Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Proposed Rules 9803 

directions given to them by the COTP or 

the COTP’s designated representative. 

(d) Enforcement period. The safety 

zone described in paragraph (a) of this 

section would be enforced by the COTP 

only upon notice. Notice of enforcement 

by the COTP will be provided prior to 

execution of the exercise by all 

appropriate means, in accordance with 

33 CFR 165.7(a). Such means will 

include publication of a Notification of 

Enforcement in the Federal Register, 

and by the presence of military 

helicopter with the insignia of the U.S. 

Army, the U.S. Air Force, the U.S. Navy, 

or the U.S. Marine Corps, and may also 

include Broadcast Notice to Mariners, 

Local Notice to Mariners, or both. 

Dated: January 31, 2024. 

C.R. Cederholm, 

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

Port Sector Miami. 

[FR Doc. 2024–02703 Filed 2–9–24; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AR10 

Updating VA Adjudication Regulations 

for Disability or Death Benefit Claims 

Related to Exposure to Certain 

Herbicide Agents 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend its 

adjudication regulations relating to 

exposure to certain herbicide agents to 

incorporate the provisions of the Blue 

Water Navy Vietnam Veterans Act of 

2019 (the BWN Act), specifically by 

extending the presumed area of 

exposure to the offshore waters of the 

Republic of Vietnam, defining the 

boundaries of the offshore waters, 

expanding the date ranges for 

presumption of exposure in the Korean 

Demilitarized Zone (DMZ) and 

establishing entitlement to spina bifida 

benefits for children of certain Veterans 

who served in Thailand. This rule also 

proposes to codify a presumption of 

exposure to certain herbicide agents for 

locations published on the Department 

of Defense’s (DoD) record of locations 

where certain herbicide agents were 

used, tested or stored outside of 

Vietnam. In addition, this rule also 

proposes to codify longstanding 

procedures for searching for payees 

entitled to class action settlement 

payments aligned with Nehmer v. U.S. 

Department of Veterans Affairs and 

proposes to apply the definition of the 

Republic of Vietnam’s offshore waters to 

claims for presumptive service 

connection for non-Hodgkin’s 

lymphoma. VA is also proposing to 

amend its adjudication regulations 

concerning presumptive service 

connection for diseases associated with 

exposure to certain herbicide agents. 

This amendment implements provisions 

of the Fiscal Year (FY) 2021 National 

Defense Authorization Act (NDAA), 

which added bladder cancer, 

hypothyroidism and Parkinsonism as 

medical conditions eligible for 

presumptive service connection. 

Finally, this rulemaking proposes to 

implement certain provisions of the 

Sergeant First Class Heath Robinson 

Honoring our Promise to Address 

Comprehensive Toxics Act of 2022 

(PACT Act), specifically by recognizing 

hypertension and monoclonal 

gammopathy of undetermined 

significance (MGUS) as diseases eligible 

for a presumption of exposure to certain 

herbicides and adding new locations as 

eligible for a presumption of exposure to 

certain herbicides during specific 

timeframes. 

DATES: Comments must be received on 

or before [insert date 60 days after date 

of publication in the Federal Register]. 

ADDRESSES: Comments must be 

submitted through www.regulations.gov. 

Except as provided below, comments 

received before the close of the 

comment period will be available at 

www.regulations.gov for public viewing, 

inspection, or copying, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post the comments 

received before the close of the 

comment period on 

www.regulations.gov as soon as possible 

after they have been received. VA will 

not post on Regulations.gov public 

comments that make threats to 

individuals or institutions or suggest 

that the commenter will take actions to 

harm the individual. VA encourages 

individuals not to submit duplicative 

comments; however, we will post 

comments from multiple unique 

commenters even if the content is 

identical or nearly identical to other 

comments. Any public comment 

received after the comment period’s 

closing date is considered late and will 

not be considered in the final 

rulemaking. In accordance with the 

Providing Accountability Through 

Transparency Act of 2023, a 100 word 

Plain-Language Summary of this 

proposed rule is available at 

Regulations.gov, under RIN 2900–AR10. 

FOR FURTHER INFORMATION CONTACT: Jane 

Allen, Regulations Analyst; Robert 

Parks, Chief, Regulations Staff (211C), 

Compensation Service (21C), Veterans 

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: 

I. Background 

The spraying of herbicides as tactical 

defoliants during the Vietnam War 

began in 1962 and continued until 1971. 

Public concern over the military’s use of 

herbicides began to grow following 

requests by scientists to evaluate 

possible toxic effects of widespread 

herbicide spraying. To respond to 

public concern about possible long-term 

health effects of exposure to herbicides, 

Congress passed the Veterans’ Dioxin 

and Radiation Exposure Compensation 

Standards Act, Public Law 98–542. The 

Act required VA to create guidelines 

and criteria for deciding claims for 

benefits based on a Veteran’s exposure 

to herbicides during service in the 

Republic of Vietnam and established the 

first presumptions of service connection 

based on exposure to certain herbicides. 

The Act also established the Veterans’ 

Advisory Committee on Environmental 

Hazards to provide findings and 

evaluations regarding the scientific 

evidence related to possible adverse 

health hazards due to exposure to 

herbicides. 

The results of these studies prompted 

the Agent Orange Act of 1991, Public 

Law 102–4, codified in part at 38 U.S.C. 

1116. This Act established presumptive 

service connection for non-Hodgkins 

lymphoma, soft-tissue sarcoma (with 

certain exceptions) and chloracne or 

other consistent acneform diseases. In 

addition, the Act directed the VA to 

enter into an agreement with the 

National Academy of Sciences to review 

and evaluate the scientific evidence 

concerning the association between 

exposure to certain herbicide agents 

during service in the Republic of 

Vietnam and each disease suspected to 

be associated with such exposure. The 

Act further established guidelines for 

the evidentiary support needed to create 

new presumptions of service 

connection. The Act required that 

‘‘Whenever the Secretary determines, on 

the basis of sound medical and 

scientific evidence, that a positive 

association exists between (A) the 

exposure of humans to an herbicide 

agent, and (B) the occurrence of a 

disease in humans, the Secretary shall 

prescribe regulations providing that a 


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9804 Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Proposed Rules 

1National Academies of Sciences, Engineering, 

and Medicine. 2018. Veterans and Agent Orange: 

Update 11 (2018). Washington, DC: The National 

Academies Press. https://doi.org/10.17226/25137. 

presumption of service connection is 

warranted for that disease for the 

purposes of this section.’’ Public Law 

102–4, § 2(a). Since passage of the Act, 

Congress and VA have established 13 

additional presumptions of service 

connection based on exposure to certain 

herbicides. 

a. The BWN Act of 2019 

Prior to the BWN Act, VA interpreted 

the presumption of exposure to certain 

herbicide agents for service connection 

purposes under the Agent Orange Act of 

1991, codified in relevant part at 38 

U.S.C. 1116(a)(1), to require service 

within the borders of the Republic of 

Vietnam, either ‘‘boots on the ground’’ 

land-based service or service within the 

inland waterways. If there was evidence 

that a Veteran went ashore or docked in 

the Republic of Vietnam, however 

briefly, the Veteran would be entitled to 

the presumption of exposure. VA’s 

interpretation was upheld in court until 

2019. See Haas v. Peake, 525 F.3d 1168, 

1197 (Fed. Cir. 2008), cert. denied, 555 

U.S. 1149 (2009), overruled by Procopio 

v. Wilkie, 913 F.3d 1371, 1380 (Fed. Cir. 

2019) (en banc). In 2019, the U.S. Court 

of Appeals for the Federal Circuit held 

that Congress intended the term 

‘‘Republic of Vietnam’’ to include the 

‘‘territorial sea’’ of the Republic of 

Vietnam. The court ruled that by using 

the formal name of the country, ‘‘the 

Republic of Vietnam,’’ Congress referred 

to both its landmass and its 12 nautical 

mile territorial sea. Procopio, 913 F.3d 

at 1375. Vietnam’s offshore waters were 

not defined by statute, and the Federal 

Circuit rejected the distinction between 

service within the landmass and in the 

territorial waters when it invalidated the 

foot-on-land requirement for the Agent 

Orange presumptions. Id. at 1378. The 

court cited international legal 

authorities to support its holding but 

did not further attempt to define where 

the boundaries of the territorial sea of 

the Republic of Vietnam must be drawn 

beyond its holding regarding the 12 

nautical mile territorial sea. See id. at 

1375–76. While VA was working to 

implement the Procopio ruling, 

Congress enacted the BWN Act. The 

BWN Act provides a description and 

table of coordinates to define the 

Republic of Vietnam’s offshore waters. 

b. The NDAA of 2021 

On January 1, 2021, Congress enacted 

Public Law 116–283, the William M. 

(Mac) Thornberry National Defense 

Authorization Act for Fiscal Year 2021 

(NDAA). In relevant part, this law 

amended 38 U.S.C. 1116(a)(2) by adding 

bladder cancer, hypothyroidism and 

Parkinsonism to the list of conditions 

presumptively associated with exposure 

to certain herbicide agents. The 

amendment to 38 U.S.C. 1116(a) was 

based on the 2018 National Academies 

of Sciences, Engineering, and Medicine 

report, Veterans and Agent Orange: 

Update 11, which found limited or 

suggestive evidence of an association 

between exposure to certain herbicide 

agents and bladder cancer, 

hypothyroidism and Parkinsonism.1

c. The PACT Act 

On August 10, 2022, Congress enacted 

the PACT Act, Public Law 117–168, to 

improve access to VA benefits and 

health care for Veterans who were 

exposed to toxic substances during 

military service. Section 403 of the 

PACT Act amended section 1116 of title 

38, United States Code by adding new 

locations as eligible for a presumption 

of exposure to certain herbicide agents: 

Thailand (at any United States or Royal 

Thai base), Laos, Cambodia at Mimot or 

Krek, Kampong Cham Province, 

Johnston Atoll, Guam, and American 

Samoa, during certain timeframes. Prior 

to the PACT Act, the only location 

subject to a statuory presumption of 

exposure to certain herbicides was the 

Republic of Vietnam. Therefore, VA is 

proposing to add these additional 

locations to VA’s Part 3 Regulations at 

38 CFR 3.307. 

Section 404 of the PACT Act added 

hypertension and MGUS as diseases 

associated with exposure to certain 

herbicide agents under 38 U.S.C. 

1116(a)(2). Therefore, VA is proposing 

to add these diseases to 38 CFR 3.309, 

disease subject to presumptive service 

connection. 

II. Proposed Changes to § 3.307 

Diseases Associated With Exposure to 

Certain Herbicide Agents 

a. Amendments to § 3.307(a)(6) Based 

on the BWN Act of 2019 

38 CFR 3.307(a)(6) outlines the 

service requirements and other 

circumstances required for the 

presumption of exposure to certain 

herbicide agents to apply. 38 CFR 

3.307(a)(6)(iii) establishes a 

presumption of exposure to certain 

herbicide agents for Vietnam Veterans 

with active-duty service during a 

specific period. Prior to Procopio and 

the BWN Act, Veterans who served in 

the ‘‘offshore waters’’ were only 

presumed to have been exposed to 

certain herbicide agents if there was 

evidence that the conditions of their 

service involved duty or visitation in 

the Republic of Vietnam. VA proposes 

to amend 38 CFR 3.307(a)(6) to clarify 

that service in the offshore waters of the 

Republic of Vietnam—without an 

additional foot-on-land requirement—is 

considered service in Vietnam for the 

purpose of establishing presumption of 

in-service exposure to certain herbicide 

agents. Service in other locations will 

continue to constitute service in 

Vietnam if the conditions of service 

involved duty or visitation in the 

Republic of Vietnam. 

VA also proposes to amend 38 CFR 

3.307(a)(6) by adding the parameters of 

what constitutes ‘‘offshore waters’’ from 

the BWN Act. See 38 U.S.C. 1116A(d). 

The Act includes a list of geographic 

points with their names and coordinates 

of latitude and longitude which, when 

connected by a series of lines, create the 

baseline from which the 12 nautical 

miles that define the offshore waters of 

the Republic of Vietnam are measured. 

The BWN Act does not direct how the 

southwestern-most and northern-most 

points of the offshore waters are to be 

connected to land, which would be 

necessary to create a fully defined 

geographic area. To define the offshore 

water of the Republic of Vietnam, the 

law provides 11 geographic points 

located 12 miles seaward from the coast 

of the Republic of Vietnam. The law 

does not dictate how the end points 

connect to land. Initially, VA 

considered using straight lines to define 

where the end points connect to land. 

However, using a straight line to 

connect the westernmost point to land 

would bisect the southern tip of 

Vietnam’s Phu Quoc Island. VA now 

proposes to have this line include the 

entire island. This Veteran-centric 

approach would help avoid denials of 

service connection for Veterans who 

may have been exposed in the coastal 

and inland waters of Phu Quoc. Further, 

VA views the inclusion of the offshore 

waters of Phu Quoc island to be 

consistent with Congress’s intent that 

VA extend the presumption of inservice exposure to certain herbicide 

agents to all applicable BWN veterans in 

a ‘‘broad and comprehensive’’ manner. 

See H.R. Rep. No. 116–58, at 11 (2019) 

(discussing purpose of BWN Act vis-a`- 

vis Procopio). As such, VA proposes to 

include the offshore areas of Phu Quoc 

Island to ensure that veterans who 

served in the offshore waters 

surrounding Phu Quoc Island are 

entitled to the same presumption. 

VA proposes to define the southwest 

demarcation of the offshore waters as a 

line extending from where the border of 

Cambodia and the Republic of Vietnam 

meet the shoreline (10°30′54.42′′ N, 


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104°35′48.10′′ E), to the points described 

as Phu Quoc Extension points A 

through E and on to Hon Nhan Island, 

Tho Chu Archipelago Kien Giang 

Province. The northern demarcation is 

proposed to be described as a line from 

the mid-point of the Ben Hai River, 

which denotes the demilitarized zone 

between the former North Vietnam and 

the Republic of Vietnam (17°0′42.19′′ N, 

107°6′35.47′′ E), to the point described 

as Con Co Island, Binh Tri Thien 

Province. 

The proposed area that comprises the 

offshore waters of the Republic of 

Vietnam is designated solely for the 

purpose of determining presumption of 

in-service exposure to certain herbicide 

agents in order to establish entitlement 

to benefits under title 38 of the United 

States Code. The proposed rulemaking 

is not an endorsement of any state’s 

sovereignty rights or jurisdiction under 

international law. The status of some of 

the waters in and around the area 

addressed in the proposed regulation 

was in dispute during the Vietnam Era 

and may still be in dispute. Because of 

this, the proposed rule includes a note 

in 38 CFR 3.307 that clarifies that the 

purpose of the regulation is for claim 

adjudication purposes and is not a 

statement or endorsement of 

international boundaries. 

VA also proposes to amend 38 CFR 

3.307(a)(6) for exposures related to 

service in the Korean demilitarized zone 

(DMZ) by proposing to expand the date 

range for presumption of exposure to 

certain herbicide agents for Veterans 

who served in units operating in or near 

the Korean DMZ. Currently, the date 

range contained in section 

3.307(a)(6)(iv) is April 1, 1968, through 

August 31, 1971. The BWN Act 

expanded the date range to September 1, 

1967, through August 31, 1971. 38 

U.S.C. 1116B(a)(2). 

Over the past few years, VA has 

received several requests to engage in 

rulemaking with regard to presumptive 

exposure to certain herbicide agents. 

Some of the requests have pertained to 

the Republic of Vietnam and its 

surrounds, such as Da Nang Harbor and 

Phu Quoc Island, and seem to be 

resolved by the BWN Act and this 

rulemaking, with the proposed changes 

to 38 CFR 3.307(a)(6) described above. 

That said, VA still welcomes any and all 

comments on these issues. 

There have also been requests to 

extend a presumption of exposure to 

certain herbicide agents to Veterans who 

served at additional locations outside 

Vietnam, such as Panama and Okinawa. 

In response to some of these requests, 

VA committed to open a rulemaking 

that would consider extending the 

presumption of exposure to certain 

herbicide agents beyond the categories 

of Veterans currently listed in 38 CFR 

3.307(a)(6)(iii)–(v). This is that 

rulemaking and, after serious 

consideration, VA is proposing to 

extend a presumption of exposure to 

certain herbicide agents by adding new 

paragraph 38 CFR 3.307(a)(6)(xi), which 

would presume exposure to certain 

herbicide agents for Veterans who 

served in locations not otherwise listed 

under section 3.307(a)(6) where certain 

herbicides and their chemical 

components were tested, used or stored, 

based on information received from 

DoD. 

From 2018 to 2019, DoD reviewed 

thousands of government documents 

from a variety of sources to include the 

National Archives and Records 

Administration, Air Force Historical 

Research Agency, United States 

Department of Agriculture National 

Agricultural Library and Defense 

Technical Information Center. 

Information obtained from these 

documents was assessed against criteria 

developed jointly by VA and DoD to 

identify specific locations inside and 

outside the United States where certain 

herbicide agents and their chemical 

components were tested, used, or 

stored. The record of locations is a 

‘‘living document,’’ and the Armed 

Forces Pest Management Board 

(AFPMB) has been assigned 

responsibility by the Under Secretary of 

Defense for Acquisition and 

Sustainment to maintain and update 

this list and ensure that it is current and 

accurate. The AFPMB conducts a review 

of the DoD list of locations annually and 

accepts submissions from members of 

the public in furtherance of updating 

the list. 

Because DoD’s list is premised on a 

comprehensive review of thousands of 

government documents, and the list will 

continue to be informed and updated 

through the submission of evidence by 

members of the public as well as 

internal research, VA utilizes the list as 

the most reliable source of information 

informing the question of where to 

establish regulatory presumptions of 

exposure to certain herbicide agents. VA 

believes that the list’s acknowledgment 

of certain herbicide agent usage, testing 

or storage at particular sites on 

particular dates warrants a presumption 

of exposure to certain herbicide agents 

that lessens the ordinary burden of 

proof for Veterans who reasonably 

would have visited those sites on those 

dates. See 38 U.S.C. 5107(a); 38 U.S.C. 

501(a)(1). 

In August 2019, DoD conveyed to VA 

its updated list of locations where 

certain herbicide agents were used, 

tested or stored. The list references (1) 

each location where certain herbicide 

agents were present, (2) the specific site 

of that presence, (3) the dates of that 

presence, (4) the purpose of that 

presence, (5) the personnel involved, 

and (6) the name of the herbicide agent 

or component involved. The list (and 

links to the criteria informing its 

creation) can be found at: https://www.

publichealth.va.gov/exposures/agent

orange/locations/tests-storage/ 

index.asp. While DoD is the lead agency 

for producing and updating the list of 

locations where certain herbicide agents 

were used, tested or stored, VA is the 

lead agency responsible for making this 

information easily accessible to 

Veterans and keeping them informed of 

the benefits to which they may be 

entitled based on their service. VA 

keeps the public informed by publishing 

the list on the VA public health website 

and updating the published list as 

locations are added or removed. In 

addition, VA will provide notice in the 

Federal Register whenever updates are 

made to the DoD list. 

Given that DoD will continue to 

maintain and update the list of locations 

where certain herbicide agents were 

used, tested or stored, VA proposes to 

implement a regulatory presumption of 

exposure that can evolve with the most 

current DoD list. Thus, VA proposes an 

additional paragraph to 38 CFR 3.307 

that would presume exposure to certain 

herbicide agents for Veterans (who do 

not qualify for the presumption under 

paragraphs (a)(6)(iii)–(v) or new 

paragraphs (a)(6)(vi)–(x) discussed 

below in Section II.b.) whose 

circumstances of service reasonably 

would have placed them at a site of 

certain herbicide agent testing, use or 

storage on a date of certain herbicide 

testing, use or storage. The authoritative 

source regarding where and when 

certain herbicide agents were tested, 

used or stored, for purposes of this 

additional paragraph, would be the 

information provided by DoD that is 

publicly available on VA’s website and 

through VA’s notices in the Federal 

Register. 

This presumption would alleviate the 

need for a Veteran to have to prove 

actual involvement with certain 

herbicide agents, so long as that 

Veteran’s circumstances of service 

would reasonably have placed the 

Veteran at certain sites on certain dates. 

For veterans who do not qualify for the 

presumption, VA will continue to 

consider and decide claims on a caseby-case basis considering all the 

evidence of record. Such Veterans will 

have the opportunity to present 


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evidence that they were exposed to 

certain herbicide agents, VA will 

consider all evidence of record 

(including lay statements) in rendering 

a determination on exposure, and VA 

will give the benefit of the doubt to the 

Veteran; but a presumption that lessens 

the ordinary burden of proof under 38 

U.S.C. 5107 will not apply. Otherwise 

stated, Veterans in such a position will 

have the opportunity to establish inservice exposure to certain herbicide 

agents on a direct basis, but not a 

presumptive basis. 

The purpose of this regulatory change 

is to ensure consistency across VA 

adjudications, in accord with the most 

up-to-date information garnered by DoD. 

Structuring the regulation in this way 

will also eliminate the need for 

adjudicators to continually rely on subregulatory guidance or the need for VA 

to amend its regulations every time DoD 

updates its list. 

For several reasons, VA decided not 

to propose to extend a regulatory 

presumption beyond the statutory 

requirements and the DoD list at this 

time. First, any official declaration by 

VA that a certain herbicide agent was 

presumably present in a particular 

location should be based on a 

comprehensive review of all available 

records, not based on speculation, 

assumption or limited evidence. While 

individual Veteran recollections, 

photographs and soil samples decades 

after the fact can provide relevant 

evidence in support of an individual’s 

pursuit of direct service connection, it is 

most appropriate to rely on the most 

comprehensive review—from the 

agency that has access to the most 

relevant documents—when establishing 

a regulatory presumption. Second, as 

noted above, direct service connection 

remains available for any Veteran who 

alleges exposure to certain herbicide 

agents (no matter the Veteran’s location 

of service), and due consideration will 

be given to all the evidence that veteran 

submits, with the benefit of the doubt 

given to the Veteran. Tailoring the 

presumption in this way does not at all 

foreclose any Veteran alleging exposure 

to certain herbicide agents from 

obtaining benefits. Third, there is reason 

for VA to be cautious in presuming or 

making declarations about herbicide 

agent presence when DoD has superior 

access to relevant records and superior 

knowledge of its own operations. While 

some inconsistency in government 

positions, statements and decisions is 

inevitable given the size and complexity 

of Federal operations, it is confusing 

and illogical for one agency to create a 

rule that will have the force and effect 

of law that by its very premise depends 

upon a factual proposition that another 

agency with superior expertise or 

authority does not credit. Otherwise 

stated, for VA to presume an herbicide 

agent presence that DoD steadfastly 

denies after exhaustive research could 

implicate issues beyond VA benefits 

and result in widespread confusion 

about what the government believes to 

be fact. The better resolution is for VA 

and members of the public to submit all 

relevant evidence to DoD, so that the 

DoD list continues to evolve with the 

most up-to-date information, and for 

veterans to continue to submit evidence 

along with their individual claims. 

VA recognizes that locations like 

Panama and Okinawa, Japan, are not on 

DoD’s current list of locations where 

certain herbicide agents were used, 

tested or stored, and therefore would 

not warrant a presumption at this time. 

Ultimately, VA believes that linking its 

presumption with DoD’s current 

herbicide agent list (which, as noted 

above, is a living document and 

therefore may evolve, upon the review 

of additional submitted evidence, to 

include locations like Panama and 

Okinawa) is the best course of action, 

but VA nevertheless welcomes all 

comments on this approach, or 

comments on Panama and Okinawa 

specifically, during the comment period 

for this rulemaking. 

b. Amendments to § 3.307 Based on the 

PACT Act 

As explained above, 38 CFR 

3.307(a)(6) outlines the service 

requirements and other circumstances 

required for the presumption of 

exposure to certain herbicide agents. 

Currently, 38 CFR 3.307(a)(6) lists two 

locations as eligible for a presumption 

of exposure: the Republic of Vietnam 

and units that operated in or near the 

Korean DMZ in an area in which 

herbicides are known to have been 

applied. Based on section 403 of the 

PACT Act, VA is proposing to add the 

following locations to 38 CFR 

3.307(a)(6) with corresponding eligible 

timeframes: (1) service in Thailand at 

any United States or Royal Thai base 

during the period beginning on January 

9, 1962, and ending on June 30, 1976; 

(2) service in Laos during the period 

beginning on December 1, 1965, and 

ending on September 30, 1969; (3) 

service in Cambodia at Mimot or Krek, 

Kampong Cham Province during the 

period beginning on April 16, 1969, and 

ending on April 30, 1969; (4) service in 

Guam or American Samoa, or in the 

territorial waters thereof, during the 

period beginning on January 9, 1962, 

and ending on July 31, 1980; and (5) 

service on Johnston Atoll or on a ship 

that called at Johnston Atoll during the 

period beginning on January 1, 1972, 

and ending on September 30, 1977. 

These new locations will be added to 38 

CFR 3.307(a)(6) by creating new 

paragraphs (a)(6)(vi–x). 

To determine the territorial waters of 

Guam and American Samoa, VA relied 

on coordinates from the National 

Oceanic and Atmospheric 

Administration. The electronic charts 

can be found here: https://charts.noaa.

gov/InteractiveCatalog/nrnc.shtml#

mapTabs-2. 

For claims based on service in 

Thailand, VA interprets the language of 

section 403 to include service on a ship 

that called to a coastal Thailand base. 

Section 403 provides a presumption of 

exposure to Veterans who served in 

Thailand at any United States or Royal 

Thai base during the period beginning 

on January 9, 1962, and ending on June 

30, 1976. As the PACT Act definition of 

covered service in Thailand includes 

any United States or Royal Thai bases in 

Thailand, VA finds it reasonable to 

include service aboard a ship at any 

coastal Thailand base. Under this 

interpretation, any Veteran who served 

on a ship that called to a coastal base 

in Thailand is eligible for a presumption 

of exposure to certain herbicides. 

VA’s current policy regarding claims 

based on Thailand service is contained 

in sub-regulatory guidance and 

considers exposure on a case-by-case 

direct basis for security personnel, 

security patrol dog handlers, or other 

Service members whose daily activities 

placed them near the security 

perimeters of Thailand military bases 

during the Vietnam Era. Proposed 38 

CFR 3.307(a)(6)(vi) would supplant that 

sub-regulatory guidance, as this new 

paragraph would presume exposure to 

certain herbicides for all veterans who 

served in Thailand at any U.S. or Royal 

Thai base between January 9, 1962, and 

June 30, 1976, without regard to where 

on the base the veteran was located or 

what military job specialty the Veteran 

performed. 

For claims based on service in 

Johnston Atoll or on a ship that called 

to Johnston Atoll, 38 U.S.C. 1116(d)(5) 

defines covered service to include 

service ‘‘on Johnston Atoll or on a ship 

that called at Johnston Atoll during the 

period beginning on January 1, 1972, 

and ending on September 30, 1977.’’ 

Section 1116(d)(5) specifies two 

categories of service related to Johnston 

Atoll that constitute covered service: (1) 

service on Johnston Atoll and (2) service 

on a ship that called at Johnston Atoll. 

VA understands 38 U.S.C. 1116(d)(5)’s 

date range to refer to the dates of the 

veteran’s service in the location (the 


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Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Proposed Rules 9807 

2Nicolaus R. McFarland. ‘‘Diagnostic Approach 

to Atypical Parkinsonian Syndromes,’’ Continuum 

(Minneap Minn). 2016 Aug; 22(4 Movement 

Disorders)11171142. doi: 10.1212/CON.00000000

00000348 

3Shin, Hae-Won, and Sun Ju Chung. ‘‘Druginduced parkinsonism.’’ Journal of clinical 

neurology (Seoul, Korea) vol. 8,1 (2012): 15–21. 

doi:10.3988/jcn.2012.8.1.15 

Atoll itself or on a ship), and that the 

date range provided in the statute 

applies to both categories. VA thus 

proposes to amend 38 CFR 3.307(a)(6) to 

make clear that the presumption of 

exposure to certain herbicides applies 

when the veteran was present on 

Johnston Atoll, to include presence on 

the the ship when it called at Johnston 

Atoll, even if the veteran did not 

disembark, during the qualifying period. 

III. Proposed Changes to § 3.309 

Diseases Subject to Presumptive Service 

Connection 

Based on the FY 2021 NDAA and 

section 404 of the PACT Act, VA 

proposes to amend its adjudication 

regulations by revising section 3.309 to 

add bladder cancer, Parkinsonism, 

hypothyroidism, hypertension and 

MGUS to the list of diseases subject to 

presumptive service connection based 

on exposure to certain herbicide agents. 

VA proposes to add the five new 

conditions to the end of section 

3.309(e), directly after soft tissue 

sarcoma. 

VA also proposes to include 

parenthetical language for Parkinsonism 

that identifies the most common forms 

of Parkinsonism known as Parkinsonplus syndromes (also referred to as 

atypical Parkinsonism). The most 

common Parkinson-plus syndromes are 

progressive supranuclear palsy (PSP), 

multiple system atrophy (MSA) (also 

referred to as Shy-Drager syndrome), 

corticobasal degeneration (CBD), 

vascular Parkinsonism, and dementia 

with Lewy bodies (DLB).2 The purpose 

of this parenthetical language is to 

ensure that disorders that fall under the 

umbrella term Parkinsonism are not 

overlooked by claims processors, 

resulting in examinations not being 

requested when warranted. 

Drug-induced Parkinsonism will not 

be included as a presumptive condition 

as its etiology stems from drug side 

effects, not exposure to certain herbicide 

agents. Furthermore, drug-induced 

Parkinsonism is a condition that usually 

subsides over time once the relevant 

drug is discontinued.3 Claims for 

service connection of drug-induced 

Parkinsonism will continue to be 

considered, as warranted, on a direct 

basis or on a secondary basis per 38 CFR 

3.310(a), which states that service 

connection will be granted when a 

disability is determined to be 

proximately due to or the result of a 

service-connected disease or injury. If a 

Veteran has a diagnosis of drug-induced 

Parkinsonism and a medical examiner 

opines that the disease is due to 

medication required for a serviceconnected condition, the claim for 

service connection for drug-induced 

Parkinsonism may be granted on a 

secondary basis. To provide clarity, VA 

further proposes to add a new note to 

38 CFR 3.309(e) to explain that druginduced Parkinsonism is not recognized 

as a disease associated with exposure to 

certain herbicide agents. 

IV. Proposed Changes to § 3.313 Claims 

Based on Service in Vietnam 

38 CFR 3.313 provides regulatory 

guidance for establishing service 

connection for non-Hodgkin’s 

lymphoma (NHL) based on service in 

‘‘Vietnam.’’ Currently, service 

connection for NHL requires a medical 

diagnosis and evidence showing service 

on land in Vietnam or service in 

Vietnam’s offshore waters. (The current 

regulatory provision does not 

distinguish between ‘‘Vietnam’’ and the 

‘‘Republic of Vietnam.’’) Before the 

Procopio decision, service solely in the 

offshore waters was not sufficient to 

grant service connection for any 

condition except NHL. 

Based on the definition of Vietnam’s 

offshore waters in the BWN Act, claims 

for NHL will no longer be held to a 

separate standard of service connection 

than other conditions listed under 38 

CFR 3.309(e). Furthermore, because the 

current regulatory guidance does not 

distinguish between ‘‘Vietnam’’ and the 

‘‘Republic of Vietnam,’’ VA is proposing 

to amend its adjudication regulations to 

specify that in order to establish 

presumptive service connection for 

NHL, service must have been in the 

‘‘Republic of Vietnam,’’ to ensure that 

the regulation is consistent with the 

statutory definition of Vietnam’s 

offshore waters. VA notes that, in light 

of Procopio and the BWN Act, the scope 

and effect of section 3.313 are 

essentially coextensive with section 

3.309(e) as the latter applies to NHL. 

However, VA proposes to revise, rather 

than rescind, section 3.313 because this 

provision could have an independent 

effect in rare cases, as it does not 

depend on a rebuttable presumption of 

herbicide agent exposure. 

V. Proposed Changes to § 3.114 Change 

of Law or Department of Veterans 

Affairs Issue 

38 CFR 3.114(a), which provides 

effective date provisions in situations 

where there has been a change in law or 

VA issue, applies, in relevant part, to 

benefits awards to an individual 

suffering from spina bifida whose 

biological father or mother is or was a 

Vietnam Veteran or a Veteran with 

covered service in Korea. Since the 

BWN Act authorizes VA to extend these 

benefits to children of Veterans with 

covered service in Thailand, VA 

proposes to add individuals with spina 

bifida born to Veterans with covered 

service in Thailand as a category of 

claimants who are entitled to 

consideration for an effective date as 

specified in this regulation. 

Furthermore, VA proposes a clerical 

amendment to section 3.114(a) by 

replacing the word ‘‘child’’ with the 

phrase ‘‘natural child’’ wherever it 

occurs in the regulation. This is not a 

substantive regulatory change; it is 

merely a clerical amendment that 

reflects the statutory definition of 

‘‘child’’ for purposes of benefits for 

children of certain veterans born with 

spina bifida. See 38 U.S.C. 1831(1). 

VI. Proposed Changes to § 3.814 

Monetary Allowance Under 38 U.S.C. 

Chapter 18 for An Individual Suffering 

From Spina Bifida Whose Biological 

Father or Mother Is or Was a Vietnam 

Veteran or a Veteran With Covered 

Service in Korea 

Individuals born with spina bifida 

whose biological father or mother was 

determined to be exposed to certain 

herbicide agents in Vietnam or Korea 

have long been eligible for a monthly 

monetary allowance under 38 U.S.C. 

chapter 18, based on the severity of their 

spina bifida symptoms. However, this 

eligibility did not extend to natural 

children of Thailand Veterans for whom 

certain herbicide agent exposure has 

been conceded, nor did it extend to 

natural children of Veterans who served 

in the offshore waters of the Republic of 

Vietnam. 38 CFR 3.814 is the regulation 

that provides for entitlement to this 

monetary allowance under 38 U.S.C. 

chapter 18 and sets forth the criteria that 

must be met in order to establish such 

entitlement. The BWN Act expanded 

eligibility for spina bifida benefits to 

natural children of certain Thailand 

Veterans, as well as natural children of 

Veterans who served in the offshore 

waters of the Republic of Vietnam. This 

proposed rulemaking updates the 

criteria accordingly. 

For purposes of spina bifida benefits 

for natural children of Thailand 

Veterans, the BWN Act, in 38 U.S.C. 

1822, defined a Veteran of covered 

service in Thailand as ‘‘any individual, 

without regard to the characterization of 

that individual’s service, who—(1) 


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served in the active military, naval, or 

air service in Thailand, as determined 

by the Secretary in consultation with 

the Secretary of Defense, during the 

period beginning on January 9, 1962, 

and ending on May 7, 1975; and (2) is 

determined by the Secretary, in 

consultation with the Secretary of 

Defense, to have been exposed to a 

herbicide agent during such service in 

Thailand’’ 

As discussed above in Section II.b., 

the PACT Act expanded the list of 

locations eligible for a presumption of 

exposure to certain herbicides to 

include Thailand. The PACT Act 

defined covered service in Thailand, in 

38 U.S.C. 1116(d)(2), as ‘‘active military, 

naval, air, or space service-performed in 

Thailand at any United States or Royal 

Thai base during the period beginning 

on January 9, 1962, and ending on June 

30, 1976, without regard to where on the 

base the Veteran was located or what 

military job specialty the Veteran 

performed.’’ Prior to the PACT Act, 38 

U.S.C. 1822 provided benefits to 

children born with spina bifida whose 

parent served in Thailand any time 

between January 9, 1962, and May 7, 

1975. The PACT Act did not amend 38 

U.S.C. 1822. For purposes of 

establishing entitlement to monetary 

benefits for spina bifida under 38 U.S.C. 

Chapter 18, VA proposes to define 

covered service in Thailand as ‘‘service 

at any United States or Royal Thai base 

during the period beginning on January 

9, 1962, and ending on May 7, 1975, 

without regard to where on the base the 

Veteran was located or what military job 

specialty the Veteran performed.’’ This 

definition includes the description of 

covered service from 38 U.S.C. 1116 but 

maintains the eligible time frame from 

38 U.S.C. 1822. VA has determined that 

aligning the definitions of what 

characterizes Thailand service will 

improve the consistency of decisions for 

Thailand Veterans and their survivors. 

For the purposes of establishing 

entitlement to monetary benefits for 

spina bifida under 38 U.S.C. chapter 18, 

VA is proposing to include the offshore 

waters of the Republic of Vietnam in the 

definition of service in the Republic of 

Vietnam. In accordance with the BWN 

Act, VA further proposes to amend 38 

CFR 3.814(c)(1) to align with the 

definition of ‘‘service in the Republic of 

Vietnam’’ set forth in the proposed 

amendment to 38 CFR 3.307(a)(6)(iii). 

Further, in accordance with the BWN 

Act, VA is extending the date range for 

establishing presumption of exposure 

along the Korean DMZ from April 1, 

1968, through August 31, 1971, to 

September 1, 1967, through August 31, 

1971. See 38 U.S.C. 1116B(a)(2). VA 

proposes to amend the start date in 38 

CFR 3.814(c)(2) to reflect the date 

mandated by the new statute. 

VA also proposes replacing the phrase 

‘‘biological son or daughter’’ in 38 CFR 

3.814(c)(4) with ‘‘natural child’’ 

consistent with the clerical amendment 

proposed for 38 CFR 3.114(a). 

VII. Proposed Changes to § 3.815 

Monetary Allowance Under 38 U.S.C. 

Chapter 18 for an Individual With 

Disability From Covered Birth Defects 

Whose Biological Mother Is or Was a 

Vietnam Veteran; Identification of 

Covered Birth Defects 

Prior to the BWN Act, if a Veteran 

mother only had service in the offshore 

waters of the Republic of Vietnam and 

did not go ashore or serve in the inland 

waterways, that service did not qualify 

for entitlement to a monthly monetary 

award for any natural children born 

with qualifying birth defects. The Act 

expanded the definition of ‘‘Vietnam 

Veteran’’ to include Veterans who 

served in the offshore waters of the 

Republic of Vietnam. Therefore, VA 

proposes to amend 38 CFR 3.815 

accordingly. 

38 CFR 3.815 provides for a monetary 

allowance under 38 U.S.C. 1812 for 

individuals with disability due to 

covered birth defects whose biological 

mother is or was a Vietnam Veteran. 

Covered birth defects include any birth 

defect other than familial disorders, 

birth-related injuries, or fetal or 

neonatal infirmity with well-established 

causes. All birth defects not excluded 

under these categories are covered birth 

defects. However, if an individual’s only 

birth defect is spina bifida, their 

monthly monetary allowance will be 

paid under the provisions of 38 U.S.C. 

1803, 1821, and 1822, which provide a 

monthly monetary award for children of 

certain herbicide agent-exposed Veteran 

parents who served in Vietnam, 

Thailand or near the Korean DMZ. 

In accordance with the BWN Act, VA 

proposes to amend 38 CFR 3.815(c)(1) to 

align the definition of ‘‘service in the 

Republic of Vietnam’’ with the 

definition set forth in the proposed 

amendment to 38 CFR 3.307(a)(6)(iii). 

VIII. Proposed Changes to § 3.105 

Revision of Decisions 

38 CFR 3.105(g), which describes 

procedural requirements for reductions 

in evaluations under 38 U.S.C. chapter 

18 for children of certain herbicide 

agent-exposed Veterans, currently only 

applies to children of Vietnam Veterans 

born with spina bifida or children of 

Veterans with covered service in Korea 

born with spina bifida who were 

entitled to benefits. Because the BWN 

Act authorized VA to extend those 

benefits under 38 U.S.C. chapter 18 to 

children of certain Veterans who served 

in Thailand born with spina bifida, VA 

proposes to add these children to the 

category of claimants who are covered 

by the procedural provisions specified 

in this regulation. Since natural 

children of Veterans with covered 

service in Thailand are a newly covered 

type of claimant, it is necessary to add 

them as a category of claimants who are 

covered by the procedural provisions of 

38 CFR 3.105. This ensures that benefits 

awarded to these claimants cannot be 

severed or reduced until the claimant 

has been afforded time to present 

evidence in support of maintaining their 

benefits. 

Finally, VA proposes a clerical 

amendment to section 3.105(g) by 

replacing the word ‘‘children’’ with the 

phrase ‘‘natural children’’ wherever it 

occurs in the regulation. As is true with 

the proposed amendment to 38 CFR 

3.114(a), this is a clerical change made 

to reflect the statutory definition of 

‘‘child’’ for purposes of benefits for 

children of certain Veterans born with 

spina bifida. See 38 U.S.C. 1831(1). 

IX. Proposed Changes to § 3.816 

Awards Under the Nehmer Court 

Orders for Disability or Death Caused 

by a Condition Presumptively 

Associated With Herbicide Exposure 

VA proposes to codify the current 

procedural guidance regarding locating 

the appropriate survivor(s) of a deceased 

Nehmer class member and defining the 

parameters of ‘‘reasonable efforts’’ to 

identify them. VA is also codifying its 

existing policy to pay newly identified 

qualifying payees before attempting 

recoupment from improperly 

compensated payees, rather than 

waiting for recoupment before paying 

the newly identified qualifying payees. 

The intent of this change is to ensure 

compliance with the Nehmer consent 

decree. 

Historically, VA has sought to locate 

payees for potential retroactive Nehmer 

benefits by sending letters to all 

dependents of record requesting the 

names, addresses and telephone 

numbers of all known survivors. VA 

will also seek to obtain proof of 

dependency documents such as birth 

certificates, marriages certificates and 

other proof of dependency, if necessary. 

If payees cannot be identified, VA 

will make reasonable efforts to locate 

payees as the information on file 

permits. For example, if a claimant’s 

record identifies an authorized 

representative or a relative, it would be 

reasonable to contact such person to 

request information concerning the 


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Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Proposed Rules 9809 

existence of a surviving spouse, 

child(ren), parent(s) or the executor/ 

administrator of the class member’s 

estate. It would be unreasonable to 

attempt to locate a payee where there is 

no evidence of record to suggest that the 

party would potentially qualify for 

retroactive benefits. 

If the evidence of record does not 

contain sufficient information to 

identify an eligible Nehmer class 

beneficiary, a letter will be sent to the 

last known address of the Veteran, and 

VA will wait 30 days for a response. If 

an address is unknown, an attempt will 

be made to contact the survivor by 

telephone to obtain their address. 

This proposed regulation codifies the 

procedure for locating Nehmer payees 

as follows: Claims processors must 

review the claims folder for relevant 

information and review other VA 

resources including, but not limited to, 

benefit applications, statements from 

the veteran, medical records, corporate 

database and claims processing system 

notes. If review of both the claims folder 

and electronic claims processing system 

do not provide beneficiary contact 

information, claims processors must 

contact any known authorized 

representatives of record (including 

those who provided first notice of death 

and/or funeral/burial services). Claims 

processors also must attempt to locate 

potential payees using online public 

record investigation software authorized 

by VA. If, after this review, no 

beneficiary, authorized representative or 

next of kin is located, the claims 

processor will send (i) a letter to the 

Veteran’s last known address and wait 

30 days for a response and (ii) attempt 

contact via last known telephonic 

contact information. If no response is 

received at the expiration of 30 days, the 

claims processor will annotate in the 

claims folder all actions taken to 

identify eligible payees. The claims 

processor will then add the claim data 

to communications with Nehmer class 

counsel, as VA is required to provide 

class counsel with a list of every claim 

where eligible survivors cannot be 

located. 

Given the universe of information in 

the VA benefits system available to 

claims processors and the measures VA 

proposes to identify eligible 

beneficiaries and contact individuals 

who may provide information about 

eligible beneficiaries unknown to VA, 

this procedural guidance constitutes 

what VA has determined to be 

reasonable efforts to identify all 

appropriate Nehmer payees. VA does 

not believe it is reasonable to pay 

private search firms or undertake 

extraordinary efforts beyond those 

identified in this regulation to identify 

potential payees. 

If, following such efforts, VA releases 

the full amount of unpaid benefits to a 

payee or payees, and additional 

qualifying payees subsequently identify 

themselves to VA, VA will pay the 

newly identified payee(s) the portion of 

the award to which they are entitled, 

and then attempt to recover the 

overpayment from the original payee(s). 

While this is consistent with VA’s 

current policy, the revision is necessary 

in light of the December 2, 2021, 

amendment to 38 CFR 3.816(f)(3), which 

was required by the November 10, 2021, 

court order in Nehmer v. U.S. 

Department of Veterans Affairs, No. 

C86–06160 WHA (N.D. Cal.) vacating 

the final sentence of section 3.816(f)(3), 

directing VA to issue a rule rescinding 

that sentence and requiring VA to 

publish that rule in the Federal 

Register. See 86 FR 68409 (Dec. 2, 

2021). VA is obligated to issue payment 

to the newly identified payee(s) 

regardless of whether it previously 

disbursed the entirety of an award to the 

original payee(s). As noted by the U.S. 

Court of Appeals for Veterans Claims in 

Snyder v. Principi, the prior 

disbursement ‘‘in no way impairs [VA’s] 

authority and obligation to pay from the 

compensation . . . account the amount 

that is owed to the correct beneficiary.’’ 

15 Vet. App. 285, 292 (2001). This is 

because ‘‘the amount owed to the 

correct beneficiary, in fact, remains 

undisturbed in the compensation . . . 

account.’’ Id. Nevertheless, payment to 

newly identified payees does not relieve 

VA of its corresponding obligation to 

recover the overpayment to the original 

payees. See 31 U.S.C. 3711(a)(1) (‘‘The 

head of an executive, judicial, or 

legislative agency . . . shall try to 

collect a claim of the United States 

Government for money or property 

arising out of the activities of, or 

referred to, the agency.’’); 38 CFR 

1.910(a) (requiring VA to take 

‘‘aggressive collection action . . . to 

collect all claims for money or property 

arising from [VA’s] activities’’); see also 

Edwards v. Peake, 22 Vet. App. 57, 59 

(2008) (noting that ‘‘the Secretary 

generally is required to recover 

erroneous VA payments or overpayment 

of benefits’’). 

X. Severability 

The purpose of this section is to 

clarify the agency’s intent with respect 

to the severability of provisions of this 

proposed rule. Each provision that the 

agency has proposed is capable of 

operating independently and the agency 

intends them to be severable. If any 

provision of this rule is determined by 

judicial review or operation of law to be 

invalid, the agency would not intend 

that partial invalidation to render the 

remainder of this rule invalid. Likewise, 

if the application of any portion of this 

proposed rule to a particular 

circumstance were determined to be 

invalid, the agencies would intend that 

the rule as proposed remain applicable 

to all other circumstances. 

Executive Orders 12866, 13563 and 

14094 

Executive Order (E.O.) 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). 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 (E.O. 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 a significant regulatory 

action under E.O. 12866, Section 3(f)(1), 

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 

The Secretary hereby certifies that 

this proposed rule would 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 

factual basis for this certification is that 

no small entities or businesses provide 

Federal compensation or pension 

benefits to Veterans, and such entities or 

businesses therefore would be 

unaffected by the proposed rule. 

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

the initial and final regulatory flexibility 

analysis requirements of 5 U.S.C. 603 

and 604 do not apply. 


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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 proposed rule would 

have no such effect on state, local, and 

tribal governments, or on the private 

sector. 

Paperwork Reduction Act 

This proposed rule contains no 

provisions constituting a collection of 

information under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3521). 

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Healthcare, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, approved and signed 

this document on January 9, 2024, 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. 

For the reasons stated in the 

preamble, VA proposes to amend 38 

CFR part 3 as set forth below: 

PART 3—ADJUDICATION 

Subpart A—Pension, Compensation, 

and Dependency and Indemnity 

Compensation 

■ 1. The authority citation for part 3, 

subpart A continues to read as follows: 

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

otherwise noted. 

■ 2. Amend § 3.105 by revising 

paragraph (g) to read as follows: 

§ 3.105 Revision of decisions. 

* * * * * 

(g) Reduction in evaluation— 

monetary allowance under 38 U.S.C. 

chapter 18 for certain individuals who 

are natural children of Vietnam 

Veterans or natural children of Veterans 

with covered service in Korea or 

Thailand. Where a reduction or 

discontinuance of a monetary allowance 

currently being paid under 38 U.S.C. 

chapter 18 is considered warranted, VA 

will notify the beneficiary at his or her 

latest address of record of the proposed 

reduction, furnish detailed reasons 

therefore, and allow the beneficiary 60 

days to present additional evidence to 

show that the monetary allowance 

should be continued at the present 

level. Unless otherwise provided in 

paragraph (i) of this section, if VA does 

not receive additional evidence within 

that period, it will take final rating 

action and reduce the award effective 

the last day of the month following 60 

days from the date of notice to the 

beneficiary of the proposed reduction. 

* * * * * 

■ 3. Amend § 3.114 by: 

■ a. Revising paragraph (a) introductory 

text; 

■ b. Removing the authority citation 

immediately preceding paragraph (b); 

and 

■ c. Revising the authority citation 

immediately following paragraph (b). 

The revisions read as follows: 

§ 3.114 Change of law or Department of 

Veterans Affairs issue. 

(a) Effective date of award. Where 

pension, compensation, dependency 

and indemnity compensation, or a 

monetary allowance under 38 U.S.C. 

chapter 18 for an individual who is a 

natural child of a Vietnam Veteran or 

natural child of a Veteran with covered 

service in Korea or Thailand is awarded 

or increased pursuant to a liberalizing 

law, or a liberalizing VA issue approved 

by the Secretary or by the Secretary’s 

direction, the effective date of such 

award or increase shall be fixed in 

accordance with the facts found, but 

shall not be earlier than the effective 

date of the act or administrative issue. 

Where pension, compensation, 

dependency and indemnity 

compensation, or a monetary allowance 

under 38 U.S.C. chapter 18 for an 

individual who is a natural child of a 

Vietnam Veteran or natural child of a 

Veteran with covered service in Korea 

or Thailand is awarded or increased 

pursuant to a liberalizing law or VA 

issue which became effective on or after 

the date of its enactment or issuance, in 

order for a claimant to be eligible for a 

retroactive payment under the 

provisions of this paragraph the 

evidence must show that the claimant 

met all eligibility criteria for the 

liberalized benefit on the effective date 

of the liberalizing law or VA issue and 

that such eligibility existed 

continuously from that date to the date 

of claim or administrative determination 

of entitlement. The provisions of this 

paragraph are applicable to original and 

supplemental claims as well as claims 

for increase. 

* * * * * 

(b) * * * 

(Authority: 38 U.S.C. 1805, 1815, 1821, 1822, 

1831, 1832, 5110(g)) 

■ 4. Amend § 3.307 by revising 

paragraphs (a)(6) introductory text, 

(a)(6)(iii) through (v), and adding 

paragraphs (a)(6)(vi) through (xi) to read 

as follows: 

§ 3.307 Presumptive service connection 

for chronic, tropical, or prisoner-of-war 

related disease, disease associated with 

exposure to certain herbicide agents, or 

disease associated with exposure to 

contaminants in the water supply at Camp 

Lejeune; wartime and service on or after 

January 1, 1947. 

(a) * * * 

(6) Presumption of exposure to certain 

herbicide agents. (i) For the purposes of 

this section, the term ‘‘herbicide agent’’ 

means a chemical in an herbicide used 

in support of the United States and 

allied military operations in the 

Republic of Vietnam during the period 

beginning on January 9, 1962, and 

ending on May 7, 1975, specifically: 

2,4–D; 2,4,5–T and its contaminant 

TCDD; cacodylic acid; and picloram. 

* * * * * 

(iii) Service in the Republic of 

Vietnam. A veteran who, during active 

military, naval, or air service, served in 

the Republic of Vietnam during the 

period beginning on January 9, 1962 and 

ending on May 7, 1975, shall be 

presumed to have been exposed during 

such service to an herbicide agent, 

unless there is affirmative evidence to 

establish that the Veteran was not 

exposed to any such agent during that 

service. The last date on which such a 

Veteran shall be presumed to have been 

exposed to an herbicide agent shall be 

the last date on which he or she served 

in the Republic of Vietnam during the 

period beginning on January 9, 1962 and 

ending on May 7, 1975. Service in the 

Republic of Vietnam includes service in 

the offshore waters of the Republic of 

Vietnam. Service in the offshore waters 

of the Republic of Vietnam is defined as 

service in waters at any location not 

more than 12 nautical miles seaward of 

a line commencing on the southwestern 

demarcation line of the waters of 

Vietnam and Cambodia. This line would 

encompass Phu Quoc island, 

terminating at the mid-point of the Ben 

Hai River, and intersecting the following 

points: 


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Points geographic names Latitude north Longitude east 

At Phu Quoc Extension Point A .................................................................................................................. 10°14′51.16′′ 104°12’54.69′′ 

At Phu Quoc Extension Point B .................................................................................................................. 10°23′55.92′′ 104° 7′56.91′′ 

At Phu Quoc Extension Point C .................................................................................................................. 10°30′12.70′′ 103°59′19.11′′ 

At Phu Quoc Extension Point D .................................................................................................................. 9°43′18.90′′ 102°46′28.56′′ 

At Phu Quoc Extension Point E .................................................................................................................. 9°11′34.58′′ 103°14′38.50′′ 

At Hon Nhan Island, Tho Chu Archipelago Kien Giang Province .............................................................. 9°15.0′ 103°27.0′ 

At Hon Da Island southeast of Hon Khoai Island Minh Hai Province ........................................................ 8°22.8′ 104°52.4′ 

At Tai Lon Islet, Con Dao Islet in Con Dao-Vung Toa Special Sector ....................................................... 8°37.8′ 106°37.5′ 

At Bong Lai Islet, Con Dao Islet .................................................................................................................. 8°38.9′ 106°40.3′ 

At Bay Canh Islet, Con Dao Islet ................................................................................................................ 8°39.7′ 106°42.1′ 

At Hon Hai Islet (Phu Qui group of islands) Thuan Hai Province .............................................................. 9°58.0′ 109°5.0′ 

At Hon Doi Islet, Thuan Hai Province ......................................................................................................... 12°39.0′ 109°28.0′ 

At Dai Lanh point, Phu Khanh Province ..................................................................................................... 12°53.8′ 109°27.2′ 

At Ong Can Islet, Phu Khanh Province ....................................................................................................... 13°54.0′ 109°21.0′ 

At Ly Son Islet, Nghia Binh Province .......................................................................................................... 15°23.1′ 109° 9.0′ 

At Con Co Island, Binh Tri Thien Province ................................................................................................. 17°10.0′ 107°20.6′ 

(iv) Service in or near the Korean 

Demilitarized Zone (DMZ). A Veteran 

who, during active military, naval, or air 

service, served between September 1, 

1967, and August 31, 1971, in a unit 

that, as determined by DoD, operated in 

or near the Korean DMZ in an area in 

which certain herbicide agents are 

known to have been applied during that 

period, shall be presumed to have been 

exposed during such service to an 

herbicide agent, unless there is 

affirmative evidence to establish that the 

Veteran was not exposed to any such 

agent during that service. See also 38 

CFR 3.814(c)(2). 

(v) Service operating, maintaining, or 

serving aboard C–123 aircraft. An 

individual who performed service in the 

Air Force or Air Force Reserve under 

circumstances in which the individual 

concerned regularly and repeatedly 

operated, maintained, or served onboard 

C–123 aircraft known to have been used 

to spray an herbicide agent during the 

Vietnam era shall be presumed to have 

been exposed during such service to an 

herbicide agent. For purposes of this 

paragraph, ‘‘regularly and repeatedly 

operated, maintained, or served onboard 

C–123 aircraft’’ means that the 

individual was assigned to an Air Force 

or Air Force Reserve squadron when the 

squadron was permanently assigned one 

of the affected aircraft and the 

individual had an Air Force Specialty 

Code indicating duties as a flight, 

ground maintenance, or medical crew 

member on such aircraft. Such exposure 

constitutes an injury under 38 U.S.C. 

101(24)(B) and (C). If an individual 

described in this paragraph develops a 

disease listed in 38 CFR 3.309(e) as 

specified in paragraph (a)(6)(ii) of this 

section, it will be presumed that the 

individual concerned became disabled 

during that service for purposes of 

establishing that the individual served 

in the active military, naval, or air 

service. 

(vi) Service in Thailand. A veteran 

who, during active military, naval, or air 

service, served in Thailand at any 

United States or Royal Thai base during 

the period beginning on January 9, 1962, 

and ending on June 30, 1976, without 

regard to where on the base the Veteran 

was located or what military job 

specialty the Veteran performed, shall 

be presumed to have been exposed 

during such service to an herbicide 

agent, unless there is affirmative 

evidence to establish that the Veteran 

was not exposed to any such agent 

during that service. Service at any 

United States or Royal Thai base 

includes service aboard a ship that 

called to a coastal base in Thailand. 

(vii) Service in Laos. A veteran who, 

during active military, naval, or air 

service, served in Laos during the 

period beginning on December 1, 1965, 

and ending on September 30, 1969, 

shall be presumed to have been exposed 

during such service to an herbicide 

agent, unless there is affirmative 

evidence to establish that the Veteran 

was not exposed to any such agent 

during that serviche. 

(viii) Service in Cambodia. A veteran 

who, during active military, naval, or air 

service, served in Cambodia at Mimot or 

Krek, Kampong Cham Province during 

the period beginning on April 16, 1969, 

and ending on April 30, 1969, shall be 

presumed to have been exposed during 

such service to an herbicide agent, 

unless there is affirmative evidence to 

establish that the Veteran was not 

exposed to any such agent during that 

service. 

(ix) Service in Guam or American 

Samoa. A Veteran who, during active 

military, naval, or air service, served in 

Guam or American Samoa, or in the 

territorial waters thereof, during the 

period beginning on January 9, 1962, 

and ending on July 31, 1980, shall be 

presumed to have been exposed during 

such service to an herbicide agent, 

unless there is affirmative evidence to 

establish that the Veteran was not 

exposed to any such agent during that 

service. 

(x) Service on Johnston Atoll. A 

Veteran who, during active military, 

naval, or air service, served on Johnston 

Atoll or served on a ship when it called 

at Johnston Atoll during the period 

beginning on January 1, 1972, and 

ending on September 30, 1977, shall be 

presumed to have been exposed during 

such service to an herbicide agent, 

unless there is affirmative evidence to 

establish that the Veteran was not 

exposed to any such agent during that 

service. 

(xi) Service in locations recognized by 

the Department of Defense. A veteran 

who does not meet the requirements of 

paragraphs (a)(6)(iii)-(x) of this section, 

and whose circumstances of service 

reasonably would have placed the 

Veteran at a site of certain herbicide 

agent testing, use, or storage on a date 

of certain herbicide agent testing, use, or 

storage, shall be presumed to have been 

exposed to an herbicide agent during 

such service, unless there is affirmative 

evidence to establish that the Veteran 

was not exposed to any such agent 

during that service. The DoD List of 

Locations Where Tactical Herbicides 

and Their Chemical Components Were 

Tested, Used, or Stored Outside of 

Vietnam, published on VA’s website, is 

the authoritative source regarding where 

and when certain herbicide agents were 

tested, used or stored for purposes of 

this paragraph, and can be found at: 

https://www.publichealth.va.gov/ 

exposures/agentorange/locations/testsstorage/index.asp. VA will publish 

changes to this list in the Notices 

section of the Federal Register. 

* * * * * 

■ 5. Amend § 3.309 by revising 

paragraph (e) to read as follows: 


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§ 3.309 Disease subject to presumptive 

service connection. 

* * * * * 

(e) Disease associated with exposure 

to certain herbicide agents. If a Veteran 

was exposed to an herbicide agent 

during active military, naval, or air 

service, the following diseases shall be 

service connected if the requirements of 

§ 3.307(a)(6) are met even though there 

is no record of such disease during 

service, provided further that the 

rebuttable presumption provisions of 

§ 3.307(d) are also satisfied. 

AL amyloidosis 

Chloracne or other acneform disease 

consistent with chloracne. 

Type 2 diabetes (also known as Type II 

diabetes mellitus or adult-onset 

diabetes), 

Hodgkin’s disease 

Ischemic heart disease (including, but 

not limited to, acute, subacute, and 

old myocardial infarction; 

atherosclerotic cardiovascular disease 

including coronary artery disease 

(including coronary spasm) and 

coronary bypass surgery; and stable, 

unstable and Prinzmetal’s angina) 

All chronic B-cell leukemias (including, 

but not limited to, hairy-cell leukemia 

and chronic lymphocytic leukemia) 

Multiple myeloma 

Non-Hodgkin’s lymphoma 

Parkinson’s disease 

Early-onset peripheral neuropathy 

Porphyria cutanea tarda 

Prostate cancer 

Respiratory cancers (cancer of the lung, 

bronchus, larynx, or trachea) 

Soft-tissue sarcoma (other than 

osteosarcoma, chondrosarcoma, 

Kaposi’s sarcoma, or mesothelioma) 

Bladder cancer 

Parkinsonism (including, but not 

limited to, the following Parkinsonplus syndromes (also referred to as 

‘‘atypical Parkinsonism’’): progressive 

supranuclear palsy (PSP), multiple 

system atrophy (MSA) (also referred 

to as Shy-Drager syndrome), 

corticobasal degeneration (CBD), 

vascular Parkinsonism, and dementia 

with Lewy bodies (DLB)) 

Hypothyroidism 

Hypertension 

Monoclonal gammopathy of 

undetermined significance (MGUS) 

Note 1: The term ‘‘soft-tissue sarcoma’’ 

includes the following: 

Adult fibrosarcoma 

Dermatofibrosarcoma protuberans 

Malignant fibrous histiocytoma 

Liposarcoma 

Leiomyosarcoma 

Epithelioid leiomyosarcoma (malignant 

leiomyoblastoma) 

Rhabdomyosarcoma 

Ectomesenchymoma 

Angiosarcoma (hemangiosarcoma and 

lymphangiosarcoma) 

Proliferating (systemic) 

angioendotheliomatosis 

Malignant glomus tumor 

Malignant hemangiopericytoma 

Synovial sarcoma (malignant 

synovioma) 

Malignant giant cell tumor of tendon 

sheath 

Malignant schwannoma, including 

malignant schwannoma with 

rhabdomyoblastic differentiation 

(malignant Triton tumor), glandular 

and epithelioid malignant 

schwannomas 

Malignant mesenchymoma 

Malignant granular cell tumor 

Alveolar soft part sarcoma 

Epithelioid sarcoma 

Clear cell sarcoma of tendons and 

aponeuroses 

Extraskeletal Ewing’s sarcoma 

Congenital and infantile fibrosarcoma 

Malignant ganglioneuroma 

Note 2: For purposes of this section, the 

term ischemic heart disease does not include 

hypertension or peripheral manifestations of 

arteriosclerosis such as peripheral vascular 

disease or stroke, or any other condition that 

does not qualify within the generally 

accepted medical definition of Ischemic heart 

disease. 

Note 3: Drug-induced Parkinsonism is not 

recognized as a disease associated with 

exposure to certain herbicide agents. 

* * * * * 

■ 6. Revise § 3.313 to read as follows: 

§ 3.313 Claims based on service in the 

Republic of Vietnam. 

(a) Service in the Republic of 

Vietnam. Service in the Republic of 

Vietnam includes service in the offshore 

waters of the Republic of Vietnam as 

defined in 38 CFR 3.307(a)(6)(iii). 

Service in other locations will constitute 

service in the Republic of Vietnam if the 

conditions of service involved duty or 

visitation in the Republic of Vietnam. 

(b) Service connection based on 

service in the Republic of Vietnam. 

Service in the Republic of Vietnam 

during the Vietnam Era together with 

the development of non-Hodgkin’s 

lymphoma manifested subsequent to 

such service is sufficient to establish 

service connection for that disease. 

■ 7. Amend § 3.814 by revising the 

section heading, paragraph (c), and the 

authority citation at the end of the 

section to read as follows: 

§ 3.814 Monetary allowance under 38 

U.S.C. chapter 18 for an individual suffering 

from spina bifida whose biological father or 

mother is or was a Vietnam Veteran or a 

Veteran with covered service in Korea or 

Thailand. 

* * * * * 

(c) Definitions—(1) Vietnam veteran. 

For the purposes of this section, the 

term ‘‘Vietnam Veteran’’ means a person 

who performed active military, naval, or 

air service in the Republic of Vietnam 

during the period beginning on January 

9, 1962, and ending on May 7, 1975, 

without regard to the characterization of 

the person’s service. Service in the 

Republic of Vietnam includes service in 

the offshore waters of the Republic of 

Vietnam as defined in 38 CFR 

3.307(a)(6)(iii). Service in other 

locations will constitute service in the 

Republic of Vietnam if the conditions of 

service involved duty or visitation in 

the Republic of Vietnam. 

(2) Covered service in Korea. For the 

purposes of this section, the term 

‘‘Veteran with covered service in Korea’’ 

means a person who served in the active 

military, naval, or air service in or near 

the Korean DMZ between September 1, 

1967, and August 31, 1971, and who is 

determined by VA, in consultation with 

the DoD, to have been exposed to an 

herbicide agent during such service. 

Exposure to an herbicide agent will be 

conceded if the Veteran served between 

September 1, 1967, and August 31, 

1971, in a unit that, as determined by 

the Department of Defense, operated in 

or near the Korean DMZ in an area in 

which certain herbicide agents are 

known to have been applied during that 

period, unless there is affirmative 

evidence to establish that the Veteran 

was not exposed to any such agent 

during that service. 

(3) Covered service in Thailand. For 

the purposes of this section, the term 

‘‘covered service in Thailand’’ means 

service in Thailand at any United States 

or Royal Thai base during the period 

beginning on January 9, 1962, and 

ending on May 7, 1975, without regard 

to where on the base the Veteran was 

located or what military job specialty 

the Veteran performed. 

(4) Individual. For the purposes of 

this section, the term ‘‘individual’’ 

means a person, regardless of age or 

marital status, whose biological father or 

mother is or was a Vietnam Veteran and 

who was conceived after the date on 

which the veteran first served in the 

Republic of Vietnam during the Vietnam 

Era, or whose biological father or 

mother is or was a Veteran with covered 

service in Korea or Thailand and who 

was conceived after the date on which 

the Veteran first had covered service in 


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Federal Register / Vol. 89, No. 29 / Monday, February 12, 2024 / Proposed Rules 9813 

Korea or Thailand as defined in this 

section. Notwithstanding the provisions 

of § 3.204(a)(1), VA will require the 

types of evidence specified in §§ 3.209 

and 3.210 sufficient to establish in the 

judgment of the Secretary that a person 

is the natural child of a Vietnam Veteran 

or a Veteran with covered service in 

Korea or Thailand. 

(5) Spina bifida. For the purposes of 

this section, the term ‘‘spina bifida’’ 

means any form and manifestation of 

spina bifida except spina bifida occulta. 

* * * * * 

(Authority: 38 U.S.C. 501, 1116A, 1116B, 

1805, 1811, 1812, 1821, 1822, 1831, 1832, 

1833, 1834, 5101, 5110, 5111, 5112) 

■ 8. Amend § 3.815 by revising 

paragraph (c)(1) and the authority 

citation at the end of the section to read 

as follows: 

§ 3.815 Monetary allowance under 38 

U.S.C. chapter 18 for an individual with 

disability from covered birth defects whose 

biological mother is or was a Vietnam 

Veteran; identification of covered birth 

defects. 

* * * * * 

(c) * * * 

(1) Vietnam Veteran. For the purposes 

of this section, the term Vietnam 

veteran means a person who performed 

active military, naval, or air service in 

the Republic of Vietnam during the 

period beginning on February 28, 1961, 

and ending on May 7, 1975, without 

regard to the characterization of the 

person’s service. Service in the Republic 

of Vietnam includes service in the 

waters offshore of the Republic of 

Vietnam, as defined in 38 CFR 

3.307(a)(6)(iii). Service in other 

locations will constitute service in the 

Republic of Vietnam if the conditions of 

service involved duty or visitation in 

the Republic of Vietnam. 

* * * * * 

(Authority: 38 U.S.C. 501, 1116A, 1811, 1812, 

1813, 1814, 1815, 1816, 1831, 1832, 1833, 

1834, 5101, 5110, 5111, 5112) 

■ 9. Amend § 3.816 by revising 

paragraph (f)(3) and the authority 

citation at the end of the section to read 

as follows: 

§ 3.816 Awards under the Nehmer Court 

Orders for disability or death caused by a 

condition presumptively associated with 

herbicide exposure. 

* * * * * 

(f) * * * 

(3) Identifying payees. VA shall make 

reasonable efforts to identify the 

appropriate payee(s) under paragraph 

(f)(1) of this section. For the purposes of 

this section, reasonable efforts to locate 

a Nehmer payee are limited to the 

following: 

(i) Claims processors must review the 

claims folder for beneficiary contact 

information. Documents in the claims 

folder that might contain this contact 

information can include but are not 

limited to: 

(A) benefit applications; 

(B) statements from the Veteran; and 

(C) medical records 

(ii) Claims processors must review 

electronic claims processing systems for 

potential beneficiary contact 

information, including: 

(A) corporate database review, and 

(B) claims processing system notes 

review 

(iii) Claims processors must utilize 

online public record investigation 

software authorized by VA to locate 

potential beneficiary contact 

information. 

(iv) If review of both the claims folder 

and electronic claims processing 

systems do not provide contact 

information, VA will attempt to contact 

any known or applicable authorized 

representatives of record, next of kin, 

individuals who provided first notice of 

death, the executor/administrator of the 

class member’s estate, or funeral homes 

that provided funeral/burial services, if 

that information is available. 

(v) If no beneficiary, authorized 

representative, next of kin, individuals 

who provided first notice of death, 

executor/administrator of the class 

member’s estate, or funeral home that 

provided funeral/burial services is 

located in the review above, then claims 

processors must: 

(A) Send a letter to the last known 

address of the veteran and wait 30 days 

for a response, and 

(B) Attempt contact via the Veteran’s 

last known telephonic contact 

information found in the Veteran’s file. 

(vi) If, following such efforts, VA 

releases the full amount of unpaid 

benefits to a payee, and additional 

qualifying payees subsequently identify 

themselves to VA, VA will pay the 

newly identified payees the portion of 

the award to which they are entitled, 

and then attempt to recover the 

overpayment from the original payee(s). 

* * * * * 

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

[FR Doc. 2024–02590 Filed 2–9–24; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2023–0649; FRL–11647– 

01–R9] 

Air Plan Revisions; California; Feather 

River Air Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve a 

revision to the Feather River Air Quality 

Management District (FRAQMD or 

‘‘District’’) portion of the California 

State Implementation Plan (SIP). This 

revision concerns a rule submitted to 

address section 185 of the Clean Air Act 

(CAA or ‘‘the Act’’). We are taking 

comments on this proposal and plan to 

follow with a final action. 

DATES: Comments must be received on 

or before March 13, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2023–0649 at https:// 

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with a 

disability who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Kira 

Wiesinger, EPA Region IX, 75 


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