Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Rules and Regulations 89307 

Public Comment 

In response to our invitation in the 

proposed waiver and extension of the 

project period with funding, one party 

submitted comments. Although the 

commenter expressed strong support for 

the proposed waiver and the extension 

of the project period with funding, the 

discussion the commenter provided 

relates to the Innovation Rehabilitation 

Training grants, which fund projects 

that develop training products and 

programs in providing rehabilitation 

services to individuals with disabilities, 

rather than the Rehabilitation LongTerm Training grants, which are the 

subject of this notice, under which 

projects are funded to provide stipend 

support to scholars pursuing a degree or 

certificate in the field of rehabilitation 

counseling. 

Generally, we do not address 

technical and other minor changes or 

suggested changes the law does not 

authorize us to make under the 

applicable statutory authority. In 

addition, we do not address general 

comments that raise concerns not 

directly related to the proposed waiver 

and extension with funding. 

Final Waiver and Extension of the 

Project Period With Funding 

The Department believes aligning the 

projects’ period of performance for 

ALNs 84.129B, 84.129H, 84.129P, and 

84.129Q is in the best interest of the 

public, as the extension reduces 

financial and administrative burden by 

allowing the Department to conduct a 

single competition for ALNs 84.129B, 

84.129H, 84.129P and 84.129Q grants in 

FY 2025, with a five-year performance 

period that would run from October 1, 

2025, through September 30, 2030. 

Consequently, the Secretary waives 

the requirements in 34 CFR 75.250, 

which prohibit project periods 

exceeding five years, as well as the 

requirements in 34 CFR 75.261(a) and 

(c)(2), which allow the extension of a 

project period only if the extension does 

not involve the obligation of additional 

Federal funds. This waiver allows the 

Department to issue a one-year FY 2024 

continuation award to each of the 51 

currently funded FY 2019 84.129B, 

84.129H, 84.129P, and 84.129Q projects. 

Any activities carried out during the 

year of this continuation award must be 

consistent with the scope, goals, and 

objectives of the grantees’ applications 

as approved in the FY 2019 

competition. The requirements for 

continuation awards are set forth in 34 

CFR 75.253. 

Regulatory Flexibility Act Certification 

The Secretary certifies that the 

proposed waiver and extension of the 

project period with funding would not 

have a significant economic impact on 

a substantial number of small entities. 

The only entities that would be affected 

by the proposed waiver and extension of 

the project period are the 51 grants that 

were awarded in FY 2019 under ALNs 

84.129B, 84.129H, 84.129P, and 

84.129Q. 

The Secretary certifies that the 

proposed waiver and extension of the 

project period with funding would not 

have a significant economic impact on 

these entities because the extension of 

an existing project period imposes 

minimal compliance costs, and the 

activities required to support the 

additional year of funding would not 

impose additional regulatory burdens or 

require unnecessary Federal 

supervision. 

Paperwork Reduction Act of 1995 

This final waiver and extension of the 

project period with funding does not 

contain any information collection 

requirements. 

Intergovernmental Review 

These programs are subject to 

Executive Order 12372 and the 

regulations in 34 CFR part 79. One of 

the objectives of the Executive order is 

to foster an intergovernmental 

partnership and a strengthened 

federalism. The Executive order relies 

on processes developed by State and 

local governments for coordination and 

review of proposed Federal financial 

assistance. 

This document provides final 

notification of our specific plans and 

actions for these programs. 

Accessible Format: On request to the 

program contact person listed under 

FURTHER INFORMATION CONTACT, 

individuals with disabilities can obtain 

this document in an accessible format. 

The Department will provide the 

requestor with an accessible format that 

may include Rich Text Format (RTF) or 

text format (txt), a thumb drive, an MP3 

file, braille, large print, audiotape, or 

compact disc, or other accessible format. 

Electronic Access to This Document: 

The official version of this document is 

the document published in the Federal 

Register. You may access the official 

edition of the Federal Register and the 

Code of Federal Regulations at 

www.govinfo.gov. At this site you can 

view this document, as well as all other 

documents of this Department 

published in the Federal Register, in 

text or Portable Document Format 

(PDF). To use PDF you must have 

Adobe Acrobat Reader, which is 

available free at the site. 

You may also access documents of the 

Department published in the Federal 

Register by using the article search 

feature at www.federalregister.gov. 

Specifically, through the advanced 

search feature at this site, you can limit 

your search to documents published by 

the Department. 

Dante ́ Allen, 

Commissioner, Rehabilitation Services 

Administration, Office of Special Education 

and Rehabilitative Services. 

[FR Doc. 2023–28490 Filed 12–26–23; 8:45 am] 

BILLING CODE 4000–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 4 

RIN 2900–AR51 

Exceptions to Applying the Bilateral 

Factor in VA Disability Calculations 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) adopts as final, without 

changes, an interim final rule that 

amended the regulation governing the 

bilateral factor for diseases and injuries 

of both arms, both legs, or paired 

skeletal muscles. 

DATES: Effective Date: This rule is 

effective December 27, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Howard McCuien, Jr., Regulations 

Analyst, VA Schedule for Rating 

Disabilities (VASRD) Regulations Staff 

(218A), Compensation Service, Veteran 

Benefits Administration, Department of 

Veterans Affairs, 810 Vermont Avenue 

NW, Washington, DC 20420, (202) 461– 

9700. (This is not a toll-free telephone 

number.) 

SUPPLEMENTARY INFORMATION: On April 

14, 2023, VA published the interim final 

rule in the Federal Register to allow VA 

adjudicators to exclude certain 

disabilities that would be calculated 

using the bilateral factor to determine 

the combined evaluation if, by their 

exclusion, a higher combined evaluation 

can be achieved. See 88 FR 22914. VA 

received one comment during the 60- 

day public comment period. The 

commenter agreed with VA’s 

amendment but offered two 

considerations for how VA implements 

it. 


ddrumheller on DSK120RN23PROD with RULES1
89308 Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Rules and Regulations 

I. Limiting Application of Regulation 

The commenter expressed concern 

that application of the bilateral factor 

rule may fail to maximize benefits at the 

80 percent combined evaluation level 

(in addition to the 90 percent level) and, 

in support of this assessment, cited the 

decision of the United States Court of 

Appeals for Veterans Claims (CAVC) in 

Wilburn v. McDonough, No. 22–5577, 

2023 WL 5217853 (Ct. Vet. App. Aug. 

15, 2023). This commenter suggested 

that since VA cannot guarantee that the 

anomaly described in the interim final 

rule is limited to the 90 percent to 100 

percent range, VA should apply this 

systemic fix to all cases where the 

bilateral factor has been or will be 

considered to ensure it has complied 

with the duty to maximize benefits as 

described in Wilburn. 

VA agrees that the application of the 

bilateral factor rule should not be 

limited to 90 percent combined 

evaluations. While the interim final rule 

stated that ‘‘it is only at the low 90- 

percent level where it may reduce a 

combined evaluation,’’ VA has since 

determined that there are limited 

scenarios where a combined 80-percent 

evaluation could be increased to 90 

percent. Nevertheless, the regulatory 

text of the bilateral factor rule does not 

limit its application to only 90 percent 

combined evaluations but will apply 

whenever ‘‘the combined evaluation is 

lower than what could be achieved by 

not including one or more bilateral 

disabilities in the bilateral factor 

calculation.’’ See 38 CFR 4.26(d). 

Therefore, no changes to the regulatory 

text are necessary, and the regulatory 

impact analysis of this final rule reflects 

the additional Veterans who are eligible 

for increased combined evaluations 

based on its application to Veterans at 

all possible combination levels. 

II. Liberalizing Law 

The commenter also suggested that 

VA should retroactively apply this 

regulatory amendment back to the 

original applicable effective date for 

each Veteran rather than the effective 

date of the rulemaking amending 38 

CFR 4.26, which is April 16, 2023. 

Specifically, the commenter contended 

that this regulatory amendment is not a 

‘‘liberalizing law’’ because it does not 

bring about a substantive change that 

creates a new or different entitlement as 

defined by Spencer v. Brown, 17 F.3d 

368, 372 (Fed. Cir. 1994). Instead, the 

commenter asserted that this 

amendment merely clarifies the proper 

application of the bilateral factor to both 

more accurately account for the full 

disability picture and to comply with 

VA’s duty to maximize benefits. The 

commenter further asserted that any 

instance in the past in which VA did 

not properly apply the bilateral factor 

(based on its now clarified application) 

and did not maximize benefits was a 

clear and unmistakable error; therefore, 

VA should correct this error back to the 

date it originally occurred. 

VA disagrees that this regulatory 

amendment merely clarified the proper 

application of the bilateral factor rule 

and that previous decisions were in 

error. The instructions for applying 

‘‘old’’ 38 CFR 4.26 (hereinafter referred 

to as the ‘‘prior bilateral factor rule’’) 

were unambiguously clear, and no 

clarification was necessary for applying 

them. The prior bilateral factor rule 

stated that whenever there was a partial 

disability or disabilities that affected 

both arms, both legs, or paired skeletal 

muscles, those partial disabilities ‘‘will 

be combined as usual, and 10 percent of 

this value will be added (i.e., not 

combined) before proceeding with 

further combinations, or converting to 

degree of disability.’’ The prior bilateral 

factor rule had no exceptions or other 

caveats that would have allowed claims 

processers to forego combining all 

partial disabilities, and it used the term 

‘‘will,’’ indicating an obligation to 

perform. Additionally, the prior 

bilateral factor rule did not include any 

provisions to disregard its instructions if 

a higher evaluation could be assigned. 

Conversely, there are many examples in 

38 CFR part 4 of provisions that allow 

claims processors to apply or disregard 

an instruction if doing so results in a 

higher evaluation. One such example is 

note 2 of 38 CFR 4.118, DC 7801, Burn 

scar(s) or scar(s) due to other causes, not 

of the head, face, or neck, that are 

associated with underlying soft tissue 

damage. The note directs the claims 

processor to separately evaluate each 

affected zone of the body and then 

combine each evaluation. However, it 

also states that the claims processor may 

combine all of the zones into a single 

evaluation if that would result in a 

higher evaluation. 

As such, this regulatory amendment 

was necessary to create an exception to 

the application of the prior bilateral 

factor rule. Because a regulatory 

amendment was necessary, retroactive 

application of its provisions is limited 

by 38 U.S.C. 5110(g), which states, in 

part, that ‘‘the effective date of such 

award or increase (pursuant to any Act 

or administrative issue) shall be fixed in 

accordance with the facts found but 

shall not be earlier than the effective 

date of the Act or administrative issue.’’ 

In addition to the public comment, a 

different organization identified the 

problem of certain Veterans receiving 

lower combined evaluations due to the 

application of the prior bilateral factor 

rule and brought it to VA’s attention 

before VA published the interim final 

rule on April 14, 2023. VA informed the 

organization that it was aware of this 

problem and was drafting a regulation to 

address it. During that discussion, the 

organization also inquired about 

whether VA could employ equitable 

relief as a basis for retroactive 

application of this regulatory 

amendment. VA has determined that it 

cannot apply equitable relief based on 

the application of the prior bilateral 

factor rule. Equitable relief provisions 

under 38 U.S.C. 503 only apply in cases 

where VA has made an administrative 

error or an erroneous determination. 

Since VA has always interpreted the use 

of the prior bilateral factor rule as 

mandatory without exception, previous 

evaluations using the prior bilateral 

factor rule were not in error. Therefore, 

38 U.S.C. 503 is not applicable. 

Furthermore, a clear and unmistakable 

error finding likewise would not be 

authorized with regard to claims already 

finally decided under the prior bilateral 

factor rule because VA’s decision would 

have been in accordance with the law as 

it existed at the time the claim was 

decided. 

While VA is committed to ensuring 

benefits are maximized to the full extent 

of the law, retroactive application is not 

authorized in this instance, as it is 

limited by statute and regulation. 

Accordingly, VA makes no changes 

based on this comment. 

Since VA makes no changes based on 

the comment received, this document 

adopts as a final rule the interim final 

rule published in the Federal Register 

on April 14, 2023, 88 FR 22914. 

Administrative Procedure Act 

VA has considered all relevant input 

and information contained in the 

comment submitted in response to the 

interim final rule (88 FR 22914) and, for 

the reasons set forth above, has 

concluded that no changes to the 

interim final rule are warranted. 

Accordingly, based upon the authorities 

and reasons set forth in the interim final 

rule, as supplemented by the additional 

reasons provided in this document in 

response to the comment received, VA 

is adopting the provisions of the interim 

final rule at 88 FR 22914 as a final rule 

without changes. 

Executive Orders 12866, 13563 and 

14094 

Executive Order (E.O.) 12866 

(Regulatory Planning and Review) 

directs agencies to assess the costs and 


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Federal Register / Vol. 88, No. 247 / Wednesday, December 27, 2023 / Rules and Regulations 89309 

1The Federal Civil Penalties Inflation Adjustment 

Act Improvements Act of 2015 (Section 701 of Pub. 

L.114–74) was signed into law on November 2, 

2015, and amended the Federal Civil Penalties 

Inflation Adjustment Act of 1990. 

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). E.O. 

13563 (Improving Regulation and 

Regulatory Review) emphasizes the 

importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility. E.O. 14094 (Executive Order 

on Modernizing Regulatory Review) 

supplements and reaffirms the 

principles, structures, and definitions 

governing contemporary regulatory 

review established in E.O. 12866 of 

September 30, 1993 (Regulatory 

Planning and Review), and E.O. 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 E.O. 12866, as 

amended by E.O. 14094. The Regulatory 

Impact Analysis associated with this 

rulemaking can be found as a 

supporting document at 

www.regulations.gov. 

Regulatory Flexibility Act (RFA) 

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 will have no 

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 the programs affected by this 

document are 64.104, Pension for NonService-Connected Disability for 

Veterans; 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 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 4 

Disability benefits. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, signed and approved 

this document on December 18, 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. 

Luvenia Potts, 

Regulation Development Coordinator, Office 

of Regulation Policy & Management, Office 

of General Counsel, Department of Veterans 

Affairs. 

■ For the reasons stated in the preamble, 

VA adopts as final the interim final rule 

published on April 14, 2023, at 88 FR 

22914. 

[FR Doc. 2023–28241 Filed 12–26–23; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 19 

[FRL–5906.8–01–OECA] 

Civil Monetary Penalty Inflation 

Adjustment 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is promulgating this final 

rule to adjust the level of the maximum 

(and minimum) statutory civil monetary 

penalty amounts under the statutes the 

EPA administers. This action is 

mandated by the Federal Civil Penalties 

Inflation Adjustment Act of 1990, as 

amended through the Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015 (‘‘the 2015 

Act’’). The 2015 Act prescribes a 

formula for annually adjusting the 

statutory maximum (and minimum) 

amount of civil monetary penalties to 

reflect inflation, maintain the deterrent 

effect of statutory civil monetary 

penalties, and promote compliance with 

the law. The rule does not establish 

specific civil monetary penalty amounts 

the EPA may seek in particular cases. 

The EPA calculates those amounts, as 

appropriate, based on the facts of 

particular cases and applicable agency 

penalty policies. The EPA’s civil 

penalty policies, which guide 

enforcement personnel on how to 

exercise the EPA’s discretion within 

statutory penalty authorities, take into 

account a number of fact-specific 

considerations, e.g., the seriousness of 

the violation, the violator’s good faith 

efforts to comply, any economic benefit 

gained by the violator as a result of its 

noncompliance, and the violator’s 

ability to pay. 

DATES: This final rule is effective 

December 27, 2023. 

FOR FURTHER INFORMATION CONTACT: 

David Smith-Watts, Office of Civil 

Enforcement, Office of Enforcement and 

Compliance Assurance, Mail Code 

2241A, Environmental Protection 

Agency, 1200 Pennsylvania Avenue 

NW, Washington, DC 20460, telephone 

number: (202) 564–4083; smithwatts.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The 2015 Act 1 requires each Federal 

agency to adjust the statutory civil 

monetary penalties under the laws 

implemented by that agency annually, 

to account for inflation. Section 4 of the 

2015 Act requires each Federal agency 

to publish these adjustments by January 

15 of each year. The purpose of the 2015 

Act is to maintain the deterrent effect of 

civil monetary penalties by translating 

originally enacted statutory civil penalty 

amounts to today’s dollars and rounding 

statutory civil penalties to the nearest 

dollar. 

Since January 15, 2017, the EPA has 

made seven annual adjustments: (1) on 

January 12, 2017, effective on January 

15, 2017 (82 FR 3633); (2) on January 10, 

2018, effective on January 15, 2018 (83 

FR 1190); (3) on February 6, 2019, 

effective the same day (84 FR 2056), 

with a subsequent correction on 

February 25, 2019 (84 FR 5955); (4) on 

January 13, 2020, effective the same day 

(85 FR 1751); (5) on December 23, 2020, 

effective the same day (85 FR 83818); (6) 

on January 12, 2022, effective the same 

day (87 FR 1676); and (7) on January 6, 

2023, effective the same day (88 FR 

986). This rule implements the eighth 

annual adjustment mandated by the 

2015 Act. 


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