11646 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AN19 

Termination of Phase-In Period for Full 

Concurrent Receipt of Military Retired 

Pay and Veterans Disability 

Compensation Based on a VA 

Determination of Individual 

Unemployability 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is amending its 

adjudication regulations regarding 

entitlement to full concurrent receipt of 

military retired pay and veterans 

disability compensation based on a VA 

determination of individual 

unemployability (IU). This rulemaking 

is intended to implement section 642 of 

the National Defense Authorization Act 

for Fiscal Year 2008, which provides 

that veterans who are entitled to receive 

veterans disability compensation based 

on a VA determination of individual 

unemployability are no longer subject to 

a phase-in period. This regulatory 

amendment is necessary to conform to 

statutory provisions. 

DATES: Effective Date: March 19, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Nancy Copeland, Regulations Staff 

(211D), Compensation and Pension 

Service, Veterans Benefits 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420, (202) 461–9685. 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: Beginning 

in 2004, 10 U.S.C. 1414(a) authorized 

concurrent receipt of retired pay and VA 

disability compensation for certain 

veterans. However, rather than 

immediately authorizing full concurrent 

receipt, Congress imposed a ‘‘phase-in’’ 

period permitting partial concurrent 

receipt for the period from January 1, 

2004, to December 31, 2013. 

Section 642 of the Ronald W. Reagan 

National Defense Authorization Act for 

Fiscal Year 2005, Public Law 108–375, 

amended section 1414 of title 10, United 

States Code, by eliminating the phase-in 

period for qualified retirees receiving 

veterans’ disability compensation for a 

disability rated as 100-percent. Section 

663 of the National Defense 

Authorization Act for Fiscal Year 2006, 

Public Law 109–163, further provided 

that veterans entitled to receive 

disability compensation based on a VA 

determination of IU were subject to the 

phase-in period only until September 

30, 2009. 

Section 642 of the National Defense 

Authorization Act for Fiscal Year 2008, 

Public Law 110–181, has further 

amended section 1414 of title 10, United 

States Code. Effective December 31, 

2004, qualified retirees receiving 

veterans’ disability compensation at the 

rate payable for a 100-percent disability 

based on a VA determination of IU are 

no longer subject to a phase-in period. 

Any benefits due based on termination 

of the phase-in are payable from January 

1, 2005. 

Based on this statutory change, VA is 

amending 38 CFR 3.750 by removing 

language that provides that qualified 

retirees who receive disability 

compensation based on a VA 

determination of IU are subject to a 

phase-in period. This is no longer 

required based on the statutory change. 

To avoid confusion, we are clarifying 

that both veterans who are rated 100 

percent disabled under the VA rating 

schedule and veterans who are entitled 

to receive 100 percent disability 

compensation based on a VA 

determination of IU need not file 

waivers of military retired pay. 

Administrative Procedures Act 

This final rule is an interpretive rule 

and the changes made by this rule 

merely reflect VA’s interpretation of 

statutory requirements. The primary 

purpose of the amendment is to 

implement VA’s statutory interpretation 

of 10 U.S.C. 1414 and to align § 3.750 

to the statute. Section 553(b) of title 5, 

U.S. Code, does not apply to 

interpretive rules. Accordingly, there is 

a basis for dispensing with prior notice 

and opportunity to comment. Moreover, 

under section 553(d), interpretive rules 

do not require 30 days prior notice 

before they may become effective. 

Therefore, because the amendment to 

§ 3.750 is an interpretive rule, the 

amendment may have an immediate 

effect. Accordingly, there is a basis for 

dispensing with the delayed effective 

date provisions of 5 U.S.C. 553(d). 

Paperwork Reduction Act 

This action contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act (44 

U.S.C. 3501–3521). 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this final rule will not have a significant 

economic impact on a substantial 

number of small entities as they are 

defined in the Regulatory Flexibility 

Act, 5 U.S.C. 601–612. This final rule 

would not affect any small entities. 

Only VA beneficiaries could be directly 

affected. Therefore, pursuant to 5 U.S.C. 

605(b), this final rule is exempt from the 

initial and final regulatory flexibility 

analysis requirements of sections 603 

and 604. 

Executive Order 12866 

Executive Order 12866 directs 

agencies to assess all 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, and other advantages; 

distributive impacts; and equity). The 

Executive Order classifies a ‘‘significant 

regulatory action,’’ requiring review by 

the Office of Management and Budget, 

as any regulatory action that is likely to 

result in a rule that may: (1) Have an 

annual effect on the economy of $100 

million or more or adversely affect in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. 

The economic, interagency, 

budgetary, legal and policy implications 

of this final rule have been examined, 

and it has been determined not to be a 

significant regulatory action under 

Executive Order 12866. 

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 

year. This final rule will have no such 

effect on State, local, and tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

Numbers and Titles 

The Catalog of Federal Domestic 

Assistance program number and title for 

this rule is Veterans Compensation for 

Service-Connected Disability; 64.116. 

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 11647 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Approved: February 24, 2009. 

John R. Gingrich, 

Chief of Staff, Department of Veterans Affairs. 

■ For the reasons set out in the 

preamble, VA amends 38 CFR part 3 as 

follows: 

PART 3—ADJUDICATION 

■ 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 § 3.750 by: 

■ a. Revising paragraph (b)(1). 

■ b. Revising paragraph (c)(1)(ii). 

■ c. Redesignating paragraph (c)(2) as 

paragraph (c)(3). 

■ d. Adding new paragraph (c)(2). 

■ 3. The revisions and addition read as 

follows: 

§ 3.750 Entitlement to concurrent receipt 

of military retired pay and disability 

compensation. 

* * * * * 

(b) * * * 

(1) Compensation. Subject to 

paragraphs (b)(2) and (b)(3) of this 

section, a veteran who is entitled to 

military retired pay and disability 

compensation for a service-connected 

disability rated 50 percent or more, or 

a combination of service-connected 

disabilities rated 50 percent or more, 

under the schedule for rating disabilities 

(38 CFR part 4, subpart B), is entitled to 

receive both payments subject to the 

phase-in period described in paragraph 

(c) of this section. 

* * * * * 

(c) * * * 

(1) * * * 

(ii) Except as provided in paragraph 

(c)(2) of this section, all veterans who 

are eligible to receive both military 

retired pay and disability compensation 

at the same time under paragraphs (b)(1) 

or (b)(2) of this section must file a 

waiver in order to receive the maximum 

allowable amount of disability 

compensation during the phase-in 

period. The phase-in period ends on 

December 31, 2013. After the phase-in 

period, veterans retired under 10 U.S.C. 

chapter 61 who are eligible for 

concurrent receipt must still file a 

waiver under the circumstances 

described in paragraph (b)(2)(ii) of this 

section. 

(2) When a waiver is not necessary. 

Unless paragraph (b)(2)(ii) of this 

section applies, veterans who are 

entitled to receive disability 

compensation based on a VA 

determination of individual 

unemployability as well as veterans 

rated 100-percent disabled under the 

VA schedule for rating disabilities need 

not file waivers of military retired pay. 

The phase-in period does not apply to 

this group of veterans. 

* * * * * 

[FR Doc. E9–5954 Filed 3–18–09; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[MD202–3118; FRL–8775–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Maryland; Update to Materials 

Incorporated by Reference 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; notice of 

administrative change. 

SUMMARY: EPA is updating the materials 

submitted by Maryland that are 

incorporated by reference (IBR) into the 

State implementation plan (SIP). The 

regulations affected by this update have 

been previously submitted by the 

Maryland Department of the 

Environment (MDE) and approved by 

EPA. This update affects the SIP 

materials that are available for public 

inspection at the National Archives and 

Records Administration (NARA), the 

Air and Radiation Docket and 

Information Center located at EPA 

Headquarters in Washington, DC, and 

the Regional Office. 

DATES: Effective Date: This action is 

effective March 19, 2009. 

ADDRESSES: SIP materials which are 

incorporated by reference into 40 CFR 

part 52 are available for inspection at 

the following locations: Air Protection 

Division, U.S. Environmental Protection 

Agency, Region III, 1650 Arch Street, 

Philadelphia, Pennsylvania 19103; the 

Air and Radiation Docket and 

Information Center, EPA Headquarters 

Library, Room Number 3334, EPA West 

Building, 1301 Constitution Ave., NW., 

Washington, DC 20460, and the 

National Archives and Records 

Administration. If you wish to obtain 

materials from a docket in the EPA 

Headquarters Library, please call the 

Office of Air and Radiation (OAR) 

Docket/Telephone number: (202) 566– 

1742; or the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/

federal_register/code_of_

federal_regulations/ibr_locations.html. 

FOR FURTHER INFORMATION CONTACT: 

Harold A. Frankford, (215) 814–2108 or 

by e-mail at frankford.harold@epa.gov. 

SUPPLEMENTARY INFORMATION: The SIP is 

a living document which the State 

revises as necessary to address the 

unique air pollution problems in the 

State. Therefore, EPA from time to time 

must take action on SIP revisions 

containing new and/or revised 

regulations to make them part of the 

SIP. On May 22, 1997 (62 FR 27968), 

EPA revised the procedures for 

incorporating by reference federallyapproved SIPs, as a result of 

consultations between EPA and the 

Office of the Federal Register (OFR). The 

description of the revised SIP 

document, IBR procedures and 

‘‘Identification of plan’’ format are 

discussed in further detail in the May 

22, 1997 Federal Register document. On 

November 29, 2004 (69 FR 69304), EPA 

published a document in the Federal 

Register beginning the new IBR 

procedure for Maryland. On February 2, 

2006 (71 FR 5607) and May 18, 2007 (72 

FR 27957), EPA published an update to 

the IBR material for Maryland. On 

March 11, 2008 (73 FR 12895), EPA 

published a correction update to the IBR 

material pertaining to source-specific 

requirements. In this document, EPA is 

doing the following: 

1. Announcing the update to the IBR 

material as of December 1, 2008. 

2. Making corrections to the following 

entries listed in the paragraph 

52.1070(c) chart, as described below: 

a. COMAR 26.11.01.01B(53)—moving 

the text from the ‘‘State effective date’’ 

and the ‘‘EPA approval date’’ columns 

to the ‘‘EPA approval date’’ and 

‘‘Additional explanation/citation at 40 

CFR 52.1100’’ columns respectively; 

and adding new text to the ‘‘State 

effective date column.’’ 

b. COMAR 26.11.06.02—correcting 

the regulatory citation in the 

‘‘Additional explanation/citation at 40 

CFR 52.1100’’ column. 

c. COMAR 26.11.13.08—correcting 

the page citation in the ‘‘EPA approval 

date’’ column. 

d. COMAR 26.11.17.01 and .03— 

correcting the text in the ‘‘State effective 

date’’ and ‘‘EPA approval date’’ 

columns. 

e. COMAR 26.11.24.05–1—adding 

explanatory text to the ‘‘Additional 

explanation/citation at 40 CFR 

§ 52.1100’’ column. 

f. COMAR 26.11.32.13—revising the 

explanatory text in the ‘‘Additional 

explanation/citation at 40 CFR 52.1100’’ 

column. 

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