75498 Federal Register / Vol. 88, No. 212 / Friday, November 3, 2023 / Rules and Regulations 

Dated: October 27, 2023. 

J.A. Stockwell, 

Captain, U.S. Coast Guard, Captain of the 

Port, Sector Virginia. 

[FR Doc. 2023–24304 Filed 11–2–23; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AR44 

Presumptive Service Connection for 

Rare Respiratory Cancers Due to 

Exposure to Fine Particulate Matter 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This rulemaking adopts as 

final, without changes, an interim final 

rule amending the Department of 

Veterans Affairs (VA) adjudication 

regulations to establish presumptive 

service connection for nine rare 

respiratory cancers in association with 

presumed exposure to fine particulate 

matter. These presumptions apply to 

Veterans with a qualifying period of 

service, i.e., who served on active 

military, naval, or air service in the 

Southwest Asia theater of operations 

during the Persian Gulf War (hereinafter 

Gulf War), from August 2, 1990, 

onward, as well as in Afghanistan, 

Syria, Djibouti, or Uzbekistan, on or 

after September 19, 2001, during the 

Gulf War. This rulemaking implements 

a decision by the Secretary of Veterans 

Affairs that determined there is 

sufficient evidence to support these 

cancers as presumptive based on 

exposure to fine particulate matter 

during service in the Southwest Asia 

theater of operations, Afghanistan, 

Syria, Djibouti, or Uzbekistan during 

certain periods and the subsequent 

development of the following rare 

respiratory cancers: squamous cell 

carcinoma (SCC) of the larynx, SCC of 

the trachea, adenocarcinoma of the 

trachea, salivary gland-type tumors of 

the trachea, adenosquamous carcinoma 

of the lung, large cell carcinoma of the 

lung, salivary gland-type tumors of the 

lung, sarcomatoid carcinoma of the 

lung, and typical and atypical carcinoid 

of the lung. The intended effect of this 

rulemaking is to ease the evidentiary 

burden of this population of Veterans 

who file claims with VA for these nine 

rare respiratory cancers. 

DATES: 

Effective date: This rule is effective 

November 3, 2023. 

Applicability date: The provisions of 

this final rule shall apply to all 

applications for service connection for 

squamous cell carcinoma (SCC) of the 

larynx, SCC of the trachea, 

adenocarcinoma of the trachea, salivary 

gland-type tumors of the trachea, 

adenosquamous carcinoma of the lung, 

large cell carcinoma of the lung, salivary 

gland-type tumors of the lung, 

sarcomatoid carcinoma of the lung, and 

typical and atypical carcinoid of the 

lung based on service in the Southwest 

Asia theater of operations during the 

Gulf War, from August 2, 1990, onward, 

as well as Afghanistan, Syria, Djibouti, 

or Uzbekistan, on or after September 19, 

2001, during the Gulf War, received by 

VA on or after April 26, 2022, or that 

were pending before VA, the United 

States Court of Appeals for Veterans 

Claims, or the United States Court of 

Appeals for the Federal Circuit on April 

26, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Bryant Coleman, Regulations Analyst; 

Robert Parks, Chief, Regulations Staff 

(211), Compensation Service (21C), 810 

Vermont Avenue NW, Washington, DC, 

(202) 461–9700. (This is not a toll-free 

telephone number.) 

SUPPLEMENTARY INFORMATION: On April 

26, 2022, VA published an interim final 

rule at 87 FR 24421, to amend its 

adjudication regulations to establish 

presumptive service connection for nine 

rare respiratory cancers in association 

with presumed exposure to fine 

particulate matter. These presumptions 

apply to Veterans with a qualifying 

period of service, i.e., who served on 

active military, naval, or air service in 

the Southwest Asia theater of operations 

during the Gulf War, from August 2, 

1990, onward, as well as in Afghanistan, 

Syria, Djibouti, or Uzbekistan, on or 

after September 19, 2001, during the 

Gulf War. The 60-day comment period 

ended on June 27, 2022. 

VA received nine comments from 

interested individuals and 

organizations. The comments are 

discussed below under the appropriate 

headings. VA made no changes based on 

comments received. However, we note 

that changes made to § 3.320 in the final 

rule for RIN 2900–AR25 are carried 

forward here and continue to remain in 

effect. Based on the rationale set forth in 

the interim final rule and in this final 

rule, VA adopts the provisions of the 

interim final rule as a final rule without 

change. 

Confusion Regarding Qualifying 

Service Dates 

VA received three comments that 

expressed confusion regarding whether 

service in the Southwest Asia theater of 

operations during the first Gulf War is 

included under the definition of the 

phrase qualifying period of service. VA 

agrees with these comments that the 

rulemaking could have caused some 

confusion, and acknowledges that 

additional clarity is needed. So, to 

clarify, as currently written, the rule 

applies to those who served in Desert 

Shield or Desert Storm as part of the 

Persian Gulf War from August 2,1990 to 

February 28, 1991. We note that the 

definition of qualifying period of service 

contained in paragraph (a)(5)(i) refers to 

§ 3.2(i), which defines ‘‘Persian Gulf 

War’’ as: ‘‘August 2, 1990, through date 

to be prescribed by Presidential 

proclamation or law.’’ However, VA 

makes no changes based on these 

comments because this issue was 

addressed in the final rule for RIN 

2900–AR25, which changes have been 

carried forward here and continue to 

remain in effect. 

General Comments 

One commenter expressed general 

support for the rulemaking. VA thanks 

the commenter for their view. VA makes 

no changes based on this comment. 

VA received two comments that 

addressed time frames and locations 

that qualify for the presumption of 

exposure contained in § 3.320. In 

particular, one commenter stated that he 

was on an aircraft carrier in the theater 

of Southwest Asia in July of 1987. He 

went on to state that ‘‘[a]ll Military 

Service-members should qualify for all 

exposures during active duty in this 

theater of operations.’’ Another 

commenter asked ‘‘is this related to 

burn pits? If so, why are you just making 

this available to only veterans who 

served for that time period?’’ The 

commenter went on to state that they 

served in Beirut, Lebanon in 1982–1983 

and were exposed to burning human 

waste during that time. While VA 

sympathizes with these commenters, 

VA’s rulemaking establishes 

presumptive service connection for nine 

rare respiratory cancers in association 

with presumed exposure to fine 

particulate matter; it does not address 

the locations or periods of service that 

qualify for the presumption of exposure 

to fine particulate matter. Thus, these 

comments are outside the scope of the 

present rulemaking. 

Additionally, we note that the 

Secretary has made the decision to limit 

these presumptive conditions to a 

timeframe and locations during which 

VA has evidence of relevant levels of 

fine particulate matter in the air. When 

VA created the presumption of exposure 

to fine particulate matter in 38 CFR 

3.320, it was based on scientific and 

medical studies that focused on the 


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Federal Register / Vol. 88, No. 212 / Friday, November 3, 2023 / Rules and Regulations 75499 

respiratory effects of fine particulate 

matter for Veterans who served in the 

Southwest Asia theater of operations, 

Afghanistan, Syria, Djibouti, and 

Uzbekistan during the Gulf War. 

Veterans began reporting a variety of 

respiratory health issues during and 

after the initial Gulf War conflict, and as 

a result, Congress mandated that VA 

study the health outcomes of veterans 

deployed to the Southwest Asia theater 

of operations. VA then requested the 

National Academies of Sciences, 

Engineering, and Medicine (NASEM) to 

study the evidence regarding respiratory 

health outcomes in veterans of the 

Southwest Asia conflicts. The results of 

that study formed the basis for this 

rulemaking. As service prior to the Gulf 

War was not considered in these 

studies, it cannot be included as part of 

the qualifying timeframe under 38 CFR 

3.320. 

While this rulemaking is based on 

current medical and scientific evidence 

related to the respiratory health effects 

of fine particulate matter on Veterans 

who served during the Gulf War, VA 

will continue to review new scientific 

evidence as it develops relating to other 

exposures and to all health effects 

resulting from exposure to fine 

particulate matter. This rulemaking does 

not limit the future establishment of 

presumptive service connection for 

conditions related to respiratory or other 

body systems, or the establishment of 

presumptions of exposure for service in 

other locations or during other time 

frames. Additionally, VA encourages all 

Veterans who believe that they are 

entitled to VA compensation to file a 

claim with their local VA regional 

office. VA makes no change to the final 

rule based on the comment. 

One commenter reported that they 

had filed 3 intent letters and had not 

received a response. The commenter 

went on to report that they had been 

turned down for compensation in the 

past. VA’s rulemaking establishes 

presumptive service connection for nine 

rare respiratory cancers in association 

with presumed exposure to fine 

particulate matter. This comment, 

which relates to an individual case, is 

outside the scope of the present 

rulemaking. However, VA encourages 

all Veterans who believe that they are 

entitled to VA compensation to file a 

claim with their local VA regional 

office. VA makes no change to the final 

rule based on the comment. 

One commenter stated that her 

husband served in the US Army and 

while serving he died of squamous cell 

carcinoma of the larynx. While VA 

sympathizes with this commenter, VA’s 

rulemaking establishes presumptive 

service connection for nine rare 

respiratory cancers in association with 

presumed exposure to fine particulate 

matter. This comment refers to a 

specific case, which is outside the scope 

of the present rulemaking. However, VA 

encourages all Veterans and dependents 

who believe that they are entitled to VA 

compensation to file a claim with their 

local VA regional office. VA makes no 

change to the final rule based on the 

comment. 

Another commenter objected to the 

rulemaking because it did not cover all 

diseases and disabilities caused by open 

air burn pits or the chemical 

contamination in Gulf War I. 

Additionally, the commenter stated that 

the ‘‘interim final rule does not clearly 

define the provisions attaching to Gulf 

War I. Including coverage dates would 

eliminate any possible confusion.’’ As 

noted above, while this rulemaking is 

based on current medical and scientific 

evidence related to the respiratory 

health effects of fine particulate matter 

on Veterans who served during the Gulf 

War, VA will continue to review new 

scientific evidence as it develops 

relating to other exposures and to all 

health effects resulting from exposure to 

fine particulate matter. This rulemaking 

does not limit the future establishment 

of presumptive service connection for 

conditions related to respiratory or other 

body systems, or the establishment of 

presumptions of exposure for service in 

other locations or during other time 

frames. Also, the potential confusion 

regarding service during the first Gulf 

War was addressed in the final rule for 

RIN 2900–AR25, which changes have 

been carried forward here and continue 

to remain in effect. VA makes no change 

to the final rule based on the comment. 

Further, we again note that changes 

made to § 3.320 in the final rule for RIN 

2900–AR25 are carried forward here and 

continue to remain in effect. 

Additionally, provisions of the Sergeant 

First Class Heath Robinson Honoring 

our Promise to Address Comprehensive 

Toxics Act of 2022, Public Law 117– 

168, relevant to this regulation will be 

the subject of separate and future 

rulemaking. 

Administrative Procedure Act 

This document affirms the 

amendment made by the interim final 

rule that is already in effect. The 

Secretary concluded that, pursuant to 5 

U.S.C. 553(b)(B) and (d)(3), there was 

good cause to publish this rule without 

prior opportunity for public comment 

and good cause to publish this rule with 

an immediate effective date. Delay in 

the implementation of this rule would 

have been impracticable, unnecessary, 

and contrary to public interest, 

particularly to Veterans. 

Executive Orders 12866, 13563, and 

14094 

Executive Order 12866 (Regulatory 

Planning and Review) directs agencies 

to assess the costs and benefits of 

available regulatory alternatives and, 

when regulation is necessary, to select 

regulatory approaches that maximize 

net benefits (including potential 

economic, environmental, public health 

and safety effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

14094 (Executive Order on Modernizing 

Regulatory Review) supplements and 

reaffirms the principles, structures, and 

definitions governing contemporary 

regulatory review established in 

Executive Order 12866 of September 30, 

1993 (Regulatory Planning and Review), 

and Executive Order 13563 of January 

18, 2011 (Improving Regulation and 

Regulatory Review). The Office of 

Information and Regulatory Affairs has 

determined that this rulemaking is not 

a significant regulatory action under 

Executive Order 12866, as amended by 

Executive Order 14094. The Regulatory 

Impact Analysis associated with this 

rulemaking can be found as a 

supporting document at 

www.regulations.gov. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities as they are 

defined in the Regulatory Flexibility Act 

(5 U.S.C. 601–612). The certification is 

based on the fact that no small entities 

or businesses determine service 

connection or the rating criteria, or 

assign evaluations for disability claims. 

Therefore, pursuant to 5 U.S.C. 605(b), 

the initial and final regulatory flexibility 

analysis requirements of sections 603 

and 604 do not apply. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

(adjusted annually for inflation) in any 

one year. This final rule will have no 


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75500 Federal Register / Vol. 88, No. 212 / Friday, November 3, 2023 / Rules and Regulations 

1EPA notes that the April 14, 2021, submission 

was received under a cover letter dated April 13, 

2021. For clarity, throughout this document EPA 

will refer to the April 14, 2021, submission by its 

cover letter date of April 13, 2021. 

2On April 13, 2021, North Carolina provided 

multiple SIP revisions related to other North 

Carolina SIP-approved rules. These SIP revisions 

are not addressed in this document. EPA will act 

or has acted on those SIP revisions in separate 

rulemakings. 

3EPA will not act on Rule 02D .0503, Particulates 

from Fuel Burning Indirect Heat Exchangers, since 

this section was withdrawn from EPA consideration 

in a letter dated January 17, 2023, which is in the 

docket of this action. 

4See 42 U.S.C. 7410(l). 

such effect on State, local, and tribal 

governments, or on the private sector. 

Paperwork Reduction Act (PRA) 

This final rule contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act of 

1995 (44 U.S.C. 3501–3521). 

Assistance Listing 

The Assistance Listing numbers and 

titles for this rule are 64.101, Burial 

Expenses Allowance for Veterans; 

64.102, Compensation for ServiceConnected Deaths for Veterans’ 

Dependents; 64.105, Pension to 

Veterans, Surviving Spouses, and 

Children; 64.109, Veterans 

Compensation for Service-Connected 

Disability; and 64.110, Veterans 

Dependency and Indemnity 

Compensation for Service-Connected 

Death. 

Congressional Review Act 

Pursuant to Subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (known as the 

Congressional Review Act) (5 U.S.C. 801 

et seq.), the Office of Information and 

Regulatory Affairs designated this rule 

as not a major rule, as defined by 5 

U.S.C. 804(2). 

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, and Veterans. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, signed and approved 

this document on August 24, 2023, and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. 

Jeffrey M. Martin, 

Assistant Director, Office of Regulation Policy 

& Management, Office of General Counsel, 

Department of Veterans Affairs. 

PART 3—ADJUDICATION 

■ The interim final rule amending 38 

CFR part 3 which was published at 87 

FR 24421 on April 26, 2022, is adopted 

as final without change. 

[FR Doc. 2023–24195 Filed 11–2–23; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2022–0391; FRL–11368– 

02–R4] 

Air Plan Approval; North Carolina; 

Revisions to Miscellaneous Particulate 

Matter Rules 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is approving a State 

Implementation Plan (SIP) revision 

submitted by the State of North Carolina 

through the North Carolina Division of 

Air Quality (NCDAQ) via a letter dated 

April 13, 2021. The SIP revision seeks 

to modify the State’s emission control 

standards by amending several air 

quality rules and removing a redundant 

rule for electric utility boilers. EPA is 

approving these changes pursuant to the 

Clean Air Act (CAA or Act). 

DATES: This rule is effective December 4, 

2023. 

ADDRESSES: EPA has established a 

docket for this action under Docket 

Identification No. EPA–R04–OAR– 

2022–0391. All documents in the docket 

are listed on the www.regulations.gov 

website. Although listed in the index, 

some information may not be publicly 

available, i.e., Confidential Business 

Information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the Air Regulatory Management Section, 

Air Planning and Implementation 

Branch, Air and Radiation Division, 

U.S. Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW, Atlanta, 

Georgia 30303–8960. EPA requests that 

if at all possible, you contact the person 

listed in the FOR FURTHER INFORMATION

CONTACT section to schedule your 

inspection. The Regional Office’s 

official hours of business are Monday 

through Friday 8:30 a.m. to 4:30 p.m., 

excluding Federal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Pearlene Williams-Miles, Multi-Air 

Pollutant Coordination Section, Air 

Planning and Implementation Branch, 

Air and Radiation Division, U.S. 

Environmental Protection Agency, 

Region 4, 61 Forsyth Street SW, Atlanta, 

GA 30303–8960. The telephone number 

is (404) 562–9144. Ms. Williams-Miles 

can also be reached via electronic mail 

at WilliamsMiles.Pearlene@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Overview 

EPA is approving a SIP revision 

submitted by North Carolina on April 

14, 2021,1 seeking to amend various air 

quality rules and to remove one rule 

from the North Carolina SIP.2

Specifically, the SIP revision addresses 

State regulations amended in 15A North 

Carolina Administrative Code (NCAC) 

Subchapter 02D. The submission 

includes changes to multiple rules in 

Sections .0400 and .0500 of Subchapter 

02D and the removal of Rule 02D .0536, 

Particulate Emissions from Electric 

Utility Boilers.3 To support the removal 

of Rule 02D .0536 from the SIP, the 

submission includes technical support 

materials to demonstrate that the 

removal of the rule would not interfere 

with any applicable requirement 

concerning attainment and reasonable 

further progress (RFP) or any other 

applicable requirement of the CAA.4

Through a notice of proposed 

rulemaking (NPRM) published on 

September 1, 2023 (88 FR 60424), EPA 

proposed to approve the April 13, 2021, 

submission. The details of North 

Carolina’s submission, which amends 

various air quality rules and removes 

Rule 02D .0536 from North Carolina’s 

SIP, as well as EPA’s rationale for 

approving the changes, are described in 

the September 1, 2023, NPRM. 

Comments on the September 1, 2023, 

NPRM were due on or before October 2, 

2023. No comments were received on 

the September 1, 2023, NPRM, adverse 

or otherwise. 

II. Incorporation by Reference 

In this document, EPA is finalizing 

regulatory text that includes 

incorporation by reference. In 

accordance with the requirements of 1 

CFR 51.5, and as discussed in Section 

I of this preamble, EPA is finalizing the 

incorporation by reference of the 

following air quality rules under 15A 


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