Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations 55169

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 20

RIN 2900–AI86

Board of Veterans’ Appeals: Rules of

Practice—Death of Appellant During

Pendency of Appeal

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

Rules of Practice of the Board of

Veterans’ Appeals (Board)—part of the

Department of Veterans Affairs (VA)—

relating to circumstances which arise

when an appellant dies while an appeal

is pending before the Board. These

amendments provide that when an

appellant dies while an appeal is

pending, the appeal will be dismissed,

and eliminate a provision which

permitted a deceased appellant’s

representative to continue to act with

respect to any appeal pending upon the

death of the appellant. These changes

are necessary because of a ruling made

by the United States Court of Veterans

Appeals.

DATES: Effective Date: These changes are

effective June 13, 1997, the date of the

court decision which requires the

changes.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Chief Counsel, Board

of Veterans’ Appeals, Department of

Veterans Affairs, 810 Vermont Avenue,

NW, Washington, DC 20420 (202–565–

5978).

SUPPLEMENTARY INFORMATION: The Board

is an administrative body that decides

appeals from denials of claims for

veterans’ benefits.

Death of appellant during pendency

of appeal. Previously, Rule 1302 (38

CFR 20.1302) provided that, when an

appeal is pending before the Board at

the time of the appellant’s death, the

Board could complete its action on the

issues properly before it without

application from the survivors. In Smith

(Irma) v. Brown, No. 95–898 (Vet. App.

June 13, 1997), the U.S. Court of

Veterans Appeals ruled that this

regulation is invalid because, pursuant

to its ruling in Landicho v. Brown, 7

Vet. App. 42, 47 (1994), a pending claim

for compensation benefits under chapter

11 of title 38, United States Code, does

not survive the claimant’s death. Thus,

when an appellant dies prior to the

promulgation of the Board’s decision

with regard to a compensation claim,

the Board no longer has jurisdiction of

the appeal, and the appeal must be

dismissed.

While it is clear that Rule 1302 is no

longer applicable to claims for disability

compensation, we have concluded that,

for purposes of that rule, there is no

meaningful distinction between

disability compensation and other

claims which might come before the

Board.

The Court’s ruling in Landicho that

compensation claims do not survive the

claimant was based in part upon the fact

that payments of disability

compensation cease the last day of the

month before the veteran’s death. 38

U.S.C. 5112(b)(1). We note that the same

statute applies to payments of pension

(38 U.S.C. ch. 15) and dependency and

indemnity compensation (38 U.S.C. ch.

13) in the case of a payee. Similarly, 38

U.S.C. 5113(a) provides that, in the case

of educational benefits (38 U.S.C. ch. 30,

31, 32, 34 and 35 and 10 U.S.C. ch. 106),

effective dates—including

discontinuances based on a payee’s

death—are to correspond, to the extent

feasible, to those for disability

compensation.

The court in Landicho also found that

Congress established a procedure, under

the ‘‘accrued benefits’’ provisions of 38

U.S.C. 5121, for a qualified survivor to

carry on, to a limited extent, a deceased

veteran’s disability compensation claim

by submitting an application for accrued

benefits within one year after the

veterans’ death. Landicho, 7 Vet. App.

at 47. Similarly, we note that the law

provides these same ‘‘accrued benefit’’

rights to the same qualified survivors of

all payees who die entitled to periodic

benefits which remain unpaid.

Finally, we note the general rule that

a cause of action created by statute

generally does not survive unless its

survival is specifically provided for in

the statute itself or in another statute. 1

Am. Jur. 2d Abatement, Survival and

Revival § 62 (1994). There is no survival

statute other than section 5121 for any

veterans’ benefit which would come

before the Board.

In sum, we can find no meaningful

distinction between claims for disability

compensation and claims for other

benefits which would reach the Board

with respect to survivability.

Accordingly, we have amended Rule

1302 to provide that an appeal pending

before the Board of Veterans’ Appeals

when the appellant dies will be

dismissed.

Continuation of representation

following death of a claimant or

appellant. Previously, Rule 611 (38 CFR

20.611) provided in part that an

appellant’s representative may continue

to act with respect to any appeal

pending upon the death of the claimant

or appellant until such time as a final

decision has been promulgated by the

Board of Veterans’ Appeals. In Smith

(Irma) v. Brown, the Court of Veterans

Appeals ruled that this portion of Rule

611 is invalid because a pending

compensation claim does not survive

the claimant’s death and the Board has

no jurisdiction to decide a defunct

claim.

While the Court’s ruling—as with its

ruling with respect to Rule 1302—is

technically limited to claims for

disability compensation, we conclude,

for the reasons stated above, that the

ruling should apply to all matters which

come before the Board. Accordingly, we

have amended Rule 611 to delete the

invalid sentence.

We have also modified the

‘‘authority’’ citations in each rule to

include a reference to the court

decision. 38 U.S.C. 501(b).

This final rule concerns an

interpretive rule and also concerns

agency policy, procedure or practice.

Consequently, pursuant to 5 U.S.C. 553,

the final rule is exempt from notice and

comment requirements.

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 rule will

affect only claims processing by VA and

will not affect small businesses.

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

this final rule is exempt from the initial

and final regulatory flexibility analyses

requirements of §§ 603 and 604. In

addition, since no notice of proposed

rule making is required in connection

with the adoption of this final rule, no

regulatory flexibility analysis is required

under the Regulatory Flexibility Act.

List of Subjects in 38 CFR Part 20

Administrative practice and

procedure, Claims, Veterans.

Approved: October 8, 1997.

Hershel W. Gober,

Acting Secretary of Veterans Affairs.

For the reasons set out in the

preamble, 38 CFR part 20 is amended as

set forth below:

PART 20—BOARD OF VETERANS’

APPEALS: RULES OF PRACTICE

1. The authority citation for part 20

continues to read as follows:

Authority: 38 U.S.C. 501(a).

Subpart G—Representation

2. In subpart G, § 20.611 is revised to

read as follows:
55170 Federal Register / Vol. 62, No. 205 / Thursday, October 23, 1997 / Rules and Regulations

§ 20.611 Rule 611. Continuation of

representation following death of a claimant

or appellant.

A recognized organization, attorney,

agent, or person properly designated to

represent a claimant or appellant will be

recognized as the representative of his

or her survivors for a period of one year

following the death of the claimant or

appellant. The provisions of this section

do not apply to any survivor who has

appointed another representative in

accordance with these rules or who has

indicated in writing that he or she does

not wish to be represented by the

claimant’s or appellant’s representative.

Written notice that a survivor does not

wish to be represented by the claimant’s

or appellant’s representative will be

effective when received by the agency of

original jurisdiction or, if the case has

been certified to the Board for appellate

review, by the Board of Veterans’

Appeals.

(Authority: 38 U.S.C. 5902–5904)

Subpart N—Miscellaneous

3. In subpart N, § 20.1302 is revised

to read as follows:

§ 20.1302 Rule 1302. Death of appellant

during pendency of appeal.

An appeal pending before the Board

of Veterans’ Appeals when the appellant

dies will be dismissed.

(Authority: 38 U.S.C. 7104(a))

[FR Doc. 97–28059 Filed 10–22–97; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 52

[MN54–01–7279a; FRL–5913–3]

Approval and Promulgation of

Implementation Plan: Minnesota

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The United States

Environmental Protection Agency (EPA)

approves Minnesota’s 1993 periodic

carbon monoxide (CO) emission

inventory. The inventory was submitted

by the State of Minnesota to satisfy a

Federal requirement that those States

containing CO nonattainment areas

(NAA’s) classified moderate and serious

submit a revised emission inventory

(i.e., from the 1990 base year inventory)

at the end of each 3 year period

thereafter, until the area is redesignated

to attainment. It is an inventory of

actual CO season emissions from all

sources, in accordance with EPA

guidance.

The geographic area covered in the

1993 periodic CO emission inventory

includes counties of the Twin Cities

seven county metropolitan area (Anoka,

Carver, Dakota, Hennepin, Ramsey,

Scott, and Washington), and Wright

County. The rationale for this approval

is set forth in this final rule; additional

information is available at the address

indicated below in the supporting

Technical Support Document (TSD).

Elsewhere in this Federal Register, EPA

is proposing approval and soliciting

comment on this action; if adverse

comments are received, EPA will

withdraw the direct final rulemaking

and address the comments received in

a new final rule; otherwise no further

rulemaking will occur on this action.

DATES: This final rule will be effective

Decmeber 22, 1997 unless substantive

adverse comments not previously

addressed by the State or USEPA are

received by Novmeber 24, 1997. If the

effective date is delayed, timely notice

will be published in the Federal

Register.

ADDRESSES: Written comments may be

mailed to Carlton T. Nash, Chief,

Regulation Development Section, Air

Programs Branch (AR–18J), United

States Environmental Protection

Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois, 60604.

Copies of the material submitted by the

Minnesota Pollution Control Agency

may be examined during normal

business hours at the same location.

FOR FURTHER INFORMATION CONTACT:

Charles Hatten at (312) 886–6031.

SUPPLEMENTARY INFORMATION:

Background

Under the Clean Air Act as amended

(including the 1990 Amendments)(the

Act), States have the responsibility to

inventory emissions contributing to the

National Ambient Air Quality Standards

nonattainment, to track these emissions

over time, and to ensure that control

strategies are being implemented that

reduce emissions and move areas

towards attainment. The Act required

States with moderate and serious CO

nonattainment areas to initially submit

a base year CO inventory that

represented actual emissions during the

peak CO season by November 15, 1992.

This base year inventory was for

calendar year 1990. Moderate and

serious CO nonattainment areas were

also required to submit a revised

emissions inventory periodically. The

submittal of the first periodic emissions

inventory is required no later than

September 30, 1995, and every 3 years

thereafter until the area is redesignated

to attainment. The 1990 base year

inventory is the primary inventory from

which the periodic inventories are

derived. Further information on these

inventories and their purpose can be

found in the document ‘‘Emission

Inventory Requirements for Carbon

Monoxide State Implementation Plans,’’

U.S. Environmental Protection Agency,

Office of Air Quality Planning and

Standards, Research Triangle Park, NC,

March 1991.

The air quality planning requirements

for CO nonattainment areas are set out

in section 187 of Title I of Clean Air Act

(the Act). Under section 187(a)(5) of the

Act, for those States containing areas

designated nonattainment for CO, and

classified moderate or serious, a revised

emission inventory (i.e., from the 1990

base year inventory) must be submitted

at the end of each 3 year period

thereafter, until the area is redesignated

to attainment. The State’s submittal

must include a comprehensive,

accurate, and current inventory of actual

CO season emissions from all sources.

Stationary point, area, and on-road and

off-road mobile sources are to be

included in the inventory. This first

periodic inventory is for calendar year

1993. The periodic inventory is to

address actual CO emissions for the area

during the peak CO season. The peak

CO season should reflect the months

when peaks CO air quality

concentrations occur. For many, but not

all areas of the country, the peak CO

season will be in the winter-time

months. For areas where winter is the

peak CO season, the 1993 periodic

inventory will include the winter

months that begin in 1992 and extend

into 1993 (e.g., December 1992 through

January-February 1993). Available

guidance for preparing emission

inventories is provided in the General

Preamble (57 FR 13498, April 16, 1992).

Emission inventories are first

reviewed under the completeness

criteria established under section

110(k)(C) of the Act (56 FR 42216,

August 26, 1991). According to section

110(k)(1)(C) if a submittal does not meet

the completeness criteria, ‘‘the State

shall be treated as not having made the

submission.’’ Under section 179(a)(1)

and 110(c)(1), a finding by EPA that a

submittal is incomplete is one of the

actions that initiates the sanctions and

Federal Implementation Plan.

Review of State 1993 CO Periodic

Emission Inventory (PEI)

I. Procedural Background

The approach to developing the 1993

PEI should be to require a rigorous