[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Rules and Regulations]
[Pages 42879-42880]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16308]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AL12
Exceptions to Definition of Date of Receipt Based on Natural or
Man-made Disruption of Normal Business Practices
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule and request for comments.
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SUMMARY: The Department of Veterans Affairs (VA) is issuing this
interim final rule to amend the Veterans Benefits Administration's
(VBA) adjudication regulations concerning the definition of ``date of
receipt'' by authorizing the Under Secretary for Benefits to establish
exceptions to the general rule when a natural or man-made event
interferes with the channels through which VBA ordinarily receives
correspondence, resulting in extended delays in receipt of claims,
information or evidence from claimants served by VBA. Currently, VBA
receives correspondence through its 57 Regional Offices (RO) and
through the Appeals Management Center (AMC), which develops claims on
appeal to the Board of Veterans Appeals. The intended effect is to
ensure that claimants served by the affected VBA office or offices are
not deprived of potential entitlement to benefits because of unexpected
delays or impediments not caused by the claimants.
DATES: Effective Date: This interim rule is effective July 19, 2004.
Comments must be received by September 17, 2004.
ADDRESSES: Written comments may be submitted by: mail or hand-delivery
to Director, Regulations Management (00REG1), Department of Veterans
Affairs, 810 Vermont Ave., NW, Room 1068, Washington, DC 20420; fax to
(202) 273-9026; e-mail to [email protected]; or, through
www.Regulations.gov. Comments should indicate that they are submitted
in response to ``RIN 2900-AL12.'' All comments received will be
available for public inspection in the Office of Regulation Policy and
Management, Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m.,
Monday through Friday (except holidays). Please call (202) 273-9515 for
an appointment.
FOR FURTHER INFORMATION CONTACT: Beth McCoy, Consultant, Regulations
Staff, Compensation and Pension Service (211A), Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW.,
Washington, DC 20420, at 273-7210.
SUPPLEMENTARY INFORMATION: Pursuant to section 5110 of title 38, United
States Code, the date of receipt of application generally governs the
effective date of a VA benefit award by VBA. VA implemented the
provisions of section 5110 at 38 CFR 3.1(r), which defines ``date of
receipt'' for purposes of benefit entitlement as the date on which a
claim, information, or evidence was received in a VBA office, except as
to specific provisions for claims or evidence received in the State
Department, Social Security Administration, or Department of Defense.
A delay in date of receipt of correspondence in VBA could deprive a
veteran or beneficiary of one or more months of benefits potentially
amounting to thousands of dollars. For example, under normal conditions
a claimant could expect VBA to receive his or her application for
benefits within days of mailing. However, an extended delay in mail
delivery, such as that resulting from the introduction of anthrax into
the U.S. postal system in October 2001, could add weeks or months to
the time it takes VBA to actually receive that application, resulting
in a later date of entitlement to benefits. Furthermore, such extended
delay in mail delivery could result in a claimant being barred from
further pursuing a claim or an appeal even though the claimant mails
evidence in an otherwise timely manner to comply with a certain
limitations period.
Although the regulations allow VBA to grant extensions on time
limits in individual cases for good cause shown as under 38 CFR
3.109(b), the regulations currently do not provide any exception for
widespread delays in receipt of claims or evidence, such as that
experienced primarily by three VBA Regional Offices--Newark RO, New
York RO and Washington (DC) RO--following the anthrax postal
contamination in October 2001. Delays in receipt of claims or evidence
due to events of natural or man-made origin threaten impairment or loss
of benefits for VA claimants through no fault of their own.
VA wishes to protect the interests of claimants who send
correspondence to VBA through the normal channels of communication from
being deprived of benefits to which they are entitled solely because
those channels of communication have been disrupted due to events
outside of the claimants' control.
Accordingly, through this interim final rule, we are amending Sec.
3.1(r) to give the Under Secretary for Benefits authority to establish
exceptions to the rule governing date of receipt when he or she
determines that natural or man-made disruption of the normal channels
of communication results in one or more VBA offices experiencing
extended delays in the receipt of correspondence, including claims,
information, and evidence. This permits the Under Secretary to
immediately address emergency situations, such as an event delaying
mail delivery or a disaster at a VBA office location that bars access
to the building, and to avoid adverse consequences to claimants who
otherwise have followed a normal course of seeking entitlement to VA
benefits. It also permits a centralized and coordinated response to
emergency situations, thereby avoiding possible inconsistent responses
to such crises within and among regions. To determine the date of
receipt, the Under Secretary alternatively would use factors such as
the postmark or the date that the claimant signs his or her
correspondence. The scope of the Under Secretary's action would depend
on the scope of the crisis that prevents the timely delivery or receipt
of correspondence. If the crisis were national, the Under Secretary
would have the authority to declare a nationwide exception to the
definition. If the crisis were merely regional, however, or were
confined to a particular RO or the AMC, the Under Secretary's
declaration of an exception would apply to that region or office only.
Under section 501(a)(1) of title 38, United States Code, the
Secretary of Veterans Affairs has the authority to prescribe
regulations respecting ``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.'' Regulations defining when a claim
for benefits, or evidence or information, is ``received'' by VBA fall
within this category. Further, under section 512(a) of the same title,
the Secretary may delegate his or her authority to carry out certain
functions and duties to subordinate officials as he or she finds
necessary. In this case, we designate the Under Secretary for Benefits
as the official authorized to establish and implement
[[Page 42880]]
the necessary exceptions to the rule governing date of receipt because
he or she provides technical expertise and advice to the Secretary of
Veterans Affairs on veterans benefits issues and is well qualified to
exercise this authority in an expeditious, objective, and impartial
manner. Further, there is no need to elevate these determinations to
the Secretary of Veterans Affairs.
We are publishing this amendment as an interim final rule. We do
not believe that it is necessary to issue a Notice of Proposed
Rulemaking (NPRM) as a prelude because there is ``good cause'' for
dispensing with the customary procedure of notice and comment in this
case under section 553(b)(B) of title 5, United States Code. This rule
is designed to address emergency situations by compensating for delays
in the delivery of important information that those situations could
create. It applies to unforeseen situations that may arise at any time
in the future and can only redound to the public's benefit in its
operation. It would therefore be contrary to the public interest to
delay the publication and operation of this rule because an emergency
situation requiring its operation could arise at any time, including
the time that it would take to publish this rule by conventional means.
It would be contrary to the public interest to delay the publication of
this rule when it so clearly benefits the public in an emergency that
could happen at any time. Further, this rule does not impose any
additional obligations or have any adverse effects on claimants, as it
insures that claimants may establish entitlement to benefits they
otherwise would have had but for the occurrence of a special or
unforeseen circumstance.
Because it would permit VA to respond to an emergency situation
that could arise at any time, and because it imposes no additional
obligations, we find that publication of this rule as an interim rule
serves the public interest. VA will consider comments received during
the comment period for this interim rule (see DATES section). After the
comment period closes, VA will publish another document in the Federal
Register to discuss any comments received in response to this interim
rule and any amendments made as a result of those comments.
For the reasons stated above in connection with our discussion of
section 553(b)(B), we find that there is ``good cause'' under 5 U.S.C.
553(d)(3) for making this rule effective on the date of its publication
in the Federal Register. Our intent is that the rule shall apply to
claims filed on or after the date of publication. We see no reason to
give this rule retroactive effect because we do not believe that there
is any mail affected by the anthrax incident that is still outstanding,
and we are not aware of any man-made or natural disruption other than
the anthrax incident that precipitated delays in the receipt of
correspondence. In addition, this rule certainly ``grants or recognizes
an exemption or relieves a restriction'' under section 553(d)(1).
Regulatory Flexibility Act
Because no notice of proposed rule making was required in
connection with the adoption of this interim final rule, no regulatory
flexibility analysis is required under the Regulatory Flexibility Act
(5 U.S.C. 601-612). Even so, the Secretary hereby certifies that this
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 (RFA), 5 U.S.C. 601-612. Only VA
beneficiaries could be directly affected. Therefore, pursuant to 5
U.S.C. 605(b), this amendment is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
Unfunded Mandates
The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of anticipated costs and benefits before
developing any rule that may result in expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any given year. This rule would have no such effect
on State, local, or tribal governments, or the private sector.
Executive Order 12866
This rule has been reviewed by the Office of Management and Budget
under Executive Order 12866.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
The Catalog of Federal Domestic Assistance program numbers are
64.100 through 64.110 and 64.127.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
Approved: April 9, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.
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For the reasons set forth in the preamble, 38 CFR part 3 is amended as
follows:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
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1. The authority citation for Part 3, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
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2. In Sec. 3.1, paragraph (r) is amended by adding at the end of the
paragraph the following:
Sec. 3.1 Definitions.
* * * * *
(r) * * * However, the Under Secretary for Benefits may establish,
by notice published in the Federal Register, exceptions to this rule,
using factors such as postmark or the date the claimant signed the
correspondence, when he or she determines that a natural or man-made
interference with the normal channels through which the Veterans
Benefits Administration ordinarily receives correspondence has resulted
in one or more Veterans Benefits Administration offices experiencing
extended delays in receipt of claims, information, or evidence from
claimants served by the affected office or offices to an extent that,
if not addressed, would adversely affect such claimants through no
fault of their own.
(Authority: 38 U.S.C. 501(a), 512(a), 5110)
* * * * *
[FR Doc. 04-16308 Filed 7-16-04; 8:45 am]
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