason, sabotage, or rendering assistance to an enemy; and
(2) Evidence of continued entitlement to benefits during the period that VA discontinued benefits or benefit payments were undelivered.
(e)
Cross Reference: § 5.565, Special rules for payment of benefits on deposit in a special deposit account when a payee living in a foreign country dies.
(a)
(1)
(2)
When multiple types of care are referred to consecutively (for example, “hospital, domiciliary, or nursing home care”), VA will consider transfers between the different types of care as a continuous period of all such care. VA will not consider a transfer between different types of care (hospital, domiciliary, or nursing home care) to be a discharge or release under §§ 5.720 through 5.730.
(3)
(4)
(i) Refusal to accept treatment;
(ii) Neglect of treatment;
(iii) Obstruction of treatment;
(iv) Disciplinary reasons;
(v) Refusal to accept transfer to another facility;
(vi) Leaving the facility against medical advice; or
(vii) Failure to return from unauthorized or authorized absence.
(5)
(b)
(1) The rate of special monthly compensation payable would be the same with or without an award for regular aid and attendance; or
(2) An exception in paragraph (d) of this section applies.
(c)
(1)
(2)
(i) Special monthly compensation paid at the rate under § 5.324 if entitlement is based on the need for regular aid and attendance.
(ii) Special monthly compensation paid under § 5.331(d)(1) or (e)(1) because a veteran is entitled to the rate under § 5.324 based on the need for regular aid and attendance and has been awarded the intermediate or next higher rate based on additional disability that is independently ratable.
(3)
(i) If the veteran is entitled to the rate under § 5.324 both for the need for regular aid and attendance and for some other disability or combination of disabilities without considering any disabilities twice, then VA will reduce the special monthly compensation to the rate payable under § 5.326.
(ii) If the veteran is entitled to the rate under § 5.324 based on the need for regular aid and attendance and is entitled to the rate under § 5.326 without considering any disabilities twice, then VA will reduce the special monthly compensation to the rate payable under § 5.328, Special monthly compensation under 38 U.S.C. 1114(n).
(iii) If the veteran is entitled to the rate under § 5.324 based on the need for regular aid and attendance and is entitled to the rate under § 5.328 without considering any disabilities twice, then VA will not reduce the SMC rate payable under § 5.330.
(4)
(5)
(6)
(d)
(1) Loss of use of both lower extremities and loss of anal and bladder sphincter control; or
(2) Hansen's disease.
(e)
(2)
(A) SMC is reduced or discontinued under paragraph (b) of this section;
(B) The veteran is given an irregular discharge or release from hospital, domiciliary, or nursing home care; and
(C) The veteran is readmitted to hospital, domiciliary, or nursing home care less than 6 months after discharge or release.
(ii)
(f)
(2) If a veteran becomes entitled to SMC under any other provision of this part based on the need for regular aid and attendance while receiving hospital, domiciliary, or nursing home care effective on or after the date of admission into such care, then VA will pay reduced SMC under paragraphs (c)(2) through (4) of this section unless entitlement is based on one of the exceptions in paragraph (d) of this section. This does not affect payments for periods prior to admission.
(a)
(1)
(2)
(b)
(a)
(i) Does not have a spouse or child; or
(ii) Is married or has a child but is receiving Improved Pension as a veteran without dependents.
(2)
(3)
(b)
(1) Receiving domiciliary or nursing home care for Hansen's disease;
(2) Maintained in a State soldiers' home;
(3) Receiving domiciliary or nursing home care in a State home and the only payment made by VA to the State for the State home is the per diem rate under 38 U.S.C. 1741; or
(4) Receiving pension as a veteran without a dependent because it is reasonable that part of his or her child's net worth be consumed for the child's maintenance before the child can be established as a dependent. See § 5.414(e).
(c)
(d)
(2)
(e)
(2)
(ii) If a veteran is transferred from domiciliary or nursing home care to hospital care and then dies while hospitalized, VA will consider the entire period as continuous domiciliary or nursing home care unless the period of hospital care exceeds 6 months.
(iii) VA will consider domiciliary or nursing home care completed on the date of transfer to hospital care if a veteran is discharged or released from VA care after his or her hospital stay.
(iv) VA will consider domiciliary or nursing home care completed on the date of transfer to hospital care if the period of hospital care exceeds 6 months.
(f)
(2)
(i) The veteran continues to receive nursing home care; and
(ii) The Under Secretary for Health, or his or her designee, certifies that the primary purpose for the veteran's continued nursing home care is to provide a prescribed program of rehabilitation, under 38 U.S.C. chapter 17, designed to restore the veteran's ability to function within the veteran's family and community.
(3)
(g)
(a)
(b)
(1) The first day of the month after the month in which Medicaid-covered care begins;
(2) The first day of the month after the month during which the 60-day period prescribed in § 5.83(b) expires; or
(3) The first day of the month after the month for which VA last paid benefits.
(c)
(d)
(a)
(2) The resulting reduction or discontinuance of Improved Pension will be effective the first day of the second calendar month after the date of admission.
(3) VA will not reduce or discontinue Improved Pension under this paragraph (a) if an exception in paragraph (b) of this section applies.
Cross Reference: §§ 5.400(b) and (c) for the housebound and regular aid and attendance rates; 5.722 for reductions of Improved Pension after 3 calendar months of domiciliary or nursing home care.
(b)
(1) The need for regular aid and attendance is caused by disability resulting from:
(i) Loss of use of both lower extremities and loss of anal and bladder sphincter control;
(ii) Hansen's disease; or
(iii) Blindness pursuant to § 5.390(b)(1) or (2); or
(2) The veteran is receiving hospital, domiciliary, or nursing home care for Hansen's disease.
(c)
(2)
(ii) If a veteran is readmitted to hospital, domiciliary, or nursing home care 6 months or more after an irregular discharge or release, then VA will consider the readmission to be a new admission subject to the provisions of paragraph (a) of this section.
(d)
(a)
(2)
(ii)
(b)
(2)
(c)
(2)
(3)
(a)
(i) Does not have a spouse or child; or
(ii) Is married or has a child, but is receiving Section 306 Pension as a veteran without dependents.
(2)
(3)
(4)
(5)
(b)
(1) Receiving hospital, domiciliary, or nursing home care for Hansen's disease;
(2) Maintained in a State soldiers' home; or
(3) Receiving hospital, domiciliary, or nursing home care in a State home and the only payment made by VA to the State for the State home is the per diem rate under 38 U.S.C. 1741.
(c)
(d)
(2)
(a)
(2)
(3)
(4)
(ii)
(b)
(1) Receiving hospital, domiciliary, or nursing home care for Hansen's disease;
(2) Maintained in a State soldiers' home; or
(3) Receiving hospital, domiciliary, or nursing home care in a State home and the only payment made by VA to the State for the State home is the per diem rate under 38 U.S.C. 1741.
(c)
(2)
(ii)
(a)
(ii)
(B)
(2) The resulting reduction of these benefits will be effective the first day of the second calendar month after the month of admission.
(3) VA will not reduce benefits under this paragraph (a) if an exception in paragraph (b) of this section applies.
Cross Reference: § 5.471 for the housebound and regular aid and attendance rates.
(b)
(1) The need for regular aid and attendance is caused by disability resulting from:
(i) Loss of use of both lower extremities and loss of anal and bladder sphincter control;
(ii) Hansen's disease; or
(iii) 5/200 visual acuity or less in both eyes with corrective lenses or due to concentric contraction of the visual field to 5 degrees or less in both eyes; or
(2) The veteran is receiving hospital, domiciliary, or nursing home care for Hansen's disease.
(c)
(2)
(ii) If a veteran is readmitted to hospital, domiciliary, or nursing home care 6 months or more after an irregular discharge or release, then VA will consider the readmission to be a new admission subject to the provisions of paragraph (a) of this section.
(a)
(2)
(b)
(c)
(i) The director of the facility providing hospital, domiciliary, or nursing home care requests payment on behalf of a veteran; and
(ii) Payment is necessary to meet the veteran's financial needs.
(2) If the conditions in paragraph (c)(1) of this section are met, payment will be restored even if the veteran has not been discharged or released from hospital, domiciliary, or nursing home care.
(d)
(2)
(a)
(b)
(c)
(d)
(a)
(b)
(c)
(d)
Cross Reference: § 5.535, Adjustments to a parent's dependency and indemnity compensation when income changes.
(a)
(1) The spouse of a claimant or beneficiary if the claimant or beneficiary has been declared to be an incompetent veteran under § 13.57 of this chapter;
(2) The custodian of a claimant or beneficiary if the claimant or beneficiary is a minor under § 13.58 of this chapter;
(3) A fiduciary designated by VA under § 13.55 of this chapter;
(4) A court-appointed fiduciary, under § 13.59 of this chapter; or
(5) The chief officer of the health-care institution in which the veteran is receiving care and treatment, and whom VA has designated as a payee, under §§ 13.55(b)(6) and 13.61 of this chapter.
(b)
This section explains when an election or reelection becomes final. A final election or reelection ordinarily may be changed only by cancellation under paragraph (d) or (e) of this section or by reelection, if authorized under this part. Reelections are subject to the finality rules stated in paragraphs (a) through (e) of this section.
(a)
(b)
(c)
(d)
(e)
(a)
(2)
(b)
(a)
(b)
(2)
(i) Any waiver required during the phase-in period under paragraph (c)(1)(ii) of this section; and
(ii) If the veteran's disability retired pay exceeds the amount of retired pay the veteran would have received had the veteran retired based on length of service, the veteran must waive that excess amount of disability retired pay in order to receive VA disability compensation.
(3)
(4)
(c)
(ii) Except as provided in paragraph (c)(2) of this section, a veteran who is eligible to receive both military retired pay and disability compensation at the same time under paragraphs (b)(1) or (2) of this section must file a waiver in order to receive the maximum allowable amount of disability compensation during the phase-in period. The phase-in period ends on December 31, 2013. After the phase-in period, a veteran retired under 10 U.S.C. chapter 61 who is eligible for concurrent receipt must still file a waiver under the circumstances described in paragraph (b)(2)(ii) of this section.
(2)
(3)
(d)
(2) An election between military retired pay and disability compensation under this section that is filed no later than 1 year after the date of notification of VA entitlement will be considered “timely filed” for effective date purposes. If the veteran is incompetent, the 1-year period will begin on the date that notification is sent to the next friend or fiduciary. In initial determinations, elections may be applied retroactively if the claimant was not advised of his or her right of election and its effect.
(e)
(2) If a waiver is properly filed under paragraph (c) of this section, the effective date of the waiver will be the day following discontinuance or reduction of retired pay.
(3) If a reelection is made under paragraph (d)(1) of this section, the effective date of the election will be the date that the reelection is received by VA.
(a)
(b)
(c)
(d)
(2)
(ii)
(3)
(4)
(5)
(e)
(2)
Cross Reference: § 5.1, for the definition of “reservist”.
(a)
(1)
(2)
(b)
(2)
(i)
(ii)
(iii)
(3)
(i) In the line of duty in a combat zone; or
(ii) During performance of duty in combat-related operations as designated by the Department of Defense.
(c)
(1)
(2)
(d)
(ii)
(2)
Disability compensation may be paid concurrently with retired pay to an officer of the commissioned corps of the Public Health Service, who was receiving disability compensation on December 31, 1956, as follows:
(a) An officer who incurred a disability before July 29, 1945, but retired for reasons unrelated to disability before such date;
(b) An officer who incurred a disability before July 29, 1945, but retired unrelated to disability between July 4, 1952, and December 31, 1956; or
(c) An officer who incurred a disability between July 29, 1945, and July 3, 1952, but retired unrelated to disability between July 4, 1952, and December 31, 1956.
(a)
(2)
(3)
(b)
(2)
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(2)
(b)
(c)
(d)
(e)
(2)
(a)
(1) Advise OWCP of the pertinent facts in the case, including the disabilities for which VA benefits are payable, and request that OWCP obtain the election; and
(2) Deny the VA claim, advise the claimant of the facts VA furnished to OWCP, and inform the claimant that OWCP will contact the claimant concerning rights of election.
(b)
VA will pay VA benefits to an eligible claimant or beneficiary at the same time that the claimant or beneficiary is receiving civil service retirement benefits. However, VA will consider payments of civil service retirement benefits as income where income is a factor in entitlement to VA benefits except as otherwise provided in this part.
(a)
(2)
(b)
(c)
(d)
(a)
(b)
(a)
(b)
(c)
(d)
(e)
(2)
(3)
(f)
(2)
Cross Reference: § 5.1, for the definition of “custody of a child”.
(a)
(b)
(c)
(d)
(a)
(1)
(ii) An election to receive DIC instead of death compensation is irrevocable once the election becomes final under § 5.742. There is no right to reelection.
(2)
(b)
Cross Reference: § 5.512, Eligibility for death compensation or death pension instead of dependency and indemnity compensation.
A surviving spouse who is entitled to receive dependency and indemnity compensation (DIC) may elect to receive Improved Death Pension instead of DIC. Such surviving spouse may subsequently reelect either benefit.
(a)
(1) An apportionment of disability compensation or pension based on another veteran's disability; or
(2) Death pension, death compensation, or dependency and indemnity compensation (DIC) due to the death of another veteran.
(b)
(c)
(2)
(a)
(1) An apportionment of disability compensation or pension based on another veteran's disability; or
(2) Death pension, death compensation, or dependency and indemnity compensation (DIC) due to the death of another veteran.
(b)
(c)
(2)
(3)
(4)
(5)
(6)
(ii)
(a)
(1) Dependency and indemnity compensation (DIC); and
(2) Survivors' and Dependents' Educational Assistance (DEA).
(b)
(1) Increase the rate of payment to the remaining child; or
(2) Pay a rate to each remaining child that is greater than the rate payable if all children were receiving the same type of VA benefit.
(c)
(a)
(ii) A veteran receiving compensation may not receive additional disability compensation for a child who has reached age 18 and did not become permanently incapable of self-support before reaching age 18 (see § 5.227) at the same time the child receives DEA.
(iii) A veteran receiving pension may not receive increased benefits based on a child who has reached age 18 and did not become permanently incapable of self-support before reaching age 18 (see § 5.227) at the same time the child receives DEA. See §§ 5.400(c) and 5.416.
(2)
(3)
(b)
(c)
(d)
Neither receipt by a parent of dependency and indemnity compensation on account of the death of a veteran, nor receipt by a parent of pension or compensation on account of his or her military service, will bar receipt by a parent of pension, disability compensation, or dependency and indemnity compensation on account of the death or disability of any other person.
(a)
(i) For his or her spouse, child, or dependent parents if the veteran is incompetent and is being furnished hospital treatment, nursing home, or domiciliary care by the U.S., or any political subdivision thereof.
(ii) If the veteran is not residing with his or her spouse or the veteran's child is not residing with the veteran, and the veteran is not reasonably discharging his or her responsibility for the spouse's or child's support.
(2)
(b)
(c)
(d)
(e)
(a)
(b)
(1) The amount of benefits payable;
(2) The net worth, income, and expenses of the beneficiary and any dependent on whose behalf apportionment is claimed; and
(3) The special needs of the veteran, his or her dependent, and the apportionment claimant.
(c)
A veteran's benefits may be apportioned:
(a)
(b)
(c)
(ii)
(2)
(ii)
(d)
Cross Reference: §§ 5.711, Payment to dependents due to the disappearance of
Rates of apportionment of disability compensation will be determined under § 5.771.
VA will not apportion benefits:
(a) If the total benefit payable does not permit payment of a reasonable amount to any apportionee.
(b) If a court of proper jurisdiction has found the veteran's spouse guilty of adultery.
(c) If VA determines that the veteran's spouse has lived with another person and has openly held himself or herself out to the public to be the spouse of that person unless:
(1) The spouse subsequently reconciled with the veteran and later became estranged from the veteran; or
(2) The spouse had entered into the relationship with the other person in good faith. For purposes of this paragraph (c)(2),
(d) If another person legally adopts a veteran's child, except VA may apportion the additional disability compensation payable to a veteran for the child or the additional dependency and indemnity compensation payable to a surviving spouse for the child.
(e)(1) If the apportionment is claimed for a child who is on active duty.
(2) If a child is receiving apportioned benefits directly and then enters active duty. The apportionment will be discontinued and such benefits will be paid to the veteran. The effective date of the discontinuance will be the first day of the month after the month for which VA last paid the apportionment.
In accordance with § 5.770(b), if a child is included in an existing apportionment to an estranged spouse and then enters active duty, no adjustment in the apportioned award will be made based on the child's entry into service.
(f)(1) To any beneficiary's dependent who:
(i) Is determined by VA to have been guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the U.S. or its allies; or
(ii) Participated in the acts that caused forfeiture for fraud or treasonable acts.
(2) After September 1, 1959, if a veteran or other primary beneficiary:
(i) forfeited benefits for fraud or for a treasonable act; or
(ii) was convicted of subversive activity after September 1, 1959.
Cross Reference: §§ 5.676, Forfeiture for fraud, 5.677, Forfeiture for treasonable acts, and 5.678, Forfeiture for subversive activity.
(g) Unless the estranged spouse of a veteran files a claim for an apportionment. If there is a child of the veteran not in his or her custody, an apportionment will not be authorized unless a claim for an apportionment is filed by or for the child.
(a)
(b)
(2)
(a)
(b)
(a)
(b)
(2)
(3)
(4)
(a)
(b)
The effective date of discontinuance of the dependency allowance on the primary beneficiary's award due to the death, divorce, or marriage of the apportionee is determined in accordance with § 5.184 or § 5.477.
(2)
(3)
(4)
(a)
(b)
(2)
(a)
(2) manage his or her own affairs, including disburse funds without limitation.
(b)
(2) Where the beneficiary is rated incompetent, the Veterans Service Center Manager or Pension Management Center Manager will:
(i) Develop information as to the beneficiary's social, economic, and industrial adjustment;
(ii) Appoint or recommend appointment of a fiduciary as provided in § 13.55 of this chapter;
(iii) Select a method of disbursing payment as provided in § 13.56 of this chapter or, in the case of a married beneficiary, appoint the beneficiary's spouse to receive payments as provided in § 13.57 of this chapter; and
(iv) Authorize disbursement of the benefit.
(3) If, in the course of fulfilling the responsibilities assigned in paragraph (b)(2) of this section, the Veterans Service Center Manager or Pension Management Center Manager develops evidence indicating that the beneficiary may be capable of administering the funds payable without limitation, he or she will refer that evidence to the agency of original jurisdiction with a statement as to his or her findings. The agency of original jurisdiction will consider this evidence, together with all other evidence of record, to determine whether its prior determination of incompetency should remain in effect. Reexamination may be requested as provided in § 5.102, if necessary to properly evaluate the beneficiary's mental capacity to contract or manage his or her own affairs.
(c)
(d)
(e)
(f)
(2)
(a)
(2)
(i) The beneficiary; or
(ii) A relative of the beneficiary, or another person, for the use of the beneficiary.
(3)
(i) Those who are serving in or have been discharged from the military forces of the U.S.; and
(ii) Those who qualify for survivors benefits as a surviving spouse.
(4)
Cross Reference: Part 13 of this title regarding VA fiduciary activities.
(b)
(c)
(d)
(e)
The initial payment to the fiduciary will include amounts withheld for possible apportionments as well as money in Personal Funds of Patients.
(a)
(1) Adequately provide for the needs of the veteran; and
(2) Obviate the need for appointment of another type of fiduciary.
Cross Reference: Section 13.61 of this chapter, Payment to the chief officer of institution.
(b)
(2) Any excess funds held by the chief officer of a non-VA institution under this section that are not necessary for the benefit of the veteran will be returned to VA or to a fiduciary, if one has been appointed.
(3) If payments are being made to the chief officer of a non-VA hospital or institution, VA will deposit all sums otherwise payable in excess of the institutional award and any apportionments in Personal Funds of Patients.
(c)
(d)
(e)
(i) The first day of the month after the month for which VA last paid benefits; or
(ii) On an initial or resumed award, the date of entitlement to benefits, subject to any amounts paid or withheld for apportionment of benefits.
(f)
(1) A fiduciary is appointed;
(2) The veteran is discharged from the hospital or institution; or
(3) The veteran is rated competent.
If a fiduciary has been appointed for a child because the child is a minor, then VA will not pay benefits to that fiduciary for any period beginning on the date that the child attains the age of majority under the law of the State where the child resides. For any period beginning on that date, if payment is otherwise in order, then VA will pay benefits as follows:
(a)
(b)
(a)
(1) Development of the issue of incompetency;
(2) Certification of a fiduciary by the Veterans Service Center Manager or Pension Management Center Manager; or
(3) A recommendation by the Veterans Service Center Manager or Pension Management Center Manager that payments should be paid directly to the beneficiary.
(b)
(1) Notice or evidence is received that a guardian has been appointed for the beneficiary;
(2) Notice or evidence is received that the beneficiary has been committed to a hospital; or
(3) The beneficiary has been rated incompetent by VA.
If a fiduciary changes his or her name because of marriage or divorce, VA will accept the fiduciary's statement of the name change.
If benefits are payable to a surviving spouse for a child and the child is separated from the surviving spouse because of the surviving spouse's incompetency, no apportionment of benefits to the child is required. If the fiduciary is adequately taking care of the needs of the child from the surviving spouse's estate, either voluntarily or pursuant to a decree of court, VA may pay all amounts payable for the child to the fiduciary.
When VA refers a case to an agency of original jurisdiction involving the testamentary capacity of the insured to perform a testamentary act (execute a designation or change of beneficiary or execute a designation or change of option), the following considerations will apply:
(a)
(1) Reasonably comprehend the nature and significance of his or her testamentary act, that is, the subject and extent of his or her disposition;
(2) Recognize the object of his or her bounty; and
(3) Appreciate the consequences of his or her testamentary act, uninfluenced by any material delusion as to the property or persons involved.
(b) VA will consider all evidence of record, with emphasis being placed on evidence pertaining to the mental condition of the insured at the time, or nearest to the time, that the insured performed the testamentary act.
(c) There is a general but rebuttable presumption that every insured person possesses testamentary capacity when performing a testamentary act. Therefore, reasonable doubt should be resolved in favor of testamentary capacity. See § 5.3(b)(2).
If a veteran who was denied payment of disability compensation under § 3.853 of this chapter is subsequently rated competent for a continuous period of more than 90 days, the withheld disability compensation will be paid to the veteran in a lump-sum.
Cross Reference: § 3.853 of this title, Incompetents; estate over $25,000 (denying payment of disability compensation to an incompetent veteran who had no dependents and had an estate that exceeded $25,000, during the period from November 1, 1990, through September 30, 1992).
(a)
(2)
(b)
(c)
(d)
(1) Conviction of a felony if the person is claiming or receiving compensation, pension, or dependency or indemnity compensation; or
(2) Conviction of a misdemeanor if the person is claiming or receiving pension.
(e)
(f)
(a)
(1) The veteran committed the felony after October 7, 1980;
(2) The veteran was incarcerated on October 1, 1980, for conviction of the felony and was awarded disability compensation after September 30, 1980 (This paragraph (a)(2) applies only to the payment of disability compensation after September 30, 1980.); or
(3) The veteran was incarcerated on October 7, 1980, for conviction of the felony and remained incarcerated for that felony on December 27, 2001. (This paragraph (a)(3) applies only to the payment of disability compensation after March 31, 2002.)
(b)
(c)
(2)
Cross Reference: For the rule on total-disability ratings based on individual unemployability that would first become effective while a veteran is incarcerated, see § 5.284(b).
(a)
(1) The beneficiary committed the felony after October 7, 1980; or
(2) The beneficiary was incarcerated on October 1, 1980, for conviction of the felony and was awarded DIC after September 30, 1980. (This paragraph (a)(2) applies only to the payment of DIC after September 30, 1980.)
(b)
(c)
(d)
(a)
(b)
(1) If the veteran does not have a spouse or child, then the award of disability compensation in such cases will be effective on the date pension is discontinued under this section.
(2) If the veteran has a spouse or child but elects to receive disability compensation after VA has notified the veteran of the effect of electing disability compensation on the amount available for apportionment, then the award of disability compensation will be effective on the later of the date VA received the veteran's election or the date of discontinuance of pension under paragraph (a) of this section. (If the veteran does not elect disability compensation, pension will nevertheless be discontinued under paragraph (a) of this section.)
(a)
(2) If an apportionment is awarded, VA will send notice to the apportionee that VA will immediately discontinue the apportionment when the incarcerated beneficiary is released. The notice will also inform the apportionee that if the apportionee and the incarcerated beneficiary do not live together when the incarcerated beneficiary is released, the apportionee may submit a new apportionment claim.
(b)
(ii) VA may apportion an incarcerated surviving spouse's unpaid dependency and indemnity compensation (DIC) to a child.
(iii) VA may apportion an incarcerated child's unpaid DIC to the surviving spouse or to another child.
(2)
(i) The amount of benefits available to be apportioned;
(ii) The net worth, income, and expenses of the apportionment claimant(s); and
(iii) The special needs of the apportionment claimant(s).
(c)
(i) The veteran would continue to be entitled to pension if not for the incarceration;
(ii) The annual income of the spouse or child is such that Improved Death Pension would be payable;
(iii) If the veteran was receiving Old-Law Pension, the spouse or child was recognized by VA as the veteran's dependent before July 1, 1960; and
(iv) If the veteran was receiving Section 306 Pension, the spouse or child was recognized by VA as the veteran's dependent before January 1, 1979.
(2)
(i) The amount of Improved Death Pension that would be payable to the apportionee; or
(ii) The amount of pension that the veteran received for the month before incarceration.
(d)
(1) If a surviving spouse is disqualified from receiving pension payments under § 5.813, VA may pay a child the rate of Improved Death Pension that would be payable if the incarcerated surviving spouse did not exist.
(2) If a surviving child is disqualified from receiving pension payments under § 5.813, VA may pay a surviving spouse or another child the rate of Improved Death Pension that would be payable if the incarcerated child did not exist.
(e)
(2)
(ii)
(3)
(i) Not re-pay to the apportionee any benefits previously paid to the primary beneficiary; and
(ii) Consider any amounts that were paid to the primary beneficiary, but were due to the apportionee, as having been paid to the apportionee.
(a)
(1) The effective date of resumption of the full benefit rate upon a beneficiary's release from incarceration is the date of release if VA is informed of the release less than 1 year after the release. Payment of the full benefit rate is subject to paragraphs (b) and (c) of this section.
(2) The effective date of resumption of the full benefit rate is the date VA is informed of the release if VA is informed of the release 1 year or more after the release. Payment of the full benefit rate is subject to paragraphs (b) and (c) of this section.
(b)
(1)
(2)
(i) The apportionment rate paid to the apportionee for that period; and
(ii) The incarcerated rate paid to the beneficiary for that period.
(c)
(1)
(i) Discontinue the apportionment to an apportionee with whom the beneficiary is reunited effective the first day of the month after the month for which VA last paid the apportionment; and
(ii) Reduce an apportionment to an apportionee with whom the beneficiary is not reunited to the additional amount payable to the beneficiary for the apportionee effective the first day of the month after the month for which VA last paid the apportionment. VA will pay the beneficiary the full benefit rate minus the new apportionment amount effective on date of the apportionment reduction.
(2)
(i) The apportionment rate paid to the apportionee for that period; and
(ii) The incarcerated rate paid to the beneficiary for that period.
(d)
(a)
(1) The effective date of resumption of pension upon a beneficiary's release from incarceration is the date of release if VA is informed of the release less than 1 year after the release. Payment of pension is subject to paragraphs (b) and (c) of this section.
(2) The effective date of resumption of pension is the date VA is informed of the release if VA is informed of the release 1 year or more after the release. Payment of pension is subject to paragraphs (b) and (c) of this section.
(b)
(1)
(2)
(i) The apportionment rate paid to the apportionee for that period; and
(ii) The incarcerated rate paid to the beneficiary for that period (under § 5.813(b) if the veteran was entitled to disability compensation at the incarcerated rate).
(c)
(1)
(2)
(i) The rate paid to the surviving spouse or surviving child under § 5.814(d) for that period; and
(ii) The rate that would have been payable to the surviving spouse or surviving child for that period if the released beneficiary's pension had not been discontinued under § 5.813.
(a)
(b)
(i) Fleeing to avoid prosecution for a felony or for an attempt to commit a felony;
(ii) Fleeing custody or confinement after conviction of a felony or conviction of an attempt to commit a felony; or
(iii) Fleeing to avoid custody or confinement for violating a condition of probation or parole imposed for commission of a felony under Federal or State law.
(2)
Notice is hereby given pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C. 16(b)–(h), that a proposed Final Judgment, Stipulation and Competitive Impact Statement have been filed with the United States District Court for the District of Columbia in
Copies of the Complaint, proposed Final Judgment and Competitive Impact Statement are available for inspection at the Department of Justice, Antitrust Division, Antitrust Documents Group, 450 Fifth Street NW., Suite 1010, Washington, DC 20530 (telephone: 202–514–2481), on the Department of Justice's Web site at
Public comment is invited within 60 days of the date of this notice. Such comments, including the name of the submitter, and responses thereto, will be posted on the U.S. Department of Justice, Antitrust Division's internet Web site, filed by the United States on the public Court docket and, under certain circumstances, published in the
The United States of America, acting under the direction of the Attorney General of the United States, and the States of Arizona, Florida, Tennessee, Texas, the Commonwealths of Pennsylvania and Virginia, and the District of Columbia (“Plaintiff States”), acting by and through their respective Attorneys General, bring this civil action under federal antitrust law to enjoin the planned merger of two of the nation's five major airlines, US Airways Group, Inc. (“US Airways”) and AMR Corporation (“American”), and to obtain equitable and other relief as appropriate.
1. Millions of passengers depend on the airline industry to travel quickly, efficiently, and safely between various cities in the United States and throughout the world. Since 1978, the nation has relied on competition among airlines to promote affordability, innovation, and service and quality improvements. In recent years, however, the major airlines have, in tandem, raised fares, imposed new and higher fees, and reduced service. Competition has diminished and consumers have paid a heavy price. This merger—by creating the world's largest airline—would, in the words of US Airways' management, “finish[ ] industry evolution.” It would reduce the number of major domestic airlines from five to four, and the number of “legacy” airlines—today, Delta, United, American, and US Airways—from four to three. In so doing, it threatens substantial harm to consumers. Because of the size of the airline industry, if this merger were approved, even a small increase in the price of airline tickets, checked bags, or flight change fees would cause hundreds of millions of dollars of harm to American consumers annually.
2. American and US Airways compete directly on thousands of heavily traveled nonstop and connecting routes. Millions of passengers benefit each year from head-to-head competition that this merger would eliminate. With less competition, airlines can cut service and raise prices with less fear of competitive responses from rivals.
3. This merger will leave three very similar legacy airlines—Delta, United, and the new American—that past experience shows increasingly prefer tacit coordination over full-throated competition. By further reducing the number of legacy airlines and aligning the economic incentives of those that remain, the merger of US Airways and American would make it easier for the remaining airlines to cooperate, rather than compete, on price and service. That enhanced cooperation is unlikely to be significantly disrupted by Southwest and JetBlue, which, while offering important competition on the routes they fly, have less extensive domestic and international route networks than the legacy airlines.
4. US Airways' own executives—who would run the new American—have long been “proponents of consolidation.” US Airways believes that the industry—before 2005—had “too many” competitors, causing an “irrational business model.” Since 2005, there has been a wave of consolidation in the industry. US Airways has cheered these successive mergers, with its CEO stating in 2011 that “fewer airlines” is a “good thing.” US Airways' President
5. US Airways intends to do just that. If this merger were approved, US Airways would no longer need to offer low-fare options for certain travelers. For example, US Airways employs “Advantage Fares,” an aggressive discounting strategy aimed at undercutting the other legacy airlines' nonstop fares with cheaper connecting service. US Airways' hubs are in cities that generate less lucrative nonstop traffic than the other legacy airlines' hubs. To compensate, US Airways uses its Advantage Fares to attract additional passengers on flights connecting through its hubs.
6. The other legacy airlines take a different approach. If, for example, United offers nonstop service on a route, and Delta and American offer connecting service on that same route, Delta and American typically charge the same price for their connecting service as United charges for its nonstop service. As American executives observed, the legacy airlines “generally respect the pricing of the non-stop carrier [on a given route],” even though it means offering connecting service at the same price as nonstop service. But American, Delta, and United frequently
7. If the merger were approved, US Airways' economic rationale for offering Advantage Fares would likely go away. The merged airline's cost of sticking with US Airways' one-stop, low-price strategy would increase. Delta and United would likely undercut the merged firm on a larger number of nonstop routes. At the same time, the revenues generated from Advantage Fares would shrink as American's current nonstop routes would cease to be targets for Advantage Fares. The bottom line is that the merged airline would likely abandon Advantage Fares, eliminating significant competition and causing consumers to pay hundreds of millions of dollars more.
8. Consumers will likely also be harmed by the planned merger because American had a standalone plan to emerge from bankruptcy poised to grow. American planned to expand domestically and internationally, adding service on nearly 115 new routes. To support its plan, American recently made the largest aircraft order in industry history.
9. American's standalone plan would have bucked current industry trends toward capacity reductions and less competition. US Airways called American's growth plan “industry destabilizing” and worried that American's plan would cause other carriers to react “with their own enhanced growth plans. . . .” The result would be to increase competitive pressures throughout the industry. After the merger, US Airways' current executives—who would manage the merged firm—would be able to abandon American's efforts to expand and instead continue the industry's march toward higher prices and less service. As its CEO candidly stated earlier this year, US Airways views this merger as “the last major piece needed to fully rationalize the industry.”
10. Passengers to and from the Washington, DC area are likely to be particularly hurt. To serve Ronald Reagan Washington National Airport (“Reagan National”), a carrier must have “slots,” which are government-issued rights to take off and land. US Airways currently holds 55% of the slots at Reagan National and the merger would increase the percentage of slots held by the combined firm to 69%. The combined airline would have a monopoly on 63% of the nonstop routes served out of the airport. Competition at Reagan National cannot flourish where one airline increasingly controls an essential ingredient to competition. Without slots, other airlines cannot enter or expand the number of flights that they offer on other routes. As a result, Washington, DC area passengers would likely see higher prices and fewer choices if the merger were approved.
11. Notwithstanding their prior unequivocal statements about the effects of consolidation, the defendants will likely claim that the elimination of American as a standalone competitor will benefit consumers. They will argue that Advantage Fares will continue, existing capacity levels and growth plans will be maintained, and unspecified or unverified “synergies” will materialize, creating the possibility of lower fares. The American public has seen this before. Commenting on a commitment to maintain service levels made by two other airlines seeking approval for a merger in 2010, the CEO of US Airways said: “I'm hopeful they're just saying what they need . . . to get this [transaction] approved.” By making claims about benefits that are at odds with their prior statements on the likely effects of this merger, that is precisely what the merging parties' executives are doing here—saying what they believe needs to be said to pass antitrust scrutiny.
12. There is no reason to accept the likely anticompetitive consequences of this merger. Both airlines are confident they can and will compete effectively as standalone companies. A revitalized American is fully capable of emerging from bankruptcy proceedings on its own with a competitive cost structure, profitable existing business, and plans for growth. US Airways today is competing vigorously and earning record profits. Executives of both airlines have repeatedly stated that they do not need this merger to succeed.
13. The merger between US Airways and American would likely substantially lessen competition, and tend to create a monopoly, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18. Therefore, this merger should be permanently enjoined.
14. The United States brings this action, and this Court has subject-matter jurisdiction over this action, under Section 15 of the Clayton Act, as amended, 15 U.S.C. 25, to prevent and restrain US Airways and American Airlines from violating Section 7 of the Clayton Act, as amended, 15 U.S.C. 18.
15. The Plaintiff States bring this action under Section 16 of the Clayton Act, 15 U.S.C. 26, to prevent and restrain US Airways and American Airlines from violating Section 7 of the Clayton Act, as amended, 15 U.S.C. 18. The Plaintiff States, by and through their respective Attorneys General, bring this action as
16. The defendants are engaged in, and their activities substantially affect, interstate commerce, and commerce in each of the Plaintiff States. US Airways and American Airlines each annually transport millions of passengers across state lines throughout this country, generating billions of dollars in revenue while doing so.
17. Venue is proper under Section 12 of the Clayton Act, 15 U.S.C. § 22. This Court also has personal jurisdiction over each defendant. Both defendants are found and transact business in this judicial district.
18. Defendant US Airways Group, Inc., is a Delaware corporation headquartered in Tempe, Arizona. Last year, it flew over fifty million passengers to approximately 200 locations worldwide, taking in more than $13 billion in revenue. US Airways operates hubs in Phoenix, Charlotte, Philadelphia, and Washington, DC
19. US Airways is performing exceptionally well. In 2012, it enjoyed record profits. It is operating at high load factors—the percentage of seats sold on its flights—and has a national and international route network, alliances with international airlines, a strong brand name, modern equipment, and a competitive cost structure. In mid-2012, US Airways' CEO, touting the airline's “record second quarter results,” told Dow Jones that the company “has a great business model that works and we certainly don't need to merge with another airline.”
20. Defendant AMR Corporation is a Delaware corporation headquartered in Fort Worth, Texas. AMR Corporation is the parent company of American Airlines. Last year, American flew over eighty million passengers to approximately 250 locations worldwide, taking in more than $24 billion in revenue. American operates hubs in New York, Los Angeles, Chicago, Dallas, and Miami. The American Airlines brand is “one of the most recognized . . . in the world.”
21. In November 2011, American filed for bankruptcy reorganization and is currently under the supervision of the Bankruptcy Court for the Southern District of New York. American adopted and implemented a standalone business plan designed “to restore American to industry leadership, profitability and growth.” While in bankruptcy, American management “pursued and successfully implemented” key provisions of this plan, including revenue and network enhancements, as well as “restructuring efforts [that] have encompassed labor cost savings, managerial efficiencies, fleet reconfiguration, and other economies . . . .” That work has paid off. American reported that its revenue growth has “outpaced” the industry since entering bankruptcy and in its most recent quarterly results reported a company record-high $5.6 billion in revenues, with $357 million in profits. Under experienced and sophisticated senior management, American's restructuring process has positioned it to produce “industry leading profitability.” As recently as January 8, 2013, American's management presented plans to emerge from bankruptcy that would increase the destinations American serves in the United States and the frequency of its flights, and position American to compete independently as a profitable airline with aggressive plans for growth.
22. US Airways sees American the same way. Its CEO observed in December 2011 that “A[merican] is not going away, they will be stronger post-bankruptcy because they will have less debt and reduced labor costs.” A US Airways' executive vice president similarly wrote in July 2012 that “[t]here is no question about AMR's ability to survive on a standalone basis.”
23. US Airways and American agreed to merge on February 13, 2013. US Airways shareholders would own 28 percent of the combined airline, while American shareholders, creditors, labor unions, and employees would own 72 percent. The merged airline would operate under the American brand name, but the new American would be run by US Airways management.
24. Domestic scheduled air passenger service enables consumers to travel quickly and efficiently between various cities in the United States. Air travel offers passengers significant time savings and convenience over other forms of travel. For example, a flight from Washington, DC to Detroit takes just over an hour of flight time. Driving between the two cities takes at least eight hours. A train between the two cities takes more than fifteen hours.
25. Due to time savings and convenience afforded by scheduled air passenger service, few passengers would substitute other modes of transportation (car, bus, or train) for scheduled air passenger service in response to a small but significant industry-wide fare increase. Another way to say this, as described in the
26. A “city pair” is comprised of a flight's departure and arrival cities. For example, a flight departing from Washington and arriving in Chicago makes up the Washington-Chicago city pair. Passengers seek to depart from airports close to where they live and work, and arrive at airports close to their intended destinations. Most airline travel is related to business, family events, and vacations. Thus, most passengers book flights with their origins and destinations predetermined. Few passengers who wish to fly from one city to another would likely switch to flights between other cities in response to a small but significant and non-transitory fare increase.
27. Airlines customarily set fares on a city pair basis. For each city pair, the degree and nature of the competition from other airlines generally plays a large role in an airline's pricing decision.
28. Therefore, a hypothetical monopolist of scheduled air passenger service between specific cities likely would increase its prices by at least a small but significant and non-transitory amount. Accordingly, each city pair is a relevant geographic market and section of the country under Section 7 of the Clayton Act.
29. Consumer preferences also play a role in airline pricing and are relevant for the purpose of analyzing the likely effects of the proposed merger. Some passengers prefer nonstop service because it saves travel time; some passengers prefer buying tickets at the last minute; others prefer service at a particular airport within a metropolitan area. For example, most business customers traveling to and from downtown Washington prefer service at Reagan National over other airports in the Washington, DC metropolitan area. Through a variety of fare restrictions and rules, airlines can profitably raise prices for some of these passengers without raising prices for others. Thus, the competitive effects of the proposed merger may vary among passengers depending on their preferences for particular types of service or particular airports.
30. Reagan National is one of only four airports in the country requiring slots for takeoffs and landings. Slots are expensive (often valued at over $2 million per slot), difficult to obtain, and only rarely change hands between airlines. There are no alternatives to
31. Reagan National is across the Potomac River from Washington, DC, and, due to its proximity to the city and direct service via the Metro, airlines actively seek to serve passengers flying into and out of Reagan National. Airlines do not view service at other airports as adequate substitutes for service offered at Reagan National for certain passengers, and thus they are unlikely to switch away from buying or leasing slots at Reagan National in response to a small but significant increase in the price of slots. Airlines pay significant sums for slots at Reagan National, despite having the option of serving passengers through the region's other airports. A hypothetical monopolist of slots at Reagan National likely would increase its prices by at least a small but significant and non-transitory amount. Thus, slots at Reagan National Airport constitute a line of commerce, section of the country, and relevant market within the meaning of Section 7 of the Clayton Act.
32. Today, four network or “legacy” airlines remain in the United States: American, US Airways, United, and Delta. These four have extensive national and international networks, connections to hundreds of destinations, established brand names, and strong frequent flyer reward programs. In addition, there are non-network airlines, including Southwest Airlines and a handful of smaller firms, which typically do not offer “hub-and-spoke” service.
33. Airlines compete in many ways. One is the price of a ticket. Airlines also compete based on: nonstop versus connecting flights; number of destinations served; convenient flight schedules; passenger comfort and seating policies; choices for classes of service; carry-on baggage policies; the degree of personal service at ticket counters and boarding areas; onboard meal and drink service; in-flight entertainment; and the quality and generosity of frequent flyer programs.
34. Since 2005, the U.S. airline industry has undergone significant consolidation. The consolidation “wave” started with the 2005 merger between US Airways and America West, creating today's US Airways. In 2008, Delta and Northwest Airlines merged; in 2010, United and Continental merged; and in 2011, Southwest Airlines and AirTran merged. The chart below, in which one of US Airways' executive vice presidents referred to industry consolidation as the “New Holy Grail,” demonstrates that since 2005 the number of major airlines has dropped from nine to five.
35. Increasing consolidation among large airlines has hurt passengers. The major airlines have copied each other in raising fares, imposing new fees on travelers, reducing or eliminating service on a number of city pairs, and downgrading amenities. An August 2012 presentation from US Airways observes that consolidation has resulted in “Fewer and Larger Competitors.” The structural change to “fewer and larger competitors” has allowed “[t]he industry” to “reap the benefits.” Those benefits to the industry are touted by US Airways in the same presentation as including “capacity reductions” and new “ancillary revenues” like bag fees.
36. In 2005, there were nine major airlines. If this merger were approved, there would be only four. The three remaining legacy airlines and Southwest would account for over 80% of the domestic scheduled passenger service market, with the new American becoming the biggest airline in the world.
37. Market concentration is one useful indicator of the level of competitive vigor in a market, and the likely competitive effects of a merger. The more concentrated a market, and the more a transaction would increase concentration in a market, the more likely it is that a transaction would result in a meaningful reduction in competition. Concentration in relevant markets is typically measured by the Herfindahl-Hirschman Index (“HHI”). Markets in which the HHI exceeds 2,500 points are considered highly concentrated. Post-merger increases in
38. In more than 1,000 of the city pair markets in which American and US Airways currently compete head-to-head, the post-merger HHI would exceed 2,500 points and the merger would increase the HHI by more than 200 points. For example, on the Charlotte-Dallas city pair, the post-merger HHI will increase by 4,648 to 9,319 (out of 10,000). In these markets, US Airways and American annually serve more than 14 million passengers and collect more than $6 billion in fares. The substantial increases in concentration in these highly concentrated markets demonstrate that in these relevant markets, the merger is presumed, as a matter of law, to be anticompetitive. The relevant markets described in this paragraph are listed in Appendix A.
39. Other city pairs across the country would likely be affected by the loss of competition stemming from this planned merger. In some of these markets, US Airways and American compete head-to-head, often offering consumers discounted fares. If approved, this merger will likely end much of that discounting, significantly harming consumers in the process. Moreover, the loss of competition in these markets would increase the likelihood that the remaining airlines can coordinate to raise price, reduce output, and diminish the quality of their services. In these relevant markets, the merger is likely also to substantially lessen competition.
40. In the market for slots at Reagan National, the merger would result in a highly concentrated market, with a post-merger HHI of 4,959. The merger would also significantly increase concentration by 1,493 points. As a result, the merger should be presumed, as a matter of law, to be anticompetitive.
41. The structure of the airline industry is already conducive to coordinated behavior: Few large players dominate the industry; each transaction is small; and most pricing is readily transparent.
42. For example, the legacy airlines closely watch the pricing moves of their competitors. When one airline “leads” a price increase, other airlines frequently respond by following with price increases of their own. The initiating carrier will lead the price increase and then see if the other carriers will match the increase. If they do not, the initiating carrier will generally withdraw the increase shortly thereafter.
43. The legacy airlines also use what they call “cross-market initiatives,” or “CMIs,” to deter aggressive discounting and prevent fare wars. A CMI occurs where two or more airlines compete against each other on multiple routes. If an airline offers discounted fares in one market, an affected competitor often responds with discounts in another market—a CMI—where the discounting airline prefers a higher fare. CMIs often cause an airline to withdraw fare discounts. For example, in the fall of 2009, US Airways lowered fares and relaxed restrictions on flights out of Detroit (a Delta stronghold) to Philadelphia. Delta responded by offering lower fares and relaxed restrictions from Boston to Washington (a US Airways stronghold). US Airways' team lead for pricing observed Delta's move and concluded “[w]e have more to lose in BOSWAS . . . I think we need to bail on the [Detroit-Philadelphia] changes.”
44. There is also past express coordinated behavior in the industry. For example, all airlines have complete, accurate, and real-time access to every detail of every airline's published fare structure on every route through the airline-owned Airline Tariff Publishing Company (“ATPCO”). US Airways' management has called ATPCO “a dedicated price-telegraph network for the industry.” The airlines use ATPCO to monitor and analyze each other's fares and fare changes and implement strategies designed to coordinate pricing. Airlines have previously used ATPCO to engage in coordinated behavior. In 1992, the United States filed a lawsuit to stop several airlines, including both defendants, from using their ATPCO filings as a signaling device to facilitate agreements on fares. That lawsuit resulted in a consent decree, now expired.
45. US Airways also has communicated directly with a competitor when it was upset by that competitor's efforts to compete more aggressively. In 2010, one of US Airways' larger rivals extended a “triple miles” promotion that set off a market share battle among legacy carriers. The rival airline was also expanding into new markets and was rumored to be returning planes to its fleet that had been mothballed during the recession. US Airways' CEO complained about these aggressive maneuvers, stating to his senior executives that such actions were “hurting [the rival airline's] profitability—and unfortunately everyone else's.” US Airways' senior management debated over email about how best to get the rival airline's attention and bring it back in line with the rest of the industry. In that email thread, US Airways' CEO urged the other executives to “portray[ ] these guys as idiots to Wall Street and anyone else who'll listen.” Ultimately, to make sure the message was received, US Airways' CEO forwarded the email chain—and its candid discussion about how aggressive competition would be bad for the industry—directly to the CEO of the rival airline. (The rival's CEO immediately responded that it was an inappropriate communication that he was referring to his general counsel.)
46. Coordination becomes easier as the number of major airlines dwindles and their business models converge. If not stopped, the merger would likely substantially enhance the ability of the industry to coordinate on fares, ancillary fees, and service reductions by creating, in the words of US Airways executives, a “Level Big 3”of network carriers, each with similar sizes, costs, and structures.
47. Southwest, the only major, non-network airline, and other smaller carriers have networks and business models that differ significantly from the legacy airlines. Traditionally, Southwest and other smaller carriers have been less likely to participate in coordinated pricing or service reductions. For example, Southwest does not charge customers for a first checked bag or ticket change fees. Yet that has not deterred the legacy carriers from continuing, and even increasing, those fees. In November 2011, a senior US Airways executive explained to her boss the reason: “Our employees know full well that the real competition for us is [American], [Delta], and [United]. Yes we compete with Southwest and JetBlue, but the product is different and the customer base is also different.”
48. On routes where one legacy airline offers nonstop service, the other legacies “generally respect the pricing of the non-stop carrier,” as American has put it. Thus, if American offers nonstop service from Washington to Dallas at $800 round-trip, United and Delta will, “[d]espite having a service disadvantage,” price their connecting fares at the level of American's nonstop fares. The legacy carriers do this because if one airline, say Delta, were to undercut fares in markets where American offers nonstop service, American would likely do the same in
49. US Airways, alone among the legacy carriers, has a different cost-benefit analysis for pricing connecting routes. Although it too is a national network carrier, US Airways has hubs in cities that generate less revenue from passengers flying nonstop than the other legacy airlines' hubs. Because US Airways' hubs generate less revenue from passengers flying nonstop, US Airways must gain more revenue from connecting passengers. It gets that revenue by offering connecting service that is up to 40% cheaper than other airlines' nonstop service. US Airways calls this program “Advantage Fares.”
50. Millions of consumers have benefitted. Advantage Fares offer consumers, especially those who purchase tickets at the last minute, meaningfully lower fares. The screenshot below from ITA Software, Airfare Matrix (“ITA”), taken on August 12, 2013, for travel departing on August 13 and returning August 14 from Miami to Cincinnati, shows the benefits of US Airways' Advantage Fare program to passengers
51. The benefits from Advantage Fares extend to hundreds of other routes, including those where more than one carrier offers nonstop service. The screenshot below from ITA, taken on August 12, 2013, for travel departing on August 13 and returning August 14 from New York to Houston, demonstrates just how dramatic the savings can be:
US Airways' connecting fare is $870 cheaper than the other legacy carriers' nonstop flights, and beats JetBlue and AirTran's fares by more than $300. Although Southwest does not participate in the standard online travel sites, a cross-check against the Southwest Web site demonstrates that US Airways also beats Southwest's $887 nonstop fare by more than $300.
52. Other airlines have chosen to respond to Advantage Fares with their
Here, US Airways is the only airline to offer nonstop service, charging $685. Delta and United undercut that price by charging $375 and $395, respectively, for connecting service. Once again, consumers benefit by having the option of far less expensive connecting service. A customer who buys a Delta one-stop flight saves $310 over US Airways' nonstop service.
53. There are over 100 routes where other carriers offer nonstop service on which US Airways does not offer Advantage Fares. Consumers in these markets are not given the option of a low-cost connecting alternative and are forced to pay significantly more for service. For example, US Airways does not currently offer Advantage Fares on flights from Cincinnati to Pittsburgh. Without the option of a low connecting fare, consumers see significantly higher prices, as illustrated by a screenshot from ITA, taken on August 12, 2013, for travel on August 13 and returning August 14:
54. Advantage Fares have proven highly disruptive to the industry's overall coordinated pricing dynamic. An American executive expressed her frustration in September 2011 with US Airways' Advantage Fares, noting that US Airways was “still way undercutting us [on flights from Boston and New York to Dallas] and getting significant share.” One response American considered was to lower its fares on the same route. Another option was “to take up this battle w/them again,” in an attempt to force US Airways to limit or abandon its strategy.
55. US Airways' President acknowledged in September 2010 that its Advantage Fare strategy “would be different if we had a different route network. . . .” Currently, US Airways' network structure precludes Delta and United from preventing US Airways' aggressive “one-stop pricing.” Because US Airways' hubs have relatively less nonstop traffic, the other legacy airlines cannot respond sufficiently to make Advantage Fares unprofitable. But by increasing the size and scope of US Airways' network, the merger makes it likely that US Airways will have to discontinue its Advantage Fares.
56. American's executives agree. American believes that Advantage Fares will be eliminated because of the merger. Internal analysis at American in October 2012 concluded that “[t]he [Advantage Fares] program would have to be eliminated in a merger with American, as American's large non-stop markets would now be susceptible to reactionary pricing from Delta and United.” Another American executive observed that same month: “The industry will force alignment to a single approach—one that aligns with the large legacy carriers as it is revenue maximizing.”
57. US Airways believes that it currently gains “most of its advantage fare value from AA,” meaning that Advantage Fares provide substantial value for US Airways on routes where American is the legacy airline offering nonstop service. Post-merger, continuing Advantage Fares would mean that US Airways was taking that value away from itself by undercutting its own nonstop prices. Plainly, this would make no sense. Thus, for US Airways post-merger, the benefits of Advantage Fares would go down, and its costs would go up.
58. By ending Advantage Fares, the merger would eliminate lower fares for millions of consumers. Last year, more than 2.5 million round-trip passengers—including more than 250,000 passengers from the greater Washington, DC area; another 250,000 passengers in the Dallas-Fort Worth area; half a million passengers in the greater New York City area; and 175,000 passengers from Detroit—bought an Advantage Fare ticket. Hundreds of thousands of other passengers flying nonstop on US Airways, particularly from their hubs in Phoenix, Charlotte, and Philadelphia, benefited from responsive fares offered by the legacy airlines.
59. Legacy airlines have taken advantage of increasing consolidation to exercise “capacity discipline.” “Capacity discipline” has meant restraining growth or reducing established service. The planned merger would be a further step in that industry-wide effort. In theory, reducing unused capacity can be an efficient decision that allows a firm to reduce its costs, ultimately leading to lower consumer prices. In the airline industry, however, recent experience has shown that capacity discipline has resulted in fewer flights and higher fares.
60. Each significant legacy airline merger in recent years has been followed by substantial reductions in service and capacity. These capacity reductions have not consisted simply of cancellation of empty planes or empty seats; rather, when airlines have cut capacity after a merger, the number of passengers they carry on the affected routes has also decreased.
61. US Airways has recognized that it benefitted from this industry consolidation and the resulting capacity discipline. US Airways has long taken the position that the capacity cuts achieved through capacity discipline “enabled” fare increases and that “pricing power” results from “reduced industry capacity.” US Airways' CEO explained to investors in 2006 that there is an “inextricable link” between removing seats and raising fares.
62. In 2005, America West—managed then by many of the same executives who currently manage US Airways—merged with US Airways. America West had hubs in Phoenix and Las Vegas while the former US Airways had hubs in Pittsburgh, Charlotte, and Philadelphia. Following the merger, the combined firm reduced capacity, including significant cuts in Pittsburgh and Las Vegas. In 2010, the Chief Financial Officer for US Airways explained:
We believe in the hub system. I just think there's too many hubs. If you look across the country, you can probably pick a few that are smaller hubs and maybe duplicative to other hubs that airlines have that they could probably get out of. In our example, we merged with US Airways [and] . . . what we have done over time, which is unfortunate for the cities, but we couldn't hold a hub in Pittsburgh and we couldn't hold a hub in Las Vegas. So over time we have consolidated and condensed our operation back, which is really important, condensed it back to our major hubs.
63. In 2006, on the heels of the America West/US Airways merger, the combined firm submitted an ultimately unsuccessful hostile bid for Delta Air Lines. US Airways' management had concluded that a merged US Airways/Delta could reduce the combined carrier's capacity by 10 percent, which would lead to higher revenues for the combined firm and for the industry. In 2007, following the rejection of the hostile bid, US Airways' CEO explained to investors how the deal would have increased industry profits:
It's part of what we tried to impress upon people as we were going through our run at Delta, was that * * * it was good for US Airways [and] good for the entire industry. We're going to take out 4% of the industry capacity as we did that. Everyone's 2008 numbers would look a (expletive) of a lot better had that transaction happened * * *
64. In 2008, Delta merged with Northwest Airlines. Despite promises to the contrary, the combined airline reduced capacity, including significant cuts at its former hubs in Cincinnati and Memphis. US Airways' CEO was “quite happy” to see the merger and advocated for further consolidation. He explained that an industry structure of “five different hub and spoke airlines with who knows how many hubs across the United States . . . results in all of us fighting for the same connecting passengers over numerous hubs.” Left unsaid was that fewer airlines meant less competition and higher fares.
65. In May 2010, United Airlines and Continental Airlines announced their planned merger. The announcement caused speculation about the future of each airline's hubs, including Continental's Cleveland hub. In Congressional testimony, an industry analyst stated that he did not believe the merger would cause reductions in Cleveland. On June 18, 2010, upon seeing the testimony, US Airways' CEO wrote an email to other US Airways executives stating, “[s]urely these guys [United/Continental] aren't really planning to keep Cleveland open. I'm hopeful they're just saying what they need to (including to [the analyst]) to get this approved.” United and Continental closed their deal on October 1, 2010. The combined firm has reduced capacity at nearly all of its major hubs (including Cleveland) and at many other airports where the two airlines previously competed. Similarly, Southwest/AirTran has reduced service in a number of its focus cities and on many of AirTran's former routes following its 2011 merger.
66. The defendants are fully aware of these earlier mergers' effects. A 2012 American Airlines analysis concluded that “following a merger, carriers tend to remove capacity or grow more slowly than the rest of the industry.” US Airways' management concluded that although industry consolidation has been a success, as its CEO stated publicly in 2010, the industry had yet to hit its “sweet spot,” and additional consolidation was needed because the industry remained “overly fragmented.”
67. A merger with American would allow US Airways to hit the “sweet spot.” For consumers, however, it would be anything but sweet. US Airways believes that merging with American “finishes industry evolution” by accomplishing US Airways' goal of “reduc[ing] capacity more efficiently.” When first considering a combination with American, US Airways projected that the merged firm could reduce capacity by as much as 10 percent. Similarly, American expects that the merger will lead to capacity reductions that would negatively impact “communities,” “people,” “customers,” and “suppliers.” Higher fares would be right around the corner.
68. American does not need this merger to thrive, let alone survive. Before the announcement of this merger, a key component of American's standalone plan for exiting bankruptcy revolved around substantial expansion, including increases in both domestic and international flights. Thus, in 2011, American placed the largest order for new aircraft in the industry's history.
69. US Airways executives feared that American's standalone growth plan would disrupt the industry's capacity discipline “momentum.” In a 2012 internal presentation, US Airways executives recognized that while “[i]ndustry mergers and capacity discipline expand margins,” American's standalone “growth plan has potential to disrupt the new dynamic” and would “Reverse Industry Capacity Trends.” Moreover, US Airways believed that if American implemented its growth plans, other airlines would “react to AMRs plans with their own enhanced growth plans destabilizing industry.” US Airways believed that American's standalone capacity growth would “negatively impact” industry revenues and threaten industry pricing.
70. US Airways thought that a merger with American was a “lower risk alternative” than letting American's standalone plan come to fruition because US Airways management could maintain capacity discipline. American's executives have observed that “the combined network would likely need to be rationalized,” especially given the merged carrier's numerous hubs, and that it is “unlikely that [a combined US Airways/American] would pursue growth. * * *”
71. Since 2008, the airline industry has increasingly charged consumers fees for services that were previously included in the price of a ticket. These so-called ancillary fees, including those for checked bags and flight changes, have become very profitable. In 2012 alone, airlines generated over $6 billion in fees for checked bags and flight changes. Even a small increase in these fees would cost consumers millions.
72. Increased consolidation has likely aided the implementation of these fees. The levels of the ancillary fees charged by the legacy carriers have been largely set in lockstep. One airline acts as the “price leader,” with others following soon after. Using this process, as a US Airways strategic plan observed, the airlines can raise their fees without suffering “market share impacts.” For example, American announced that it would charge for a first checked bag on May 21, 2008. On June 12, 2008, both United and US Airways followed American's lead. Similarly, over a period of just two weeks this spring, all four legacy airlines increased their ticket change fee for domestic travel from $150 to $200.
73. The legacy airlines recognize that the success of any individual attempt to impose a new fee or fee increase depends on whether the other legacies follow suit. When, in July 2009, American matched the other legacy carriers by raising its checked bag fee to $20, but did not join the others in offering a $5 web discount, US Airways was faced with the decision of whether to “match” American by either eliminating its own web discount, or raising its price to $25, with a $5 discount. US Airways' CEO gave his view:
I can't believe I'm saying this, but I think we should stand still on this for now. I recognize that increases the chances of everyone standing still . . . the [dollars] aren't compelling enough for us to stick our necks out first. I do think D[elta] or U[nited] won't let them have an advantage, so it'll get matched—I'm just not sure we should go first. If a couple weeks go by and no one's moved, we can always jump in.
74. Similarly, when US Airways was considering whether to raise its second checked bag fee to $100 to match Delta's fee, a US Airways executive observed: “Wow—$100 is a lot for second bag. I would think there's big passenger gag reflex associated with that, but if we can get it, we should charge it. Do you think we should wait for [United] or [American] to move first, though?”
75. Conversely, in 2008, when US Airways began charging passengers for soft drinks, the other legacy airlines did not follow its lead, and US Airways backed off. US Airways' CEO explained: “With US Airways being the only network carrier to charge for drinks, we are at a disadvantage.” Had US Airways not rescinded this fee, it would have lost passengers to the other legacy airlines.
76. At times, the airlines consider new fees or fee increases, but hold off implementing them while they wait to see if other airlines will move first. For example, on April 18, United announced that it was increasing its ticket change fee from $150 to $200. American decided that “waiting for [Delta] and then moving to match if [Delta] comes along” would be its best strategy. Over the next two weeks, US Airways, Delta, and American each fell in line, leading a US Airways executive to observe on May 1: “A[merican] increased their change fees this morning. The network carriers now have the same $200 domestic . . . change fees.”
77. Post-merger, the new American would likely lead new fee increases. A December 2012 discussion between US Airways executives included the observation that after the merger, “even as the world's largest airline we'd want to consider raising some of the baggage fees a few dollars in some of the leisure markets.”
78. New checked bag fees on flights from the United States to Europe are a likely target. Both US Airways and American have considered imposing a first checked bag fee on flights to Europe but have refrained from doing so. US Airways seriously considered leading such a price move but was concerned that other airlines would not match: “We would hope that [other airlines] would follow us right away . . . but there is no guarantee. . . .” Ultimately, US Airways concluded it was “too small” to lead additional checked bag fees for flights to Europe. Post-merger, that would no longer be true. The merged firm would be the world's largest airline, giving it sufficient size to lead industry fee and price increases across the board.
79. Some fee increases are likely to result from US Airways raising American's existing fees. Today, “US Airways generally charges higher bag fees than AA” for travel from the United States to international destinations. Post-merger, US Airways would likely raise American's ancillary fees to US Airways' higher fee levels as part of a “fee harmonization” process. US Airways' own documents estimate that “fee harmonization” would generate an additional $280 million in revenue annually—directly harming consumers by the same amount. A US Airways presentation from earlier this year analyzing the merger identifies American's lower bag fees as a “value lever” that US Airways “will likely manage differently with tangible financial upside.” The analysis concludes that “[i]ncreasing AA baggage fees to match US creates significant revenue impact.” US Airways also plans to institute its fees ($40 on average) for the redemption of frequent flyer tickets on American's existing frequent fliers, who currently are not charged for mileage redemption.
80. The merger would also likely reduce the quality and variety of ancillary services offered by the legacy
[N]ext it will be more legroom. Then industry standard labor contracts. Then better wines. Then the ability to book on Facebook. Penultimately, television commercials. Then, finally, we will pay the NYSE an exorbitant fee to change our ticker symbol [from LCC].
81. If the planned merger is enjoined, both American and US Airways will have to compete against two larger legacy rivals, and against each other. The four legacy airlines will not look exactly the same. As the smallest of the legacy airlines, American and US Airways will have greater incentives to grow and compete aggressively through lower ancillary fees, new services, and lower fares.
82. American and US Airways engage in head-to-head competition with nonstop service on 17 domestic routes representing about $2 billion in annual industry-wide revenues. American and US Airways also compete directly on more than a thousand routes where one or both offer connecting service, representing billions of dollars in annual revenues. The merger's elimination of this head-to-head competition would create strong incentives for the merged airline to reduce capacity and raise fares where they previously competed.
83. The combined firm would control 69% of the slots at Reagan National Airport, almost six times more than its closest competitor. This would eliminate head-to-head competition at the airport between American and US Airways. It would also effectively foreclose entry or expansion by other airlines that might increase competition at Reagan National.
84. The need for slots is a substantial barrier to entry at Reagan National. The FAA has occasionally provided a limited number of slots for new service. In almost all cases, however, a carrier wishing to begin or expand service at Reagan National must buy or lease slots from an airline that already owns them.
85. This merger would thwart any prospect for future entry or expansion at Reagan National. US Airways, which already has 55% of the airport's slots, does not sell or lease them because any slot that goes to another airline will almost certainly be used to compete with US Airways. The merger would only increase US Airways' incentives to hoard its slots. Today, US Airways provides nonstop service to 71 airports from Reagan National, and it faces no nonstop competitors on 55 of those routes. After this merger, the number of US Airways routes with no nonstop competition would increase to 59, leaving, at best, only 21 routes at the entire airport with more than one nonstop competitor. Unsurprisingly, Reagan National is US Airways' second most-profitable airport.
86. Potential entrants would likely not be able to turn to other airlines to obtain slots. When allocating their slots, airlines prioritize their most profitable routes, typically those where they have a frequent, significant pattern of service. If a carrier has a small portfolio of slots, it is likely to allocate almost all of its slots to its most profitable routes. If it has additional slots beyond what is needed to serve those routes, a carrier will then work its way down to other routes or sell or lease those slots to other airlines. Over the last several years, US Airways has purchased nearly all of the slots that might otherwise be available to interested buyers. Thus, before this planned merger, American was the only airline at Reagan National with the practical ability to sell or lease additional slots.
87. In March 2010, American and JetBlue entered into an arrangement in which JetBlue traded slots at New York's JFK International Airport to American in exchange for American trading slots at Reagan National to JetBlue. And until American reached agreement with US Airways to merge, it had been negotiating to sell those slots and ten other Reagan National slots to JetBlue.
88. JetBlue's entry on four routes, particularly Reagan National to Boston, has generated stiff price competition. Fares on the route have dropped dramatically. US Airways estimated that after JetBlue's entry, the last-minute fare for travel between Reagan National and Boston dropped by over $700. The combined firm will have the right to terminate the JetBlue leases and thereby eliminate, or at least diminish, JetBlue as a competitor on some or all of these routes.
89. The merger would also eliminate the potential for future head-to-head competition between US Airways and American on flights at Reagan National. In 2011, US Airways planned to start service from Reagan National to Miami and St. Louis, which would directly compete with American's existing service. US Airways argued to the Department of Transportation that this new competition would “substantial[ly] benefit[]” consumers, and so asked DOT to approve the purchase of slots from Delta that would make the service possible. DOT ultimately approved that purchase. When it developed its plan to merge with American, however, US Airways abandoned its plans to enter those markets and deprived consumers of the “substantial benefits” it had promised.
90. By acquiring American's slot portfolio, US Airways would eliminate existing and future head-to-head competition, and effectively block other airlines' competitive entry or expansion.
91. New entry, or expansion by existing competitors, is unlikely to prevent or remedy the merger's likely anticompetitive effects. New entrants into a particular market face significant barriers to success, including difficulty in obtaining access to slots and gate facilities; the effects of corporate discount programs offered by dominant incumbents; loyalty to existing frequent flyer programs; an unknown brand; and the risk of aggressive responses to new entry by the dominant incumbent carrier. In addition, entry is highly unlikely on routes where the origin or destination airport is another airline's hub, because the new entrant would face substantial challenges attracting sufficient local passengers to support service.
92. United and Delta are unlikely to expand in the event of anticompetitive price increases or capacity reductions by the merged airline. Indeed, those carriers are likely to benefit from and participate in such conduct by coordinating with the merged firm.
93. The remaining airlines in the United States, including Southwest and JetBlue, have networks and business models that are significantly different from the legacy airlines. In particular, most do not have hub-and-spoke networks. In many relevant markets, these airlines do not offer any service at all, and in other markets, many passengers view them as a less preferred alternative to the legacy carriers. Therefore, competition from Southwest, JetBlue, or other airlines would not be sufficient to prevent the anticompetitive consequences of the merger.
94. There are not sufficient acquisition-specific and cognizable
95. The effect of the proposed merger, if approved, likely will be to lessen competition substantially, or tend to create a monopoly, in interstate trade and commerce in the relevant markets, in violation of Section 7 of the Clayton Act, 15 U.S.C. 18.
96. Unless enjoined, the proposed merger likely would have the following effects in the relevant markets, among others:
(a) Actual and potential competition between US Airways and American Airlines would be eliminated;
(b) competition in general among network airlines would be lessened substantially;
(c) ticket prices and ancillary fees would be higher than they otherwise would;
(d) industry capacity would be lower than it otherwise would;
(e) service would be lessened; and
(f) the availability of slots at Reagan National would be significantly impaired.
97. Plaintiffs request:
(a) that US Airways' proposed merger with American Airlines be adjudged to violate Section 7 of the Clayton Act, 15 U.S.C. 18;
(b) that Defendants be permanently enjoined from and restrained from carrying out the planned merger of US Airways and American or any other transaction that would combine the two companies;
(c) that Plaintiffs be awarded their costs of this action, including attorneys' fees to Plaintiff States; and
(d) that Plaintiffs be awarded such other relief as the Court may deem just and proper.
Dated this 13th day of August 2013.
Respectfully submitted,
For Plaintiff United States:
• HHIs in this appendix are calculated based on publicly available airline ticket revenue data from Department of Transportation's Airline Origin and Destination Survey (DB1B) database, available at:
• Routes are listed only once but include flights at all airports within the metropolitan area and in both directions. For example, the entry
Pursuant to Section 2(b) of the Antitrust Procedures and Penalties Act (“APPA” or “Tunney Act”), 15 U.S.C. 16(b)–(h), Plaintiffs United States of America (“United States”) files this Competitive Impact Statement relating to the proposed Final Judgment submitted on November 12, 2013, for entry in this civil antitrust matter.
On August 13, 2013, the United States and the States of Arizona, Florida, Tennessee, Texas, the Commonwealths of Pennsylvania and Virginia, and the District of Columbia (“Plaintiff States”) filed a civil antitrust Complaint seeking to enjoin the proposed merger of Defendants US Airways Group, Inc. (“US Airways”) and AMR Corporation (“American”).
On November 12, 2013, the United States filed a proposed Final Judgment designed to remedy the harm to competition that was likely to result from the proposed merger. The proposed Final Judgment, which is explained more fully below, requires the divestiture of slots, gates, and ground facilities at key airports around the country to permit the entry or expansion of airlines that can provide meaningful competition in numerous markets, eliminate the significant increase in concentration of slots at Reagan National that otherwise would have occurred, and enhance the ability of low-cost carriers to compete with legacy carriers on a system-wide basis.
As set forth in the proposed Final Judgment, the Defendants are required to divest or transfer to purchasers approved by the United States, in consultation with the Plaintiff States:
• 104 air carrier slots
• 34 slots at New York LaGuardia International Airport (“LaGuardia”) and rights and interests in any associated gates or other ground facilities, up to the extent such gates and ground facilities were used by Defendants to support the use of the divested slots; and
• rights and interests to two airport gates and associated ground facilities at each of the following airports: Chicago O'Hare International Airport (“ORD”), Los Angeles International Airport (“LAX”), Boston Logan International Airport (“BOS”), Miami International Airport (“MIA”), and Dallas Love Field (“DAL”).
The Reagan National and LaGuardia slots will be sold in bundles, under procedures approved by the United States, in consultation with the Plaintiff States.
Trial in this matter is scheduled to begin on November 25, 2013. Plaintiffs and Defendants have filed an Asset Preservation Order and Stipulation providing that: (1) Defendants are bound by the terms of the proposed Final Judgment, (2) the litigation will be stayed pending completion of the procedures called for by the APPA, and (3) the proposed Final Judgment may be entered after compliance with the APPA. Entry of the proposed Final Judgment would terminate this action, except that the Court would retain jurisdiction to construe, modify, or enforce the provisions of the proposed Final Judgment and to punish violations thereof.
US Airways is a Delaware corporation headquartered in Tempe, Arizona. Last year, it flew over fifty million passengers to approximately 200 locations worldwide, taking in more than $13 billion in revenue. US Airways operates hubs in Phoenix, Charlotte, Philadelphia, and Washington, DC.
American is a Delaware corporation headquartered in Fort Worth, Texas. AMR Corporation is the parent company of American Airlines. Last year, American flew over eighty million passengers to approximately 250 locations worldwide, taking in more than $24 billion in revenue. American operates hubs in New York, Los Angeles, Chicago, Dallas, and Miami. In November 2011, American filed for bankruptcy reorganization and is currently under the supervision of the Bankruptcy Court for the Southern District of New York.
US Airways and American agreed to merge on February 13, 2013. US Airways shareholders would own 28 percent of the combined airline, while American shareholders, creditors, labor unions, and employees would own 72 percent. The merged airline would operate under the American brand name, but the new American would be run by US Airways management.
Domestic scheduled air passenger service is a relevant product market within the meaning of Section 7 of the Clayton Act. Because air travel offers passengers significant time savings and convenience over other forms of travel, few passengers would substitute other modes of transportation (car, bus, or train) for scheduled air passenger service in response to a small but significant industry-wide fare increase.
City pairs are relevant geographic markets within the meaning of Section 7 of the Clayton Act. Passengers seek to depart from airports close to where they live and work, and arrive at airports close to their intended destinations. Most airline travel is related to business, family events, and vacations. Thus, most passengers book flights with their origins and destinations predetermined. Few passengers who wish to fly from one city to another would switch to flights between other cities in response to a small but significant and non-transitory fare increase.
Passengers traveling within city pairs have different preferences for factors such as nonstop service, the flexibility to purchase tickets or change plans at the last minute and, in cities served by more than one airport, the ability to fly in to or out of the airport most convenient to their home or intended destination. Through a variety of fare restrictions and rules, airlines can profitably raise prices for some of these passengers without raising prices for others. Thus, the competitive effects of
Slots at Reagan National Airport also constitute a relevant market within the meaning of Section 7 of the Clayton Act. Reagan National is across the Potomac River from Washington, DC, and, due to its proximity to the city and direct service via the Metro, airlines actively seek to serve passengers flying into and out of Reagan National. To serve Reagan National, a carrier must have “slots,” which are government-issued rights to take off and land. Reagan National is one of only four airports in the country requiring federally-issued slots. Slots at Reagan National are highly valued, difficult to obtain, and only rarely change hands between airlines. There are no alternatives to slots for airlines seeking to enter or expand their service at Reagan National.
As alleged in the Complaint, this merger would combine two of the four major “legacy” carriers, leaving “New American,” Delta, and United as the remaining major national network carriers.
This merger would leave three very similar legacy airlines—Delta, United, and the New American. By further reducing the number of legacy airlines and aligning the economic incentives of those that remain, the merger would make it easier for the remaining legacy airlines to cooperate, rather than compete, on price and service. Absent the merger, US Airways and American, as independent competitors, would have unique incentives to disrupt coordination that already occurs to some degree among the legacy carriers. US Airways' network structure provides the incentive to offer its “Advantage Fares” program, an aggressive discounting strategy aimed at undercutting the other airlines' nonstop fares with cheaper connecting service. American, having completed a successful reorganization in bankruptcy, would have the incentive, and indeed, it has announced the intention to undertake significant growth at the expense of its competitors. The merger would diminish these important competitive constraints.
The merger would also entrench the merged airline as the dominant carrier at Washington Reagan National Airport, where it would control 69 percent of the take-off and landing slots. The merger would eliminate head-to-head competition between American and US Airways on the routes they both serve from the airport and would effectively foreclose entry or expansion by other airlines that might increase competition at Reagan National.
Finally, the merger would eliminate head-to-head competition between US Airways and American on numerous non-stop and connecting routes.
New entry, or expansion by existing competitors, would be unlikely to prevent or remedy the merger's likely anticompetitive effects absent the proposed divestitures. Operational barriers limit entry and expansion at a number of important airports. Four of the busiest airports in the United States—including Reagan National and LaGuardia—are subject to slot limitations governed by the FAA. The lack of availability of slots is a substantial barrier to entry at those airports, especially for low-cost carriers. Slots at these airports are concentrated in the hands of large legacy airlines that have little incentive to sell or lease slots to those carriers most likely to compete aggressively against them. As a result, slots are expensive, difficult to obtain, and change hands only rarely.
Access to gates can also be a substantial barrier to entry or expansion at some airports. At several large airports, a significant portion of the available gates are leased to established airlines under long-term exclusive-use leases. In such cases, a carrier seeking to enter or expand would have to sublease gates from incumbent airlines.
In addition to operational constraints, new entrants and those seeking to expand must overcome the effects of corporate discount programs offered by dominant incumbents; loyalty to existing frequent flyer programs; a less well-known brand; and the risk of aggressive responses to new entry by the dominant incumbent carrier. However, especially in large cities, low-cost carriers have demonstrated some ability to overcome those disadvantages with the help of lower costs, when they are able to obtain access to the necessary airport facilities.
The Complaint alleges several ways that the elimination of US Airways and American as independent competitors will result in harm to consumers. As things stand today, each carrier places important competitive constraints on the other large network carriers. US Airways undercuts the nonstop fares of legacy carriers through its Advantage Fares program. American had planned to fly more planes. The Complaint alleges that the merger will diminish New American's incentives to maintain these strategies and increase its incentives to coordinate with the other legacy carriers rather than compete. The Complaint also alleges harm resulting from increased slot concentration at DCA.
The proposed remedy seeks to address both the harm resulting from increased slot concentration at DCA and the broader harms alleged in the Complaint by requiring the divestiture of an unprecedented quantity of valuable facilities at seven of the most important airports in the United States. The access to key airports made possible by the divestitures will create network opportunities for the purchasing carriers that would otherwise have been out of reach for the foreseeable future. Those opportunities will provide increased incentives for those carriers to invest in new capacity and expand into additional markets.
The proposed remedy will not create a new independent competitor, nor does it purport to replicate American's capacity expansion plans or create Advantage Fares where they might otherwise be eliminated. Instead, it promises to impede the industry's evolution toward a tighter oligopoly by requiring the divestiture of critical facilities to carriers that will likely use them to fly more people to more places at more competitive fares. In this way, the proposed remedy will deliver benefits to consumers that could not be obtained by enjoining the merger.
The divestiture of 104 air carrier slots at Reagan National and 34 slots at
Similarly, gate divestitures at O'Hare (ORD), Los Angeles (LAX), Boston (BOS), Dallas Love Field (DAL), and Miami (MIA) would expand the presence of potentially disruptive competitors at these strategically important airports located throughout the country.
The proposed Final Judgment also includes divestitures at Dallas Love Field, an airport near American's largest hub at Dallas-Fort Worth International Airport (“DFW”). Gates at DFW are readily available, but Love Field, which is much closer to downtown Dallas, is highly gate-constrained. Although today operations at Love Field are severely restricted under current law,
Past antitrust enforcement demonstrates that providing LCCs with access to constrained airports results in dramatic consumer benefits. In 2010, in response to the United States' concerns regarding competitive effects of the proposed United/Continental merger, United and Continental transferred 36 slots, three gates and other facilities at Newark to Southwest. Southwest used those assets to establish service on six nonstop routes from Newark, resulting in substantially lower fares to consumers. For example, average fares for travel between Newark and St. Louis dropped 27% and fares for travel between Newark and Houston dropped 15%. In addition, Southwest established connecting service to approximately 60 additional cities throughout the United States.
The proposed remedy will require the divestiture of almost four times as many slots as were divested at the time of the United/Continental merger, plus gates and additional facilities at key airports throughout the country. In total, the divestitures will significantly strengthen the purchasing carriers, provide the incentive and ability for those carriers to invest in new capacity, and position them to provide more meaningful competition system-wide.
Section IV.F of the Proposed Final Judgment requires that the New American permanently divest 104 air carrier slots at Reagan National, two of which shall be slots currently held by US Airways and the remainder from American, including 16 slots American currently leases to JetBlue in exchange for slots at John F. Kennedy International Airport. New American will offer to make the slot exchange with JetBlue permanent. The remaining 88 slots (plus any of the 16 traded slots that JetBlue declines) will be divided into bundles, taking into account specific slot times to ensure commercially viable and competitive patterns of service for the recipients of the divested slots. New American will divest these slot bundles to at least two different carriers approved by the United States in its sole discretion, in consultation with the Plaintiff States.
In addition, New American will either sublease or transfer to the purchaser of any Reagan National slots, gates and other ground facilities (
Following the divestiture of the Reagan National slots, if requested by the purchasers, Defendants shall lease back the slots for no consideration for a period not to exceed 180 calendar days, or as may be extended at the request of the purchaser, with the approval of the United States, in consultation with the Plaintiff States. The value of this rent-free lease back will naturally be reflected in the purchase price of the slots. A transfer of this magnitude will naturally entail a transition period for both the acquirers and the Defendants. The lease-back provisions are designed to allow purchasers sufficient time to institute new service while incentivizing them to establish that service reasonably quickly.
Section IV.G of the Proposed Final Judgment requires that New American permanently divest 34 air carrier slots at LGA. New American will offer to divest to Southwest on commercially reasonable terms the 10 slots Southwest currently leases from American. The United States will identify the remaining 24 slots to be divested taking into account specific slot times to ensure commercially viable and competitive patterns of service for the recipients of the divested slots. The 24 slots (in addition to any of the 10 leased slots that Southwest declines) will be divided into bundles and divested to carriers approved by the United States in its sole discretion, in consultation with the Plaintiff States.
In addition, New American will either sublease or transfer to the purchaser of any LaGuardia slots gates and other ground facilities (
Following the divestiture of the LaGuardia slots, if requested by the purchasers, Defendants shall lease back the slots for no consideration for a period not to exceed 180 calendar days, or as may be extended at the request of the purchaser, with the approval of the United States, in consultation with the Plaintiff States. The value of this rent-free lease back will naturally be reflected in the purchase price of the slots. A transfer of this magnitude will naturally entail a transition period for both the acquirers and the Defendants. The lease-back provisions are designed to allow purchasers sufficient time to institute new service while incentivizing them to establish that service reasonably quickly.
Section IV.H of the Proposed Final Judgment requires that New American will transfer, consistent with the practices of the relevant airport authority, to another carrier or carriers approved by DOJ in its sole discretion, in consultation with the Plaintiff States, all rights and interests in two gates, to be identified and approved by DOJ in its sole discretion, in consultation with the Plaintiff States, and provide reasonable access to ground facilities (e.g., ticket counters, baggage handling facilities, office space, loading bridges) at each of: ORD, LAX, BOS, MIA, DAL on commercial terms and conditions identical to those pursuant to which the gates and facilities are leased to New American. New American will make reasonable best efforts to facilitate any gate moves necessary to ensure that the transferee can operate contiguous gates.
In the event the Defendants do not accomplish the divestitures as prescribed by the proposed Final Judgment, Section V of the proposed Final Judgment provides that the Court will appoint a Divestiture Trustee selected by the United States, in consultation with the Plaintiff States, to complete the divestitures. If a Divestiture Trustee is appointed, the proposed Final Judgment provides that the Defendants will pay all costs and expenses of the Divestiture Trustee. After his or her appointment becomes effective, the Divestiture Trustee will file monthly reports with the Court and the United States setting forth his or her efforts to accomplish the divestiture.
Section VII of the proposed Final Judgment permits the United States, in consultation with the Plaintiff States, to appoint a Monitoring Trustee, subject to approval by the Court. If a Monitoring Trustee is appointed, the proposed Final Judgment provides that the Defendants will pay all costs and expenses of the Monitoring Trustee. After his or her appointment becomes effective, the Monitoring Trustee will file reports with the Court and the United States every ninety days or more frequently as needed setting forth the Defendants' efforts to comply with the terms of the Final Judgment.
Section XII of the proposed Final Judgment prohibits the merged company from reacquiring an ownership interest in the divested slots or gates during the term of the Final Judgment. The proposed Final Judgment will not prevent New American from engaging in short-term trades or exchanges involving the divested slots at Reagan National or LGA for scheduling purposes.
The proposed Final Judgment requires Defendants to provide advance notification of any future slot acquisition at Reagan National by the merged company, regardless of whether the transaction meets the reporting thresholds set forth in the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a (the “HSR Act”). The proposed Final Judgment further provides for waiting periods and opportunities for the United States to obtain additional information analogous to the provisions of the HSR Act.
Defendants have entered into the Stipulation and Order attached as an exhibit to the Explanation of Consent Decree Procedures, which was filed simultaneously with the Court, to ensure that, pending the divestitures, the Divestiture Assets are maintained. The Stipulation and Order ensures that the Divestiture Assets are preserved and maintained in a condition that allows the divestitures to be effective.
Section 4 of the Clayton Act, 15 U.S.C. 15, provides that any person who has been injured as a result of conduct prohibited by the antitrust laws may bring suit in federal court to recover three times the damages the person has suffered, as well as costs and reasonable attorneys' fees. Entry of the proposed Final Judgment will neither impair nor assist the bringing of any private antitrust damage action. Under the provisions of Section 5(a) of the Clayton Act, 15 U.S.C. 16(a), the proposed Final Judgment has no prima facie effect in any subsequent private lawsuit that may be brought against Defendants.
The United States and Defendants have stipulated that the proposed Final Judgment may be entered by the Court after compliance with the provisions of the APPA, provided that the United States has not withdrawn its consent. The APPA conditions entry upon the Court's determination that the proposed Final Judgment is in the public interest.
The APPA provides a period of at least sixty (60) days preceding the effective date of the proposed Final Judgment within which any person may submit to the United States written comments regarding the proposed Final Judgment. Any person who wishes to comment should do so within sixty (60) days of the date of publication of this Competitive Impact Statement in the
Written comments should be submitted to: William H. Stallings, Chief, Transportation, Energy & Agriculture Section Antitrust Division, United States Department of Justice, 450 Fifth Street NW., Suite 8000, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains
The United States considered, as an alternative to the proposed Final Judgment, a full trial on the merits against the Defendants. The United States could have continued the litigation and sought preliminary and permanent injunctions against the proposed merger. However, the proposed Final Judgment avoids the time, expense, and uncertainty of a full trial on the merits. Moreover, the United States is satisfied that the divestiture of assets described in the proposed Final Judgment is an appropriate remedy. The proposed relief will facilitate entry and expansion by low-cost carriers at key slot-constrained and gate-constrained airports, thereby enhancing the ability of the purchasing carrier(s) to provide meaningful competition to New American and other legacy carriers.
The Clayton Act, as amended by the APPA, requires that proposed consent judgments in antitrust cases brought by the United States be subject to a sixty-day comment period, after which the court shall determine whether entry of the proposed Final Judgment “is in the public interest.” 15 U.S.C. 16(e)(1). In making that determination, the court, in accordance with the statute as amended in 2004, is required to consider:
(A) the competitive impact of such judgment, including termination of alleged violations, provisions for enforcement and modification, duration of relief sought, anticipated effects of alternative remedies actually considered, whether its terms are ambiguous, and any other competitive considerations bearing upon the adequacy of such judgment that the court deems necessary to a determination of whether the consent judgment is in the public interest; and
(B) the impact of entry of such judgment upon competition in the relevant market or markets, upon the public generally and individuals alleging specific injury from the violations set forth in the complaint including consideration of the public benefit, if any, to be derived from a determination of the issues at trial.
As the United States Court of Appeals for the District of Columbia Circuit has held, under the APPA a court considers, among other things, the relationship between the remedy secured and the specific allegations set forth in the government's complaint, whether the decree is sufficiently clear, whether enforcement mechanisms are sufficient, and whether the decree may positively harm third parties.
Courts have greater flexibility in approving proposed consent decrees than in crafting their own decrees following a finding of liability in a litigated matter. “[A] proposed decree must be approved even if it falls short of the remedy the court would impose on its own, as long as it falls within the range of acceptability or is `within the reaches of public interest.'”
Moreover, the court's role under the APPA is limited to reviewing the remedy in relationship to the violations that the United States has alleged in its Complaint, and does not authorize the court to “construct [its] own hypothetical case and then evaluate the decree against that case.”
In its 2004 amendments, Congress made clear its intent to preserve the practical benefits of utilizing consent decrees in antitrust enforcement, adding the unambiguous instruction that “[n]othing in this section shall be construed to require the court to conduct an evidentiary hearing or to require the court to permit anyone to intervene.” 15 U.S.C. 16(e)(2). The language wrote into the statute what Congress intended when it enacted the Tunney Act in 1974, as Senator Tunney explained: “[t]he court is nowhere compelled to go to trial or to engage in extended proceedings which might have the effect of vitiating the benefits of prompt and less costly settlement through the consent decree process.” 119 Cong. Rec. 24,598 (1973) (statement of Senator Tunney). Rather, the procedure for the public interest determination is left to the discretion of the court, with the recognition that the court's “scope of review remains sharply proscribed by precedent and the nature of Tunney Act proceedings.”
There are no determinative materials or documents within the meaning of the APPA that were considered by the United States in formulating the proposed Final Judgment.
Dated: November 12, 2013
Respectfully submitted,
This Court has jurisdiction over the subject matter of and each of the parties to this action. The Complaint states a claim upon which relief can be granted against Defendants US Airways and American under Section 7 of the Clayton Act as amended (15 U.S.C. 18).
As used in the Final Judgment:
A. “Acquirer” or “Acquirers” means the entity or entities, approved by the United States in its sole discretion in consultation with the Plaintiff States, to which Defendants may divest all or specified parts of the Divestiture Assets.
B. “American” means Defendant AMR Corporation, its parents, successors and assigns, divisions, subsidiaries, affiliates, partnerships and joint ventures; and all directors, officers, employees, agents, and representatives of the foregoing. As used in this definition, the terms “parent,” “subsidiary,” “affiliate,” and “joint venture” refer to any person or entity in which American holds, directly or indirectly, a majority (greater than 50 percent) or total ownership or control or which holds, directly or indirectly a majority (greater than 50 percent) or total ownership or control in American.
C. “Associated Ground Facilities” means the facilities owned or operated by Defendants and reasonably necessary for Acquirer(s) to operate the Divested Assets at the relevant airport, including, but not limited to, ticket counters, hold-rooms, leased jet bridges, and operations space.
D. “DCA Gates and Facilities” means all rights and interests held by Defendants in the gates at Washington Reagan National Airport (“DCA”) described in Exhibit A and in the Associated Ground Facilities, up to the extent such gates and Associated Ground Facilities were used by Defendants to support the use of the DCA Slots.
E. “DCA Slots” means all rights and interests held by Defendants in the 104 slots at DCA listed in Exhibit A, consisting of two air carrier slots held by US Airways at DCA and 102 air carrier slots held by American at DCA, including the JetBlue Slots.
F. “Divestiture Assets” means (1) the DCA Slots, (2) the DCA Gates and Facilities, (3) the LGA Slots, (4) the LGA Gates and Facilities, and (5) the Key Airport Gates and Facilities.
G. “JetBlue Slots” means all rights and interests held by Defendants in the 16 slots at DCA currently leased by American to JetBlue Airways, Inc., listed in Exhibit A.
H. “Key Airport” means each of the following airports: (1) Boston Logan International Airport; (2) Chicago O'Hare International Airport; (3) Dallas Love Field; (4) Los Angeles International Airport; and (5) Miami International Airport.
I. “Key Airport Gates and Facilities” means all rights and interests held by Defendants in two gates at each Key Airport as described in Exhibit C. The term “Key Airport Gates and Facilities” includes Associated Ground Facilities, up to the extent such facilities were used by Defendants to support the gates described in Exhibit C.
J. “LGA Gates and Facilities” means all rights and interests held by Defendants in the gates at New York LaGuardia Airport (“LGA”) described in Exhibit B and Associated Ground Facilities up to the extent of such gates and Associated Ground Facilities were used by Defendants to support the use of the LGA Slots.
K. “LGA Slots” means the 34 slots at New York LaGuardia Airport (“LGA”) listed in Exhibit B, consisting of the Southwest Slots and 24 additional slots held by American or US Airways.
L. “Slot Bundles” means groupings of DCA Slots and LGA Slots, as determined by the United States in its sole discretion in consultation with the Plaintiff States.
M. “Southwest Slots” means the 10 slots at LGA currently leased by American to Southwest Airlines, Inc. listed in Exhibit B.
N. “Transaction” means the transaction referred to in the Agreement and Plan of Merger among AMR Corporation, AMR Merger Sub, Inc., and US Airways Group, Inc., dated as of February 13, 2013.
O. “US Airways” means Defendant US Airways Group, Inc., its parents, successors and assigns, divisions, subsidiaries, affiliates, partnerships and joint ventures; and all directors, officers, employees, agents, and representatives of the foregoing. For purposes of this definition, the terms “parent,” “subsidiary,” “affiliate,” and “joint venture” refer to any person or entity in which US Airways holds, directly or indirectly, a majority (greater than 50 percent) or total ownership or control or which holds, directly or indirectly, a majority (greater than 50 percent) or total ownership or control in US Airways.
A. This Final Judgment applies to Defendants and all other persons in active concert or participation with any of them who receive actual notice of this Final Judgment by personal service or otherwise.
B. If, prior to complying with Section IV and V of this Final Judgment, a Defendant directly or indirectly sells or otherwise disposes of any of the Divestiture Assets, it shall require the purchaser of the Divestiture Assets to be bound by the provisions of this Final Judgment. Defendants need not obtain such an agreement from the Acquirer(s) of the assets divested pursuant to this Final Judgment.
A. Subject to any necessary approval of the Federal Aviation Administration, Defendants are ordered and directed to divest the DCA Slots and LGA Slots to Acquirers in a manner consistent with this Final Judgment within ninety (90) calendar days after the later of (1) completion of the Transaction or (2) the United States providing Defendants a list of the Acquirers and Slot Bundles.
B. Subject to any necessary approval of the relevant airport operator, Defendants are ordered and directed to transfer the DCA Gates and Facilities as necessary to Acquirers of the DCA Slots within ninety (90) days after completion of the divestiture of the DCA Slots.
C. Subject to any necessary approval of the relevant airport operator, Defendants are ordered and directed to transfer the LGA Gates and Facilities as necessary to Acquirer(s) of the LGA Slots within ninety (90) days after completion of the divestiture of the LGA Slots.
D. Subject to any necessary approval of the relevant airport operator, Defendants are ordered and directed to divest the Key Airport Gates and Facilities to Acquirer(s) in a manner consistent with this Final Judgment within 180 calendar days after the later of (1) completion of the Transaction or (2) the United States providing Defendants a list of the Acquirers.
E. All proceeds from the transfer of the DCA Slots and the LGA Slots are for the account of Defendants. Defendants agree to use their best efforts to divest the Divestiture Assets as expeditiously as possible. The United States in its sole discretion, may agree to one or more extensions of each of the time periods specified in Sections IV.A.—IV.D., not to exceed sixty (60) calendar days in total for each such time period, and shall extend any time period by the number of days during which there is pending any objection under Section VI of this Final Judgment. The United States shall notify the Court of any extensions of the time periods.
F. The Court orders the divestiture of the DCA Slots and DCA Gates and Facilities to proceed as follows:
1. Defendants shall offer to divest the 16 JetBlue Slots to JetBlue Airways, Inc., by making permanent the current agreement between JetBlue and American to exchange the JetBlue Slots for slots at John F. Kennedy International Airport;
2. Defendants shall divest in Slot Bundles to at least two Acquirers the other 88 DCA slots listed in Exhibit A, together with any of the JetBlue Slots not sold to JetBlue pursuant to paragraph IV.F.1. above;
3. Defendants shall either (a) sublease to Acquirers of the DCA Slots, the DCA Gates and Facilities on the same terms and conditions pursuant to which the Defendants currently lease the DCA Gates and Facilities or, (b) with the consent of the United States, pursuant to an agreement with the airport operator, relinquish the DCA Gates and Facilities to the airport operator to enable the Acquirer to lease them from the airport operator on terms and conditions determined by the airport operator, and shall make best efforts to obtain any consent or approval from the relevant airport operator for the divestitures required by this paragraph;
4. Following the divestiture of the DCA Slots, if requested by an Acquirer, Defendants shall lease the DCA Slots from the Acquirer for no consideration for a period not to exceed 180 calendar days. Defendants shall continue to operate the DCA Slots during this lease-back period at a level sufficient to prevent the DCA Slots from reverting to the Federal Aviation Administration pursuant to 14 CFR 93.227. The lease-back period may be extended at the sole discretion of the Acquirer(s), with the approval of the United States, in consultation with the Plaintiff States.
G. The Court orders the divestiture of the LGA Slots and LGA Gates and Facilities to proceed as follows:
1. Defendants shall offer to divest the ten Southwest Slots to Southwest Airlines, Inc.;
2. Defendants shall divest in Slot Bundles to Acquirer(s) the other 24 LGA slots listed in Exhibit B, together with any of the Southwest Slots not sold to Southwest pursuant to Paragraph IV.G.1. above;
3. Defendants shall either (a) sublease to the Acquirer(s) of the LGA Slots, the LGA Gates and Facilities on the same terms and conditions pursuant to which the Defendants currently lease the LGA
4. Defendants shall make reasonable best efforts to facilitate any re-locations necessary to ensure that the Acquirer(s) can operate from contiguous gates at LGA to the extent such relocation does not unduly disrupt Defendants' operations.
5. Following the divestiture of the LGA Slots, if requested by the Acquirer(s), Defendants shall lease the LGA Slots from the Acquirer for no consideration for a period not to exceed 180 calendar days. Defendants shall continue to operate the LGA Slots during this lease-back period at a level sufficient to prevent the LGA Slots from reverting to the Federal Aviation Administration pursuant to 71 FR 77,854 (Dec. 27, 2006), as extended by 78 FR 28, 279 (Oct. 24, 2013). The lease-back period may be extended at the sole discretion of the Acquirer(s), with the approval of the United States, in consultation with the Plaintiff States.
H. The Court orders the divestiture of the Key Airport Gates and Facilities, to proceed as follows:
1. Defendants shall either (a) lease to the Acquirers the Key Airport Gates and Facilities on the same terms and conditions pursuant to which the Defendants currently lease the Key Airport Gates and Facilities, or (b) with the consent of the United States, pursuant to an agreement with the airport operator, relinquish the Key Airport Gates and Facilities to the airport operator to enable the Acquirer to lease them from the airport operator on terms and conditions determined by the airport operator;
2. Defendants shall make best efforts to obtain any consent or approval from the relevant airport operator for the transfer(s) required by this Section;
3. With respect to the Divestiture Assets at Boston Logan International Airport, Defendants shall make reasonable best efforts to facilitate any re-locations necessary to ensure that the Acquirer(s) can operate from contiguous gates at the Key Airport, to the extent such relocation does not unduly disrupt Defendants' operations.
I. In accomplishing the divestiture ordered by this Final Judgment, Defendants promptly shall make known, by usual and customary means, the availability of the Divestiture Assets to Acquirer(s). Defendants shall inform any such person contacted regarding a possible purchase of the Divestiture Assets that they are being divested pursuant to this Final Judgment and provide that person with a copy of this Final Judgment. Defendants shall offer to furnish to all prospective Acquirers, subject to customary confidentiality assurances, all information and documents relating to the Divestiture Assets customarily provided in a due diligence process except such information or documents subject to the attorney-client privileges or work-product doctrine. Defendants shall make available such information to the United States at the same time that such information is made available to any other person.
J. As part of their obligations under paragraph IV.I. above, Defendants shall permit prospective Acquirers of the Divestiture Assets to have reasonable access to: (i) Personnel; (ii) the physical facilities of the Divestiture Assets to make reasonable inspections; (iii) all environmental, zoning, and other permit documents and information; and (iv) all financial, operational, or other documents and information customarily provided as part of a due diligence process.
K. Defendants shall warrant to the Acquirer(s) that each asset will be operational on the date of transfer.
L. Defendants shall not take any action that will impede in any way the permitting, operation, or divestiture of the Divestiture Assets.
M. Defendants shall warrant to the Acquirer(s) that there are no material defects in any environmental, zoning or other permits obtained or controlled by Defendants pertaining to the operation of the Divestiture Assets, and that following the sale of the Divestiture Assets, Defendants will not undertake, directly or indirectly, any challenges to the environmental, zoning, or other permits relating to the operation of the Divestiture Assets.
N. Unless the United States otherwise consents in writing, the divestiture pursuant to Section IV or V shall include the entire Divestiture Assets, and shall be accomplished in such a way as to satisfy the United States, in its sole discretion, in consultation with the Plaintiff States, that the Divestiture Assets can and will be used by the Acquirer(s) as part of a viable, ongoing business, engaged in providing scheduled air passenger service in the United States. Divestiture of the Divestiture Assets may be made to Acquirers, provided that in each instance it is demonstrated to the sole satisfaction of the United States, in consultation with the Plaintiff States, that the Divestiture Assets will remain viable and the divestiture of such assets will remedy the competitive harm alleged in the Complaint. The divestiture, whether pursuant to Section IV or Section V of this Final Judgment, shall be:
1. made to an Acquirer(s) that, in the United States' sole judgment, in consultation with the Plaintiff States, has the intent and capability (including the necessary managerial, operational, technical and financial capability) to compete effectively in the business of providing scheduled airline passenger service; and
2. accomplished so as to satisfy the United States in its sole discretion, in consultation with the Plaintiff States, that none of the terms of any agreement between an Acquirer(s) and Defendants gives Defendants the ability unreasonably to raise the Acquirer's costs, to lower the Acquirer's efficiency, or otherwise to interfere in the ability of the Acquirer(s) to effectively compete.
A. If Defendants have not divested the Divestiture Assets within the time periods specified in Sections IV.A.—IV.D., Defendants shall notify the United States and the Plaintiff States of that fact in writing. Upon application of the United States, the Court shall appoint a Divestiture Trustee selected by the United States, in consultation with the Plaintiff States, and approved by the Court to divest the Divestiture Assets in a manner consistent with this Final Judgment.
B. After the appointment of a Divestiture Trustee becomes effective, only the Divestiture Trustee shall have the right to sell the Divestiture Assets, including any arrangements related to Associated Ground Facilities. The Divestiture Trustee shall have the power and authority to accomplish the divestiture to an Acquirer(s) acceptable to the United States in its sole discretion, in consultation with the Plaintiff States, at such price and on such terms as are then obtainable upon reasonable effort by the Divestiture Trustee, subject to the provisions of Section IV, V, and VI of this Final Judgment, and shall have such other powers as this Court deems appropriate.
C. Subject to Section V.E. of this Final Judgment, the Divestiture Trustee may hire at the reasonable cost and expense of Defendants any investment bankers, attorneys, or other agents, who shall be solely accountable to the Divestiture
D. Defendants shall not object to a sale by the Divestiture Trustee on any ground other than the Divestiture Trustee's malfeasance. Any such objections by Defendants must be conveyed in writing to the United States, the Plaintiff States and the Divestiture Trustee within ten (10) calendar days after the Divestiture Trustee has provided the notice required under Section VI.A.
E. The Divestiture Trustee shall serve at the cost and expense of Defendants, pursuant to a written agreement with Defendants on such terms and conditions as the United States approves, in consultation with the Plaintiff States, and shall account for all monies derived from the sale of the assets sold by the Divestiture Trustee and all costs and expenses so incurred. After approval by the Court of the Divestiture Trustee's accounting, including fees for its services and those of any professionals and agents retained by the Divestiture Trustee, all remaining money shall be paid to Defendants and the trust shall then be terminated. The compensation of the Divestiture Trustee and any professionals and agents retained by the Divestiture Trustee shall be reasonable in light of the value of the Divestiture Assets and based on a fee arrangement providing the Divestiture Trustee with an incentive based on the price and terms of the divestiture and the speed with which it is accomplished, but timeliness is paramount.
F. Defendants shall use their best efforts to assist the Divestiture Trustee in accomplishing the required divestiture. The Divestiture Trustee and any consultants, accountants, attorneys, and other persons retained by the Divestiture Trustee shall have full and complete access to the personnel, books, records, and facilities of the business to be divested, and Defendants shall develop financial and other information relevant to such business as the Divestiture Trustee may reasonably request, subject to reasonable protection for trade secret or other confidential research, development, or commercial information. Defendants shall take no action to interfere with or to impede the Divestiture Trustee's accomplishment of the divestiture.
G. After its appointment, the Divestiture Trustee shall file monthly reports with the United States, the Plaintiff States, and the Court setting forth the Divestiture Trustee's efforts to accomplish the divestiture ordered under this Final Judgment. To the extent such reports contain information that the Divestiture Trustee or Defendants deem confidential, such reports shall not be filed in the public docket of the Court. Such reports shall include the name, address, and telephone number of each person who, during the preceding month, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring any interest in the Divestiture Assets, and shall describe in detail each contact with any such person. The Divestiture Trustee shall maintain full records of all efforts made to divest the Divestiture Assets.
H. If the Divestiture Trustee has not accomplished the divestiture ordered under this Final Judgment within six (6) months after its appointment, the Divestiture Trustee shall promptly file with the Court a report setting forth (1) the Divestiture Trustee's efforts to accomplish the required divestiture, (2) the reasons, in the Divestiture Trustee's judgment, why the required divestiture has not been accomplished, and (3) the Divestiture Trustee's recommendations. To the extent such reports contain information that the Divestiture Trustee deems confidential, such reports shall not be filed in the public docket of the Court. The Divestiture Trustee shall at the same time furnish such report to the Defendants and to the United States, which shall have the right to make additional recommendations consistent with the purpose of the trust. The Court thereafter shall enter such orders as it shall deem appropriate to carry out the purpose of the Final Judgment, which may, if necessary, include extending the trust and the term of the Divestiture Trustee's appointment by a period requested by the United States.
A. Within two (2) business days following execution of a definitive divestiture agreement, Defendants or the Divestiture Trustee, whichever is then responsible for effecting the divestitures required herein, shall notify the United States and the Plaintiff States, of any proposed divestitures required by Section IV or V of this Final Judgment. If the trustee is responsible, it shall similarly notify Defendants. The notice shall set forth the details of the proposed divestitures and list the name, address, and telephone number of each person not previously identified who offered or expressed an interest in or desire to acquire any ownership interest in the Divestiture Assets, together with full details of the same.
B. Within fifteen (15) calendar days of receipt by the United States of such notice, the United States, in its sole discretion, in consultation with the Plaintiff States, may request from Defendants, the proposed Acquirer(s), any other third party, or the Divestiture Trustee, if applicable, additional information concerning the proposed divestitures, the proposed Acquirer(s), and any other potential Acquirer(s). Defendants and the Divestiture Trustee shall furnish any additional information requested to the United States within fifteen (15) calendar days of receipt of the request, unless the parties otherwise agree.
C. Within thirty (30) calendar days after receipt of the notice, or within twenty (20) calendar days after the United States has been provided the additional information requested from Defendants, the proposed Acquirer(s), any third party, and the trustee, whichever is later, the United States, in consultation with the Plaintiff States, shall provide written notice to Defendants and/or the Divestiture Trustee, stating whether it objects to the proposed divestitures. If the United States provides written notice that it does not object, the divestitures may be consummated, subject only to the Defendants' limited right to object to the sale under Section V.D. of this Final Judgment. Absent written notice that the United States does not object to the proposed Acquirer(s) or upon objection by the United States, a divestiture proposed under Section IV or Section V shall not be consummated. Upon objection by Defendants under Section V.D., a divestiture proposed under Section V shall not be consummated unless approved by the Court.
A. Upon the filing of this Final Judgment, the United States may, in its sole discretion, in consultation with the Plaintiff States, appoint a Monitoring Trustee, subject to approval by the Court.
B. The Monitoring Trustee shall have the power and authority to monitor Defendants' compliance with the terms of this Final Judgment, and shall have such powers as this Court deems appropriate. The Monitoring Trustee shall be required to investigate and report on the Defendants' compliance with this Final Judgment and the Defendants' progress toward effectuating the purposes of this Final Judgment.
C. Subject to Section VII.E of this Final Judgment, the Monitoring Trustee may hire at the cost and expense of Defendants, any consultants, accountants, attorneys, or other persons, who shall be solely accountable to the
D. Defendants shall not object to actions taken by the Monitoring Trustee in fulfillment of the Monitoring Trustee's responsibilities under this Final Judgment or any other Order of this Court on any ground other than the Monitoring Trustee's malfeasance. Any such objections by Defendants must be conveyed in writing to the United States, the Plaintiff States, and the Monitoring Trustee within ten (10) calendar days after the action taken by the Monitoring Trustee giving rise to the Defendants' objection.
E. The Monitoring Trustee shall serve at the cost and expense of Defendants, pursuant to a written agreement with Defendants on such terms and conditions as the United States, in consultation with the Plaintiff States, approves. The compensation of the Monitoring Trustee and any consultants, accountants, attorneys, and other persons retained by the Monitoring Trustee shall be on reasonable and customary terms commensurate with the individuals' experience and responsibilities. The Monitoring Trustee shall, within three (3) business days of hiring any consultants, accountants, attorneys, or other persons, provide written notice of such hiring and the rate of compensation to Defendants.
F. The Monitoring Trustee shall have no responsibility or obligation for the operation of Defendants' businesses.
G. Defendants shall use their best efforts to assist the Monitoring Trustee in monitoring Defendants' compliance with their individual obligations under this Final Judgment. The Monitoring Trustee and any consultants, accountants, attorneys, and other persons retained by the Monitoring Trustee shall have full and complete access to the personnel, books, records, and facilities relating to compliance with this Final Judgment, subject to reasonable protection for trade secret or confidential research, development, or commercial information or any applicable privileges. Defendants shall take no action to interfere with or to impede the Monitoring Trustee's accomplishment of its other responsibilities. The Monitoring Trustee shall, within three (3) business days of hiring any consultants, accountants, attorneys, or other persons, provide written notice of such hiring and the rate of compensation to Defendants.
H. After its appointment, the Monitoring Trustee shall file reports every ninety (90) days, or more frequently as needed, with the United States, the Plaintiff States, the Defendants and the Court setting forth the Defendants' efforts to comply with their individual obligations under this Final Judgment. To the extent such reports contain information that the trustee deems confidential, such reports shall not be filed in the public docket of the Court.
I. The Monitoring Trustee shall serve until the completion of the divestitures required by Sections IV and V of this Final Judgment, including any lease back period pursuant to Section IV.F.5. or IV.G.5.
Defendants shall not finance all or any part of any purchase made pursuant to Section IV or V of this Final Judgment. For purposes of this Section VIII, subleasing shall not be regarded as financing.
Until the divestiture required by this Final Judgment has been accomplished, Defendants shall take all steps necessary to comply with the Asset Preservation Stipulation and Order entered by this Court. Defendants shall take no action that would jeopardize the divestiture ordered by this Court.
A. Within twenty (20) calendar days of entry of the Court entering the Asset Preservation Order and Stipulation in this matter, and every thirty (30) calendar days thereafter until the divestiture has been completed under Section IV or V, Defendants shall deliver to the United States and the Plaintiff States an affidavit as to the fact and manner of its compliance with Section IV or V of this Final Judgment. Each such affidavit shall include the name, address, and telephone number of each person who, during the first twenty (20) calendar days or, thereafter, the preceding thirty (30) calendar days, made an offer to acquire, expressed an interest in acquiring, entered into negotiations to acquire, or was contacted or made an inquiry about acquiring, any interest in the Divestiture Assets, and shall describe in detail each contact with any such person during that period. Each such affidavit shall also include a description of the efforts defendants have taken to solicit buyers for the Divestiture Assets, and to provide required information to prospective Acquirers, including the limitations, if any, on such information. Assuming the information set forth in the affidavit is true and complete, any objection by the United States to information provided by Defendants, including limitation on information, shall be made within fourteen (14) calendar days of receipt of such affidavit.
B. Within twenty (20) calendar days of the Court entering the Asset Preservation Order and Stipulation in this matter, Defendants shall deliver to the United States an affidavit that describes in reasonable detail all actions defendants have taken and all steps Defendants have implemented on an ongoing basis to comply with Section IX of this Final Judgment. Defendants shall deliver to the United States an affidavit describing any changes to the efforts and actions outlined in Defendants' earlier affidavits filed pursuant to this section within fifteen (15) calendar days after the change is implemented.
C. Defendants shall keep all records of all efforts made to preserve and divest the Divestiture Assets until one year after such divestiture has been completed.
A. For the purposes of determining or securing compliance with this Final Judgment, or of any related orders such as any Asset Preservation Order, or of determining whether the Final Judgment should be modified or vacated, and subject to any legally recognized privilege, from time to time authorized representatives of the United States Department of Justice, including consultants and other persons retained by the United States, shall, upon written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, and on reasonable notice to Defendants, be permitted:
(1) Access during Defendants' office hours to inspect and copy, or at the option of the United States, to require Defendants to provide hard copy or electronic copies of, all books, ledgers, accounts, records, data, and documents in the possession, custody, or control of Defendants, relating to any matters contained in this Final Judgment; and
(2) to interview, either informally or on the record, Defendants' officers, employees, or agents, who may have their individual counsel present, regarding such matters. The interviews shall be subject to the reasonable convenience of the interviewee and without restraint or interference by Defendants.
B. Upon the written request of an authorized representative of the Assistant Attorney General in charge of the Antitrust Division, Defendants shall submit written reports or response to written interrogatories, under oath if requested, relating to any of the matters
C. No information or documents obtained by the means provided in this section shall be divulged by the United States to any person other than an authorized representative of the executive branch of the United States, except in the course of legal proceedings to which the United States is a party (including grand jury proceedings), or for the purpose of securing compliance with this Final Judgment, or as otherwise required by law.
D. If at the time information or documents are furnished by Defendants to the United States, Defendants represent and identify in writing the material in any such information or documents to which a claim of protection may be asserted under Rule 26(c)(7) of the Federal Rules of Civil Procedure, and Defendants mark each pertinent page of such material, “Subject to claim of protection under Rule 26(c)(7) of the Federal Rules of Civil Procedure,” then the United States shall give Defendants ten (10) calendar days notice prior to divulging such material in any legal proceeding (other than a grand jury proceeding).
Defendants shall not reacquire any interest in any part of the Divestiture Assets divested under this Final Judgment during the term of this Final Judgment. Nothing in this Final Judgment shall prevent Defendants from engaging in trades, exchanges, or swaps involving Divestiture Assets with an Acquirer, provided such arrangements do not increase Defendants' percentage of slots operated or held or gates operated or held at the airport in question, except that, consistent with industry practice, Defendants may temporarily operate slots for periods of no more than two consecutive months at the request of the Acquirer. Nothing in this Section XII shall prevent Defendants from acquiring additional slots, gates or facilities, other than the Divestiture Assets, at DCA, LGA or the Key Airports subject to the notification requirement in Section XIII.A. Nothing in this Section shall prevent Defendants from cooperating in gate or facility re-locations in the ordinary course of the airport operator's business, including re-locating to the Divestiture Assets, provided the Acquirer of those gates is offered alternative gates and Associated Ground Facilities from the airport operator.
A. Unless such transaction is otherwise subject to the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, 15 U.S.C. 18a (the “HSR Act”), Defendants shall not acquire any interest in any slot at DCA that was in use at the completion of the Transaction without providing notice to the United States at least thirty (30) calendar days prior to the acquisition, provided however that this reporting requirement shall not apply to transactions that do not result in an increase in Defendants' percentage of slots operated or held at DCA. Defendants shall maintain a record of any non-reportable transactions and shall provide such record to the United States promptly upon request.
B. Any notification provided pursuant to Section XIII.A. above shall be provided in the same format as required by the HSR Act, and shall include the names of the principal representatives of the parties to the transaction who negotiated the agreement and any management or strategic plans discussing the proposed transaction. If within the 30-day period after notification the United States makes a written request for additional information regarding the transaction, Defendants shall not consummate the proposed transaction or agreement until thirty (30) calendar days after submitting all such additional information. Early termination of the waiting periods in this paragraph may be requested and, where appropriate, granted in a similar manner as applicable under the requirements and provisions of the HSR Act and rules promulgated thereunder.
C. All references to the HSR Act in this Final Judgment refer to the HSR Act as it exists at the time of the transaction or agreement and incorporate any subsequent amendments to the HSR Act.
For purposes of Section 365 of the Bankruptcy Reform Act of 1978, as amended, and codified as 11 U.S.C. 101 et seq. (the “Bankruptcy Code”) or any analogous provision under any law of any foreign or domestic, federal, state, provincial, local, municipal or other governmental jurisdiction relating to bankruptcy, insolvency or reorganization (“Foreign Bankruptcy Law”), (a) no sublease or other agreement related to the Divesture Assets will be deemed to be an executory contract, and (b) if for any reason a sublease or other agreement related to the Divesture Assets is deemed to be an executory contract, the Defendants shall take all necessary steps to ensure that the Acquirer(s) shall be protected in the continued enjoyment of its right under any such agreement including, acceptance of such agreement or any underlying lease or other agreement in proceedings under the Bankruptcy Code or any analogous provision of Foreign Bankruptcy Law.
This Court retains jurisdiction to enable any party to this Final Judgment to apply to this Court at any time for further orders and directions as may be necessary or appropriate to carry out or construe this Final Judgment, to modify any of its provisions, to ensure and enforce compliance, and to punish violations of its provisions.
Unless this Court grants an extension, this Final Judgment shall expire ten (10) years from the date of its entry.
Entry of this Final Judgment is in the public interest. The parties have complied with the requirements of the Antitrust Procedures and Penalties Act, 15 U.S.C. 16, including making copies available to the public of this Final Judgment, the Competitive Impact Statement, and any comments thereon and the United States' responses to comments. Based upon the record before the Court, which includes the Competitive Impact Statement and any comments and response to comments filed with the Court, entry of this Final Judgment is in the public interest.
Court approval subject to procedures of the Antitrust Procedures and Penalties Act, 15 U.S.C. § 16
Two gates that Defendants currently lease or two gates that Defendants would be entitled to occupy following any relocation of gates and facilities at the direction of Massport.
Gates L1 and L2. Defendants, at their own expense, will reconfigure Gate L2A, L2B, and L2C, as follows: Gate L2A will be restored to a mainline gate by (a) removing the gate at L2B, (b) moving the gate podium that currently serves Gate L2C south, creating one additional bay for gate L2A, and restriping the tarmac. Defendants will retain their interest in Gate L2C.
Gates currently leased by American at Dallas Love Field, or which American will be entitled to occupy following completion of construction of the Love Field Modernization Program.
Gates 31A and 31B in Terminal 3.
Two gates currently leased by US Airways in Terminal J.
In this notice, we announce the waivers that the U.S. Department of Education (Department) granted during calendar year 2010 under the waiver authority in section 9401 of the Elementary and Secondary Education Act of 1965, as amended (ESEA).
In 2010, the Department granted a total of 238 waivers under the waiver authority in section 9401 of the ESEA. We granted:
(a) eleven waivers extending the period in which funds were available for obligation for the Reading First program, and seventy-two waivers extending the period in which Title I, Part A funds reserved under ESEA section 1003(a) (one waiver) or awarded under ESEA section 1003(g) (seventy-one waivers) were available for obligation for school improvement activities;
(b) thirty-one waivers of the regulatory definition of “persistently lowest-achieving schools” either allowing the State educational agency (SEA) to expand the pool of secondary schools from which it selects its persistently lowest-achieving schools or allowing it to apply a “minimum n” size below which the SEA would not identify a school as persistently lowest-achieving;
(c) two waivers allowing the SEA, with respect to a local educational agency (LEA) that receives School Improvement Grant (SIG) program funds for “Partnership Zone” schools, as defined by the State, to implement certain State regulatory provisions;
(d) nine waivers of the requirement that an SEA carry over 25 percent of SIG funds if not all of its Tier 1 schools are served with those funds;
(e) one waiver allowing high school students to take any one of a number of subject-specific mathematics assessments rather than the State's statewide mathematics assessment;
(f) twelve waivers allowing delayed release of assessment results or waiving the requirement to provide parents notice of public school choice options at least 14 days before the start of the school year (14-day notice);
(g) three waivers of certain requirements related to how adequate yearly progress (AYP) determinations are made;
(h) two Title I, Part A within-district allocation waivers;
(i) one waiver allowing an SEA to use Title I funds reserved for academic achievement rewards for eligible Title I schools to reward qualified Title I-eligible, but non-participating, schools;
(j) three waivers of various statutory and regulatory requirements due to the impact of the H1N1 flu virus;
(k) one waiver of the Title III requirement to make annual measurable achievement objective (AMAO) determinations;
(l) one waiver to allow the continued use of the “two percent transition flexibility” for calculating AYP for the students with disabilities subgroup;
(m) one waiver of the paraprofessional qualifications requirement in Title I schools;
(n) two waivers of the Consolidated Grant restrictions;
(o) twenty-nine waivers allowing SEAs or LEAs to approve schools or LEAs identified as in need of improvement as supplemental educational services (SES) providers;
(p) four new waivers and seventeen continuations of existing waivers allowing LEAs both to provide SES to eligible students attending schools in the first year of school improvement that receive funding under Title I, Part A of the ESEA (Title I schools) and to count the costs of doing so toward meeting the LEA's “20 percent obligation”; and
(q) thirty-six waivers allowing LEAs or schools to exclude their Title I, Part A allocation received under the American Recovery and Reinvestment Act of 2009 (ARRA) when calculating their 20 percent obligation for public school choice and SES, their professional development set-asides, and the per-pupil amount for SES, and to waive the carryover limitation more than once every three years.
• Provision waived: Tydings Amendment, section 421(b) of the General Education Provisions Act (GEPA).
• Date waiver granted: May 26, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of fiscal year (FY) 2008 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: June 24, 2010.
• Description of waiver: Extended until March 31, 2010, the period of availability of FY 2007 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: October 27, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: June 14, 2010.
• Description of waiver: Extended until September 30, 2010, the period of availability of FY 2007 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 20, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2007 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 16, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: May 26, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: March 26, 2010.
• Description of waiver: Extended until September 30, 2010, the period of availability of FY 2007 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: June 30, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 16, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 Reading First funds.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of fiscal year (FY) 2008 SIG funds awarded under section 1003(g) of the ESEA, with the condition that Alabama submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 26, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 21, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: August 18, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 Title I, Part A funds reserved for school improvement activities under section 1003(a) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: October 27, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 9, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: October 27, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 13, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: August 3, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: June 25, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA, with the condition that Colorado submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 19, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: October 27, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 2, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: June 25, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 6, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 7, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 25, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: August 18, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA, with the condition that Illinois submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 26, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: August 11, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: March 29, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 7, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: June 16, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 21, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 6, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 16, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA, with the condition that Maryland submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 26, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: March 29, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until December 31, 2010, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the
This condition was satisfied and officially removed on January 18, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 16, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: October 27, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 8, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 SIG funds awarded for the SIG program under section 1003(g) of the ESEA, with the condition that Minnesota submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 26, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: March 10, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: August 18, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 22, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 16, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: August 2, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds awarded for the SIG program under section 1003(g) of the ESEA, with the condition that New Jersey submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 26, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: March 29, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 9, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: May 10, 2010.
• Description of waiver: Extended until March 31, 2011, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: May 3, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds awarded for the SIG program under section 1003(g) of the ESEA, with the condition that North Carolina submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 26, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 9, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 6, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds awarded for the SIG program under section 1003(g) of the ESEA, with the condition that Ohio submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 26, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: March 29, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: November 4, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 21, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: November 4, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 8, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: June 10, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 30, 2010.
• Description of waiver: Extended until September 30, 2011, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA, with the condition that Puerto Rico submit to the Department any comments it received regarding this waiver request within five days of the closing of the comment period.
This condition was satisfied and officially removed on January 26, 2011.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 29, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: July 6, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: September 22, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: October 27, 2010.
• Description of waiver: Extended until September 30, 2012, the period of availability of FY 2008 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 2, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: May 3, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: April 15, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: March 29, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: June 17, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: March 10, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: Tydings Amendment, section 421(b) of GEPA.
• Date waiver granted: August 11, 2010.
• Description of waiver: Extended until September 30, 2013, the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 21, 2010.
• Description of waiver: Allowed Alabama to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 40 students enrolled for a full academic year, as that term was defined in Alabama's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: April 21, 2010.
• Description of waiver: Allowed Alabama to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Alabama secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Alabama's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 15, 2010.
• Description of waiver: Allowed Alaska to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 25 students enrolled for a full academic year, as that term was defined in Alaska's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: April 14, 2010.
• Description of waiver: Allowed Alaska to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Alaska secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Alaska's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: May 24, 2010.
• Description of waiver: Allowed California to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 100 students enrolled for a full academic year, as that term was defined in California's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: May 24, 2010.
Description of waiver: Allowed California to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any California secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on the California's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: May 10, 2010.
• Description of waiver: Allowed Colorado to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 20 students enrolled for a full academic year, as that term was defined in Colorado's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: May 10, 2010.
• Description of waiver: Allowed Colorado to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Colorado secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Colorado's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: June 24, 2010.
• Description of waiver: Allowed Delaware to exclude certain schools from the pool from which it identifies its persistently lowest-achieving schools. This exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 30 students enrolled for a full academic year, as that term was defined in Delaware's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR. 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: August 13, 2010.
• Description of waiver: Allowed Illinois to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Illinois secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Illinois' assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: March 31, 2010.
• Description of waiver: Allowed Kansas to exclude certain schools from the pool from which it identifies its persistently lowest-achieving schools. This exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 30 students enrolled for a full academic year, as that term was defined in Kansas' Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: March 31, 2010.
• Description of waiver: Allows Kansas to include certain secondary schools in the pool of secondary schools from which it identifies its persistently lowest-achieving schools. This inclusion covered any Kansas secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Kansas' assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 27, 2010.
• Description of waiver: Allowed Massachusetts to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 20 students enrolled for a full academic year, as that term was defined in Massachusetts' Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: April 27, 2010.
• Description of waiver: Allowed Massachusetts to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Massachusetts secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Massachusetts' assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 9, 2010.
• Description of waiver: Allowed Maryland to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 30 for schools with one grade assessed and fewer than 60 for schools with at least two grades assessed enrolled for a full academic year as that term was defined in Maryland's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: April 9, 2010.
• Description of waiver: Allowed Maryland to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Maryland secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Maryland's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: July 2, 2010.
• Description of waiver: Allowed Michigan to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 30 students enrolled for a full academic year, as that term was defined in Michigan's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: July 2, 2010.
• Description of waiver: Allowed Michigan to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Michigan secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Michigan's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: March 31, 2010.
• Description of waiver: Allowed Missouri to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 30 students enrolled for a full academic year, as that term was defined in Missouri's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: March 31, 2010.
• Description of waiver: Allowed Missouri to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Missouri secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Missouri's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: March 31, 2010.
• Description of waiver: Allowed Nebraska to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: March 31, 2010.
• Description of waiver: Allowed Nebraska to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Nebraska high school with a graduation rate lower than 75 percent.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 9, 2010.
• Description of waiver: Allowed New Mexico to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 25 students enrolled for a full academic year, as that term was defined in New Mexico's Accountability Workbook.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 21, 2010.
• Description of waiver: Allowed Oklahoma to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 30 students enrolled for a full academic year, as that term was defined in Oklahoma's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: April 15, 2010.
• Description of waiver: Allowed Rhode Island to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Rhode Island secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Rhode Island's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 1, 2010.
• Description of waiver: Allowed South Carolina to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 30 students enrolled for a full academic year, as that term was defined in South Carolina's Accountability Workbook.
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: April 1, 2010.
• Description of waiver: Allowed South Carolina to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any South Carolina secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on South Carolina's assessments in reading/language arts and mathematics combined.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 13, 2010.
• Description of waiver: Allowed South Dakota to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 10 students enrolled for a full academic year, as that term was defined in South Dakota's Accountability Workbook.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 1, 2010.
• Description of waiver: Allowed Washington to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed consisted of fewer than 30 students enrolled for a full academic year, as that term was defined in Washington's Accountability Workbook.
• Provision waived: The definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(a) and (b) of those requirements.
• Date waiver granted: April 13, 2010.
• Description of waiver: Allowed Wisconsin to exclude certain schools from the pool of schools from which it identifies its persistently lowest-achieving schools. The exclusion covered any school in which the “all students” group in the grades assessed
• Provision waived: Paragraph (a)(2) of the definition of “persistently lowest-achieving schools” in section I.A.3 of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010), and the incorporation of that definition in section I.A.1(b) of those requirements.
• Date waiver granted: April 13, 2010.
• Description of waiver: Allowed Wisconsin to include certain secondary schools in the pool from which it identifies its persistently lowest-achieving schools. The inclusion covered any Wisconsin secondary school that—
(A) Participated in Title I;
(B) Was not identified in Tier I; and
(C)(i) Had not made AYP for at least two consecutive years; or
(ii) Was in the lowest quintile of performance based on proficiency rates on Wisconsin's assessments in reading/language arts and mathematics combined.
• Provision waived: Section II.B.2(d) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: June 15, 2010.
• Description of waiver: Allowed Delaware, with respect to an LEA that receives FY 2009 or FY 2010 SIG funds for “Partnership Zone” schools, designated as such by the Delaware Secretary of Education, to, under certain circumstances, implement the State regulatory provision that requires such an LEA to use either the restart model or the school closure model in its Partnership Zone schools. If not waived, the SEA could not require an LEA to implement a particular model in one or more schools unless the SEA took over the LEA or school.
• Provision waived: Section II.A.8(a)(i) of the SIG Final Requirements, 75 FR (Oct. 28, 2010).
• Date waiver granted: June 15, 2010.
• Description of waiver: Allowed Delaware, with respect to an LEA that receives FY 2009 or 2010 SIG funds for “Partnership Zone” schools, designated as such by the Delaware Secretary of Education, to implement the State regulatory provision that requires such an LEA to renegotiate its Memorandum of Understanding (MOU) with the Delaware Department of Education related to the Partnership Zone schools or, if a particular Partnership Zone school does not make AYP by the end of the second year following implementation of the MOU, select another school intervention model. If not waived, the LEA would be required to monitor each Tier I and Tier II school that received SIG funds and, as part of its monitoring, establish annual goals for student achievement based on Delaware's assessments in both reading/language arts and mathematics.
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: September 30, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools are served with those funds and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEAs committed to serve beginning in the 2010–11 school year.
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: October 13, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools were served with those funds, and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEA committed to serve beginning in the 2010–11 school year. The funds made available for the FY 2009 competition through the waiver allowed California to make awards to additional LEAs that had demonstrated the commitment and capacity to implement one of the four rigorous school intervention models in their Tier I and Tier II schools beginning in fall 2010.
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: August 18, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools were served with those funds, and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEA committed to serve beginning in the 2010–11 school year. The funds made available for the FY 2009 competition through the waiver allowed Colorado to make awards to additional LEAs that had demonstrated the commitment and capacity to implement one of the four rigorous school intervention models in their Tier I and Tier II schools beginning in fall 2010.
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: July 26, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools were served with those funds, and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEA committed to serve beginning in the 2010–11 school year. The funds made available for the FY 2009 competition through the waiver allowed Connecticut to make awards to additional LEAs that had demonstrated the commitment and capacity to implement one of the four rigorous school intervention models in their Tier I and Tier II schools beginning in fall 2010.
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: September 16, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools were served with those funds, and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEA committed to serve beginning in the 2010–11 school year. The funds made available
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: September 14, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools were served with those funds, and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEA committed to serve beginning in the 2010–11 school year. The funds made available for the FY 2009 competition through the waiver allowed Missouri to make awards to additional LEAs that had demonstrated the commitment and capacity to implement one of the four rigorous school intervention models in their Tier I and Tier II schools beginning in fall 2010.
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: September 22, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools were served with those funds, and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEA committed to serve beginning in the 2010–11 school year. The funds made available for the FY 2009 competition through the waiver allowed Oregon to make awards to additional LEAs that had demonstrated the commitment and capacity to implement one of the four rigorous school intervention models in their Tier I and Tier II schools beginning in fall 2010.
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: October 22, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools were served with those funds, and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEA committed to serve beginning in the 2010–11 school year. The funds made available for the FY 2009 competition through the waiver allowed Pennsylvania to make awards to additional LEAs that had demonstrated the commitment and capacity to implement one of the four rigorous school intervention models in their Tier I and Tier II schools beginning in fall 2010.
• Provision waived: Section II.B.9(a) of the SIG Final Requirements, 75 FR 66363 (Oct. 28, 2010).
• Date waiver granted: June 23, 2010.
• Description of waiver: Waived the requirement that an SEA carry over 25 percent of its FY 2009 SIG funds if not all of its Tier I schools are served with those funds, and allowed the SEA to allocate more than 75 percent of its FY 2009 SIG funds to LEAs for Tier I and Tier II schools that its LEA committed to serve beginning in the 2010–11 school year. The funds made available for the FY 2009 competition through the waiver allowed Washington to make awards to additional LEAs that had demonstrated the commitment and capacity to implement one of the four rigorous school intervention models in their Tier I and Tier II schools beginning in fall 2010.
• Provisions waived: Section 1111(b)(3)(C)(i) of the ESEA and 34 CFR 200.3(a)(1)(i).
• Date waiver granted: July 2, 2010.
• Description of waiver: Permitted New York to use the Advanced International Certificate of Education Mathematics Examination, the Advanced Placement Calculus AB or BC Examinations, the International Baccalaureate Mathematical Studies or Mathematics Methods Standard-Level Examinations, the International Baccalaureate Mathematics Higher-Level Examination, the International General Certificate of Secondary Education, or the SAT II Mathematics Level 1 or 2 Examinations, from the 2009–10 school year through the 2012–13 school year, in place of the high school New York Regents Examination in Integrated Algebra. This was permitted, even though the same assessment would not be used by all students, and some students might have taken an assessment that did not cover the full breadth and depth of the State's academic content standards.
• Provisions waived: Section 1116(b)(1)(E)(i) of the ESEA and 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: June 14, 2010.
• Description of waiver: Allowed Arizona to postpone—
(A) Notice of public school choice for the start of the 2010–11 school year until assessment results were available; and
(B) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit from improvement status.
• Provisions waived: Section 1116(b)(1)(E)(i) of the ESEA and 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: December 7, 2010.
• Description of waiver: Allowed California to postpone—
(A) Notice of public school choice for the start of the 2010–11 school year until assessment results were available; and
(B) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provision waived: 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: September 13, 2010.
• Description of waiver: Allowed Colorado to postpone—
(A) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provision waived: 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: August 3, 2010.
• Description of waiver: Allowed Florida to postpone—
(A) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provisions waived: Sections 1116(a)(2) and 1116(b)(l)(E)(i) of the ESEA, and 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: June 30, 2010.
• Description of waiver: Allowed Idaho to postpone—
(A) Release of results from the State academic assessment administered in the 2009–10 school year;
(B) Notice of public school choice for the start of the 2010–11 school year until assessment results were available; and
(C) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provisions waived: Sections 1116(a)(2) and 1116(b)(l)(E)(i) of the ESEA, and 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: October 29, 2010.
• Description of waiver: Allowed Indiana to postpone—
(A) Release of results from the State academic assessment administered in the 2009–10 school year;
(B) Notice of public school choice for the start of the 2010–11 school year until assessment results were available; and
(C) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provision waived: Sections 1116(a)(2) and 1116(b)(l)(E)(i) of the ESEA, and 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: April 15, 2010.
• Description of waiver: Allowed Kentucky to postpone—
(A) The release of results from the State academic assessment administered in the 2009–10 school year;
(B) Notice of public school choice for the start of the 2010–11 school year until assessment results were available; and
(C) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provision waived: 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: July 12, 2010.
• Description of waiver: Allowed Nebraska to postpone—
(A) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provisions waived: Section 1116(b)(1)(E)(i) of the ESEA and 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: August 24, 2010.
• Description of waiver: Allowed New York to postpone—
(A) Notice of public school choice for the start of the 2010–11 school year until assessment results were available; and
(B) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provision waived: 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: October 18, 2010.
• Description of waiver: Allowed Oklahoma to postpone—
(A) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provisions waived: Section 1116(b)(1)(E)(i) of the ESEA and 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: August 10, 2010.
• Description of waiver: Allowed Tennessee to postpone—
(A) Notice of public school choice for the start of the 2010–11 school year until assessment results were available; and
(B) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provisions waived: Sections 1116(a)(2) and 1116(b)(l)(E)(i) of the ESEA, and 34 CFR 200.37(b)(4)(iv).
• Date waiver granted: June 30, 2010.
• Description of waiver: Allowed Washington to postpone—
(A) The release of results from the State academic assessment administered in the 2009–10 school year;
(B) Notice of public school choice for the start of the 2010–11 school year until assessment results were available; and
(C) Notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that—
(i) Were newly identified for improvement for the 2010–11 school year; or
(ii) Made AYP in the previous year but did not exit improvement status.
• Provisions waived: Sections 1111(b)(3)(C)(vii), 1111(b)(3)(C)(v)(II), and 1116(a)(1)(A) of the ESEA, and 34 CFR 200.5(a)(2), 34 CFR 200.5(b), and 34 CFR 200.12.
• Date waiver granted: June 23, 2010.
• Description of waiver: Allowed some schools in Calexico Unified School District to exclude assessments administered in the 2009–10 school year when making AYP determinations and to assign the same AYP status to its schools as it assigned AYP determinations based on 2008–09 assessments. This was necessary because the April 4, 2010, earthquake and aftershocks resulted in schools closing for six weeks during the time that Calexico would have administered the assessments required under the ESEA.
• Provisions waived: Sections 1111(b)(2)(I)(ii) of the ESEA and 34 CFR 200.20(c)(l)(i).
• Date waiver granted: September 22, 2010.
• Description of waiver: Allowed Florida to exclude, from assessment participation rate calculations used in when making AYP determinations for the 2009–10 school year, those students who enrolled in Florida schools after having been displaced as a result of the January 12, 2010, earthquake in Haiti.
• Provisions waived: Sections 1111(b)(3)(A), 1111(b)(3)(C)(vii), 1111(b)(3)(C)(v)(II), 1116(a)(1)(A), and 1116(c)(1)(A) of the ESEA, and 34 CFR 200.2(a)(1), 34 CFR 200.5(a)(2), 34 CFR 200.5(b), 34 CFR 200.30, and 34 CFR 200.50(a).
• Date waiver granted: November 16, 2010.
• Description of waiver: Allowed Wyoming to exclude assessments administered in the 2009–10 school year in making AYP determinations due to a statewide failure of Wyoming's online assessment system that prevented the State from collecting valid statewide assessment data for that same school year.
• Provisions waived: Section 1113(c)(1) of the ESEA and 34 CFR 200.78(c).
• Date waiver granted: May 21, 2010.
• Description of waiver: Enabled the Clay County Schools to allocate more Title I funds per poor child to several schools with a lower poverty rate than to schools with a higher poverty rate.
• Provisions waived: Sections 1113(a)(2) and 1113(c)(2)(A) of the ESEA.
• Date waiver granted: December 13, 2010.
• Description of waiver: Enabled Community High School District 99 to allocate Title I funds to its second high school, which was below the District-wide poverty rate of 35 percent and, therefore, not eligible for Title I funds. The waiver further enabled the District to allocate an amount per poor child to both its high schools that was less than 125 percent of the per-pupil amount for the District as a whole.
• Provision waived: Section 1117(c)(2)(A) of the ESEA.
• Date waiver granted: December 23, 2010.
• Description of waiver: Permitted Wisconsin to use Title I funds reserved for academic achievement award programs by the SEA to reward qualified schools that were eligible for, but did not receive, Title I funds. Because of the funds made available for Title I through ARRA, Wisconsin was able to reserve significantly more FY 2009 funds to reward schools, and sought to take the opportunity to financially reward not only 120 qualifying Title I schools that received Title I funds, but also 17 high-poverty schools that were eligible for, but did not receive, Title I funds and had made significant strides in improving student achievement.
• Provisions waived: Sections 1111(b)(2)(I)(ii) of the ESEA and 34 CFR 200.20(c)(l)(i).
• Date waiver granted: April 20, 2010.
• Description of waiver: Allowed Maryland to exclude schools or LEAs from assessment participation rate calculations when making AYP determinations for the 2009–10 school year for those student subgroups that failed to make the required 95 percent participation rate and experienced 50 percent or more of its absences on two or more days during the testing window due to the H1N1 flu virus or other flu-like illnesses. This waiver permitted a school or LEA in Maryland to use the school's or LEA's 2008–09 school year participation rate when making AYP determinations based on assessments administered during the 2009–10 school year.
• Provisions waived: Sections 1111(b)(2)(I)(ii) of the ESEA and 34 CFR 200.20(c)(l)(i).
• Date waiver granted: August 4, 2010.
• Description of waiver: Allowed New Mexico to exclude schools or LEAs from attendance rate as an “other academic indicator” when making AYP determinations for the 2009–10 school year for a school or LEA that failed to make AYP for the attendance rate due to the H1N1 flu virus or other flu-like illnesses. This waiver permitted a school or LEA in New Mexico to use the school's or LEA's 2009–10 school year attendance rate for an “other academic indicator” when making AYP determinations.
• Provisions waived: Sections 1111(b)(2)(I)(ii) of the ESEA and 34 CFR 200.20(c)(l)(i).
• Date waiver granted: January 21, 2010.
• Description of waiver: Allowed South Carolina to exclude schools or LEAs from attendance rate as the “other academic indicator” when making AYP determinations for the 2009–10 school year for a school or LEA that failed to make AYP for the attendance rate and experienced 50 percent or more of its absences due to the H1N1 flu virus or other flu-like illnesses. This waiver permitted a school or LEA in South
• Provisions waived: Section 3122(b)(1) of the ESEA.
• Date waiver granted: May 10, 2010.
• Description of waiver: Allowed Wyoming to make annual measurable achievement objective (AMAO) determinations for the 2009–10 school year based on AMAO 2 (attainment) and AMAO 3 (AYP for limited English proficiency subgroup). Wyoming adopted a new annual English language proficiency assessment and did not have consistent data to make AMAO determinations regarding AMAO 1 (progress) for districts receiving Title III funds for the 2009–10 school year.
• Provision waived: 34 CFR 200.20(g).
• Date waiver granted: July 2, 2010.
• Description of waiver: Permitted Georgia to extend the use of the two percent flexibility for calculating AYP for the “students with disabilities” subgroup for the 2010–11 school year based on 2009–10 assessment results. Due to severe resource issues, Georgia was not able to implement an operational alternate assessment based on modified academic achievement standards (AA–MAS) in spring 2010.
• Provision waived: Section 1119(c) of the ESEA.
• Date waiver granted: April 30, 2010.
• Description of waiver: Permitted Texas' instructional paraprofessionals in schools receiving Title I, Part A funds for the first time in school year 2009–10 to have until the first day of the second semester of the current school year to meet the requirements for paraprofessionals. This waiver applied to paraprofessionals in these schools who were hired prior to the first day of the 2009–10 school year.
• Provisions waived: Sections 6222 and 6224(d) of the ESEA.
• Date waiver granted: February 26, 2010.
• Description of waiver: Provided American Samoa the flexibility to use ARRA FY 2009 funds through a consolidated grant for programs under Title VI, Part B of the ESEA.
• Provisions waived: Sections 6222 and 6224(d) of the ESEA.
• Date waiver granted: March 10, 2010.
• Description of waiver: Provided Guam the flexibility to use ARRA FY 2009 funds through a consolidated grant for programs under Title VI, Part B of the ESEA.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: June, 16, 2010.
• Description of waiver: Permitted Alaska to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: August 4, 2010.
• Description of waiver: Permitted Arizona to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: June 15, 2010.
• Description of waiver: Permitted Delaware to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2009–10 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: August 25, 2010.
• Description of waiver: Permitted Florida to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A).
• Date waiver granted: August 20, 2010.
• Description of waiver: Permitted Hawaii to approve a school identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: July 2, 2010.
• Description of waiver: Permitted Indiana to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: August 3, 2010.
• Description of waiver: Permitted Iowa to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: September 9, 2010.
• Description of waiver: Permitted Maine to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: July 19, 2010.
• Description of waiver: Permitted Massachusetts to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: August 10, 2010.
• Description of waiver: Permitted Missouri to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: June 23, 2010.
• Description of waiver: Permitted Montana to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: July 12, 2010.
• Description of waiver: Permitted Nebraska to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: August 4, 2010.
• Description of waiver: Permitted New Hampshire to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: July 20, 2010.
• Description of waiver: Permitted New Mexico to approve a school or LEA identified for improvement to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: March 3, 2010.
• Description of waiver: Permitted New York to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2009–10 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: July 21, 2010.
• Description of waiver: Permitted North Carolina to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: June 15, 2010.
• Description of waiver: Permitted North Dakota to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: July 20, 2010.
• Description of waiver: Permitted Ohio to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: June 15, 2010.
• Description of waiver: Permitted Oklahoma to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: August 3, 2010.
• Description of waiver: Permitted Oregon to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(B).
• Date waiver granted: February 4, 2010.
• Description of waiver: Permitted the Red Clay Consolidated School District in Delaware, an LEA identified for improvement, to serve as a provider of SES during the 2009–10 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: June 16, 2010.
• Description of waiver: Permitted Rhode Island to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: July 12, 2010.
• Description of waiver: Permitted South Carolina to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: June 16, 2010.
• Description of waiver: Permitted South Dakota to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: October 14, 2010.
• Description of waiver: Permitted Tennessee to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: April 30, 2010.
• Description of waiver: Permitted Texas to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2009–10 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: January 19, 2010.
• Description of waiver: Permitted Utah to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2009–10 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: July 27, 2010.
• Description of waiver: Permitted Washington to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provision waived: 34 CFR 200.47(b)(1)(iv)(A) and (B).
• Date waiver granted: August 10, 2010.
• Description of waiver: Permitted Wisconsin to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as a provider of SES during the 2010–11 school year.
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: June 15, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Delaware to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: August 25, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Florida to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: January 19, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Minnesota to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: March 3, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in New York to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: August 10, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAS in Alabama to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: August 4, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Arizona to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: December 7, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in California to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: August 3, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Iowa to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: July 19, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Massachusetts to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: August 10, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Michigan to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: August 10, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Missouri to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: July 12, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Nebraska to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: June 15, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Nevada to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: August 4, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in New Hampshire to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: July 20, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in New Mexico to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: July 21, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in North Carolina to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: July 20, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Ohio to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: November 9, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Oklahoma to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: October 14, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Tennessee to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: August 4, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Virginia to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48.
• Date waiver granted: July 27, 2010.
• Description of waiver: For the 2010–11 school year, permitted LEAs in Washington to offer SES, in addition to public school choice, to eligible students in Title I schools in the first year of school improvement and to count the costs of providing SES to these students toward meeting the LEA's “20 percent obligation.”
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48(a)(2).
• Date waiver granted: April 6, 2010.
• Description of waiver: Allowed LEAs in Kansas to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48(a)(2).
• Date waiver granted: January 19, 2010.
• Description of waiver: Allowed LEAs in Minnesota to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least the equivalent of 20 percent of their fiscal year 2009 Title I, Part A funds for public school choice-related transportation and SES.
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48(a)(2).
• Date waiver granted: May 10, 2010.
• Description of waiver: Allowed LEAs in Mississippi to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least the equivalent of 20 percent of their fiscal year 2009 Title I, Part A funds for public school choice-related transportation and SES.
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48(a)(2).
• Date waiver granted: March 3, 2010.
• Description of waiver: Allowed LEAs in New York to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least the equivalent of 20 percent of their fiscal year 2009 Title I, Part A funds for public school choice-related transportation and SES.
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48(a)(2).
• Date waiver granted: April 6, 2010.
• Description of waiver: Allowed the Puerto Rico LEA to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least the equivalent of 20 percent of their fiscal year 2009 Title I, Part A funds for public school choice-related transportation and SES.
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48(a)(2).
• Date waiver granted: February 4, 2010.
• Description of waiver: Allowed the Red Clay Consolidated School District in Delaware to exclude all or part of its Title I, Part A ARRA funds when calculating its obligation to spend at least the equivalent of 20 percent of its fiscal year 2009 Title I, Part A funds for public school choice-related transportation and SES.
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48(a)(2).
• Date waiver granted: April 30, 2010.
• Description of waiver: Allowed LEAs in Texas to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least the equivalent of 20 percent of their fiscal year 2009 Title I, Part A funds for public school choice-related transportation and SES.
• Provisions waived: Section 1116(b)(10) of the ESEA and 34 CFR 200.48(a)(2).
• Date waiver granted: January 19, 2010.
• Description of waiver: Allowed LEAs in Utah to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least the equivalent of 20 percent of its fiscal year 2009 Title I, Part A funds for public school choice-related transportation and SES.
• Provisions waived: Sections 1116(c)(7)(A)(iii) and 1116(b)(3)(A)(iii) of the ESEA, and 34 CFR 200.52(a)(3)(iii) and 34 CFR 200.41(c)(5).
• Date waiver granted: April 6, 2010.
• Description of waiver: Allowed LEAs and schools in Kansas that were in improvement, corrective action, or restructuring status to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least 10 percent of fiscal year 2009 Title I, Part A funds for professional development.
• Provisions waived: Sections 1116(c)(7)(A)(iii) and 1116(b)(3)(A)(iii) of the ESEA, and 34 CFR 200.52(a)(3)(iii) and 34 CFR 200.41(c)(5).
• Date waiver granted: January 19, 2010.
• Description of waiver: Allowed LEAs and schools in Minnesota that were in improvement, corrective action, or restructuring status to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least 10 percent of fiscal year 2009 Title I, Part A funds for professional development.
• Provisions waived: Section 1116(b)(3)(A)(iii) of the ESEA, and 34 CFR 200.41(c)(5).
• Date waiver granted: May 10, 2010.
• Description of waiver: Allowed schools in Mississippi that were in improvement, corrective action, or restructuring status to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least 10 percent of fiscal year 2009 Title I, Part A funds for professional development.
• Provisions waived: Section 1116(c)(7)(A)(iii) of the ESEA and 34 CFR 200.52(a)(3)(iii).
• Date waiver granted: October 19, 2010.
• Description of waiver: Allowed LEAs in Montana that were in improvement, corrective action, or restructuring status to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least 10 percent of fiscal year 2009 Title I, Part A funds for professional development.
• Provisions waived: Sections 1116(c)(7)(A)(iii) and 1116(b)(3)(A)(iii) of the ESEA, and 34 CFR 200.52(a)(3)(iii) and 34 CFR 200.41(c)(5).
• Date waiver granted: March 3, 2010.
• Description of waiver: Allowed LEAs and schools in New York that were in improvement, corrective action, or restructuring status to exclude all or part of the Title I, Part A ARRA funds
• Provisions waived: Sections 1116(c)(7)(A)(iii) and 1116(b)(3)(A)(iii) of the ESEA, and 34 CFR 200.52(a)(3)(iii) and 34 CFR 200.41(c)(5).
• Date waiver granted: April 6, 2010.
• Description of waiver: Allowed the Puerto Rico LEA and its schools that were in improvement, corrective action, or restructuring status to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least 10 percent of fiscal year 2009 Title I, Part A funds for professional development.
• Provisions waived: Sections 1116(c)(7)(A)(iii) and 1116(b)(3)(A)(iii) of the ESEA, and 34 CFR 200.52(a)(3)(iii) and 34 CFR 200.41(c)(5).
• Date waiver granted: February 4, 2010.
• Description of waiver: Allowed the LEA and the schools in the Red Clay District in Delaware that were in improvement, corrective action, or restructuring status to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least 10 percent of fiscal year 2009 Title I, Part A funds for professional development.
• Provisions waived: Sections 1116(c)(7)(A)(iii) and 1116(b)(3)(A)(iii) of the ESEA, and 34 CFR 200.52(a)(3)(iii) and 34 CFR 200.41(c)(5).
• Date waiver granted: January 19, 2010.
• Description of waiver: Allowed LEAs and schools in Utah that were in improvement, corrective action, or restructuring status to exclude all or part of the Title I, Part A ARRA funds when calculating their obligation to spend at least 10 percent of fiscal year 2009 Title I, Part A funds for professional development.
• Provisions waived: Section 1116(e)(6) of the ESEA and 34 CFR 200.48(c)(1).
• Date waiver granted: April 6, 2010.
• Description of waiver: Allowed LEAs in Kansas to exclude all or part of their Title I, Part A ARRA funds when calculating the per-pupil amount for SES.
• Provisions waived: Section 1116(e)(6) of the ESEA and 34 CFR 200.48(c)(1).
• Date waiver granted: January 19, 2010.
• Description of waiver: Allowed LEAs in Minnesota to exclude all or part of their Title I, Part A ARRA funds when calculating the per-pupil amount for SES.
• Provisions waived: Section 1116(e)(6) of the ESEA and 34 CFR 200.48(c)(1).
• Date waiver granted: May 10, 2010.
• Description of waiver: Allowed LEAs in Mississippi to exclude all or part of their Title I, Part A ARRA funds when calculating the per-pupil amount for SES.
• Provisions waived: Section 1116(e)(6) of the ESEA and 34 CFR 200.48(c)(1).
• Date waiver granted: March 3, 2010.
• Description of waiver: Allowed LEAs in New York to exclude all or part of their Title I, Part A ARRA funds when calculating the per-pupil amount for SES.
• Provisions waived: Section 1116(e)(6) of the ESEA and 34 CFR 200.48(c)(1).
• Date waiver granted: April 6, 2010.
• Description of waiver: Allowed the Puerto Rico LEA to exclude all or part of its` Title I, Part A ARRA funds when calculating the per-pupil amount for SES.
• Provisions waived: Section 1116(e)(6) of the ESEA and 34 CFR 200.48(c)(1).
• Date waiver granted: February 4, 2010.
• Description of waiver: Allowed the Red Clay Consolidated School District to exclude all or part of its Title I, Part A ARRA funds when calculating the per-pupil amount for SES.
• Provisions waived: Section 1116(e)(6) of the ESEA and 34 CFR 200.48(c)(1).
• Date waiver granted: April 30, 2010.
• Description of waiver: Allowed LEAs in Texas to exclude all or part of their Title I, Part A ARRA funds when calculating the per-pupil amount for SES.
• Provisions waived: Section 1116(e)(6) of the ESEA and 34 CFR 200.48(c)(1).
• Date waiver granted: January 19, 2010.
• Description of waiver: Allowed LEAs in Utah to exclude all or part of its Title I, Part A ARRA funds when calculating the per-pupil amount for SES.
• Provisions waived: Section 1127(b) of the ESEA.
• Date waiver granted: January 19, 2010.
• Description of waiver: Authorized Minnesota to waive the carryover limitation more than once within three years for an LEA that needs a second (or third) waiver because of its receipt of Title I, Part A ARRA funds.
• Provisions waived: Section 1127(b) of the ESEA.
• Date waiver granted: May 10, 2010.
• Description of waiver: Authorized Mississippi to waive the carryover limitation more than once within three years for an LEA that needs a second (or third) waiver because of its receipt of Title I, Part A ARRA funds.
• Provisions waived: Section 1127(b) of the ESEA.
• Date waiver granted: June 23, 2010.
• Description of waiver: Authorized Montana to waive the carryover limitation more than once within three years for an LEA that needs a second (or third) waiver because of its receipt of Title I, Part A ARRA funds.
• Provisions waived: Section 1127(b) of the ESEA.
• Date waiver granted: March 3, 2010.
• Description of waiver: Authorized New York to waive the carryover limitation more than once within three years for an LEA that needs a second (or third) waiver because of its receipt of Title I, Part A ARRA funds.
• Provisions waived: Section 1127(a) of the ESEA.
• Date waiver granted: February 4, 2010.
• Description of waiver: Authorized the Red Clay Consolidated School District in Delaware to exceed the carryover limitation more than once within three years if it needs a second (or third) waiver because of its receipt of Title I, Part A ARRA funds.
• Provisions waived: Section 1127(b) of the ESEA.
• Date waiver granted: January 19, 2010.
• Description of waiver: Authorized Utah to waive the carryover limitation more than once within three years for an LEA that needs a second (or third) waiver because of its receipt of Title I, Part A ARRA funds.
Luz Curet, U.S. Department of Education, 400 Maryland Avenue SW., Room 3W344, Washington, DC 20202. Telephone: (202) 205–3728 or by email:
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