Awards Under the Nehmer Court Orders for Disability or Death Caused by a Condition Presumptively Associated With Herbicide Exposure; Implementing Court Order.

CourtVeterans Affairs Department
Citation86 FR 68409
Record Number2021-26084
Publication Date02 December 2021
Federal Register, Volume 86 Issue 229 (Thursday, December 2, 2021)
[Federal Register Volume 86, Number 229 (Thursday, December 2, 2021)]
                [Rules and Regulations]
                [Pages 68409-68410]
                From the Federal Register Online via the Government Publishing Office []
                [FR Doc No: 2021-26084]
                38 CFR Part 3
                RIN 2900-AR40
                Awards Under the Nehmer Court Orders for Disability or Death
                Caused by a Condition Presumptively Associated With Herbicide Exposure;
                Implementing Court Order.
                AGENCY: Department of Veterans Affairs.
                ACTION: Final rule.
                SUMMARY: The Department of Veterans Affairs (VA) is issuing this final
                rule to amend its regulation regarding the process for identifying and
                paying appropriate payees entitled to retroactive benefits. This
                amendment is necessary to implement a federal district court order
                directing the VA to remove certain regulatory text concerning
                subsequent release of compensation to a payee when the full amount of
                unpaid benefits has previously been released.
                 Effective date: This final rule is effective December 2, 2021.
                 Applicability date: The provisions of this final rule shall apply
                to circumstances in which VA has received information about a newly
                identified and eligible payee (hereafter ``new payee'') who has yet to
                receive the Nehmer-related benefits to which the new payee is entitled.
                FOR FURTHER INFORMATION CONTACT: Christopher O. Adeloye, Staff
                Attorney, Benefits Law Group, Office of General Counsel (022), 810
                Vermont Avenue NW, Washington, DC 20420, (202) 461-7662. (This is not a
                toll-free telephone number.)
                I. Background and Basis for Revision of Regulation
                 In 1991, as part of the Nehmer litigation (Nehmer v. U.S.
                Department of Veterans Affairs, 712 F.Supp. 1404 (N.D. Cal. May 3,
                1989)) before the U.S. District Court for the Northern District of
                California, the parties entered into a
                [[Page 68410]]
                consent decree that required VA to readjudicate claims filed by a
                specific class of veterans who served in the Republic of Vietnam. In
                the event that VA's readjudication of a veteran's claim was favorable,
                VA would make payment of any past-due benefits to the veteran. However,
                as clarified by a subsequent court order, if VA's readjudication of a
                veteran's claim was favorable but the veteran was deceased, VA would
                pay the full amount of any past-due benefits to the first individual or
                entity listed, in this order: (1) The veteran's spouse; (2) the
                veteran's children in equal shares; (3) the veteran's parents in equal
                shares; and (4) the veteran's estate.
                 On September 17, 2021, the plaintiffs in Nehmer filed a motion with
                the district court in which they sought to enforce the consent decree.
                As part of their motion, the plaintiffs requested that the court issue
                an order requiring VA to rescind the last sentence in section
                3.816(f)(3): ``If, following such efforts, VA releases the full amount
                of unpaid benefits to a payee, VA may not thereafter pay any portion of
                such benefits to any other individual, unless VA is able to recover the
                payment previously released.''
                 On November 10, 2021, the court issued an order (Nehmer v. U.S.
                Department of Veterans Affairs, No. C86-06160 WHA, USDC N. District
                California, November 10, 2021) vacating the final sentence of section
                3.816(f)(3), directing VA to issue a rule rescinding that sentence, and
                requiring VA to publish that rule in the Federal Register. Consistent
                with that order, VA is issuing this rulemaking to remove the final
                sentence from section 3.816(f)(3).
                Administrative Procedure Act
                 The Secretary of Veterans Affairs finds that there is good cause
                under the provisions of 5 U.S.C. 553(b)(B) and (d)(3) to publish this
                rule without prior opportunity for public comment and with an immediate
                effective date. The good cause exception allows an agency to forego
                public notice and comment where it would be ``impracticable,
                unnecessary, or contrary to the public interest.'' See 5 U.S.C.
                553(b)(B). Similarly, under 5 U.S.C. 553(d)(3), an agency may forego
                the requirement for a delayed effective date ``for good cause found and
                published with the rule.'' This amendment to section 3.816(f)(3) is
                ministerial in that it simply implements the court's November 10, 2021,
                order. Furthermore, delay in publication of this notice could lead to
                confusion among the public, particularly among new payees who may
                otherwise lack notice that the final sentence in section 3.816(f)(3)
                has been vacated. As the court noted in its order, this presents a
                ``serious risk'' to certain payees who may otherwise believe they are
                not entitled to their share of a Nehmer award. For these reasons,
                notice and comment and a delayed effective date are unnecessary,
                impracticable, and contrary to the public interest, and, consequently,
                VA has good cause under the Administrative Procedure Act to publish
                this rule without prior opportunity for public comment and with an
                immediate effective date.
                Executive Orders 12866 and 13563
                 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.
                The Office of Information and Regulatory Affairs has determined that
                this rule is not a significant regulatory action under Executive Order
                12866. The Regulatory Impact Analysis associated with this rulemaking
                can be found as a supporting document at
                Regulatory Flexibility Act
                 The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable
                to this rulemaking because notice of proposed rulemaking is not
                required. 5 U.S.C. 601(2), 603(a), 604(a).
                Unfunded Mandates
                 The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
                1532, that agencies prepare an assessment of anticipated costs and
                benefits before issuing any rule that may result in the expenditure by
                State, local, and tribal governments, in the aggregate, or by the
                private sector, of $100 million or more (adjusted annually for
                inflation) in any one year. This final rule would have no such effect
                on State, local, and tribal governments, or on the private sector.
                Paperwork Reduction Act
                 This final rule contains no provisions constituting a collection of
                information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
                Assistance Listing
                 The Assistance Listing program numbers and titles for this rule are
                64.104 Pension for Non-Service-Connected Disability for Veterans;
                64.105 Pension to Veterans Surviving Spouses, and Children; 64.109
                Veterans Compensation for Service-Connected Disability; 64.110 Veterans
                Dependency and Indemnity Compensation for Service-Connected Death.
                Congressional Review Act
                 Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
                the Office of Information and Regulatory Affairs designated this rule
                as not a major rule, as defined by 5 U.S.C. 804(2).
                List of Subjects in 38 CFR Part 3
                 Administrative practice and procedure, Claims, Disability benefits,
                Signing Authority
                 Denis McDonough, Secretary of Veterans Affairs, approved this
                document on November 24, 2021, and authorized the undersigned to sign
                and submit the document to the Office of the Federal Register for
                publication electronically as an official document of the Department of
                Veterans Affairs.
                Jeffrey M. Martin,
                Assistant Director, Office of Regulation Policy & Management, Office of
                General Counsel, Department of Veterans Affairs.
                 For the reasons set forth in the preamble, 38 CFR part 3 is amended
                as follows:
                PART 3--ADJUDICATION
                Subpart A--Special Benefits
                1. The authority citation for part 3, subpart A continues to read as
                 Authority: 38 U.S.C. 501.
                Sec. 3.816 [Amended]
                2. Amend Sec. 3.816 by removing the last sentence in paragraph (f)(3).
                [FR Doc. 2021-26084 Filed 12-1-21; 8:45 am]
                BILLING CODE 8320-01-P

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