Federal Register / Vol. 61, No. 101 / Thursday, May 23, 1996 / Rules and Regulations 25787

of small entities affected is unknown;

but, the fact that the positive effects will

be seasonal in nature and will, in most

cases, merely continue preexisting uses

of public lands indicates that they will

not be significant.

As of the 1990 census there are

163,000 rural Alaskans qualified to

participate in subsistence hunting or

fishing. Although some of the

subsistence users may conduct their

activities on State or private lands, it is

likely that a large portion of the 163,000

rural Alaskans utilize Federal lands to

some extent.

These regulations do not meet the

threshold criteria of ‘‘Federalism

Effects’’ as set forth in Executive Order

12612. Title VIII of ANILCA requires the

Secretaries to administer a subsistence

preference on public lands. The scope of

this program is limited by definition to

certain public lands. Likewise, these

regulations have no significant takings

implication relating to any property

rights as outlined by Executive Order

12630.

The Service has determined and

certifies pursuant to the Unfunded

Mandates Act, 2 U.S.C. 1502 et seq., that

this rulemaking will not impose a cost

of $100 million or more in any given

year on local or State governments or

private entities.

Drafting Information

These regulations were drafted by

William Knauer under the guidance of

Thomas H. Boyd, Office of Subsistence

Management, Alaska Regional Office,

U.S. Fish and Wildlife Service,

Anchorage, Alaska. Additional guidance

was provided by Peggy Fox, Alaska

State Office, Bureau of Land

Management; Sandy Rabinowitch,

Alaska Regional Office, National Park

Service; John Borbridge, Alaska Area

Office, Bureau of Indian Affairs; and

Ken Thompson, USDA—Forest Service.

List of Subjects

36 CFR Part 242

Administrative practice and

procedure, Alaska, Fish, National

Forests, Public Lands, Reporting and

record keeping requirements, Wildlife.

50 CFR Part 100

Administrative practice and

procedure, Alaska, Fish, Public Lands,

Reporting and recordkeeping

requirements, Subsistence, Wildlife.

Words of Issuance

For the reasons set out in the

preamble, Title 36, Part 242, and Title

50, Part 100, of the Code of Federal

Regulations, are amended as set forth

below.

PARTlll—SUBSISTENCE

MANAGEMENT REGULATIONS FOR

PUBLIC LANDS IN ALASKA

1. The authority citation for both 36

CFR Part 242 and 50 CFR Part 100

continues to read as follows:

Authority: 16 U.S.C. 3, 472, 551, 668dd,

3101–3126; 18 U.S.C. 3551–3586; 43 U.S.C.

1733.

2. Effective June 30, 1996, the

effective date for 36 CFR 242.25 and 50

CFR 100.25 which were added at 60 FR

31553 is extended from July 1, 1996

through July 31, 1996.

Dated: April 3, 1996.

Thomas H. Boyd,

Acting Chair, Federal Subsistence Board.

Dated: April 15 1996.

John C. Capp,

Acting Regional Forester, USDA—Forest

Service.

[FR Doc. 96–12833 Filed 5–22–96; 8:45 am]

BILLING CODE 3410–11–M and 4310–55–M

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 3

RIN 2900–AH44

Compensation for Disability Resulting

From Hospitalization, Treatment,

Examination, or Vocational

Rehabilitation

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document adopts as a

final rule with minor, nonsubstantive

changes an interim rule amending

Department of Veterans Affairs (VA)

adjudication regulations concerning

compensation for disability or death

resulting from VA hospitalization,

medical or surgical treatment, or

examination. Before the interim rule, to

establish entitlement to compensation

for adverse results of medical or surgical

treatment, the regulations required that

VA be at fault or that an accident occur.

In order to conform the regulations to a

recent United States Supreme Court

decision, the interim rule deleted the

fault-or-accident requirement and

instead provided that compensation is

not payable for the necessary

consequences of proper treatment to

which the veteran consented.

EFFECTIVE DATE: This final rule is

effective July 22, 1996.

FOR FURTHER INFORMATION CONTACT: Paul

Trowbridge, Consultant, Regulations

Staff, Compensation and Pension

Service, Veterans Benefits

Administration, 810 Vermont Avenue,

NW, Washington, DC 20420, telephone

(202) 273–7210.

SUPPLEMENTARY INFORMATION: 38 U.S.C.

1151 provides for the payment of

disability or dependency and indemnity

compensation for additional disability

or death resulting from an injury or

aggravation of an injury suffered as the

result of VA hospitalization, medical or

surgical treatment, examination, or

pursuit of a course of vocational

rehabilitation under 38 U.S.C. ch. 31.

VA had long interpreted the statute to

require a showing of fault on the part of

VA or the occurrence of an accident to

establish entitlement to § 1151

compensation for adverse consequences

of VA medical treatment. This

interpretation was codified at 38 CFR

3.358(c)(3).

In a recent decision, Brown v.

Gardner, 115 S. Ct. 552 (1994),

upholding a lower court decision, the

U.S. Supreme Court held that the faultor-accident requirement in former 38

CFR 3.358(c)(3) was inconsistent with

the plain language of 38 U.S.C. 1151 and

that no fault requirement was implicit

in the statute. The Supreme Court

determined that the statutory language

simply requires a causal connection

between an injury or aggravation of an

injury and VA hospitalization, medical

or surgical treatment, examination, or

vocational rehabilitation, but that

compensation is not payable for the

necessary consequences of treatment to

which a veteran consented.

In the Federal Register of March 16,

1995 (60 FR 14222), VA published an

interim rule amending 38 CFR 3.358(c)

in order to implement 38 U.S.C. 1151 as

interpreted in that decision of the

Supreme Court. Interested persons were

invited to submit written comments on

or before May 15, 1995. We received

comments from the Paralyzed Veterans

of America and from a concerned

individual.

One commenter, observing that VA

may provide disability examinations for

beneficiaries of the British Imperial and

Canadian governments and for

pensioners of other nations allied with

the U.S. during World War I and World

War II, and that VA may conduct

examinations for other Federal agencies

(e.g., Office of Personnel Management,

Railroad Retirement Board), asked

whether VA intends to cover under 38

U.S.C. 1151 those examinees. Since the

plain language of 38 U.S.C. 1151

provides for payment of benefits only

for a veteran, VA has no authority to

award § 1151 benefits for anyone who is

not a veteran.

The same commenter suggested

substituting the term ‘‘veteran’’ for the
25788 Federal Register / Vol. 61, No. 101 / Thursday, May 23, 1996 / Rules and Regulations

terms ‘‘beneficiary’’ and ‘‘claimant’’ in

38 CFR 3.358 (b)(1) and (c)(5)

respectively if VA’s intention was to

restrict payment of compensation under

38 U.S.C. 1151 for veterans only. Since

the statute authorizes the payment of

benefits only for veterans, we have

made the suggested changes. These

changes are not substantive; they merely

conform the regulation’s terms to the

statute’s terms.

One commenter stated that because

VA changed the regulation as a result of

the Supreme Court’s decision in Brown

v. Gardner, which he contends found

that the relevant portions of VA’s prior

regulations were void ab initio, the

effective date of the regulatory change

should be the date the legislation now

codified as 38 U.S.C. 1151 was

originally enacted rather than November

25, 1991, the date of the Court of

Veterans Appeals decision that

invalidated former § 3.358(c)(3).

We make no change in the effective

date of the interim rule based on this

comment. In our opinion, choosing

November 25, 1991, as the effective date

is rational. Furthermore, it is consistent

with VA policies concerning the finality

of decided claims and the application of

court decisions invalidating VA

regulations or statutory interpretations.

VA’s General Counsel, in a precedent

opinion issued March 25, 1994

(VAOPGCPREC 9–94) (see 59 FR 27307,

May 26, 1994), held that decisions of the

Court of Veterans Appeals invalidating

VA regulations or statutory

interpretations do not have retroactive

effect in relation to prior finally

adjudicated claims, but should be given

retroactive effect as they relate to claims

still open on direct review. In reaching

this conclusion, the General Counsel

quoted the following passage from the

U.S. Supreme Court’s opinion in Harper

v. Virginia Dept. of Taxation, 113 S. Ct.

2510 (1993):

When this Court applies a rule of federal

law to the parties before it, that rule is the

controlling interpretation of federal law and

must be given full retroactive effect in all

cases still open on direct review and as to all

events, regardless of whether such events

predate or postdate our announcement of the

rule.

Id. at 2517. That General Counsel

precedent opinion is binding on VA and

requires that VA apply the courts’

interpretation of 38 U.S.C. 1151 to

claims still open on direct review on

November 25, 1991, the date of the

Court of Veterans Appeals decision, but

not to prior finally adjudicated claims.

By being effective from the date of the

Court of Veterans Appeals decision

invalidating former § 3.358(c)(3), the

new rule will be applied just as

VAOPGCPREC 9–94 requires the court

decision to be applied. With an effective

date of November 25, 1991, the new rule

will apply to all claims still open on

direct review on that date, whether by

an agency of original jurisdiction or the

Board of Veterans’ Appeals. Moreover,

the effective date of any award based on

the new rule’s application to such a

claim will be in accordance with 38

U.S.C. 5110. However, the new rule will

not retroactively apply to claims already

finally decided as of November 25,

1991. Although those claims can be

reopened with new and material

evidence or administratively reviewed

under the liberalized provisions of the

new rule, no award based on the new

rule’s application to such a claim will

be effective before that date.

In the absence of new and material

evidence to reopen a claim or another

reason to reconsider a Board of

Veterans’ Appeals decision, a finally

decided claim remains final unless it

involved clear and unmistakable or

obvious error. By being effective from

November 25, 1991, the new rule will

also be consistent with this policy of

finality. Claims pending on that date

will receive the benefit of the new, more

liberal interpretation of 38 U.S.C. 1151.

Claims finally decided by that date,

although decided under the old,

subsequently invalidated rule, in the

absence of new and material evidence to

reopen or another reason to reconsider,

will remain final unless they involved

clear and unmistakable or obvious error.

Moreover, we do not consider the

application of the old rule before

November 25, 1991, to have been clear

and unmistakable or obvious error. See

38 CFR 3.105; VAOPGCPREC 25–95

(December 6, 1995).

The same commenter also objected to

using 38 U.S.C. 1151 as the authority

citation for paragraph (c)(6). In addition

to containing information relating to 38

U.S.C. 1151, this paragraph contains

information relating to 38 U.S.C. 1720

(non-VA nursing home care). Therefore,

we are changing the authority citation to

include both 38 U.S.C. 1151 and 1720.

Before the interim rule, 38 CFR

3.358(c)(4) provided that compensation

would be payable for disability resulting

from transportation while in a

hospitalized status only if injury or

death proximately resulted from VA’s

fault. The interim rule removed former

paragraph (c)(4). A commenter suggests

adding language to 38 CFR 3.358(a)

expressly providing for 38 U.S.C. 1151

coverage where additional disability

results from transportation while in a

hospitalized status.

As was true before the courts

invalidated VA’s former interpretation

of 38 U.S.C. 1151, claims based on

additional disability or death resulting

from an injury suffered as a result of

transportation while in a hospitalized

status are held to the same standard as

claims based on additional disability or

death resulting from an injury otherwise

suffered as a result of hospitalization.

Former paragraph (c)(4) was added to

the regulation because of a decision of

the Administrator of Veterans’ Affairs

holding that injuries suffered while

being transported in a hospitalized

status could give rise to eligibility under

the predecessor provisions of 38 U.S.C.

1151. Transportation while hospitalized

can still give rise to eligibility even

though the old fault-or-accident

standard is no longer valid. However,

since the rule’s general term

‘‘hospitalization’’ encompasses the

particular circumstances of

transportation while in a hospitalized

status, we see no need to specify a

provision for transportation while in a

hospitalized status.

The Office of Management and Budget

has reviewed this regulatory action

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: February 7, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the

preamble, the interim rule amending 38

CFR Part 3, which was published at 60

FR 14222 on March 16, 1995, is adopted

as a final rule with the following

changes:

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. In § 3.358, paragraph (b)(1)

introductory text is amended by

removing ‘‘beneficiary’s’’ and adding, in

its place, ‘‘veteran’s’’; paragraph (c)(4) is

amended by removing ‘‘claimant’s’’ and

‘‘claimants’’ and adding, in their

respective places, ‘‘veteran’s’’ and

‘‘veterans’’; and an authority citation is

added immediately following paragraph

(c)(6) to read as follows:
Federal Register / Vol. 61, No. 101 / Thursday, May 23, 1996 / Rules and Regulations 25789

§ 3.358 Determinations for disability or

death from hospitalization, medical or

surgical treatment, examinations or

vocational rehabilitation training (§ 3.800).

* * * * *

(Authority: 38 U.S.C. 1151, 1720.)

[FR Doc. 96–12924 Filed 5–22–96; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[NC–80–1–9619a & 81–1–9620a; FRL–5505–

4 ]

Approval and Promulgation of

Implementation Plans North Carolina:

Approval of Revisions to the Forsyth

County Local Implementation Plan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: On November 29, 1995, the

Forsyth County Board of

Commissioners, through the North

Carolina Department of Environment,

Health and Natural Resources,

submitted revisions to the Forsyth

County Local Implementation Plan

(LIP). These revisions include the

adoption of new air quality rules and

amendments to existing air quality rules

that were the subject of public hearings

held on May 16, 1995. A second

submittal concerning these revisions

was forwarded to EPA on December 28,

1995. This second submittal was the

subject of a public hearing on

September 26, 1995.

These revisions adopt three sourcespecific volatile organic compound

rules; Thread Bonding Manufacturing,

Glass Christmas Ornament

Manufacturing, Commercial Bakeries,

delete textile coating, Christmas

ornament manufacturing, and bakeries

from the list of sources that must follow

interim standards, define di-acetone

alcohol as a non-photochemically

reactive solvent, and place statutory

requirements for adoption by reference

for referenced ASTM methods into a

single rule rather than each individual

rule that references ASTM methods.

DATES: This action is effective July 22,

1996 unless notice is received by June

24, 1996 that someone wishes to submit

adverse or critical comments. If the

effective date is delayed, timely notice

will be published in the Federal

Register.

ADDRESSES: Written comments should

be addressed to:

Randy Terry, Regulatory Planning and

Development Section, Air Programs

Branch, Air, Pesticides & Toxics

Management Division, Region 4

Environmental Protection Agency,

345 Courtland Street, NE, Atlanta,

Georgia 30365

Copies of the material submitted by the

NCDEHNR may be examined during

normal business hours at the

following locations:

Air and Radiation Docket and

Information Center (Air Docket 6102),

U.S. Environmental Protection

Agency, 401 M Street, SW.,

Washington, DC 20460

Environmental Protection Agency,

Region 4 Air Programs Branch, 345

Courtland Street, NE, Atlanta, Georgia

30365

North Carolina Department of

Environment, Health and Natural

Resources, 512 North Salisbury Street,

Raleigh, North Carolina 27604

FOR FURTHER INFORMATION CONTACT:

Randy Terry, Regulatory Planning and

Development Section, Air Programs

Branch, Air, Pesticides & Toxics

Management Division, Region 4

Environmental Protection Agency, 345

Courtland Street, NE, Atlanta, Georgia

30365. The telephone number is 404/

347–3555 ex 4212.

SUPPLEMENTARY INFORMATION: On

November 29, and December 28, 1995,

the Forsyth County Board of

Commissioners, through the North

Carolina Department of Environment,

Health and Natural Resources,

submitted revisions to the Forsyth

County Local Implementation Plan

(LIP). These revisions were approved

into the North Carolina State

Implementation Plan (SIP) in a previous

document (61 FR 3588) and have been

adopted by the Forsyth County Board of

Commissioners. These revisions affect

several sections in the ozone

regulations. EPA is approving the

revisions to sections Subchapter 3D

.0104 Incorporation by Reference, .0501

Compliance With Emission Control

Standards, .0516 Sulfur Dioxide

Emissions From Combustion Sources,

.0518 Miscellaneous Volatile Organic

Compound Emissions, .0530 Prevention

of Significant Deterioration, .0531

Sources in Nonattainment Areas, .0902

Applicability, .0907 Compliance

Schedules for Sources in Nonattainment

Areas, .0909 Compliance Schedules for

Sources in New Nonattainment Areas,

.0910 Alternative Compliance

Schedules, .0911 Exception from

Compliance Schedules, .0950 Interim

Standards for Certain Source Categories,

.0952 Petition for Alternative Controls,

.0954 Stage II Vapor Recovery, .0955

Thread Bonding Manufacturing, .0956

Glass Christmas Ornament

Manufacturing, and .0957 Commercial

Bakeries because these revisions are

consistent with the requirements of the

Clean Air Act and EPA guidance.

EPA is approving the following new

rules and revisions of existing rules in

the Forsyth County LIP. These new

rules and revisions are consistent with

the requirements of the Clean Air Act

and EPA guidance.

.0104, Incorporation by Reference

These amendments involve the

placement of statutory requirements for

adoption by reference for referenced

American Society for Testing and

Materials methods (ASTM) into a single

rule rather than each individual rule

that references ASTM methods.

.0501 Compliance With Emission

Control Standards

This rule was amended to clarify the

appropriate compliance methodology.

.0516 Sulfur Dioxide Emissions From

Combustion Sources

This rule was amended to include an

additional reference rule number.

.0518 Miscellaneous Volatile Organic

Compounds Emissions

This rule was amended to clarify that

diacetone alcohol and

perchloroethylene are not considered to

be photochemically reactive and to

delete a repeated phrase.

.0530 Prevention of Significant

Deterioration

This rule was amended to update the

latest date of amendment of the CFR

references.

.0531 Sources in Nonattainment Areas

This rule has been amended to add

paragraph (k), which requires using the

UAM model, by new or major

modifications, at sources to predict

effect on the ozone level and attainment

status.

.0902 Applicability

Forsyth County did not adopt

paragraph (e), which pertains to other

counties in North Carolina, of the State

rule because those areas are not in

Forsyth County’s jurisdiction.

.0909 Compliance Schedules for

Sources in New Attainment Areas

This rule has been amended to

correctly identify the appropriate

paragraph references.

.0950 Interim Standards for Certain

Source Categories

This section, is being revised to delete

textile coating, bakeries and Christmas

ornament manufacturing from the list of