Federal Register / Vol. 60, No. 100 / Wednesday, May 24, 1995 / Rules and Regulations 27407

In order to protect the safety of life

and property on the navigable waters

during this event, the Coast Guard is

establishing a safety zone around the

fireworks launching barge on the waters

of the Willamette River from river mile

12.8 to river mile 13.1 between the

Morrison and Hawthorne Bridges. Entry

into this zone will be prohibited unless

authorized by the captain of the Port.

This safety zone will be enforced by

representatives of the Captain of the

Port Portland. The Captain of the Port

may be assisted by other federal

agencies.

Regulatory Evaluation

This temporary final rule is not a

significant regulatory action under

section 3(f) of Executive Order 12866

and does not require an assessment of

potential costs and benefits under

section 6(a)(3) of that order. It has been

exempted from review by the Office of

Management and Budget under that

order. It is not significant under the

regulatory policies and procedures of

the Department of Transportation (DOT)

(44 FR 11040, February 26, 1979). The

Coast Guard expects the economic

impact of this proposal to be so minimal

that a full Regulatory Evaluation under

paragraph 10e of the regulatory policies

and procedures of DOT is unnecessary.

This expectation is based on the fact

that the entry into the safety zone will

only be restricted for less than 3 hours

on the day of the event. The entities

most likely to be affected by this action

are commercial tug and barge operators

on the Willamette River. Most of these

entities are aware of the fireworks

display and the safety zone, and they

can schedule their transits accordingly.

If safe to do so, the representative of the

Captain of the Port assigned to enforce

this safety zone may authorize

commercial vessels to pass through the

safety zone on a case-by-case basis.

Small Entities

Under the Regulatory Flexibility Act

(5 U.S.C, 601 et seq.), the Coast Guard

must consider whether this final rule

will have a significant economic impact

on a substantial number of small

entities. ‘‘Small entities’’ include

independently owned and operated

small businesses that are not dominant

in their field and that otherwise qualify

as ‘‘small business concerns’’ under

section 3 of the Small Business Act (15

U.S.C. 632).

For the reasons outlined in the

Regulatory Evaluation above, the Coast

Guard expects the impact of this final

rule to be minimal on all entities.

Therefore, the Coast Guard certifies

under 5 U.S.C. 605(b) that this final rule

will not have a significant economic

impact on a substantial number of small

entities.

Collection of Information

This final rule contains no collection

of information requirements under the

Paperwork Reduction Act (44 U.S.C.

3501 et seq.)

Federalism

The Coast Guard has analyzed this

final rule in accordance with the

principles and criteria contained in

Executive Order 12612, and it has been

determined that this final rule does not

have sufficient federalism implications

to warrant the preparation of a

Federalism Assessment.

Environmental Assessment

The Coast Guard has considered the

environmental impact of this final rule

and has concluded that, under section

2.B.2.c. of Commandant Instruction

M16475.1B, it is categorically excluded

from further environmental

documentation. A Categorical Exclusion

Determination has been prepared and

placed in the rulemaking docket.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation

(water), Reporting and recordkeeping

requirements, Security measures,

Waterways.

Final Regulation

For the reasons set out in the

preamble, the Coast Guard amends part

165 of title 33, Code of Federal

Regulations, as follows:

PART 165—[AMENDED]

1. The authority citation for part 165

continues to read as follows:

Authority: 33 U.S.C. 1231; 50 U.S.C. 191;

33 CFR 1.05–1(g), 6.04–1, 6.04–6, and 160.5;

49 CFR 1.46.

2. A temporary § 165.T13015 is added

to read as follows:

§ 165.T13015 Safety Zone; Willamette

River, Portland, OR.

(a) Location. The following area is a

safety zone: All waters on the

Willamette River between the Morrison

and Hawthorne Bridges from river mile

12.8 to river mile 13.1, Portland,

Oregon.

(b) The designated representative of

the Captain of The Port is any Coast

Guard commissioned, warrant, or petty

officer who has been authorized by the

Captain of the Port Portland, to act on

his behalf. The following officers have

or will be designated by the Captain of

the Port: The Coast Guard Patrol

Commander, the senior boarding officer

on each vessel enforcing the safety zone,

and the Duty Officer at Coast Guard

Group Portland, Oregon.

(c) Regulations: (1) In accordance with

the general regulations in § 165.23 of

this part, entry into this safety zone is

prohibited unless authorized by the

Captain of the Port or his designated

representatives.

(2) A succession of sharp, short

signals by whistle, siren, or horn from

vessels patrolling the area under the

direction of the Patrol Commander shall

serve as a signal to stop. Vessels or

persons signalled shall stop and comply

with the orders of the patrol vessels;

failure to do so may result in expulsion

from the area, citation for failure to

comply, or both.

(d) Effective Dates: This section

becomes effective on June 2, 1995, at

8:45 p.m. (PDT) and terminate on June

2, 1995, at 11:10 p.m. (PDT), unless

sooner terminated by the Captain of the

Port. If inclement weather causes the

fireworks display to be postponed, the

regulation will be effective on June 4,

1995, from 8:45 p.m. (PDT) to 11:10

p.m. (PDT), unless sooner terminated by

the Captain of the Port.

Dated: May 9, 1995.

C.E. Bills,

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

Port.

[FR Doc. 95–12737 Filed 5–23–95; 8:45 am]

BILLING CODE 4910–14–M

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 3

RIN 2900–AF03

Line of Duty

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends

Department of Veterans Affairs (VA)

adjudication regulations concerning

service connection for disabilities

incurred or aggravated in line of duty.

This amendment is necessary to

implement legislation which precludes

the establishment of service connection

for any condition that results from the

abuse of alcohol or drugs by the person

on whose service benefits are claimed.

EFFECTIVE DATE: November 1, 1990.

FOR FURTHER INFORMATION CONTACT:

Lorna Weston, Consultant, Regulations

Staff, Compensation and Pension

Service, Veterans Benefits

Administration, Department of Veterans

Affairs, 810 Vermont Avenue, NW.,

Washington, DC 20420, (202) 273–7210.
27408 Federal Register / Vol. 60, No. 100 / Wednesday, May 24, 1995 / Rules and Regulations

SUPPLEMENTARY INFORMATION: Section

8052 of the Omnibus Budget

Reconciliation Act of 1990 (OBRA

1990), Pub. L. 101–508, amended 38

U.S.C. 105(a), 110 (recodified as 1110)

and 331 (recodified as 1131) to provide

that injuries or diseases resulting from

the abuse of alcohol or drugs by the

person on whose service benefits are

claimed will not be considered incurred

in line of duty and thus are not

compensable by VA as serviceconnected disabilities.

On March 1, 1994, VA published a

proposal in the Federal Register (59 FR

9719) to amend its adjudication

regulations at 38 CFR 3.1 and 3.301 to

provide that injuries or diseases

incurred or aggravated during service as

a result of the abuse of alcohol or drugs

will not be considered incurred or

aggravated in line of duty for purposes

of service connection. Interested

persons were invited to submit written

comments, suggestions or objections on

or before May 2, 1994. We received two

comments: One from the Disabled

American Veterans and one from a

concerned individual.

One commenter expressed agreement

with the amendment as proposed and

suggested no changes.

The other commenter recommended

that VA include within the body of the

regulations the statutory direction that

the amendments apply only to claims

filed after October 31, 1990. We concur

with that recommendation and have

added appropriate language to the

regulations at 38 CFR 3.1(m) and

3.301(a).

The same commenter noted that the

Veterans Benefits Administration

Manual M 21–1 and VBA Circular 21–

90–12 provide that alcohol- or drugrelated disabilities will be considered

service-connected if alcohol abuse is a

manifestation of a service-connected

disability such as post traumatic stress

disorder, or if drug abuse arose out of

therapy for a service-connected

disability. He stated that these are

substantive rules that should be

included in the amendment to § 3.301.

The manual and circular provisions

which the commenter cited are

examples of the application of 38 CFR

3.310(a), which provides that disability

that is proximately due to or the result

of a service-connected disease or injury

shall be service-connected and that

when service connection is thus

established for a secondary condition

the secondary condition shall be

considered a part of the original

condition. In circumstances such as

those raised by the commenter, VA is

required by § 3.310(a) to consider

conditions that it has determined are

secondary to a service-connected

condition to be part of that serviceconnected condition rather than a result

of the abuse of alcohol or drugs. Since

that requirement is established

elsewhere in VA’s regulations, it is

unnecessary to incorporate those

provisions into § 3.301.

The same commenter, citing the

Diagnostic and Statistical Manual of

Mental Disorders (Third Edition—

Revised, 1987), (DSM–III–R), published

by the American Psychiatric

Association, stated that, at the time

Congress enacted OBRA 1990, alcohol

abuse had an established definition. The

commenter implied that this definition

was so well established as to constitute

the meaning Congress intended when it

enacted OBRA 1990, and suggested that,

to the extent that VA’s definition of

alcohol abuse is inconsistent with the

established definition, VA’s definition

exceeds the authority of the Secretary of

Veterans Affairs to promulgate

regulations. The commenter suggested

that the definitions of alcohol abuse and

drug abuse in DSM–III–R be adopted by

VA.

While the DSM–III–R definitions may

have been widely accepted in the

medical community, they were intended

for diagnostic and statistical purposes.

There is no evidence to suggest that

Congress had these diagnostic criteria in

mind at the time OBRA 1990 was

enacted. Rather, Congress clearly

intended that no service-connected

benefits would be granted for disability

or death resulting from drug or alcohol

abuse, whether from pathology due to

long-term use, or from traumatic effects

related to acute intoxication.

Nevertheless, we have further

considered the meaning of the terms

alcohol abuse and drug abuse in OBRA

1990. Congress did not define either

term in OBRA 1990, and the legislative

history does not indicate that Congress

intended the terms to mean anything

other than their commonly understood

meanings. Therefore, we have

concluded that Congress intended these

terms to have their ordinary,

contemporary, common meanings. We

think that the definition of drug abuse

in the proposed rule accurately reflects

Congress’ intent and, accordingly, have

adopted the proposed definition in the

final rule. However, we think that the

definition of alcohol abuse in the

proposed rule does not accurately

reflect Congress’ intent, since that

definition differs from the common

meaning. Therefore, we have changed

the definition of alcohol abuse in the

final rule to more accurately reflect the

meaning we think Congress intended,

i.e., ‘‘the use of alcoholic beverages over

time, or such excessive use at any one

time, sufficient to cause disability to or

death of the user.’’ Under these

circumstances, the definition of alcohol

abuse constitutes an interpretative rule

and need not be published as a

proposed rule for notice and comment.

VA appreciates the comments

submitted in response to the proposed

rule which is now adopted with the

changes noted above.

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 amendment

will directly affect VA beneficiaries, but

will not directly affect small business.

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

this final rule is exempt from the initial

and final regulatory flexibility analyses

requirements of sections 603 and 604.

This regulatory action has been

reviewed by the Office of Management

and Budget under Executive Order

12866.

(The Catalog of Federal Domestic Assistance

program number is 64.109).

List of Subjects in 38 CFR Part 3

Administrative practice and

procedure, Claims, Health care,

Individuals with disabilities, Pensions,

Veterans.

Approved: May 12, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the

preamble, 38 CFR part 3 is amended 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.

§ 3.1 [Amended]

2. In § 3.1(m), in the first sentence,

remove the period at the end of the

sentence and insert, in its place, ‘‘or, for

claims filed after October 31, 1990, was

a result of his or her abuse of alcohol or

drugs.’’

§ 3.301 [Amended]

3. In § 3.301(a), at the end of the

paragraph, remove the period and

insert, in its place, ‘‘or, for claims filed

after October 31, 1990, the result of his

or her abuse of alcohol or drugs.’’
Federal Register / Vol. 60, No. 100 / Wednesday, May 24, 1995 / Rules and Regulations 27409

4. In § 3.301(c), revise the heading to

read as follows: ‘‘Specific applications;

willful misconduct.’’

5. In § 3.301(c)(3), after the third

sentence, add a new sentence in

parenthesis to read as follows: ‘‘(See

paragraph (d) of this section regarding

service connection where disability or

death is a result of abuse of drugs.)’’;

and in the fourth sentence, remove the

words ‘‘Similarly, where’’ and add, in

their place, the word ‘‘Where’’.

6. In § 3.301, add a new paragraph (d)

and an authority citation to read as

follows:

§ 3.301 Line of duty and misconduct.

* * * * *

(d) Line of duty; abuse of alcohol or

drugs. An injury or disease incurred

during active military, naval, or air

service shall not be deemed to have

been incurred in line of duty if such

injury or disease was a result of the

abuse of alcohol or drugs by the person

on whose service benefits are claimed.

For the purpose of this paragraph,

alcohol abuse means the use of

alcoholic beverages over time, or such

excessive use at any one time, sufficient

to cause disability to or death of the

user; drug abuse means the use of illegal

drugs (including prescription drugs that

are illegally or illicitly obtained), the

intentional use of prescription or nonprescription drugs for a purpose other

than the medically intended use, or the

use of substances other than alcohol to

enjoy their intoxicating effects.

(Authority: 38 U.S.C. 105(a))

[FR Doc. 95–12644 Filed 5–23–95; 8:45 am]

BILLING CODE 8320–01–P

38 CFR Part 3

RIN 2900–AH38

Examinations

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

Department of Veterans Affairs (VA)

adjudication regulations to reflect a

statutory change which authorizes VA

to accept the report of a private

physician’s examination that is

otherwise adequate for rating purposes

to establish entitlement to compensation

or pension benefits.

EFFECTIVE DATE: This amendment is

effective November 2, 1994, the date

that Public Law 103–446, the Veterans’

Benefits Improvements Act of 1994,

became effective.

FOR FURTHER INFORMATION CONTACT: Paul

Trowbridge, Consultant, Regulations

Staff (211B), Compensation and Pension

Service, Veterans Benefits

Administration, 810 Vermont Avenue

NW., Washington, DC 20420, telephone

(202) 273–7210.

SUPPLEMENTARY INFORMATION: On

November 2, 1994, the Veterans’

Benefits Improvements Act of 1994 was

signed into law. Section 301 of that

statute created 38 U.S.C. 5125, which

authorizes the Secretary of Veterans

Affairs to accept the report of a private

physician’s examination that is

otherwise adequate for rating purposes

to establish entitlement to compensation

or pension benefits. This document

amends 38 CFR 3.157, 3.326, 3.327, and

3.352 in order to reflect that statutory

authority.

38 CFR 3.157(b)(2) is amended to

remove the requirement that a private

physician’s statement be confirmed by a

VA examination prior to granting

service connection for a disability. 38

CFR 3.326(d) is amended to show that

a private physician’s statement may be

accepted for rating any compensation or

pension claim as long as it is adequate

for rating purposes. 38 CFR 3.327(b)(1)

is amended to remove the requirement

that at least one VA examination be

made in every case in which

compensation benefits are awarded. 38

CFR 3.352(b)(1) is amended to remove

the requirement that a veteran’s need for

the special aid and attendance benefit

under 38 U.S.C. 1114(r) must be

determined by a Department of Veterans

Affairs physician.

Administrative Procedure Act

This final rule amends VA regulations

merely to reflect statutory provisions.

Accordingly, there is a basis for

dispensing with prior notice and

comment and for dispensing with a 30-

day delay of the effective date.

Regulatory Flexibility Act

This final rule will not have a

significant economic impact on a

substantial number of small entities

since it merely reflects a statutory

change.

The Catalog of Federal Domestic

Assistance program numbers are 64.104,

64.105, 64.109, and 64.110.

List of Subjects in 38 CFR Part 3

Administrative practice and

procedure, Claims, Health care,

Individuals with disabilities, Pensions,

Veterans.

Approved: May 17, 1995.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the

preamble, 38 CFR part 3 is amended 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.

§ 3.157 [Amended]

2. In § 3.157, the last sentence in

paragraph (b)(2) is removed.

3. In § 3.326, paragraph (d) is revised

to read as follows:

§ 3.326 Examinations.

* * * * *

(d) A statement from a private

physician that includes clinical

manifestations and substantiation of

diagnosis by findings of diagnostic

techniques generally accepted by

medical authorities, such as

pathological studies, X-rays, and

laboratory tests as appropriate, may be

accepted for rating any claim without

further examination, provided it is

otherwise adequate for rating purposes.

(Authority: 38 U.S.C. 5125)

§ 3.327 [Amended]

4. In § 3.327, the first two sentences

in paragraph (b)(1) are removed.

§ 3.352 [Amended]

5. In § 3.352, paragraph (b)(1)(iv) is

removed.

[FR Doc. 95–12707 Filed 5–23–95; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[Ky–83–6927a; FRL–5184–7]

Approval and Promulgation of

Implementation Plans State: Kentucky

Approval of Revisions to State

Implementation Plan (SIP)

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is approving a revision to

the state implementation plan (SIP)

submitted by the Commonwealth of

Kentucky through the Natural Resources