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67792 Federal Register / Vol. 67, No.

216 / Thursday, November 7, 2002 / Rules and Regulations

Implementation is inappropriate. A prisoner who is chronic disease that existed prior to


This interim rule will be implemented placed on mandatory supervision shall service but first became manifest to a
for any military offender mandatorily be deemed to be released as if on parole, compensable degree within the
released on good time deductions from and shall be subject to the conditions of presumptive period following service.
release at § 2.40 until the expiration of In Splane v. West, 216 F. 3d 1058
a federal civilian prison if the offender
the maximum term for which he was (2000), the United States Court of
committed his offense after August 15,
sentenced, unless the Commission Appeals for the Federal Circuit
2001.
terminates the supervision early under concluded, among other things, that the
Regulatory Assessment Requirements § 2.43. General Counsel’s interpretation of 38
U.S.C. 1112(a) was not in accordance
The U.S. Parole Commission has Dated: October 31, 2002.
with law and was therefore in excess of
determined that this interim rule does Edward F. Reilly, Jr.,
statutory authority. The Court held that
not constitute a significant rule within Chairman, U.S. Parole Commission. 38 U.S.C. 1112(a) establishes not only a
the meaning of Executive Order 12866. [FR Doc. 02–28318 Filed 11–6–02; 8:45 am] presumption of service incurrence for
The interim rule will not have a BILLING CODE 4410–31–P chronic diseases first manifest after
significant economic impact upon a
service, but also a presumption of
substantial number of small entities
aggravation for chronic diseases that
within the meaning of the Regulatory
DEPARTMENT OF VETERANS existed prior to service but first became
Flexibility Act, 5 U.S.C. 605(b), and is manifest to a degree of disability of 10
AFFAIRS
deemed by the Commission to be a rule percent or more within the presumption
of agency practice that does not 38 CFR Part 3 period after service. The Court vacated
substantially affect the rights or that portion of the General Counsel
obligations of non-agency parties RIN 2900–AL20
Precedent Opinion which interpreted 38
pursuant to Section 804(3)(c) of the U.S.C. 1112(a).
Congressional Review Act. Service Connection by Presumption of
Aggravation of a Chronic Preexisting VA regulations currently prohibit
List of Subjects in 28 CFR Part 2 Disease establishing service connection for
aggravation of a preexisting chronic
Administrative practice and AGENCY: Department of Veterans Affairs. disease that first becomes manifest to a
procedure, Prisoners, Probation and degree of 10 percent or more following
ACTION: Final rule.
Parole. discharge from military service. This
The Amended Rule SUMMARY: This document amends the prohibition is inconsistent with the
Department of Veterans Affairs (VA) statute as interpreted by the United
Accordingly, the U.S. Parole adjudication regulations concerning States Court of Appeals for the Federal
Commission is adopting the following presumptive service connection to Circuit. Therefore, we are amending 38
amendments to 28 CFR Part 2. reflect a statutory presumption that a CFR 3.307(a), (c), (d), and 3.309(a), to
chronic disease that preexisted the conform to the plain language of the
PART 2—[AMENDED] veteran’s entry into military service but statute and the conclusions of the Court.
1. The authority citation for 28 CFR was first manifest to a 10-percent degree Presently, 38 CFR 3.307(a), (c), and (d)
Part 2 continues to read as follows: of disability within a specified period provide only for a presumption of
after service was aggravated by the service incurrence. Accordingly, it is
Authority: 18 U.S.C. 4203(a)(1) and veteran’s military service. This necessary to revise those paragraphs to
4204(a)(6).
amendment is necessary to make the include a presumption of aggravation.
Subpart A—United States Code regulations conform with the statute and 38 CFR 3.307(d) currently states the
Prisoners and Parolees the Court’s decision. factors to be considered in determining
DATES: Effective Date: November 7, whether the presumption of service
2. Section 2.35 is amended by adding 2002. incurrence has been rebutted. The
the following paragraph (d): current regulation is based on the
FOR FURTHER INFORMATION CONTACT: John invalid conclusion that the presumption
§ 2.35 Mandatory release in the absence of Bisset, Jr., Consultant, Regulations Staff, is one of service incurrence only. This
parole. Compensation and Pension Service, provision is inconsistent with Splane
* * * * * Veterans Benefits Administration, 810 because Splane establishes that 38
(d) If the Commission orders a Vermont Avenue, NW., Washington, DC U.S.C. 1112(a) includes a presumption
military prisoner who is under the 20420, telephone (202) 273–7213. of aggravation of pre-existing diseases
Commission’s jurisdiction for an offense SUPPLEMENTARY INFORMATION: Section that were not incurred in service.
committed after August 15, 2001 1112(a), 38 U.S.C., states that, ‘‘a Accordingly, it is necessary to revise 38
continued to the expiration of his chronic disease becoming manifest to a CFR 3.307(d) to state separately the
sentence (or otherwise does not grant degree of 10 percent or more within one criteria for rebutting the presumption of
parole), the Commission shall place year from the date of separation from service incurrence (in cases where the
such prisoner on mandatory supervision such service * * * shall be considered chronic disease did not exist prior to
after release if the Commission to have been incurred in or aggravated service) and the criteria for rebutting the
determines that such supervision is by such service, notwithstanding there presumption of aggravation (in cases
appropriate to provide an orderly is no record of evidence of such disease where the chronic disease did exist
transition to civilian life for the prisoner during the period of service.’’ prior to service).
and to protect the community into In the VA General Counsel Precedent A current VA regulation, 38 CFR
which such prisoner is released. The Opinion 14–98 (VAOPGCPREC 14–98 3.306(a), provides that a presumption of
Commission shall presume that (October 2, 1998)), the General Counsel aggravation based on an increase in the
mandatory supervision is appropriate held that Section 1112(a) of title 38, severity of a preexisting condition
for all such prisoners unless case- United States Code, does not establish a during service may be rebutted by
specific factors indicate that supervision presumption of aggravation for a evidence that the increase was due to

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Federal Register / Vol. 67, No. 216 / Thursday, November 7, 2002 / Rules and Regulations 67793

the natural progress of the disease. Catalog of Federal Domestic Assistance tropical diseases the fact that the
Additionally, section 1113(a) of title 38, The Catalog of Federal Domestic veteran had no service in a locality
United States Code, indicates that a Assistance program numbers are 64.109 having a high incidence of the disease
presumption of service connection and 64.110. may be considered as evidence to rebut
based on manifestations of disability the presumption, as may residence
subsequent to service may be rebutted List of Subjects in 38 CFR Part 3 during the period in question in a region
by affirmative evidence to the contrary Administrative practice and where the particular disease is endemic.
or evidence to establish that such procedure, Claims, Disability benefits, The known incubation periods of
disability is due to an intercurrent Individuals with disabilities, Pensions, tropical diseases should be used as a
disease or injury suffered after Veterans. factor in rebuttal of presumptive service
separation from service. We are revising Approved: September 9, 2002.
connection as showing inception before
§ 3.307(d) to reflect these principles. or after service.
Anthony J. Principi,
Although Splane did not discuss the (2) The presumption of aggravation
Secretary of Veterans Affairs. provided in this section may be rebutted
criteria for rebutting the presumption of
aggravation, we believe that inclusion of For the reasons set forth in the by affirmative evidence that the
these rebuttal standards is necessary to preamble, the Department of Veterans preexisting condition was not
Affairs amends 38 CFR part 3 as follows: aggravated by service, which may
the implementation of that decision.
include affirmative evidence that any
Administrative Procedure Act PART 3—ADJUDICATION increase in disability was due to an
intercurrent disease or injury suffered
Changes made by this final rule Subpart A—Pension, Compensation,
after separation from service or evidence
merely reflect the statutory and Dependency and Indemnity
sufficient, under § 3.306 of this part, to
requirements or the decision of the Compensation
show that the increase in disability was
United States Court of Appeals for the 1. The authority citation for part 3, due to the natural progress of the
Federal Circuit. Accordingly, there is a subpart A continues to read as follows: preexisting condition.
basis for dispensing with prior notice
Authority: 38 U.S.C. 501(a), unless (Authority: 38 U.S.C 1113 and 1153)
and comment and delayed effective date
otherwise noted.
provisions of 5 U.S.C. 552 and 553. § 3.309 [Amended]
2. Section 3.307 is amended by:
Unfunded Mandates A. In paragraph (a) introductory text, 3. Section 3.309(a) is amended by
removing ‘‘incurred in’’ and adding, in removing ‘‘incurred in’’ and adding, in
The Unfunded Mandates Reform Act its place, ‘‘incurred in or aggravated its place, ‘‘incurred in or aggravated
requires, at 2 U.S.C. 1532, that agencies by’’. by’’.
prepare an assessment of anticipated B. In paragraph (c), removing the last
costs and benefits before developing any [FR Doc. 02–28267 Filed 11–6–02; 8:45 am]
sentence ‘‘The consideration of service
rule that may result in an expenditure BILLING CODE 8320–01–P
incurrence provided for chronic
by State, local, or tribal governments, in diseases will not be interpreted to
the aggregate, or by the private sector of permit any presumption as to
$100 million or more in any given year. aggravation of a preservice disease or DEPARTMENT OF COMMERCE
This rule would have no consequential injury after discharge.’’.
effect on State, local, or tribal C. Revising paragraph (d) and the National Oceanic and Atmospheric
governments. authority citation at the end of the Administration
section.
Paperwork Reduction Act The revision reads as follows: 50 CFR Parts 222 and 223
This document contains no provisions § 3.307 Presumptive service connection [Docket No. 021031262–2262–01; I.D.
constituting a collection of information for chronic, tropical or prisoner-of-war 103002A]
under the Paperwork Reduction Act (44 related disease, or disease associated with
RIN 0648–AQ56
U.S.C. 3501–3520). exposure to certain herbicide agents;
wartime and service on or after January 1,
Executive Order 12866 1947.
Sea Turtle Conservation; Shrimp
Trawling Requirements
* * * * *
This document has been reviewed by (d) Rebuttal of service incurrence or AGENCY: National Marine Fisheries
the Office of Management and Budget aggravation. (1) Evidence which may be Service (NMFS), National Oceanic and
under Executive Order 12866. considered in rebuttal of service Atmospheric Administration (NOAA),
Regulatory Flexibility Act incurrence of a disease listed in § 3.309 Commerce.
will be any evidence of a nature usually ACTION: Temporary rule; request for
The Secretary hereby certifies that accepted as competent to indicate the comments.
this final rule will not have a significant time of existence or inception of
economic impact on a substantial disease, and medical judgment will be SUMMARY: NMFS issues this temporary
number of small entities as they are exercised in making determinations authorization to allow the use of limited
defined in the Regulatory Flexibility relative to the effect of intercurrent tow times by shrimp trawlers as an
Act, 5 U.S.C. 601–612. This amendment injury or disease. The expression alternative to the use of Turtle Excluder
would not directly affect any small ‘‘affirmative evidence to the contrary’’ Devices (TEDs) in certain waters off
entities. Only individuals could be will not be taken to require a conclusive Louisiana and Alabama. The exempted
directly affected. Therefore, pursuant to showing, but such showing as would, in area in Louisiana consists of all the
5 U.S.C. 605(b), this final rule is exempt sound medical reasoning and in the Louisiana state waters east of 92° 20′ W.
from the initial and final regulatory consideration of all evidence of record, long. (approximately at Fresh Water
flexibility analyses requirements of support a conclusion that the disease Bayou in Vermilion Parish, Louisiana);
sections 603 and 604. was not incurred in service. As to Federal waters are not included. The

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