"Please Don’t Hesitate To Ask"

via Paul Sutton

This is a response to an email sent to Gen. Shineski about the New Rule from:

Robert C. McFetridge
Director, Regulation Policy and Management (02REG)
Office of the General Counsel
U.S. Department of Veterans Affairs
810 Vermont Ave, N.W., Room 1064
Washington, D.C. 20420
202-461-4932

On behalf of Secretary Shinseki, thank you for your note. We appreciate your concern. There has been a great deal of confusion in the public concerning the Secretary’s announcement that he intended to create presumptive service connections for three diseases linked to Agent Orange. It’s unfortunate that the media coverage did not include an explanation that the law requires VA to publish both a proposed rule and a final rule in the Federal Register before the Secretary’s decision can be implemented.

Under the laws and executive orders governing the Federal rulemaking process, it normally takes agencies about two years to publish final regulations in the Code of Federal Regulations, although the Agent Orange statute in this case prescribes a much shorter timeframe. We are attempting to reconcile those laws so that veterans will not be adversely affected by delays in the Federal rulemaking process. This regulation is one of our highest priorities and we hope to complete it in less than half the time normally required, by expediting its processing within VA and by asking the Office of Management and Budget (OMB) to shorten their required review period.

We published the proposed rule, 2900-AN54, Diseases Associated With Exposure to Certain Herbicide Agents (Hairy Cell Leukemia and other Chronic B Cell Leukemias, Parkinson’s Disease and Ischemic Heart Disease), in the Federal Register on March 25, 2010. We felt that we had good cause to shorten the public comment period from 60 days to 30 days in order to help make this process go a little faster. When the public comment period closed on April 26, 2010, VA had received 669 public comments on the proposed rule. Since that time, regulatory staff at the Compensation and Pension Service have been working very hard reviewing, categorizing, and responding to these comments in a final rule. We are hopeful that they can complete the drafting stage this month so that the document can be submitted for legal review and coordination within VA. Once that is completed and the Secretary approves the final rule, we must deliver the document to OMB for review. OMB is authorized by executive order to take up to 90 days to complete their review, but we will be asking them to do their best to expedite their clearance. Once the final rule clears OMB, VA will publish it in the Federal Register, usually 3 to 4 days later, and the regulation would become effective on that date of publication. Because of the enormous cost of this rule, however, AN54 is subject to another Federal law. It is considered an economically significant “major rule” under the Congressional Review Act, which requires agencies to wait 60 days after publication in the Federal Register for Congress to review final rules before they are implemented. However, that law should not interfere with VA’s processing of claims, and I understand that veterans are being encouraged to submit their claims as soon as possible, even though the regulation is not yet in effect.

I have provided this lengthy and technical explanation so that you can see why it’s difficult to predict just how soon this regulation can be published. As the Secretary’s delegate for monitoring VA’s progress in publishing important regulations, my best guess is that if all goes well with the final drafting and during the legal review, we might be able to submit the final rule to OMB for review by the end of June. If OMB needs the full 90 days to complete their review, we would expect to publish this regulation by October, 2010.

I hope this candid explanation is helpful, even though it’s not what you were hoping to hear. At least you can inform your husband and our fellow veterans that despite any other information they may have heard from other sources, you got your information “straight from the horse’s mouth.” And this regulation is moving about as quickly as it can, given all the legal requirements of the Federal rulemaking process.

If you need further information, please don’t hesitate to ask.

Sincerely,

Bob
Robert C. McFetridge
Director, Regulation Policy and Management (02REG)
Office of the General Counsel
U.S. Department of Veterans Affairs
810 Vermont Ave, N.W., Room 1064
Washington, D.C. 20420
202-461-4932