26956 Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations 

procedures; and related management 

systems practices) that are developed or 

adopted by voluntary consensus 

standards bodies. 

This rule does not use technical 

standards. Therefore, we did not 

consider the use of voluntary consensus 

standards. 

Environment 

We have analyzed this rule under 

Department of Homeland Security 

Management Directive 0023.1 and 

Commandant Instruction M16475.lD, 

which guide the Coast Guard in 

complying with the National 

Environmental Policy Act of 1969 

(NEPA) (42 U.S.C. 4321–4370f), and 

have concluded this action is one of a 

category of actions which do not 

individually or cumulatively have a 

significant effect on the human 

environment. This rule is categorically 

excluded, under figure 2–1, paragraph 

(34)(g), of the Instruction. This rule 

involves establishment of a safety zone. 

An environmental analysis checklist 

and a categorical exclusion 

determination are available in the 

docket where indicated under 

ADDRESSES. 

List of Subjects in 33 CFR Part 165 

Harbors, Marine safety, Navigation 

(water), Reporting and recordkeeping 

requirements, Security measures, 

Waterways. 

■ For the reasons discussed in the 

preamble, the Coast Guard amends 33 

CFR part 165 as follows: 

PART 165—REGULATED NAVIGATION 

AREAS AND LIMITED ACCESS AREAS 

■ 1. The authority citation for part 165 

continues to read as follows: 

Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. 

Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 

33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. 

107–295, 116 Stat. 2064; Department of 

Homeland Security Delegation No. 0170.1. 

■ 2. Add a new temporary zone 

§ 165.T11–176 to read as follows: 

§ 165.T11–176 Safety Zone; Coronado 

Fourth of July Fireworks; San Diego Bay, 

San Diego, CA. 

(a) Location. The limits of the safety 

zone are all the navigable waters within 

1200 feet of the fireworks barge located 

in Glorietta Bay at approximately 

32°40.68′ N, 117°10.18′ W. 

(b) Enforcement Period. This section 

will be enforced from 8:45 p.m. to 9:30 

p.m. on July 4, 2009. If the event 

concludes prior to the scheduled 

termination time, the Captain of the Port 

will cease enforcement of this safety 

zone and will announce that fact via 

Broadcast Notice to Mariners. 

(c) Definitions. The following 

definition applies to this section: 

Designated representative, means any 

commissioned, warrant, and petty 

officers of the Coast Guard on board 

Coast Guard, Coast Guard Auxiliary, 

and local, State, and Federal law 

enforcement vessels who have been 

authorized to act on the behalf of the 

Captain of the Port. 

(d) Regulations. (1) Entry into, transit 

through or anchoring within this safety 

zone is prohibited unless authorized by 

the Captain of the Port of San Diego or 

his designated on-scene representative. 

(2) Mariners requesting permission to 

transit through the safety zone may 

request authorization to do so from the 

Patrol Commander (PATCOM). The 

PATCOM may be contacted on VHF–FM 

Channel 16. 

(3) All persons and vessels shall 

comply with the instructions of the 

Coast Guard Captain of the Port or the 

designated representative. 

(4) Upon being hailed by U.S. Coast 

Guard patrol personnel by siren, radio, 

flashing light, or other means, the 

operator of a vessel shall proceed as 

directed. 

(5) The Coast Guard may be assisted 

by other Federal, State, or local 

agencies. 

Dated: May 5, 2009. 

T.H. Farris, 

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

Port San Diego. 

[FR Doc. E9–13107 Filed 6–4–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AN25 

Severance Pay, Separation Pay, and 

Special Separation Benefits 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document amends the 

Department of Veterans Affairs (VA) 

adjudication regulations to incorporate 

relevant statutory provisions regarding 

severance pay, separation pay, and 

special separation benefits. These 

amendments are necessary to conform 

the regulation to statutory provisions. 

DATES:

Effective Date: These amendments are 

effective June 5, 2009. 

Applicability Date: The amendment to 

38 CFR 3.700(a)(3) applies to members 

of the Armed Forces separated under 10 

U.S.C. chapter 61 on or after January 28, 

2008. The amendment to 38 CFR 

3.700(a)(5) applies to payments of 

special separation benefits made on or 

after December 5, 1991. 

FOR FURTHER INFORMATION CONTACT: 

Thomas J. Kniffen, Chief, Regulations 

Staff (211D), Compensation and Pension 

Service, Veterans Benefits 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420, (202) 461–9725. 

SUPPLEMENTARY INFORMATION: We are 

amending 38 CFR 3.700 to implement 

statutory changes. 

38 CFR 3.700(a)(3)—Disability 

Severance Pay 

Section 1212 of title 10, United States 

Code, which authorizes disability 

severance pay, generally requires that 

the amount of disability severance pay 

received for a disability be deducted 

from any VA compensation awarded for 

the same disability. However, the 

National Defense Authorization Act for 

Fiscal Year 2008, Public Law 110–181, 

Div. A, Title XVI, Subtitle D, section 

1646(b), amended 10 U.S.C. 1212 to 

provide that no deduction may be made 

from VA compensation for disability 

severance pay received for disabilities 

incurred in line of duty in a combat 

zone or incurred during performance of 

duty in combat-related operations as 

designated by the Department of 

Defense (DoD). The DoD designation of 

whether a disability was incurred in a 

combat zone or incurred during 

performance of duty in combat-related 

operations will govern only whether a 

deduction may be made from VA 

compensation paid for the disability for 

which disability severance pay was 

received. VA will continue to determine 

whether the disability resulted from 

disease or injury incurred or aggravated 

in line of duty in active service for 

purposes of determining entitlement to 

VA disability compensation. The 

amendment applies to members of the 

Armed Forces separated from the 

Armed Forces under Chapter 61 of title 

10, United States Code, on or after 

January 28, 2008. 

Section 3.700(a)(3) is VA’s regulation 

governing offset of disability severance 

pay from VA compensation. Generally, 

an award of compensation will be made 

subject to recoupment of any disability 

severance pay received for the same 

disability. We are adding to the 

regulation a new provision specifying 

that there will be no recoupment of 

disability severance pay for disabilities 

identified by the DoD as being incurred 

in combat zones or during performance 

of duty in combat-related operations. 


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Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations 26957 

Because of the amendments to 38 

U.S.C. 1212 made by the National 

Defense Authorization Act for Fiscal 

Year 2008, the authority for § 3.700(a)(3) 

has changed from section 1212(c) to 

section 1212(d). We are making this 

change in the authority citation in the 

regulation. 

38 CFR 3.700(a)(5)—Separation Pay 

and Special Separation Benefits 

In Public Law 102–190, section 

661(a)(1), effective December 5, 1991, 

Congress added the special separation 

benefits program to be carried out by the 

DoD. See 10 U.S.C. 1174a. 

To avoid duplication of benefits 

resulting from the special separation 

benefits program, section 1174a(g) 

makes the provisions of 10 U.S.C. 

1174(h)(2) applicable to special 

separation benefits. Section 1174(h)(2) 

states that a member who has received 

separation pay based on service in the 

Armed Forces shall not be deprived, by 

reason of his receipt of such pay, of any 

disability compensation to which he is 

entitled under the laws administered by 

VA, but there shall be deducted from 

that disability compensation an amount 

equal to the total amount of separation 

pay received. In Public Law 104–201, 

section 653, Congress amended section 

1174(h)(2) by providing that the amount 

deducted from disability compensation 

would be the total amount of separation 

pay received less the amount of Federal 

income tax withheld from such pay 

(such withholding being at the flat 

withholding rate for Federal income tax 

withholding). This amendment was 

made applicable to payments of 

separation pay made after September 30, 

1996. 

In 1998, Congress enacted Public Law 

105–178, section 8208, which extended 

the applicability of the amendment 

made by Public Law 104–201 to any 

payment of special separation benefits 

under section 1174a made during the 

period beginning on December 5, 1991, 

and ending on September 30, 1996. 

In 2002, VA revised its regulation 

concerning concurrent benefits, 38 CFR 

3.700, to incorporate the offset 

requirements, including the reduction of 

the amount of offset by the amount of 

Federal income tax withheld from 

separation pay or special separation 

benefits. 67 FR 60867 (Sept. 27, 2002). 

However, VA did not specify that the 

reduction for Federal income tax 

withheld was applicable to payments of 

special separation benefits made on or 

after December 5, 1991. Nonetheless, 

VA’s practice has been to recoup the 

after-tax amount since December 5, 

1991. We are now amending the 

regulation to conform to the statute and 

current practice. We are amending 

§ 3.700(a)(5) by creating a new 

§ 3.700(a)(5)(iii) that will address 

special separation benefits, and we will 

remove the special separation benefits 

references from current § 3.700(a)(5)(i). 

We will also add a clarification in 

§ 3.700(a)(5) for both separation pay and 

special separation benefits that the 

Federal income tax withholding amount 

is at the flat withholding rate for Federal 

income tax withholding, to ensure the 

regulations accurately reflect the statute. 

Administrative Procedures Act 

This final rule merely restates 

statutory provisions. Accordingly, there 

is a basis for dispensing with prior 

notice and comment and the delayed 

effective date provisions of 5 U.S.C. 553. 

Paperwork Reduction Act 

This document 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 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 rule would 

not affect any small entities. Only VA 

beneficiaries could be directly affected. 

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

this 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 

(OMB), 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. 

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 rule would 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 64.109, Veterans 

Compensation for Service-Connected 

Disability. 

List of Subjects in 38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

Approved: April 29, 2009. 

John R. Gingrich, 

Chief of Staff, Department of Veterans Affairs. 

■ For the reasons set forth in the 

preamble, 38 CFR part 3 is amended as 

follows: 

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 § 3.700 as follows: 

■ a. In paragraph (a)(3), add a sentence 

at the end of the paragraph and revise 

its authority citation. 

■ b. In paragraph (a)(5)(i), remove ‘‘or 

special separation benefits’’ and ‘‘under 

section 1174a’’ each place it appears, 

and add a sentence at the end of the 

paragraph. 

■ c. Remove the authority citation at the 

end of paragraph (a)(5)(ii). 

■ d. Add paragraph (a)(5)(iii) and an 

authority citation. 


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26958 Federal Register / Vol. 74, No. 107 / Friday, June 5, 2009 / Rules and Regulations 

The revision and additions read as 

follows: 

§ 3.700 General. 

* * * * * 

(a) * * * 

(3) * * * For members of the Armed 

Forces who separated under Chapter 61 

of title 10, United States Code, on or 

after January 28, 2008, no recoupment of 

severance pay will be made for 

disabilities incurred in line of duty in a 

combat zone or incurred during 

performance of duty in combat-related 

operations as designated by the 

Department of Defense. 

(Authority: 10 U.S.C. 1174(h)(2) and 1212(d)) 

* * * * * 

(5) * * * 

(i) * * * The Federal income tax 

withholding amount is the flat 

withholding rate for Federal income tax 

withholding. 

* * * * * 

(iii) Where payment of special 

separation benefits under 10 U.S.C. 

1174a was made on or after December 

5, 1991, VA will recoup from disability 

compensation an amount equal to the 

total amount of special separation 

benefits less the amount of Federal 

income tax withheld from such pay. The 

Federal income tax withholding amount 

is the flat withholding rate for Federal 

income tax withholding. 

(Authority: 10 U.S.C. 1174 and 1174a) 

* * * * * 

[FR Doc. E9–13212 Filed 6–4–09; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 3 and 4 

RIN 2900–AN22 

Pension Management Center Manager 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

SUMMARY: This document amends the 

Department of Veterans Affairs (VA) 

regulations to add the Pension 

Management Center Manager as a 

person who, in addition to the Veterans 

Service Center Manager, is authorized to 

review decisions on benefit claims and 

authorized to approve permanent and 

total disability evaluations on an 

extraschedular basis for pension 

purposes. These changes are made to 

reflect the duties of the Pension 

Management Center Manager. 

DATES: Effective Date: June 5, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Thomas J. Kniffen, Chief, Regulations 

Staff (211D), Compensation and Pension 

Service, Veterans Benefits 

Administration, Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420, (202) 461–9725. 

SUPPLEMENTARY INFORMATION: In fiscal 

year 2002, all VA pension management 

activities were consolidated from the 

VA’s Regional Offices to three Pension 

Management Centers (PMCs), which are 

located in Philadelphia, Pennsylvania, 

Milwaukee, Wisconsin, and St. Paul, 

Minnesota. Recently, VA has decided to 

consolidate nearly all of its pension 

activities (including original pension 

claims processing), which were 

previously done at regional office 

Veterans Service Centers (VSCs), to the 

PMCs. 

Therefore, most activities involving 

pension that would previously have 

been within the duties of the Veterans 

Service Center Manager (VSCM) at the 

VSC will be transferred to the Pension 

Management Center Manager (PMCM) at 

the PMC. This rulemaking amends 38 

CFR 3.2600, as well as 38 CFR 3.321 and 

4.17, to reflect the position of the PMCM 

as the person authorized to perform 

these activities. Specifically, these 

activities are reviewing benefit 

decisions under § 3.2600 and 

determining entitlement to permanent 

and total disability ratings, on an 

extraschedular basis, for pension 

purposes under § 3.321(b)(2) and 

§ 4.17(b). Adding the PMCM as a person 

authorized to perform these activities 

allows claims involving both 

compensation and pension to be 

processed at either the PMC or the VSC, 

as appropriate. 

We are not intending any substantive 

change to the regulations, merely 

including the new position of the 

PMCM in VA’s regulations. 

Administrative Procedure Act 

This document is being published as 

a final rule pursuant to 5 U.S.C. 553, 

which excepts matters pertaining to 

internal agency management and 

personnel from its notice, comment, and 

delayed effective date requirements. 

Paperwork Reduction Act 

This document 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’s internal procedures for 

processing claims of individuals will 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–Regulatory 

Planning and Review 

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 

(OMB) unless OMB waives such review, 

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 would 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 numbers and titles 

for this rule are 64.104, Pension for 


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