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Code · REGISTER · 2007-05-22 · Department of Veterans Affairs · Presidential Documents

Presidential Documents. Proposed rule

49,343 words·~224 min read·/register/2007/05/22/07-2535

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Billing code 3195-01-P 72 98 Tuesday, May 22, 2007 Proposed Rules Part II Department of Veterans Affairs 38 CFR Part 5 General Evidence Requirements, Effective Dates, Revision of Decisions, and Protection of Existing Ratings; Proposed Rule DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 5 RIN 2900-AM01 General Evidence Requirements, Effective Dates, Revision of Decisions, and Protection of Existing Ratings AGENCY: Department of Veterans Affairs. ACTION: Proposed rule. SUMMARY: The Department of Veterans Affairs
(VA)proposes to reorganize and rewrite in plain language general provisions applicable to its compensation and pension regulations, including general evidence requirements, general effective dates for new awards, revision of decisions, and protection of existing ratings. These revisions are proposed as part of VA's rewrite and reorganization of all of its compensation and pension rules in a logical, claimant-focused, and user-friendly format. The intended effect of the proposed revisions is to assist claimants and VA personnel in locating and understanding these general provisions. DATES: Comments must be received by VA on or before July 23, 2007. ADDRESSES: Written comments may be submitted through *www.Regulations.gov* ; by mail or hand-delivery to the Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to
(202)273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AM01—General Evidence Requirements, Effective Dates, Revision of Decisions, and Protection of Existing Ratings.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m. Monday through Friday (except holidays). Please call
(202)273-9515 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS). FOR FURTHER INFORMATION CONTACT: William F. Russo, Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420,
(202)273-9515. (This is not a toll-free number.) SUPPLEMENTARY INFORMATION: The Secretary of Veterans Affairs has established an Office of Regulation Policy and Management
(ORPM)to provide centralized management and coordination of VA's rulemaking process. One of the major functions of this office is to oversee a Regulation Rewrite Project (the Project) to improve the clarity and consistency of existing VA regulations. The Project responds to a recommendation made in the October 2001 “VA Claims Processing Task Force: Report to the Secretary of Veterans Affairs.” The Task Force recommended that the compensation and pension regulations be rewritten and reorganized in order to improve VA's claims adjudication process. Therefore, the Project began its efforts by reviewing, reorganizing, and redrafting the content of the regulations in 38 CFR part 3 governing the compensation and pension program of the Veterans Benefits Administration. These regulations are among the most difficult VA regulations for readers to understand and apply. Once rewritten, the proposed regulations will be published in several portions for public review and comment. This is one such portion. It includes proposed rules regarding general evidence requirements, general effective dates for awards, revision of decisions, and protection of VA ratings. After review and consideration of public comments, final versions of these proposed regulations will ultimately be published in a new part 5 in 38 CFR. Outline Overview of New Part 5 Organization Overview of This Notice of Proposed Rulemaking Table Comparing Current Part 3 Rules with Proposed Part 5 Rules Content of Proposed Regulations *General Evidence Requirements* 5.130 Submission of statements, evidence, or information affecting entitlement to benefits. 5.13 Applications, claims, and exchange of evidence with Social Security Administration (SSA)—death benefits. 5.132 Claims, statements, evidence, or information filed abroad; authentication of documents from foreign countries. 5.133 Information VA may request from financial institutions. 5.134 Will VA accept a signature by mark or thumbprint? 5.135 Statements certified or under oath or affirmation. *Evidence Requirements for Former Prisoners of War (POWs)* 5.140 Determining former prisoner of war status. 5.141 Medical evidence for former prisoners' of war compensation claims. *General Effective Dates for Awards* 5.150 General effective dates for awards or increased benefits. 5.151 Date of receipt. 5.152 Effective dates based on change of law or VA issue. 5.153 Effective date of awards based on receipt of evidence prior to end of appeal period. *General Rules on Revision of Decisions* 5.160 Binding effect of VA decisions. 5.161 Review of benefit claims decisions. 5.162 Revision of decisions based on clear and unmistakable error (CUE). 5.163 Revision of decisions based on difference of opinion. 5.164 Effective dates for revision of decisions based on difference of opinion. 5.165 Effective dates for reduction or discontinuance of awards based on error. 5.166 New and material evidence based on service department records. *General Rules on Protection or Reduction of Existing Ratings* 5.170 Calculation of 5-year, 10-year, and 20-year protection periods. 5.171 Protection of 5-year stabilized ratings. 5.172 Protection of continuous 20-year ratings. 5.173 Protection against reduction of disability ratings when revisions are made to the Schedule for Rating Disabilities. 5.174 Protection of entitlement to benefits established before 1959. 5.175 Protection or severance of service connection. 5.176 Due process procedures for severing service connection or reducing or discontinuing compensation benefits. 5.177 Effective dates for severing service connection or discontinuing or reducing benefit payments. Endnote Regarding Amendatory Language Paperwork Reduction Act Regulatory Flexibility Act Executive Order 12866 Unfunded Mandates Catalog of Federal Domestic Assistance Numbers and Titles List of Subjects in 38 CFR Part 5 Overview of New Part 5 Organization We plan to organize the part 5 regulations so that most of the provisions governing a specific benefit are located in the same subpart, with general provisions pertaining to all compensation and pension benefits also grouped together. We believe this organization will enable claimants, beneficiaries, and their representatives, as well as VA personnel, to find information relating to a specific benefit more quickly than the organization provided in current part 3. The first major subdivision would be “Subpart A—General Provisions.” It would include information regarding the scope of the regulations in new part 5, general definitions, and general policy provisions for this part. This subpart was published as proposed on March 31, 2006. *See* 71 FR 16464. “Subpart B—Service Requirements for Veterans” would include information regarding a veteran's military service, including the minimum service requirement, types of service, periods of war, and service evidence requirements. This subpart was published as proposed on January 30, 2004. *See* 69 FR 4820. “Subpart C—Adjudicative Process, General” would inform readers about types of claims and filing procedures, VA's duties, rights and responsibilities of claimants and beneficiaries, general evidence requirements, and effective dates for new awards, as well as revision of decisions and protection of VA ratings. This subpart will be published as three separate Notices of Proposed Rulemaking (NPRMs) due to its size. The first, concerning the duties of VA and the rights and responsibilities of claimants and beneficiaries, was published as proposed on May 10, 2005. *See* 70 FR 24680. The portion of this subpart covering general evidence requirements, effective dates for awards, revision of decisions, and protection of VA ratings is the subject of this document. “Subpart D—Dependents and Survivors” would inform readers how VA determines whether an individual is a dependent or a survivor of a veteran. It would also provide the evidence requirements for these determinations. This subpart was published as proposed on September 20, 2006. *See* 71 FR 55052. “Subpart E—Claims for Service Connection and Disability Compensation” would define service-connected compensation, including direct and secondary service connection. This subpart would inform readers how VA determines entitlement to service connection. The subpart would also contain those provisions governing presumptions related to service connection, rating principles, and effective dates, as well as several special ratings. This subpart will be published as three separate NPRMs due to its size. The first, concerning presumptions related to service connection, was published as proposed on July 27, 2004. *See* 69 FR 44614. “Subpart F—Nonservice-Connected Disability Pensions and Death Pensions” would include information regarding the three types of nonservice-connected pension: Improved pension, Old-Law pension, and Section 306 pension. This subpart would also include those provisions that state how to establish entitlement to Improved pension, and the effective dates governing each pension. This subpart would be published in two separate NPRMs due to its size. The portion concerning Old-Law pension, Section 306 pension, and elections of Improved pension was published as proposed on December 27, 2004. *See* 69 FR 77578. “Subpart G—Dependency and Indemnity Compensation, Death Compensation, Accrued Benefits, and Special Rules Applicable Upon Death of a Beneficiary,” would contain regulations governing claims for dependency and indemnity compensation (DIC); death compensation; accrued benefits; benefits awarded, but unpaid at death; and various special rules that apply to the disposition of VA benefits, or proceeds of VA benefits, when a beneficiary dies. This subpart would also include related definitions, effective-date rules, and rate-of-payment rules. This subpart was published as two separate NPRMs due to its size. The portion concerning accrued benefits, death compensation, special rules applicable upon the death of a beneficiary, and several effective-date rules, was published as proposed on October 1, 2004. *See* 69 FR 59072. The portion concerning DIC benefits and general provisions relating to proof of death and service-connected cause of death was published as proposed on October 21, 2005. *See* 70 FR 61326. “Subpart H—Special and Ancillary Benefits for Veterans, Dependents, and Survivors” would pertain to special and ancillary benefits available, including benefits for children with various birth defects. This subpart was published as proposed on March 9, 2007. *See* 72 FR 10860. “Subpart I—Benefits for Certain Filipino Veterans and Survivors” would pertain to the various benefits available to Filipino veterans and their survivors. This subpart was published as proposed on June 30, 2006. *See* 71 FR 37790. “Subpart J—Burial Benefits” would pertain to burial allowances. “Subpart K—Matters Affecting the Receipt of Benefits” would contain provisions regarding bars to benefits, forfeiture of benefits, and renouncement of benefits. This subpart was published as proposed on May 31, 2006. *See* 71 FR 31056. “Subpart L—Payments and Adjustments to Payments” would include general rate-setting rules, several adjustment and resumption regulations, and election-of-benefit rules. Because of its size, subpart L will be published in two separate NPRMs. The final subpart, “Subpart M—Apportionments to Dependents and Payments to Fiduciaries and Incarcerated Beneficiaries,” would include regulations governing apportionments, benefits for incarcerated beneficiaries, and guardianship. Some of the regulations in this NPRM cross-reference other compensation and pension regulations. If those regulations have been published in this or earlier NPRMs for the Project, we cite the proposed part 5 section. We also include, in the relevant portion of the Supplementary Information, the **Federal Register** page where a proposed part 5 section published in an earlier NPRM may be found. However, where a regulation proposed in this NPRM would cross-reference a proposed part 5 regulation that has not yet been published, we cite to the current part 3 regulation that deals with the same subject matter. The current part 3 section we cite may differ from its eventual part 5 counterpart in some respects, but we believe this method will assist readers in understanding these proposed regulations where no part 5 counterpart has yet been published. If there is no part 3 counterpart to a proposed part 5 regulation that has not yet been published, we have inserted “[regulation that will be published in a future Notice of Proposed Rulemaking]” where the part 5 regulation citation would be placed. Because of its large size, proposed part 5 will be published in a number of NPRMs, such as this one. VA will not adopt any portion of part 5 as final until all of the NPRMs have been published for public comment. In connection with this rulemaking, VA will accept comments relating to a prior rulemaking issued as a part of the Project, if the matter being commented on relates to both rulemakings. Overview of This Notice of Proposed Rulemaking This NPRM pertains to those regulations governing the following for purposes of compensation and pension benefits:
(1)General evidence requirements;
(2)general effective dates for awards;
(3)revision of decisions; and
(4)protection of existing ratings. These regulations would be contained in proposed Subpart C of new 38 CFR part 5. Although these regulations have been substantially restructured and rewritten for greater clarity and ease of use, most of the basic concepts contained in these proposed regulations are the same as in their existing counterparts in 38 CFR part 3. However, a few substantive differences are proposed, along with some rules that do not have counterparts in 38 CFR part 3. Table Comparing Current Part 3 Rules With Proposed Part 5 Rules The following table shows the relationship between the current regulations in part 3 and those proposed regulations contained in this NPRM: Proposed part 5 section or paragraph Based in whole or in part on 38 CFR part 3 section or paragraph (or “New”) 5.130(a) 3.217(a) and Note to 3.217(a). 5.130(b) 3.217(b). 5.130(c)(1)(i) 3.217(b)(1)(i). 5.130(c)(1)(ii) 3.217(b)(1)(ii). 5.130(c)(1)(iii) 3.217(b)(1)(iii). 5.130(c)(2) 3.217(b)(2). 5.130(d) New. 5.131(a) 3.153. 5.131(b) 3.201(a). 5.131(c) 3.201(b). 5.132(a) 3.108. 5.132(b) 3.202(a). 5.132(c)(1) 3.202(b)(1). 5.132(c)(2) 3.202(b)(2). 5.132(c)(3) 3.202(b)(3). 5.132(c)(4) 3.202(b)(6). 5.132(c)(5) 3.202(b)(4). 5.132(d)(1) 3.202(a) [first sentence] and 3.202(a)(2). 5.132(d)(2) 3.202(a)(1). 5.132(e) 3.202(c). 5.133(a) 3.115(a). 5.133(b) New. 5.133(b)(1) New. 5.133(b)(2) New. 5.133(c)(1) 3.115(b). 5.133(c)(2) 3.115(b). 5.134 3.2130. 5.135 3.200. 5.140(a) 3.1(y)(1), (y)(3). 5.140(b) 3.1(y)(2)(i). 5.140(c) 3.1(y)(2)(ii). 5.140(d) 3.1(y)(4). 5.141(a) 3.304(c). 5.141(b) New. 5.141(c) 3.304(e). 5.141(d) 3.304(e) [first sentence]. 5.141(e) 3.304(e) [last two sentences]. 5.141(f) 3.326(b). 5.150(a) 3.400 [intro] and (a), 3.400(h)(1), and 3.400(q)(1)(ii). 5.150(b) New. 5.151 3.1(r). 5.152 3.114. 5.153 3.156(b) and 3.400(q)(1)(i). 5.160(a) 3.104(a). 5.160(b) 3.104(b). 5.161 3.2600. 5.162(a) 3.105(a) first two sentences]. 5.162(b) 3.105 [intro—first sentence] and 3.105(a) [third and fourth sentences]. 5.163 3.105(b). 5.164 3.400(h)(1). 5.165(a) 3.500(b). 5.165(b) 3.500(b)(1). 5.165(c) 3.500(b)(2). 5.166 3.156(c). 5.170(a) 3.344, 3.951, and 3.957. 5.170(b) 3.951(b) and 3.957. 5.170(c) New. 5.170(d) New. 5.170(e) New. 5.171(a) 3.344(a). 5.171(b) 3.344(c). 5.171(c)(1) 3.344(c). 5.171(c)(2) 3.344(a). 5.171(d) 3.344(a). 5.171(e) 3.344(b). 5.172(a) 3.951(b) [first sentence]. 5.172(b) 3.951(b) [second sentence]. 5.172(c) New 5.173(a) 3.951(a) and 3.952. 5.173(b)(1) 3.952. 5.173(b)(2) 3.952. 5.173(b)(3) 3.952. 5.174(a) 3.953(a). 5.174(b) 3.953(c). 5.175(a)(1) 3.957 [first sentence]. 5.175(a)(2) 3.957 [last sentence]. 5.175(b)(1) 3.105(d) [first two sentences]. 5.175(b)(2) 3.105(d) [third and fourth sentences]. 5.176(a) and
(b)3.105(d) [fifth and sixth sentences] and 3.105(e) [first two sentences]. 5.176(c) 3.105(d) [last two sentences] and 3.105(e) [last two sentences]. 5.177(a) 3.105 [intro—last sentence]. 5.177(b) 3.105 [intro—second sentence]. 5.177(c) 3.105 [intro—first sentence] and 3.500(b). 5.177(d) 3.105(d). 5.177(e) 3.105(c). 5.177(f) 3.105(e). 5.177(g) 3.105(f). 5.177(h) 3.105(g). 5.177(i) 3.105(h). Readers who use this table to compare existing regulatory provisions with the proposed provisions, and who observe a substantive difference between them, should consult the text that appears later in this document for an explanation of significant changes in each regulation. Not every paragraph of every current part 3 section regarding the subject matter of this rulemaking is accounted for in the table. In some instances, other portions of the part 3 sections that are contained in these proposed regulations will appear in subparts of part 5 that are being published separately for public comment. For example, a reader might find a reference to paragraph
(a)of a part 3 section in the table, but no reference to paragraph
(b)of that section because paragraph
(b)will be addressed in a separate NPRM. The table also does not include provisions from part 3 regulations that will not be carried forward to part 5. Such provisions are discussed specifically under the appropriate part 5 heading in this preamble. Readers are invited to comment on the proposed part 5 provisions and also on our proposals to omit those part 3 provisions from part 5. Content of Proposed Regulations General Evidence Requirements Section 5.130 Submission of Statements, Evidence, or Information Affecting Entitlement to Benefits Proposed § 5.130 is derived from current § 3.217, VA's regulation governing the submission of statements or information affecting entitlement to benefits. We propose explicitly to make this regulation applicable to “evidence” as well as statements and information. The current regulation does not explicitly apply to the submission of written evidence; however, in practice the principles therein do apply to the submission of written evidence, and there is no reason not to make the part 5 regulation explicit in this regard. Proposed paragraph
(a)addresses the methods by which beneficiaries may submit statements, evidence, or information affecting their entitlement to benefits. Acknowledging that certain VA regulations require that particular types of evidence or information be submitted in writing—e.g., Marriage (§ 5.192), Divorce (§ 5.194), and Birth (§ 5.229)—we propose to state that it is VA's policy to accept electronic submissions unless another regulation, form, or directive expressly requires a different method of submission. Proposed paragraph
(a)would state that this policy does not apply to the filing of a claim, Notice of Disagreement, Substantive Appeal, or any other submissions or filing requirements covered in parts 19 and 20 of this title. We propose not to include the introductory phrase, “For purposes of this part, unless specifically provided otherwise,” which is used in paragraph
(b)of current § 3.217. Because proposed § 5.0 specifically states that “[e]xcept as otherwise provided, this part applies only to benefits governed by this part,” it is no longer necessary to state that any rule in part 5 applies only for purposes of this part. 71 FR 16464, 16473. Therefore, in paragraph
(b)of § 5.130, we propose to state, “Except as otherwise provided.” By so doing, we achieve our goal of greater readability without loss of clarity or substance. In § 5.130(c)(1), we propose to include a reference to the beneficiary's authorized representative that is not contained in current § 3.217(b)(1). Including the representative merely clarifies the established legal principle that the actions of an authorized representative are considered to be actions by the client beneficiary. Current § 3.217(b)(1)(iii) states that, when a beneficiary or fiduciary orally provides information or a statement that VA may use to adjust benefits, VA must inform him or her that “the information or statement will be used for the purpose of calculating benefit amounts.” In proposed § 5.130(c)(1)(iii), we use the word “may” instead of “will.” This wording is more accurate because VA may determine that the information or statement needs to be verified through other means. It also makes this paragraph consistent with the first sentence in proposed paragraph (b), which states that, “VA may take action* * *” Similarly, we also propose to use the phrase “may be used” in § 5.130(c)(2)(v) instead of “would be used” as stated in current § 3.217(b)(2). Finally, in proposed paragraph
(d)we articulate the exceptions to the rule that VA cannot act on an oral statement unless VA has complied with paragraphs (c)(1) and (2). These exceptions, which apply to statements made at a hearing or to a physician, reflect current practice. Persons who appear at a hearing or who provide information to a physician, especially in connection with a VA medical examination, should expect that such information will be considered as part of their claim. Neither current § 3.217 nor the proposed part 5 version of that rule preclude VA from relying on medical statements or statements made at a hearing. Moreover, there is no doubt as to the identity of the person making the statement in these two discrete situations. Finally, §§ 5.81, 5.82, and 20.700 adequately regulate statements made at a hearing. 70 FR 24680, 24686-87. Section 5.131 Applications, Claims, and Exchange of Evidence With Social Security Administration (SSA)—Death Benefits Proposed § 5.131(a) is derived from the first sentence of current § 3.153, which states that an application for death benefits filed with SSA on or after January 1, 1957, on a form jointly prescribed by VA and SSA, will be considered a claim for VA death benefits, and will be considered as received by VA as of the date SSA received it. Note that although current § 3.1(p) uses the terms “claim” and “application” interchangeably, we propose to only use the term “claim” in part 5, for the sake of consistency, when referring to a formal or informal communication in writing requesting a determination of entitlement or evidencing a believe in entitlement to a benefit, as the term “claim” is defined in part 3. (A future NPRM will fully address the definition of “claim” for the purposes of part 5.) Thus, the term “claim” would have the same meaning in Part 5 as it currently does in Part 3; no substantive change is intended. We propose to use the term “application” when referring to a certain form that a claimant must file to apply for benefits. This definition will be contained in § 5.1 General Definitions. Current § 3.153 implements the statutory provision 38 U.S.C. 5105 that governs joint applications for SSA and dependency and indemnity compensation (DIC). The statute is applicable only to claims for chapter 13 benefits, which means that it applies to claims for DIC. Current § 3.153 states that a claim on a joint form is to be treated as a claim for “death benefits.” However, under 38 U.S.C. 5101(b)(1), a claim for DIC must also be considered a claim for death pension and accrued benefits. Consequently, proposed § 5.131(a) would parenthetically describe “VA death benefits” as “[DIC], death pension and accrued benefits.” We also propose to update the statutory authority citation by including a reference to 38 U.S.C. 5101(b)(1), as the authority for considering a joint application to be a claim for “death benefits” is not derived from 38 U.S.C. 5105 alone. For the reasons set forth above, the inclusion of death pension and accrued benefits in the proposed regulation would not create a new basis of entitlement or result in a substantive right that does not exist within the current framework of the pertinent law or regulations. The second sentence of current § 3.153 states that VA is not precluded by reason of having received a joint application from requesting necessary evidence. This language is unnecessary because nothing in any statute or regulation, including proposed § 5.131, precludes VA from requesting necessary evidence after we have received a claim for benefits. In addition, the sentence merely reiterates the last sentence of 38 U.S.C. 5105(b), and there is no need to maintain a regulatory provision that merely recites a statutory provision. Proposed § 5.131(b) is derived in part from the second sentence of current § 3.201(a), which pertains to the exchange of evidence between VA and SSA. The cited authority for this regulation includes 38 U.S.C. 5105, discussed above. Proposed § 5.131(b) does not incorporate the first sentence of current § 3.201(a), as it is unnecessary and redundant of proposed § 5.81, which explicitly states that “VA will include in the record of proceedings any information, evidence (whether documentary, testimonial, or in other form), and any argument that a claimant offers in support of a claim.” 70 FR 24680, 24686. In addition, VA's “duty to assist” regulation, 38 CFR 3.159(c)(2), requires VA to obtain relevant records from a federal department or agency, including records in custody of SSA. Moreover, SSA is required, pursuant to 38 U.S.C. 5105(b), to forward to VA all information and supporting documents that it receives in conjunction with a joint application for DIC/SSA benefits. In light of the foregoing, it is not necessary to specify in § 5.131(b) that a claimant may submit evidence submitted to SSA, or to permit the claimant to request VA to obtain such evidence. We have also clarified that the rule, embodied in proposed § 5.131(b) and current § 3.201(a), regarding the deemed date of receipt for evidence filed at SSA applies only when the evidence was filed in conjunction with a claim for both SSA death benefits and VA death benefits. The clarification is to avoid a situation in which a final VA decision is subject to collateral attack based upon evidence filed with SSA in support of a claim for only SSA death benefits that predates a subsequent separate claim for VA death benefits. Proposed § 5.131(c) is derived from current § 3.201(b), which provides that when SSA requests evidence from VA that was submitted in support of a DIC application, VA will furnish it. However, current § 3.201(b) does not acknowledge the existence of laws, including the Health Insurance Portability and Accountability Act (HIPAA), that protect the confidentiality of various kinds of information or evidence that claimants or beneficiaries file with VA. For example, 38 U.S.C. 7332 protects the confidentiality of all records containing the identity, diagnosis, prognosis, or treatment of any patient or subject maintained in connection with any program or activity carried out by or for VA and connected with drug abuse, alcoholism or alcohol abuse, infection with the human immunodeficiency virus, or sickle cell anemia. VA can only release such records when certain prerequisites are satisfied, and we do not interpret section 7332 as providing for an exemption for mandatory disclosures to SSA under this regulation or under its authorizing statute, 38 U.S.C. 5105(b). Also, 5 U.S.C. 552a contains general procedures that all agencies must follow when determining whether to release records that they maintain on individuals. Therefore, we propose to add a sentence in proposed § 5.131(c) to clarify that any disclosure of evidence to the SSA under this paragraph must comply with all requirements of any applicable privacy or confidentiality laws, which would include HIPAA. Section 5.132 Claims, Statements, Evidence, or Information Filed Abroad; Authentication of Documents From Foreign Countries Proposed § 5.132 is derived from current § 3.202, VA's regulation pertaining to the criteria for the acceptance of foreign evidence, and § 3.108, which relates to occasions when the State Department functions as an agent of VA. We believe it is logical to consolidate into a single regulation the rule pertaining to filing claims or evidence in foreign countries with the rule pertaining to filing evidence from foreign sources. In paragraph
(a)of § 5.132, we propose to include the provisions of current § 3.108, which recognize U.S. diplomatic and consular officers abroad as agents for the acceptance of VA applications or claims, or evidence in support of a claim pending with VA. We clarify that the rule applies to submissions of claims or of statements, evidence, or information in support of a claim. Current § 3.108 provides that diplomatic and consular officers may act as agents of VA, “and, therefore, a formal or informal claim or evidence submitted in support of a claim filed in a foreign country will be considered as filed in [VA] as of the date of receipt by the State Department representative.” We intend no substantive changes to this regulation by eliminating the term “informal claim.” The term “claim” necessarily embraces all of the types of claims listed in the regulations, including informal and formal claims. Current § 3.108 uses the terms “diplomatic and consular officers of the Department of State” and “the State Department representative,” to describe the officials who are authorized to receive claims and evidence. For purposes of § 5.132, we propose to simplify the description by substituting the inclusive term “Department of State representative.” Paragraph
(b)of proposed § 5.132 explains that the term “authentication” means that “an official listed in paragraph
(d)of this section verifies that the foreign document, including each signature, stamp, and seal appearing on it, is genuine and has not been altered.” Paragraph
(b)of proposed § 5.132 explains that for the purposes of § 5.132(b) the term “foreign documents” means documents that are signed under oath or affirmation in the presence of an official in a foreign country. This definition is derived from current § 3.202(a). Examples of foreign documents are described in the proposed regulation in order to aid the reader. Paragraph
(b)also directs the reader to a list (in paragraph (c)) of foreign documents that do not require authentication. Paragraph
(c)of proposed § 5.132 restates current § 3.202(b). In addition, proposed § 5.132(c)(3) contains a direct reference to § 2.3, which pertains to delegation of authority to employees to take affidavits, to administer oaths, etc. This reference is appropriate, as it bears directly on the subject matter contained in proposed § 5.132. Current § 3.202(b)(4) states that authentication will not be required, “[w]hen a copy of a public or church record from any foreign country purports to establish birth, adoption, marriage, annulment, divorce, or death, provided it bears the signature and seal of the custodian of such record and there is no conflicting evidence in the file which would serve to create doubt as to the correctness of the record.” Paragraph (b)(5) states that authentication will not be required, “[w]hen a copy of the public or church record from one of the countries comprising the United Kingdom, namely: England, Scotland, Wales, or Northern Ireland, purports to establish birth, marriage, or death, provided it bears the signature or seal or stamp of the custodian of such record and there is no evidence which would serve to create doubt as to the correctness of the records.” VA believes that maintaining a different rule for the United Kingdom is unnecessary because records maintenance in the United Kingdom is not necessarily superior to that of all other countries. Moreover, we believe that a single rule will be easier for VA personnel to correctly apply and for the public to understand. We therefore propose not to include an equivalent to § 3.202(b)(5) in § 5.132. Paragraph
(d)of proposed § 5.132 is derived from current § 3.202(a). Current § 3.202(a) uses, among others, the terms “United States Consular Officer,” “the State Department,” and “the nearest American consul,” to describe the various Department of State officials who may authenticate the signatures of officials of foreign countries in cases where affidavits or other documents are required to be executed under oath before foreign officials. For purposes of § 5.132, we propose to simplify the description by substituting the inclusive term “officer of the Department of State authorized to authenticate documents.” We note that the Department of State has promulgated 22 CFR 131.1, which authorizes specially designated “authentication officers” to issue certificates of authentication under the seal of the Department of State on behalf of the Secretary of State. That regulation also prescribes the proper form of authentication. A certificate of authentication therefore constitutes the State Department's official acknowledgment that a document of foreign origin is genuine. Section 5.133 Information VA May Request From Financial Institutions Proposed § 5.133, derived from current § 3.115, will provide readers with clarification of the different types of information VA may request from a financial institution, the conditions under which a request may be made, the steps for making a request, and VA's responsibilities with regard to the handling of this information once it is obtained. The first sentence of current § 3.115(a) reads: “The Secretary of Veterans Affairs may request from a financial institution the names and addresses of its customers.” As in several other proposed part 5 rules, this rule will refer to “VA” rather than “[t]he Secretary of Veterans Affairs” to shorten the reference without changing its meaning. Some readers may not have a clear understanding of what constitutes a “financial institution,” a term that is used in the first sentence of current § 3.115(a). Accordingly, we propose to add examples of various types of financial institutions. Examples include banks, savings and loan associations, trust companies, and credit unions. The current language of § 3.115 and the statutory provisions of 12 U.S.C. 3413 explicitly authorize VA to obtain only names and addresses from a financial institution. However, VA also possesses statutory authority to subpoena financial information. According to the Right to Financial Privacy Act, “A government authority may obtain financial records * * * pursuant to an administrative subpoena or summons otherwise authorized by law if there is reason to believe that the records sought are relevant to a legitimate law enforcement inquiry.” 12 U.S.C. 3405. “Government authority” is defined in this Act as “any agency or department of the United States, or any officer, employee, or agent thereof.” 12 U.S.C. 3401(3). The Act also defines “law enforcement inquiry” as “a lawful investigation or official proceeding inquiring into a violation of, or failure to comply with, any * * * regulation, rule, or order issued pursuant thereto.” 12 U.S.C. 3401(8). These provisions give VA the authority, under certain circumstances, to obtain financial information through a subpoena, provided it is necessary in order to determine whether an individual has violated any of the regulations on veterans' benefits. Additionally, 38 U.S.C. 5711(a)(2), authorizes the Secretary and employees to whom the Secretary has delegated such authority to “require the production of books, papers, documents, and other evidence.” For example, current §§ 3.660(a), 3.256(a), and 3.277(b) require individuals claiming entitlement to or receiving income-based benefits from VA to promptly report changes in their income. If VA discovers that a current or former beneficiary may have reported a lower amount of income to VA than the financial institution reported to the Internal Revenue Service as having been paid to the beneficiary, VA will ask the individual to verify the amount received. If the individual refuses or fails to respond to VA's request, VA has authority under 12 U.S.C. 3405 to subpoena from the financial institution a statement showing amounts it paid to the individual. Before issuing a subpoena to a financial institution, 12 U.S.C. 3405(2) requires VA to:
(1)Send a copy of the subpoena to the current or former beneficiary;
(2)inform the current or former beneficiary of the reason VA is requesting financial information from the financial institution; and
(3)explain to the current or former beneficiary the procedures for challenging VA's proposal to issue a subpoena. VA's authority to issue subpoenas to financial institutions in order to verify the amount of income paid by a financial institution to a current or former VA beneficiary, as well as the circumstances under which they may be issued, are not addressed in part 3 of current 38 CFR. However, we believe this is an issue about which the public should be informed. For example, if VA discovers that a current or former beneficiary, while receiving either pension or parents' dependency and indemnity compensation, may have underreported or failed to report to VA the receipt of income from a financial institution, VA may ask the financial institution that paid the income to provide a statement showing the amount it paid to the individual. We propose to clarify in § 5.133(b) that requests of this type must be made through a subpoena. To ensure readers understand the meaning of the word “subpoena,” we propose to define it in paragraph (b). Our definition, which is “a legal document commanding an individual or organization to provide specified evidence to the issuer of the subpoena,” is derived from the 2001 edition of *Merriam-Webster's Dictionary of Law* . The content of paragraph (c)(1) of proposed § 5.133 is derived from current § 3.115(b), while the content of paragraph (c)(2) is derived from 12 U.S.C. 3412(a), which was part of the Right to Financial Privacy Act of 1978. Although we have changed the language taken from these two sources in order to make the proposed rule easier to understand, we intend no change in the substance they convey. Section 5.134 Will VA accept a signature by mark or thumbprint? Proposed § 5.134 is derived from current § 3.2130. We are not proposing any changes to the current regulation. Rather, we will incorporate the language of current § 3.2130 at proposed § 5.134. Section 5.135 Statements Certified or Under Oath or Affirmation Proposed § 5.135 is based on current § 3.200, which states, in pertinent part, “All written testimony submitted by the claimant or in his or her behalf for the purpose of establishing a claim for service connection will be certified or under oath or affirmation.” Instead of referring to “written testimony” we propose to use the phrase, “[a]ny documentary evidence or written assertion of fact” which we believe is easier for readers to understand. We propose to give VA discretion to consider such a submission that is not certified or under oath or affirmation or to require certification, oath, or affirmation if considered necessary to establish the reliability of a material document. This would give VA discretion to consider documents which are considered reliable under the circumstances of a particular case. It would also give VA discretion to require certification, oath, or affirmation when a submission appears unreliable, which will help ensure program integrity. Whereas current § 3.200(b) is limited to claims for service connection, we propose to have § 5.135(b) apply to all claims within the scope of part 5. We believe that there is nothing unique about claims for service connection with respect to the reliability of evidence. We believe that the principles stated above should apply equally to all claims for compensation or pension benefits. Evidence Requirements for Former Prisoners of War
(POWs)Section 5.140 Determining Former Prisoner of War Status Proposed § 5.140 contains rules relating to the evidentiary and adjudicative considerations in determining prisoner of war
(POW)status. Proposed § 5.140 is derived from current § 3.1(y), which sets forth general principles applicable to establishing status as a POW, including definitions and certain evidentiary and adjudicative considerations. We have addressed the various definitions contained in current 3.1(y) in a separate NPRM that restated such definitions in § 5.1 of proposed part 5. *See* 71 FR 16464, 16473. Additional principles establishing former POW status are found in § 3.41, which sets forth special rules applicable to former prisoners of war with Philippine service. These principles are also covered in a separate NPRM. *See* 71 FR 37790, 37794. Paragraph
(a)of proposed § 5.140 restates the current rule that service department determinations of POW status are generally binding on VA, and states the criteria VA will use to decide POW status in all other cases. It also restates the requirement in current § 3.1(y)(3) that the Director of the Compensation and Pension Service must approve all 152 office decisions based on criteria for determining former POW status other than service department findings. In order to recognize the modern dangers presented by non-government forces, we propose to expand the instances in which service department findings will be accepted. Whereas current § 3.1(y)(1) only accepts service department findings that a person was a POW during a period of war when detention or internment was by an enemy government or its agents, under paragraph
(a)of proposed § 5.140, VA will also accept a finding by the service department that a person was a POW during a period of war when detention or internment was by a hostile force. Paragraphs (b), (c), and
(d)of proposed § 5.140 restate the content of current § 3.1(y)(2)(i), (y)(2)(ii), and (y)(4), respectively. In paragraph (d), we propose to cross-reference § 5.660, pertaining to “line of duty” and derived from current §§ 3.1(m) and 3.301(a), and § 5.661, pertaining to “willful misconduct” and derived from current §§ 3.1(n), 3.301(a) through (d), and 3.302. *See* 71 FR 31056, 31062-63. At the end of the proposed rule, we propose to cross-reference proposed § 5.611, which restates current § 3.41, relating to POW status and Philippine service. *See* 71 FR 37790, 37795. Section 5.141 Medical Evidence for Former Prisoners' of War Compensation Claims Proposed § 5.141 is based in part on those portions of current § 3.304, “Direct service connection; wartime and peacetime,” that pertain to former POWs. Except as provided below, no substantive changes are intended to these provisions. Portions of current § 3.304 have already been addressed in a prior NPRM, published as proposed on May 10, 2005. *See* 70 FR 24680. Other provisions of current § 3.304 will be addressed in a separate NPRM. Proposed paragraph
(a)provides information regarding injuries and conditions claimed by a former POW that are obviously due to service. The paragraph states that VA will rate such injuries and conditions without awaiting receipt of service records. This paragraph is derived from the last sentence of current § 3.304(c) and is included to clarify how the general rule in proposed § 5.91, the part 5 version of current § 3.304(c), applies to conditions resulting from POW confinement. Proposed paragraph
(b)provides that where disability compensation is claimed by a former POW, the claimant's statements as to the incurrence or aggravation of an injury or disease during or immediately prior to detention or internment will be viewed as truthful unless there is clear and convincing evidence to the contrary. This is a substantive change based upon expanding current § 3.304(d). VA's practice has been to treat statements by former POWs in the same manner as combat veterans for purposes of 38 U.S.C. 1154(b) in order to recognize the deficiencies or complete absence of many former POWs' service medical records showing evidence of diseases or injuries suffered during or immediately before detention or internment. This substantive change is consistent with current § 3.304(f)(2), pertaining to post-traumatic stress disorder claimed by a former prisoner of war. At the end of paragraph (b), we propose to add a reference to § 3.304(f)(2) to let the reader know the location of a similar provision regarding POWs. We cite to the current part 3 regulation because the proposed part 5 regulation that deals with the same subject matter has not yet been published. Current § 3.304(f)(2) may differ from its eventual part 5 counterpart in some respects. Proposed paragraph
(c)notes that supporting evidence from fellow service members that an injury or disease was incurred during confinement will be considered. This is not a substantive change from part 3 and does not provide a new benefit to former POWs. VA accepts “buddy statements” in all cases. We explicitly provide for such evidence here, and discuss how to evaluate that evidence, because such evidence is more frequently encountered in cases relating to POWs. Proposed paragraph
(c)would require VA to consider statements from fellow service members submitted in connection with a former POW's claim for benefits, regarding the former POW's physical condition before capture, the circumstances surrounding the former POW's internment, changes in the former POW's physical condition following release from internment, or the existence of signs or symptoms of disability following the former POW's release from internment. Paragraph
(d)of proposed § 5.141 provides that the lack of medical findings from clinical records made upon a former POW's return to U.S. control will not be determinative of whether service connection is awarded for a particular disability. It is derived from the first sentence of current § 3.304(e). Proposed paragraph
(e)restates the second and third sentences of current § 3.304(e). Finally, proposed paragraph
(f)includes information from the second sentence of current § 3.326(b), which provides that VA will not deny monetary benefits unless the claimant has been offered a complete physical examination at a VA facility. Unlike current § 3.326(b), which states that the examination will be “conducted at a [VA] hospital or outpatient clinic,” proposed paragraph
(f)does not specify the location of the examination to be provided because an examination may be provided by VA at one of a variety of VA medical facilities, or, in some instances, VA may provide an examination with a private contractor at a non-VA facility. “[M]edical examination” used in proposed paragraph (f), as opposed to “physical examination” used in current § 3.326(b), clarifies that the examination is not limited to examination for physical disorders but includes examination for mental disorders as well. General Effective Dates for Awards Section 5.150 General Effective Dates for Awards or Increased Benefits Proposed § 5.150 would restate without substantive change the introductory text and paragraph
(a)of current § 3.400, which state: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.
(a)*Unless specifically provided* . On basis of facts found. The exceptions to the general effective-date rule, which are currently contained in other provisions of §§ 3.400 through 3.405, would be contained in regulations located proximate to their respective benefit regulations. In paragraph
(a)of § 5.150, we propose not to include the phrase “facts found” in current § 3.400(a). Instead, we will only use the phrase “date entitlement arose,” which appears in the introductory text of § 3.400. Section 5110(a) of title 38, United States Code, on which the general effective date rule stated in § 3.400 is based, uses “facts found” and does not use the phrase “date entitlement arose.” Nevertheless, the legislative history of 38 U.S.C. 5110(a) and the regulatory history of 38 CFR 3.400 both suggest that “facts found” and “date entitlement arose” mean the same thing. Both phrases are derived from Veterans Regulation No. 2(a), promulgated by Exec. Order 6230 (1933), which states that the effective date of an award of pension “shall be fixed in accordance with the facts found” except that no awards would be effective before the date of separation from service, date of death, date of the happening of the contingency upon which disability or death pension is allowed, or the date of receipt of the claim therefor, whichever is the later date. The various dates listed in the immediately preceding sentence, except for the date of receipt of the claim, are exceptions to the rule to assign the effective date in accordance with the facts found, and are themselves dates upon which entitlement to various kinds of benefits is predicated. For all practical purposes, these are the relevant “facts” upon which entitlement would be based. VA has consistently so construed Veterans Regulation No. 2(a), a fact made clear by an examination of the effective-date regulations VA issued after Veterans' Regulation No. 2(a). These are as follows: VA Regulation
(VAR)1148 (concerning the assignment of effective dates for ratings made under VA's 1945 Schedule for Rating Disabilities); VAR 1212 (effective date for awards of disability compensation); VAR 2574 (effective date of awards of death compensation or pension), and VAR 2945 (effective date of payment of dependency and indemnity compensation). VA used the term “facts found” in only two of these regulations. VAR 2574 (Jan. 25, 1936) (which cites Veterans Regulation No. 2(a)), VAR 2945 (Jan. 1, 1958) (which was changed from different language to mirror the language of what is now 38 U.S.C. 5110(a)). Instead of using “facts found,” VA used phrases such as “date the evidence shows a compensable or pensionable degree of disability to have existed” and “date the evidence shows entitlement.” VAR 1148 (Jan. 25, 1936). In 1950, VAR 2574 was amended to state that the effective date for an award of death compensation or pension would be the date “of the veteran's death, date of the happening of the contingency upon which death compensation or pension is allowed, or the date of receipt of [the] application therefor,” whichever is later. This general effective-date provision is very similar to that of Veterans Regulation No. 2(a) except that it is devoid of the phrase “fixed in accordance with the facts found.” Nevertheless, it conveys the same information. When Congress first consolidated the laws and regulations related to compensation and pension, the present version of what is now 38 U.S.C. 5110(a) first appeared in the statute. Public Law 85-56, section 910(a), 71 Stat. 83, 119 (1957). The purpose of this law was to incorporate existing law into a single act. According to the committee reports, Congress did not intend to make any substantive changes to the effective date provisions. See H.R. Rep. No. 85-279, at 2, *reprinted* in 1957 U.S.C.C.A.N. 1214, 1215 (1957); S. Rep. No. 85-332, at 2, *reprinted in* 1957 U.S.C.C.A.N. 1214, 1241 (1957). This statute also repealed Veterans Regulation No. 2(a). Pub. L. No. 85-56, § 2202(129), 71 Stat. at 167. The committee reports stated that the law “would repeal those provisions of law * * * which are obsolete, executed, or restated in substance.” H.R. Rep. No. 85-279, at 2, S. Rep. No. 85-322, at 2. Therefore, Public Law 85-56 was intended to restate the substance of the rule in Veterans Regulation No. 2(a), despite changing the language. Current § 3.400 uses “date entitlement arose” in the introductory text and uses “facts found” in paragraph (a). These two phrases have been used interchangeably in the past, though neither has been defined. This also suggests that “facts found” and “date entitlement arose” mean the same thing. We believe that we should only use one phrase consistently throughout the part 5 to eliminate any confusion over whether “facts found” means the same thing as “date entitlement arose” and to make the regulations more user-friendly. Therefore, we will use “date entitlement arose” in § 5.150. The proposed rule clarifies that the term “date entitlement arose” has the same meaning when used in other effective-date regulations throughout part 5. We also propose to define the phrase “date entitlement arose” in paragraph (a)(2) of § 5.150 to make the rule easier to understand. As noted above, the phrase has never been defined in the statute or in the regulations. Proposed paragraph (a)(2) defines “date entitlement arose” as the date shown by the evidence to be the date that the claimant first met the requirements for the benefit awarded. This definition accurately expresses the intent of the relevant statutes cited above. We also propose to add a sentence to emphasize that VA will assume the “date entitlement arose” was before the date VA received the claim for benefits unless the evidence indicates otherwise. We believe it is important to provide this guidance because in the majority of cases, claimants meet the requirements for a benefit before they apply for it. In such cases, the general rule mandates that the effective date be the date of receipt of the claim for that benefit, and not some later date. Proposed § 5.150(b) sets forth a chart that provides readers with the location of other effective-date provisions in part 5, which are exceptions to the general effective date rule of proposed paragraph (a). The chart is intended solely for informational purposes. As proposed, the chart shows both already published and as yet unpublished Part 5 sections. The unpublished sections are included as placeholders; many may change before publication. The Subpart B provisions were published as proposed on January 30, 2004. *See* 69 FR 4820. Section 5.101(d) of Subpart C was published as proposed on May 10, 2005. *See* 70 FR 24680. Proposed §§ 5.152, 5.153, 5.162(b), 5.164, 5.165, 5.166(c), (d), and 5.177 of Subpart C are contained in this document. The Subpart D provisions were published as proposed on September 20, 2006. *See* 71 FR 55052. Sections 5.463 and 5.477 of Subpart F were published as proposed on December 27, 2004. *See* 69 FR 77578. Sections 5.567 to 5.572 of Subpart G were published as proposed on October 1, 2004. *See* 69 FR 59072. A correction to proposed § 5.570 was published on October 21, 2004. *See* 69 FR 61914. Sections 5.524(c), 5.573, and 5.574 of Subpart G were published as proposed on October 21, 2005. *See* 70 FR 61326. The Subpart H provisions were published as proposed on March 9, 2007. *See* 72 FR 10860. The Subpart I provisions were published as proposed on June 30, 2006. *See* 71 FR 37790. The Subpart K provisions were published as proposed on May 31, 2006. *See* 71 FR 31056. Section 5.151 Date of Receipt Current § 3.1(r) sets forth a definition of the phrase “date of receipt.” We propose to address that topic in a provision designated as § 5.151. Proposed paragraph
(a)would broaden the concept in current § 3.1(r) to include “documents” in addition to claims, information, and evidence. Although the language in the proposed Part 5 counterparts of current §§ 3.108, 3.153, and 3.201 does not contain the phrase “date of receipt,” proposed paragraph
(a)would nevertheless retain the exceptions for these provisions that are contained in current § 3.1(r) because proposed paragraph
(a)will refer to a concept rather than merely define the specific term “date of receipt.” Proposed paragraph
(b)would incorporate provisions from current § 3.1(r) authorizing VA to establish exceptions to the general rule when a natural or man-made disaster or similar event has caused disruption in the process through which VA ordinarily receives correspondence. The intended effect is to ensure that claimants and beneficiaries are not deprived of potential entitlement to benefits because of unexpected delays or impediments through no fault of their own. Section 512(a) of 38 U.S.C., listed as statutory authority for proposed § 5.151, pertains to the Secretary's ability to delegate authority to officials and employees to administer the laws and make decisions. The citation to 38 U.S.C. § 512(a) is used to justify empowering employees and officials to establish procedures in emergency circumstances. Although current § 3.1(r) makes a delegation to the Under Secretary for Benefits, the cited statute does not limit delegation to the Under Secretary for Benefits. Accordingly, proposed paragraph
(b)does not contain that limitation. Section 5.152 Effective Dates Based on Change of Law or VA Issue We propose to re-state current § 3.114 in § 5.152. The heading for paragraph
(b)of proposed § 5.152, “Reduction or discontinuance of benefits” differs from the heading of current § 3.114(b), “Discontinuance of benefits,” in order to describe more accurately the content of the paragraph, which addresses both reductions of benefits and discontinuances of benefits. Current § 3.114(b) states that a claimant has 60 days from the date of the notice of a proposed reduction or discontinuance of benefits in which to submit evidence showing the proposed action should not be taken. The last sentence of current § 3.114(b) states that [i]f additional evidence is not received within that period, the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired. We propose to clarify in § 5.152(b) that if no evidence is received within 60 days, or if evidence is received that does not demonstrate that the proposed action should not be taken, the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired. Another change has to do with the use of the term “facts found” used in current § 3.114 and in 38 U.S.C. 5110(g). As noted in the discussion of proposed § 5.150, VA interprets “facts found” and another phrase used in effective date rules, “date entitlement arose,” to have the same basic meaning. We are proposing to use only one of these terms in § 5.152, “date entitlement arose,” to be consistent. Section 5.153 Effective Date of Awards Based on Receipt of Evidence Prior to End of Appeal Period We propose to revise current §§ 3.156(b) and 3.400(q)(1)(i) in order to establish clearer rules regarding the effective dates for awards based on the types of evidence described in current § 3.156(b). Section 3.156(b) reads as follows: New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. Although the words “effective date” do not appear in current § 3.156(b), the substantive effect of the paragraph is to establish an appropriate effective date, in tandem with § 3.400(q)(1)(i). Section 3.400(q)(1)(i) provides that the effective date for a claim reopened based on new and material evidence “[o]ther than service department records” that are “[r]eceived within [the] appeal period or prior to appellate decision * * * will be as though the former decision had not been rendered.” Under 38 U.S.C. 5110(a), the effective date for an award based on an original claim or a claim reopened after final adjudication (except as otherwise provided) “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” Therefore, if the claim is not “finally” decided when VA receives additional evidence, that is, if the evidence is submitted within the appeal period or before an appellate decision is rendered, then the effective date of the award can be as early as the date VA received the “open” claim. However, if VA were to treat all evidence submitted after the appeal period has begun as “new and material evidence,” then the effective date could not be earlier than the date VA received that evidence (which would be construed as a claim to reopen). Hence, 38 CFR 3.156(b) and 3.400(q)(1)(i) provide a claimant-friendly effective-date rule for awards based on evidence received while a claim is on appeal or before the appeal period expires. This interpretation is consistent with 38 U.S.C. 7105(c), which provides that a regional office denial is “final” when the time limit for initiating an appeal to the Board of Veterans' Appeals has expired and no appeal has been filed. The proposed text is also consistent with the Federal Circuit's decision in *Jackson* v. *Nicholson* , 449 F.3d 1204 (Fed. Cir. 2006), which held that current § 3.156(b) does not refer to evidence received by VA after a Board decision has been issued. Proposed § 5.153 retains this favorable interpretation, but does rephrase the rule. The current regulation can be read to suggest that new and material evidence is needed while the claim is still “open.” However, in such cases there is no claim to “reopen” because the claim has not been “closed” (that is, the claimant could still prevail on that claim). General Rules on Revision of Decisions Section 5.160 Binding Effect of VA Decisions Proposed § 5.160 is derived from current § 3.104, and is intended to clarify when a decision rendered by a decision maker in a VA agency of original jurisdiction is binding on other VA agencies of original jurisdiction. The current version provides that decisions of a VA agency of original jurisdiction, shall be *final and binding* on all field offices of [VA] as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A *final and binding* agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in § 3.105 and § 3.2600 of this part. 38 CFR 3.104(a) (emphasis added). We propose to repeat the language of § 3.104(a) in proposed § 5.160(a) without any substantive change. However, we will not repeat the word “final” in § 3.104(a) in proposed § 5.160(a). We believe that use of the word “final” in this context may cause confusion because the word “final” is used elsewhere in VA's regulations to refer only to agency of original jurisdiction decisions that have not been appealed within the time limits prescribed by statute and regulation for their appeal. *See* , e.g., 38 CFR 20.302(a) (if Notice of Disagreement not filed within 1 year of notice of agency of original jurisdiction decision, that decision shall become “final”). Further, in 38 CFR 3.160(d), VA defines a “finally adjudicated claim” as one that “has been allowed or disallowed by the agency of original jurisdiction, the action having become final by the expiration of 1 year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earlier.” This suggests that an agency of original jurisdiction decision might be simultaneously “final,” in the sense implied by § 3.104(a), on the date notice of the decision is given, and “non-final,” in the sense implied by § 3.160(d), because the time within which to appeal the decision has not yet expired. In *Majeed* v. *Principi* , 16 Vet. App. 421, 427-28 (2002), the United States Court of Appeals for Veterans Claims
(CAVC)rejected the argument that the phrase “final and binding” in § 3.104(a) means that a decision is final and binding as of the date issued because it could be seen to be at odds with the availability of an administrative appeal. VA does not intend that the term “'final and binding” preclude an administrative appeal. In fact, other VA regulations specifically provide for review of an agency of original jurisdiction decision that has not become final for purposes of appeal. For example, pursuant to 38 CFR 3.2600, a claimant may seek review of an agency of original jurisdiction decision by a Veterans Service Center Manager or Decision Review Officer after filing a Notice of Disagreement. Also, pursuant to 38 CFR 3.105(b), if revision of an agency of original jurisdiction decision is warranted as a result of a difference of opinion, an agency of original jurisdiction may recommend to VA Central Office that the decision be reversed or revised. VA therefore intends to clarify in this rulemaking that an agency of original jurisdiction decision is “binding” on the same or another agency of original jurisdiction on the same factual basis, barring a change in law, except under the circumstances enumerated in current § 3.104(a). Further, we have changed the cross-references in current § 3.104(a) to §§ 3.105 and 3.2600 to match their part 5 counterparts. Paragraph
(b)of § 3.104 currently provides that decisions made by an agency of original jurisdiction and VA Insurance Service adjudicators, which are “made in accordance with existing instructions,” concerning character of service, character of discharge, relationship issues, and other matters, are reciprocally binding when they are based on the same criteria. VA proposes not to include the phrase “made in accordance with existing instructions” from this paragraph because the instructions to which it refers are contained in VA procedural manuals rather than regulations in title 38, Code of Federal Regulations. The deletion of this phrase does not imply that VA is not required to follow the laws and regulations pertaining to the making of determinations of the type described in paragraph (b). It merely reflects a judgment that references to internal procedural manuals and other VA-generated documents that lack the force and effect of law are not appropriate for inclusion in the regulations. Finally, we propose to replace the terms “adjudication activity” and “insurance activity” contained in § 3.104(b) with “Veterans Service Center” and “VA Insurance Center,” respectively; again, because these are the more precise modern designations of the relevant entities. These proposed changes would simply modify the terminology to make it easier for the public to understand. Section 5.161 Review of Benefit Claims Decisions We propose to repeat the language of § 3.2600 in proposed § 5.161 without any substantive change. We have only changed the cross-references in current § 3.2600 to §§ 3.103 and 3.105 to match their part 5 counterparts. Section 5.162 Revision of Decisions Based on Clear and Unmistakable Error
(CUE)In § 5.162, we propose to state clearly that VA adjudicative agency decisions that are final will be presumed correct unless there is a showing of clear and unmistakable error (CUE). In addition, this section will state the effective date for awards resulting from the revision or reversal, based on a finding of clear and unmistakable error, of prior final decisions. Proposed § 5.162 will not deviate in scope from the body of law that precedes it. Consequently, § 5.162 provides that, absent CUE, prior final decisions are accepted as correct. The requirement of a showing of CUE applies only to a “final decision,” as defined by proposed § 5.2 to mean “a decision on a claim for VA benefits with respect to which VA provided the claimant with written notice” and the claimant either did not file a timely Notice of Disagreement or Substantive Appeal or the Board has issued a final decision on the claim. *See* 71 FR 16464, 16473-74 (March 31, 2006). We also proposed to incorporate 38 U.S.C. 5109A(c) and (d), which state that a CUE claim may be instituted by VA or upon request of the claimant and that a CUE claim may be made at any time after a final decision is made. We propose not to include the examples of determinations contained in the first sentence of current § 3.105(a) (“decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues”). Because the examples conclude with “* * * and other issues,” they would include any determination. Likewise, the proposed rule applies to any determination. By eliminating the examples, we intend to emphasize that the rule applies to any determination and avoid a misperception that the examples are a limitation on the rule. Section 5.163 Revision of Decisions Based on Difference of Opinion Current § 3.105(b) provides that where an agency of original jurisdiction believes that revising or amending a previous decision is warranted, based on a difference of opinion, a recommendation will be made to VA Central Office to authorize a change in the decision. We have used the term “Director of the Compensation and Pension Service” instead of “[VA] Central Office” and used the term “Veterans Service Center Manager (VSCM)” instead of “adjudicative agency” to accurately reflect long-standing VA practices. Additionally, we propose to state that this section authorizes revisions only when they would lead to a more favorable decision on the claim that was the subject of a prior decision, and that this section does not apply to a prior decision that is final or has been the subject of a Substantive Appeal. Section 5.164 Effective Dates for Revision of Decisions Based on Difference of Opinion We propose in § 5.164 to state VA's effective-date provision applicable to revisions of decisions based on difference of opinion. Proposed § 5.164 provides that the effective date of the revision would be the date benefits would have been paid if the previous decision had been favorable. Section 5.165 Effective Dates for Reduction or Discontinuance of Awards Based on Error Paragraphs (a), (b), and (c)(1) of proposed § 5.165 are derived from current § 3.500(b)(1) and (2), which govern the effective dates of reductions or discontinuances of awards of compensation, DIC, or pension based on error. In paragraph (a), we propose to exclude from § 5.165 payment amounts that are not authorized by a VA rating decision, such as a payment of an incorrect amount or a duplicative payment. Proposed § 5.165 applies only to reductions or discontinuances of erroneous awards. If a payment has not been authorized by a rating decision, then VA has not made an award of such an erroneous payment and therefore recovery of that payment is not a reduction or discontinuance of an “erroneous award” under 38 U.S.C. 5112(b)(9) or (10). We would add in paragraph
(a)that “[s]uch amounts are overpayments, subject to recoupment.” We propose to rewrite the current language of § 3.500(b) to enhance its readability. We also propose not to include the word “payee” and insert in its place the term “beneficiary.” The term “beneficiary” is consistent with the phrasing of the authorizing statute, 38 U.S.C. 5112(b)(9). In paragraph (c)(2), we propose to add a new definitional section that will clearly define “administrative error” and “error in judgment.” This definition will clearly show when these terms are applicable and will be consistent with precedential opinions prepared by VA's General Counsel. VAOPGCPRECs 2-90 (March 20, 1990) and 6-97 (January 18, 1997) held that an administrative error includes an error of fact (for example, VA mistakes or overlooks the facts or commits a purely clerical error) and that an error in judgment includes those instances when VA fails to properly interpret, understand, or follow Department instructions, regulations, or statutes. The proposed definitional section will assist the users of the regulation in determining under what circumstances VA may have committed administrative error or an error in judgment. Section 5.166 New and Material Evidence Based on Service Department Records Current § 3.156(c) addresses those situations when a prior final decision is being reconsidered based on the official service department records. We repeat that language in proposed § 5.166. General Rules on Protection or Reduction of Existing Ratings Currently, the rules that protect existing VA disability ratings from either reduction or severance are located in several different subparts within part 3 of title 38, CFR. For example, most of the substantive rules on the subject (38 CFR 3.951 *et seq.* ) are located under the undesignated part 3 subheading, “Protections;” however, substantive rules relevant to severance of service connection, as well as unique procedural provisions, are also located in current 38 CFR 3.105. Meanwhile, lesser protections afforded to stable ratings are located in § 3.344. We therefore propose to reorganize these rules under the undesignated subheading, “General Rules on Protection or Reduction of Existing Ratings,” in part 5 of title 38, CFR. This reorganization will contain the general rules that relate to the protection of existing ratings, which are found in current 38 CFR 3.105. It will also include those rules pertaining to the protection of the following ratings: Those that have stabilized, those in existence for a 20-year period, those based on the 1925 Schedule of Rating Disabilities, those in effect on December 31, 1958, and those in effect for a 10-year period. These are derived from current §§ 3.344, 3.951 through 3.953, and 3.957, respectively. This reorganized portion does not include current § 3.950, the rule relating to the awards of pension or compensation to a helpless child, because this rule does not protect an existing rating. It also does not include current § 3.954, the rule relating to awards of burial benefits, which will be addressed in another NPRM. The part 5 rule relating to federal employees' compensation cases, current § 3.958, will be located with the proposed regulations regarding concurrent receipt; the rule relating to tuberculosis (current § 3.959) will be located with the regulations regarding tuberculosis; and the rule relating to Section 306 and Old-Law pension protection (current § 3.960) is located with the regulations regarding pension. Section 5.170 Calculation of 5-Year, 10-Year, and 20-Year Protection Periods Current § 3.344 provides that “ratings which have continued for long periods at the same level (5 years or more)” cannot be reduced absent a reexamination “disclosing improvement, physical or mental, in these disabilities.” We propose in § 5.170 to set forth general provisions governing how VA determines whether a rating has been continuously in place for the 5-year period currently found in § 3.344. This rule also sets forth those provisions that apply to determining whether a 20-year period has been continuous, such that a rating is protected under the part 5 equivalent of 38 CFR 3.951(b). Additionally, proposed § 5.170 determines how to calculate whether service connection has been in effect for 10 years and is, therefore, protected under the part 5 equivalent of 38 CFR 3.957. It is preferable to state the general rules applicable to calculating these periods in one regulation rather than repeat the concepts in multiple regulations. Proposed paragraph
(b)states the general rule that the described periods begin on the effective date of the protected award or rating and end on the date that service connection would be severed or the rating reduced. This provision takes into account any applicable due process provisions contained in current § 3.105 and proposed § 5.176. The method of measuring the duration of a rating is explicit in current §§ 3.951 and 3.957; but it is not explicit in § 3.344. However, the implicit measurement method in § 3.344 is consistent with VA's current practice and policy, and with the interpretation of current § 3.344(c) set forth in *Brown* v. *Brown,* 5 Vet. App. 413 (1993). In that case, the Court held: “[T]he duration of a rating for purposes of § 3.344(c) must be measured from the effective date assigned that rating until the effective date of the actual reduction. * * * [T]hose results flow from the plain and unambiguous language of the regulation.” *Brown,* 5 Vet. App. at 418-419. We believe that making the effective-date-measurement rule explicitly applicable to the 5-year protection against reduction set forth in § 3.344, as it is in current §§ 3.951 and 3.957, will help clarify VA's practice on this issue. The requirement that the 20-year protection period be continuous is set forth in 38 U.S.C. 110, which protects certain ratings that have been “continuously in force for twenty or more years.” Therefore, proposed paragraph
(c)states that “a rating is not continuous if benefits based on that rating are discontinued or interrupted because the veteran reentered active service.” *See* VAOGCPREC 5-95 (holding that a rating discontinued based on reentry into service was not continuous for 20 years for purposes of section 110). We believe that the holding of VAOGCPREC 5-95 logically should apply to the continuity requirement for the 5-year protection set forth in current § 3.344(c). Explicitly stating this rule in proposed § 5.170(c) will promote consistency in decision making by VA staff. The rule of 5.170(c) regarding re-entry into active service does not apply to break the 10-year period of proposed § 5.175 for protection of service connection. Under current § 3.654(b), the prior determination “of service connection is not disturbed” because of the re-entry into active service. Because service connection remains in effect, the period of continuity is not broken. Proposed paragraph
(d)states that a rating period may be protected without regard to whether the beneficiary actually received VA compensation based on that rating. This is based on current VA policy. We note that this rule is intended to apply to all adjustments, except for reentry of active service, including a beneficiary whose payments were adjusted by deduction, recoupment, apportionment, reduction in compensation due to incarceration, and a beneficiary who elected to receive retirement pay. These common examples are listed in proposed paragraph (d). Proposed paragraph
(e)extends the protections found in current §§ 3.344, 3.951, and 3.957 to retroactive increases in rating or grants of service connection, including those awarded based on clear and unmistakable error
(CUE)under current § 3.105(a)/proposed § 5.162. In addition, the rule clearly states that it applies to any protection period even if it includes a period based on a retroactive award. The extension to retroactive awards is not a new VA practice. First, as to retroactive awards not based on a finding of CUE, the practice is well-established, even as to current § 3.344. *See, e.g., Brown* v. *Brown,* 5 Vet. App. 413, 417 (1993). The application of the retroactive protection to the 20-year period in cases based on findings of CUE is required by 38 U.S.C. 110. *See* VAOGCPREC 68-91 (citing H.R. Rep. No. 533, 83rd Cong., 1st Sess. 2 (1953); Pub. L. No. 88-445, 78 Stat. 464 (1964); and VAOGCPREC 16-89). The legislative intent behind applying a retroactive award to form the 20-year protection should apply as well to the regulatory 5-year protection because the purpose of § 3.344 is similar to the purpose of § 110 in that both protections support the economic and humane considerations noted above. Finally, the proposed regulation provides explicit protection to veterans, and is in keeping with our consistent treatment of the three time periods set forth in current §§ 3.344, 3.951, and 3.957 in other respects, as described in the other paragraphs in this proposed rule. Section 5.171 Protection of 5-Year Stabilized Ratings Proposed § 5.171 is derived from current § 3.344. Proposed paragraph
(a)restates in plain language the first sentence of current § 3.344(a). Proposed paragraph
(b)is primarily derived from the first sentence of current § 3.344(c), which states: “The provisions of paragraphs
(a)and
(b)of this section apply to ratings which have continued for long periods at the same level (5 years or more).” Proposed paragraph
(b)rephrases the current rule, as follows: “For the purposes of this section, if a disability has been rated at or above a specific level for 5 years or more, VA will consider it to be stabilized at that specific level.” No substantive change is intended. Proposed paragraph
(c)states two criteria that must be present before we will reduce a stabilized rating. The first criterion is stated in proposed paragraph (c)(1), and requires that there be “[a]n examination [that] shows sustainable material improvement, * * * in the disability.” The requirement of “material improvement” is based on the third sentence of current § 3.344(c), which states, “[r]eexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating.” We propose to change “improvement” to “material improvement.” “Material improvement” is what is intended in current § 3.344(c), as evidenced by the use of the term “material improvement” in paragraph
(a)of the current regulation. Finally, “material improvement” is the standard used to measure a protected or stabilized rating in other similar regulations. *See* 38 CFR 3.327(b)(2)(ii) (disability will not be subject to scheduled reexamination “[w]hen the findings and symptoms are shown by examinations * * * and hospital reports to have persisted without material improvement for a period of 5 years or more”); 38 CFR 3.343(a) (“[t]otal disability ratings * * * will not be reduced * * *. without examination showing material improvement in physical or mental condition”). Proposed paragraph (c)(2) states the second criterion that must be present before VA will reduce a stabilized rating, which is that “[t]he evidence shows that it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life.” This requirement is drawn directly from the seventh sentence of current § 3.344(a). We propose not to retain the second-to-last sentence of current § 3.344(c), which states: “[The provisions of this rule] do not apply to disabilities which have not become stabilized and are likely to improve.” Proposed paragraph
(c)clearly states that this rule applies to the reduction of stabilized ratings. The term “stabilized ratings” is clearly defined in proposed paragraph (b), and does “not apply to disabilities which have not become stabilized.” Therefore, the second-to-last sentence of current § 3.344(c) is unnecessary. Proposed paragraph
(d)is derived from current § 3.344(a). In the current regulation, paragraph
(a)contains ten sentences, nine of which articulate specific and distinct adjudicative rules. Three of these sentences also contain lists of various disabilities that are affected by the specific rule articulated in the sentence. Current paragraph
(a)does not organize those ten sentences either by associating similar concepts or by setting the rules out in numbered paragraphs. We apply both of these organizational tools in the proposed rule, in order to improve readability and help users locate the parts of the paragraph that apply to their particular cases. In essence, § 3.344(a) lists and describes the evidence required by VA to justify the reduction of a stabilized rating. Hence, we propose to title the paragraph that restates most of the rules contained in current § 3.344(a), “ *How VA determines whether there has been material improvement* .” The proposed rule required significant reorganization of the current rule. In order to show clearly what we have done, we have reproduced below the current regulation, with numbers before each of the 10 sentences. Then, we have indicated how our proposed rule would dispose of each sentence of the existing rule.
(a)Examination reports indicating improvement. [1] Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. [2] It is essential that the entire record of examinations and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. [3] This applies to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations in the absence of, or without taking full advantage of, laboratory facilities and the cooperation of specialists in related lines. [4] Examinations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction. [5] Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. [6] Ratings on account of diseases which become comparatively symptom free (findings absent) after prolonged rest, e.g. residuals of phlebitis, arteriosclerotic heart disease, etc., will not be reduced on examinations reflecting the results of bed rest. [7] Moreover, though material improvement in the physical or mental condition is clearly reflected the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. [8] When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations. [9] Rating boards encountering a change of diagnosis will exercise caution in the determination as to whether a change in diagnosis represents no more than a progression of an earlier diagnosis, an error in prior diagnosis or possibly a disease entity independent of the service-connected disability. [10] When the new diagnosis reflects mental deficiency or personality disorder only, the possibility of only temporary remission of a super-imposed psychiatric disease will be borne in mind. At the outset, we note that, as discussed above, sentence 1 of § 3.344(a) is reflected in the proposed paragraph
(a)and sentence 7 of § 3.344(a) is reflected in proposed paragraph (c)(2). Proposed paragraph (d)(1) is derived from current § 3.344(a) sentences 2, 3, and 4, which together emphasize the requirement that only a complete examination, including a review of the full medical record, can serve as a basis for a reduction under this section. The items needed for a complete medical record are in the proposed rule. The list includes all of the items in the current rule. Proposed paragraph (d)(2) restates in plain language current § 3.344(a) sentence 5, which states, “lists those diseases that will not be reduced on any one examination, absent evidence showing sustained improvement.” The list of diseases contained in the existing rule is set off as indented “bullet points,” to improve readability. In addition, we note that the term “manic depressive” is no longer an accepted term in the psychiatric community. It has been replaced by the term “Bipolar Disorders.” *See* American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 382-401 (4th ed. 2000). We therefore propose to use the term “Bipolar Disorders” instead of using “manic depressive.” In addition, we note that the term “psychoneurotic reaction” is no longer an accepted term in the psychiatric community. It has been replaced by the term “Anxiety Disorders.” *See* American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 429-484 (4th ed. 2000). We therefore propose to use the term “Anxiety Disorders” instead of using “psychoneurotic reaction.” The intent behind sentence 5 of § 3.344(a) is not that every single piece of evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Such a literal interpretation would lead to an absurd result because in a case where a rating has been in effect for 8 years, the evidence from 6-8 years would not show sustained improvement; only more recent evidence would show sustained improvement. Sentence 5 uses “all” to refer to the evidentiary record as a whole. We propose to not include the word “all” in paragraph
(d)to clarify that VA does not intend that every single piece of evidence of record must clearly warrant the conclusion that sustained improvement has been demonstrated, but rather that the evidentiary record as a whole must clearly warrant such a conclusion. Proposed paragraph (d)(3) restates in plain language current § 3.344(a) sentence 6. Proposed (d)(4) provides a statement of VA's policy as to when it will find “material improvement” to exist, as follows: “(4) Material improvement will be held to exist only where, after full compliance with the procedure outlined in this paragraph (d), the medical record clearly demonstrates that the disability does not meet the requirements for the currently assigned disability rating.” Proposed paragraph (d)(5) reflects the first, ninth, and tenth sentences of current § 3.344(a), and references a similar rule, 38 CFR 4.13. Section 4.13 states that in reevaluating a case based on a change in diagnosis, “The repercussion upon a current rating of service connection when change is made of a previously assigned diagnosis or etiology must be kept in mind. The aim should be the reconciliation and continuance of the diagnosis or etiology upon which service connection for the disability had been granted.” Section 4.13 is similar to § 3.344(a) sentence 1, but the language of § 4.13 more clearly places emphasis on the protection of the existing rating. Therefore, we explicitly require consideration of the part 4 rule when VA is confronted with evidence of a change in diagnosis. Proposed paragraph (d)(6) restates without alteration current § 3.344(a) sentence 8. Proposed paragraph
(e)restates, in plain language, current § 3.344(b). We note that the current rule requires VA to cite “the former diagnosis with the new diagnosis in parentheses,” whereas the proposed rule would require VA to cite “the former diagnosis with the new diagnosis, *if any,* in parentheses” (emphasis added). This change clarifies that proposed paragraph
(e)applies to any basis for reduction, not just to reductions based on a changed diagnosis. Section 5.172 Protection of Continuous 20-Year Ratings Proposed § 5.172 is based on current § 3.951(b), which protects disability ratings and ratings of permanent and total disability for pension purposes that have been in effect for at least 20 years. Proposed paragraph
(a)restates in plain language the protection in current § 3.951(b) afforded to disabilities rated for periods in which the beneficiary was receiving compensation. It would not include the phrase “under laws administered by the Department of Veterans Affairs” because there is no ambiguity concerning whether this regulation applies to ratings under VA regulations. Proposed paragraph
(b)restates in plain language the current protection afforded in current § 3.951(b) to a rating of permanent total disability for pension purposes. Proposed paragraph
(c)states that the 20-year protection against reduction applies “whether or not the veteran elects to receive disability compensation or pension during all or any part of the 20-year period.” This additional language reflects the holding of *Salgado* v. *Brown* , 4 Vet. App. 316, 320
(1993)(“The Court holds that the protection afforded by section 110 of title 38 of the United States Code applies to ratings for compensation purposes, whether or not a veteran elects to receive a monetary award.”). Because 38 U.S.C. 110 applies to both pension and compensation, we propose to include pension in proposed paragraph (c). Section 5.173 Protection Against Reduction of Disability Ratings When Revisions Are Made to the Schedule for Rating Disabilities Proposed § 5.173 is derived from current §§ 3.951 and 3.952. Section 3.951(a) states that VA will not reduce any disability rating in effect on the effective date of a revision of the applicable Schedule for Rating Disabilities, based on such revisions, unless medical evidence establishes that the rated disability has actually improved. Current § 3.952 applies that protection, with some modification, to ratings assigned under the Schedule of Disability Ratings, 1925, which were the basis of compensation on April 1, 1946, when the current Schedule of Disability Ratings took effect. Proposed § 5.173 combines the general rule in current § 3.951(a) with the specific rule in current § 3.952, into a single regulation titled, “ *Protection against reduction of disability ratings when revisions are made to the Schedule for Rating Disabilities* .” At the end of the proposed regulation, we cross-reference proposed § 5.176, the regulation that describes the process required before reducing a rating. Proposed paragraph
(a)restates in plain language the general rule in current § 3.951(a), as follows: “VA will not reduce a disability rating in effect on the effective date of a revision of the applicable Schedule for Rating Disabilities unless medical evidence establishes that the rated disability has actually improved, except when the rating was assigned under the 1925 Schedule of Disability Ratings (as provided in paragraph
(b)of this section).” Proposed paragraph
(b)of § 5.173 restates in plain language the protections afforded under current § 3.952. These changes are meant to make the rules easier to follow; no substantive changes are intended. Section 5.174 Protection of Entitlement to Benefits Established Before 1959 Proposed § 5.174 is based on current § 3.953. We propose not to include current § 3.953(b), which refers to emergency officers' retirement pay payable to veterans of World War I. We believe it is very unlikely that VA will receive any more claims for this benefit. However, if such a claim were to be received, Section 11, Public Law 85-857 would be used to adjudicate the claim. Section 5.175 Protection or Severance of Service Connection Proposed § 5.175 is derived from current §§ 3.957 and 3.105(d). Proposed § 5.175(a) incorporates current § 3.957, which states that service connection for disability or death may be protected if it has been in effect for 10 years or more. Such a rating may not be severed unless any of the following are shown:
(1)The original grant was obtained through fraud; or,
(2)military records clearly show that the person identified as a veteran did not have the requisite qualifying service; or,
(3)military records clearly show that the veteran's discharge from service was a bar to service connection. *See* 38 CFR 3.12. We would include the current rule in the provision governing severance of service connection because the rule advises claimants of circumstances when a protected rating may be severed. Proposed § 5.175(b) provides that severance of service connection may also occur when evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon VA), subject to §§ 5.152 and 5.176. This paragraph further provides that a change in medical diagnosis may be a basis for severing service connection if the examining physician or physicians or other proper medical authority certifies that, in light of all accumulated evidence, the diagnosis that was the basis of the award is clearly erroneous. That certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion that the diagnosis is erroneous. Section 5.176 Due Process Procedures for Severing Service Connection or Reducing or Discontinuing Compensation Benefits Proposed § 5.176 re-states current § 3.105(d), (e). Current § 3.105(d) and
(e)state that a claimant has 60 days from the date of the notice of a proposed severance of service connection or reduction or discontinuance of benefits in which to submit evidence showing the proposed action should not be taken. The last sentence of both current § 3.105(d) and current § 3.105(e) states that [i]f additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued * * * effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. We propose to clarify in § 5.176(c) that if no evidence is received within 60 days, or if evidence is received that does not demonstrate that the proposed action should not be taken, VA will notify the beneficiary that VA is severing service connection or reducing or discontinuing the benefit. Section 5.177 Effective Dates for Severing Service Connection or Discontinuing or Reducing Benefit Payments Proposed § 5.177 contains the effective date provisions related to severance of service connection and reduction or discontinuance of benefits. It is derived from various provisions of current § 3.105. We propose in paragraph
(a)to restate the provisions found in the introductory paragraph of § 3.105 regarding effective dates for reductions or discontinuances of suspended awards. We propose in paragraph
(c)to list the three exceptions to § 5.177, which are derived from the introductory paragraph of § 3.105 and current § 3.500(b). We propose not to include the exception for cases where the award of service connection was “clearly illegal” because such cases would properly fall within § 3.105 and proposed § 5.177(d). We propose in paragraphs
(d)through (i), to state the specific type of benefit that is the subject of the particular effective date rule and to explain when the benefit will be reduced, stopped, or severed. These effective date provisions are from paragraphs
(c)through
(h)of the current version of § 3.105. Endnote Regarding Amendatory Language We intend to ultimately remove part 3 entirely, but we are not including amendatory language to accomplish that at this time. VA will provide public notice before removing part 3. Paperwork Reduction Act This document contains no provisions constituting a new collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). Regulatory Flexibility Act The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. This amendment would not significantly impact any small entities. Therefore, pursuant to 5 U.S.C. 605(b), this amendment 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)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 proposed rule have been examined, and it has been determined to be a significant regulatory action under the Executive Order because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. 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 an 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 given year. This proposed rule would have no such effect on State, local, and tribal governments, or the private sector. Catalog of Federal Domestic Assistance Numbers and Titles The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death; 64.115, Veterans Information and Assistance; and 64.127, Monthly Allowance for Children of Vietnam Veterans Born with Spina Bifida. List of Subjects in 38 CFR Part 5 Administrative practice and procedure, Claims, Disability benefits, Pensions, Veterans. Approved: February 8, 2007. Gordon H. Mansfield, Deputy Secretary of Veterans Affairs. For the reasons set out in the preamble, VA proposes to further amend 38 CFR part 5, as proposed to be added at 69 FR 4832, January 30, 2004, by adding subpart C to read as follows: PART 5—COMPENSATION, PENSION, BURIAL, AND RELATED BENEFITS Subpart C—Adjudicative Process, General General Evidence Requirements Sec. 5.130 Submission of statements, evidence, or information affecting entitlement to benefits. 5.131 Applications, claims, and exchange of evidence with Social Security Administration (SSA)—death benefits. 5.132 Claims, statements, evidence, or information filed abroad; authentication of documents from foreign countries. 5.133 Information VA may request from financial institutions. 5.134 Will VA accept a signature by mark or thumbprint? 5.135 Statements certified or under oath or affirmation. 5.136-5.139 [Reserved] Evidence Requirements for Former Prisoners of War
(POWS)5.140 Determining former prisoner of war status. 5.141 Medical evidence for former prisoners' of war compensation claims. 5.142-5.149 [Reserved] General Effective Dates for Awards 5.150 General effective dates for awards or increased benefits. 5.151 Date of receipt. 5.152 Effective dates based on change of law or VA issue. 5.153 Effective date of awards based on receipt of evidence prior to end of appeal period. 5.154-5.159 [Reserved] General Rules on Revision of Decisions 5.160 Binding effect of VA decisions. 5.161 Review of benefit claims decisions. 5.162 Revision of decisions based on clear and unmistakable error (CUE). 5.163 Revision of decisions based on difference of opinion. 5.164 Effective dates for revision of decisions based on difference of opinion. 5.165 Effective dates for reduction or discontinuance of awards based on error. 5.166 New and material evidence based on service department records. 5.167-5.169 [Reserved] General Rules on Protection or Reduction of Existing Ratings 5.170 Calculation of 5-year, 10-year, and 20-year protection periods. 5.171 Protection of 5-year stabilized ratings. 5.172 Protection of continuous 20-year ratings. 5.173 Protection against reduction of disability ratings when revisions are made to the Schedule for Rating Disabilities. 5.174 Protection of entitlement to benefits established before 1959. 5.175 Protection or severance of service connection. 5.176 Due process procedures for severing service connection or reducing or discontinuing compensation benefits. 5.177 Effective dates for severing service connection or discontinuing or reducing benefit payments. 5.178-5.179 [Reserved] Authority: 38 U.S.C. 501(a) and as noted in specific sections. Subpart C—Adjudicative Process, General General Evidence Requirements § 5.130 Submission of statements, evidence, or information affecting entitlement to benefits.
(a)*Statement of VA policy concerning submission of written statements, evidence, or information.*
(1)It is VA's general policy to allow submission of statements, evidence, or information by e-mail, facsimile
(fax)machine, or other electronic means, unless a VA regulation, form, or directive expressly requires a different method of submission (for example, where a VA form directs claimants to submit certain documents by regular mail or hand delivery). This policy does not apply to the submission of a claim, Notice of Disagreement, Substantive Appeal, or any other submissions or filing requirements covered in parts 19 and 20 of this chapter.
(2)Paragraph (a)(1) of this section merely concerns the method by which written statements, evidence, or information is submitted to VA. Requirements regarding the content of the submission must still be met.
(b)*VA action following submission of statements, evidence, or information.* Except as otherwise provided, after a beneficiary or his or her fiduciary or authorized representative provides VA with a statement, evidence, or information that affects entitlement to benefits, either orally or in writing, VA may take action affecting the beneficiary's entitlement to benefits based upon the statement, evidence, or information.
(c)*Notice and documentation or oral statements.* Except as provided in paragraph
(d)of this section, VA will not take action based on oral statements unless the VA employee receiving the information meets the following conditions:
(1)During the conversation in which the beneficiary, representative, or fiduciary provides the statement, the VA employee:
(i)Identifies himself or herself as a VA employee who is authorized to receive the statement (this means that the VA employee must be authorized to take actions under §§ 2.3 or 3.100 of this chapter);
(ii)Verifies the identity of the provider as the beneficiary or his or her fiduciary or authorized representative by obtaining specific information about the beneficiary that is contained in the beneficiary's VA records, such as Social Security number, date of birth, branch of military service, dates of military service, or other information; and
(iii)Informs the provider that the statement may be used to calculate benefit amounts; and
(2)During or following the conversation in which the beneficiary, representative, or fiduciary provides the statement, the VA employee documents in the beneficiary's VA record all of the following:
(i)The specific statement provided.
(ii)The date such statement was provided.
(iii)The identity of the provider.
(iv)The steps taken to verify the identity of the provider as being the beneficiary or his or her fiduciary or authorized representative.
(v)The statement of the employee that the provider was informed that the statement may be used for the purpose of calculating benefits amounts.
(d)*Exceptions to paragraph
(c)notice and documentation requirements.* Paragraph
(c)of this section does not apply to the following:
(1)Oral statements made at a VA hearing; and
(2)Oral statements recorded by VA personnel in reports of medical treatment or examination. (Authority: 38 U.S.C. 501(a)) § 5.131 Applications, claims, and exchange of evidence with Social Security Administration (SSA)—death benefits.
(a)*Dual-purpose SSA and VA application forms.* A claim for death benefits received by SSA on a form jointly prescribed by VA and SSA claiming such benefits is considered to be a claim for VA death benefits (including dependency and indemnity compensation (DIC), death pension, and accrued benefits). The claim will be deemed to have been received by VA on the date that it was received by SSA.
(b)*Evidence filed with SSA.* Evidence received by SSA in conjunction with a claim under paragraph
(a)of this section is considered received by VA on the date that SSA received the evidence.
(c)*SSA request of copies or certifications of evidence filed with VA.* At SSA's request, VA will furnish copies or certifications of evidence that a claimant has filed with VA in support of a claim for VA death benefits, provided that the release of this evidence fully complies with all requirements in any applicable laws and regulations that protect the confidentiality of VA records. (Authority: 38 U.S.C. 501(a), 5101(b)(1), 5105) § 5.132 Claims, statements, evidence, or information filed abroad; authentication of documents from foreign countries.
(a)*Claims and evidence filed abroad.* A claim, or statements, information, or evidence in support of a claim, may be submitted to a Department of State representative in a foreign country. Any claim, statement, information, or evidence filed in a foreign country will be considered received by VA on the date that it was received by the Department of State representative in that foreign country.
(b)*Authentication of foreign documents—generally.* Foreign documents listed in paragraph
(c)of this section do not require authentication. All other foreign documents must be authenticated as specified in paragraph
(d)of this section. “Foreign documents” means documents that are signed under oath or affirmation in the presence of an official in a foreign country. Examples of foreign documents include affidavits, marriage certificates, and birth certificates that have been created, executed, or validated by a foreign government. “Authentication” means that an official listed in paragraph
(d)of this section verifies that the foreign document, including each signature, stamp, and seal appearing on it, is genuine and has not been altered.
(c)*Authentication of certain foreign documents not required.* VA does not require authentication of the following types of foreign documents:
(1)Documents approved by the Deputy Minister of Veterans Affairs for the Department of Veterans Affairs, Ottawa, Canada.
(2)Documents bearing the signature and seal of an officer authorized to administer oaths for general purposes.
(3)Documents signed before a VA employee authorized to administer oaths under § 2.3 of this chapter.
(4)Affidavits prepared in the Republic of the Philippines that are certified by a VA representative who is located there and who has the authority to administer oaths.
(5)Copies of public or church records from any foreign country used to establish birth, adoption, marriage, annulment, divorce, or death, provided that the documents have the signature and seal of the custodian of these records and there is no contrary evidence of record that tends to cast doubt on the correctness of the documents.
(d)*Authentication of foreign documents required.* Foreign documents not listed in paragraph
(c)of this section must be authenticated by:
(1)An officer of the Department of State authorized to authenticate documents; or
(2)The Consul of a friendly government whose signature and seal is verified by the Department of State.
(e)*Photocopies of foreign documents.* VA will accept photocopies of any of the foreign documents described in paragraphs
(c)and
(d)of this section if VA determines that the photocopies satisfy the requirements of § 5.180. (Authority: 38 U.S.C. 501(a)) § 5.133 Information VA may request from financial institutions.
(a)*Names and addresses.* If VA needs to verify a person's correct name or address, VA may request this information from a financial institution, such as a bank, savings and loan association, trust company, or credit union. In its request, VA must certify that the name or address is necessary in order to administer properly its benefit programs and cannot be located by a reasonable search of VA records.
(b)*Financial information.* VA may ask a financial institution to provide financial records of a current or former claimant or a current or former beneficiary if such evidence is necessary to determine whether such person has failed to comply with a statute, regulation, rule, or order. This request, however, must be made through a subpoena. (A subpoena is a legal document commanding an individual or organization to provide specified evidence to the issuer of the subpoena. See § 2.2 of this chapter for information on VA's authority to issue subpoenas.) Before the date VA serves a subpoena on a financial institution, VA must:
(1)Serve or mail a copy of the subpoena to the beneficiary; together with
(2)A written explanation of the purpose of VA's request for financial information and the procedure for challenging the subpoena. *See* 12 U.S.C. 3405.
(c)*Limitations on use of information.* Unless permitted under the Right to Financial Privacy Act (codified at 12 U.S.C. 3401, *et seq.* ), VA may not:
(1)Use information obtained from a financial institution for any purpose other than the administration of VA benefits programs; or
(2)Share this information with any other individual, group, or government entity. (Authority: 12 U.S.C. 3401, 3405, 3412, 3413; 38 U.S.C. 501, 5711, 5319) § 5.134 Will VA accept a signature by mark or thumbprint? VA will accept signatures by mark or thumbprint if:
(a)They are witnessed by two people who sign their names and give their addresses, or
(b)They are witnessed by an accredited agent, attorney, or service organization representative, or
(c)They are certified by a notary public or any other person having the authority to administer oaths for general purposes, or
(d)They are certified by a VA employee who has been delegated authority by the Secretary under 38 CFR 2.3. (Authority: 38 U.S.C. 5101) § 5.135 Statements certified or under oath or affirmation.
(a)All oral testimony presented by claimants and witnesses on their behalf will be under oath or affirmation ( *see* § 5.82(d)(2)).
(b)Any documentary evidence or written assertion of fact submitted by the claimant or on his or her behalf for the purpose of establishing a claim for service connection should be certified or under oath or affirmation. VA may consider such a submission that is not certified or under oath or affirmation or may require certification, oath, or affirmation if considered necessary to establish the reliability of a material document. Documentary evidence includes records, examination reports, and transcripts material to the issue received by VA from State, county, or municipal governments, recognized private institutions, or contract hospitals. (Authority: 38 U.S.C. 501) §§ 5.136 through 5.139 [Reserved] Evidence Requirements for Former Prisoners of War
(POWs)§ 5.140 Determining former prisoner of war status.
(a)*Basis for determination.* The definition of “hostile force” set forth in paragraph
(3)of the definition of “Former prisoner of war (or former POW)” in § 5.1 applies to this section. VA will accept a finding by the appropriate service department that a person was a POW during a period of war when detention or internment was by an enemy government or its agents, or a hostile force, except when a reasonable basis exists for questioning that finding. The Director of the Compensation and Pension Service must approve all regional office determinations not based on service department findings. VA will apply paragraphs (b), (c), and
(d)of this section and make its own determination of POW status if:
(1)The detention or internment occurred during a period other than a period of war; or
(2)If a service department has not made a finding; or
(3)A reasonable basis exists for questioning a service-department finding.
(b)*Circumstances of detention or internment.* To be considered a former POW, a serviceperson must have been forcibly detained or interned under circumstances comparable to those under which persons generally have been forcibly detained or interned by enemy governments during periods of war. Such circumstances include, but are not limited to, physical hardships or abuse, psychological hardships or abuse, malnutrition, and unsanitary conditions. In the absence of evidence to the contrary, VA will consider that each individual member of a particular group of detainees or internees experienced the same circumstances as those experienced by the group.
(c)*Reason for detention or internment* . For the purposes of determining POW status, VA will not consider the reason a service member was detained or interned, except where allegations exist that the service member violated the laws of a foreign government. A period of detention or internment by a foreign government for an alleged violation of its laws cannot be used to establish POW status, unless the charges were a sham intended to make it appear that the detention or internment was proper.
(d)*Line of duty* . VA will consider that a serviceperson was forcibly detained or interned in line of duty unless the evidence of record discloses that forcible detention or internment was the proximate result of the service member's own willful misconduct. *See* § 5.660 (defining line of duty) and § 5.661 (defining willful misconduct). Cross-reference: *See* § 5.611 (concerning POW status and Philippine service). (Authority: 38 U.S.C. 101(32)) § 5.141 Medical evidence for former prisoners' of war compensation claims.
(a)*Injuries and other conditions of a former prisoner of war (POW)* . As soon as sufficient evidence for a rating is available, VA will rate injuries or other conditions of a former POW that obviously were incurred in service, without awaiting receipt of the claimant's medical and other service records.
(b)*Statements by a former POW* . VA will presume true a statement by a former POW that an injury or disease was incurred or aggravated during (or immediately before) detention or internment if the statement is consistent with the circumstances, conditions, or hardships of detention or internment (or is consistent with the former POW's situation immediately before detention or internment). The presumption of truth as to such a statement is rebutted by clear and convincing evidence to the contrary. *See also* § 3.304(f)(2) (pertaining to post-traumatic stress disorder claimed by a former POW).
(c)*Evidence from fellow service members* . Evidence from fellow service members may be used to support an allegation of incurrence or aggravation of an injury or disease during detention or internment. In evaluating evidence from fellow service members that relates to a claim for disability compensation by a former POW, VA will take into account the fellow service member's statements, including statements regarding any of the following:
(1)The former POW's physical condition before capture;
(2)The circumstances during the former POW's detention or internment;
(3)The changes in the former POW's physical condition following release from detention or internment; or
(4)The existence of signs and symptoms consistent with a claimed disability following the former POW's release from detention or internment.
(d)*The absence of clinical records* . If disability compensation is claimed by a former POW, VA will not consider as determinative the lack of history or findings in clinical records made upon the claimant's return to United States control.
(e)*Disabilities first reported after discharge* . If any disability is first reported after discharge, especially if the claimed disability is poorly defined and not obviously of intercurrent origin, VA will determine whether the claimed disability is etiologically related to the POW experience. VA will consider the circumstances of the claimant's detention or internment, the duration of detention or internment, and the pertinent medical principles.
(f)*Examination requirement* . If service connection for disabilities claimed by a former POW cannot be established otherwise, VA will provide the claimant a complete medical examination. Cross-references: Definition of prisoner of war. *See* § 5.1. Presumptive service connection for diseases specific to prisoners of war. *See* § 5.264(c). (Authority: 38 U.S.C. 1154) §§ 5.142-5.149 [Reserved] General Effective Dates for Awards § 5.150 General effective dates for awards or increased benefits.
(a)*General rule* . Except as otherwise provided, the effective date of an award of pension, compensation, dependency and indemnity compensation, or monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran, based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the later of:
(1)The date of receipt of the claim for the benefit awarded; or
(2)The date entitlement arose. For the purposes of this part, “date entitlement arose” means the date shown by the evidence to be the date that the claimant first met the requirements for the benefit awarded. VA will assume that entitlement arose before the date of receipt of the claim unless the evidence shows that entitlement arose after that date.
(b)*Location of other effective-date provisions in part 5* . The following chart is intended to provide assistance in locating various other effective-date provisions in this part. It is provided for informational use only. Effective date provision Part 5 location
(1)SUBPART B—SERVICE REQUIREMENTS FOR VETERANS
(i)Individuals and groups designated by the Secretary of Defense as having performed active military service § 5.27(c).
(ii)Effect of discharge upgrades by Armed Forces boards for the correction of military records (10 U.S.C. 1552) on eligibility for VA benefits § 5.34(d).
(iii)Effect of discharge upgrades by Armed Forces discharge review boards (10 U.S.C. 1553) on eligibility for VA benefits § 5.35(e).
(2)SUBPART C—ADJUDICATIVE PROCESS, GENERAL
(i)Filing a claim for death benefits § 5.53(c)(5).
(ii)New and material evidence § 5.56(b).
(iii)Requirement to provide Social Security numbers § 5.101(c), (d).
(iv)Effective dates based on change of law or VA issue § 5.152.
(v)Effective date of awards based on receipt of evidence prior to end of appeal period § 5.153.
(vi)Revision of decisions based on clear and unmistakable error
(CUE)§ 5.162(b).
(vii)Effective dates for revision of decisions based on difference of opinion under § 5.163 § 5.164.
(viii)Effective dates for reduction or discontinuance of awards based on error § 5.165.
(ix)New and material evidence based on service department records § 5.166(c), (d).
(x)Effective dates for severing service connection or discontinuing or reducing benefit payments § 5.177.
(3)SUBPART D—DEPENDENTS AND SURVIVORS
(i)Evidence of dependency-reduction or discontinuance of VA benefits § 5.181(c).
(ii)Effective date for additional benefits based on the existence of a dependent § 5.183.
(iii)Effective date of reduction or discontinuance of VA benefits due to the death of a beneficiary's dependent § 5.184.
(iv)Effective date of reduction or discontinuance of improved pension, compensation, or dependency and indemnity compensation due to marriage or remarriage § 5.197.
(v)Effective date of reduction or discontinuance of improved pension, compensation, or dependency and indemnity compensation due to divorce or annulment § 5.198.
(vi)Effective date of discontinuance of VA benefits to a surviving spouse who holds himself, or herself, out as the spouse of another person § 5.204.
(vii)Effective date of resumption of benefits to a surviving spouse due to termination of a remarriage § 5.205.
(viii)Effective date of resumption of benefits to a surviving spouse who stops holding himself, or herself, out as the spouse of another § 5.206.
(ix)Effective date of award of pension or dependency and indemnity compensation to, or based on the existence of, a child born after the veteran's death § 5.230.
(x)Effective date of reduction or discontinuance—child reaches age 18 or 23 § 5.231.
(xi)Effective date of reduction or discontinuance—terminated adoptions § 5.232.
(xii)Effective date of reduction or discontinuance—stepchild no longer a member of the veteran's household § 5.233.
(xiii)Effective date of an award, reduction, or discontinuance of benefits based on child status due to permanent incapacity for self support § 5.234.
(xiv)Effective date of an award of benefits due to termination of a child's marriage § 5.235.
(4)SUBPART E—CLAIMS FOR SERVICE CONNECTION AND DISABILITY COMPENSATION
(i)Effective dates—award of disability compensation based on direct service connection § 5.310.
(ii)Effective dates—award of disability compensation based on presumptive service connection § 5.311.
(iii)Effective dates—increased compensation due to increased disability § 5.312.
(iv)Effective dates—reduction or severance of service-connected disability compensation § 5.313.
(v)Effective dates—discontinuance of total disability rating based on individual unemployability § 5.314.
(vi)Effective dates—reduction or discontinuance of additional disability compensation based on parental dependency § 5.315.
(vii)Effective dates—award of additional disability compensation based on decrease in the net worth of dependent parents § 5.316.
(viii)Effective dates—Special monthly compensation under §§ 5.331 through 5.332 § 5.333.
(ix)Effective dates—Additional compensation for aid and attendance payable for a veteran's spouse § 5.334.
(x)Effective date: Tuberculosis, special compensation for arrested § 5.349.
(xi)Benefits under 38 U.S.C. 1151(a) for additional disability or death due to hospitalization, medical or surgical treatment, examinations, or vocational rehabilitation training § 5.352(a)(2).
(xii)Effective dates for disability or death due to hospitalization, medical or surgical treatment, examinations, or vocational rehabilitation training § 5.353.
(5)SUBPART F—NONSERVICE-CONNECTED DISABILITY PENSIONS AND DEATH PENSIONS
(i)Permanent and total disability ratings for Improved Disability Pension purposes § 5.381(b)(2).
(ii)Effective dates for Improved Disability Pension § 5.383.
(iii)Effective dates for awards of special monthly pension § 5.392.
(iv)Automatic adjustment of maximum annual pension rates § 5.401(a).
(v)Effective dates for Improved Pension awards based on a change in net worth § 5.415.
(vi)Effective dates for changes to Improved Pension payments due to a change in income § 5.422.
(vii)Time limits to establish entitlement to Improved Pension or to increase the annual Improved Pension amount based on income § 5.424(b), (c).
(viii)Effective dates for Improved Death Pension § 5.431.
(ix)Effective date of discontinuance of Improved Death Pension payments to a beneficiary no longer recognized as the veteran's surviving spouse § 5.433.
(x)Award, or discontinuance of award, of Improved Death Pension to a surviving spouse where Improved Death Pension payments to a child are involved § 5.434(b), (c).
(xi)Effective dates of improved pension elections § 5.463.
(xii)Effective dates for section 306 and old-law pension reductions or discontinuances § 5.477.
(6)SUBPART G—DEPENDENCY AND INDEMNITY COMPENSATION, DEATH COMPENSATION, ACCRUED BENEFITS, AND SPECIAL RULES APPLICABLE UPON DEATH OF A BENEFICIARY
(i)Awards of dependency and indemnity compensation benefits to children when there is a retroactive award to a school child § 5.524(c).
(ii)Effective dates for DIC or death compensation awards § 5.567.
(iii)Effective dates for discontinuance of DIC or death compensation payments to a person no longer recognized as the veteran's surviving spouse § 5.568.
(iv)Effective date for award, or termination of award, of DIC or death compensation to a surviving spouse where DIC or death compensation payments to children are involved § 5.569.
(v)Effective date for reduction in DIC—surviving spouses § 5.570.
(vi)Effective date for an award or increased rate based on amended income information—parents' DIC § 5.571.
(vii)Effective date for reduction or discontinuance based on increased income—parents' DIC § 5.572.
(viii)Effective date for dependency and indemnity compensation rate adjustments when an additional dependent files an application § 5.573.
(ix)Effective dates of awards and discontinuances of special monthly dependency and indemnity compensation § 5.574.
(7)SUBPART H—SPECIAL AND ANCILLARY BENEFITS FOR VETERANS, DEPENDENTS, AND SURVIVORS
(i)Medal of Honor pension § 5.580(c).
(ii)Awards of VA benefits based on special acts or private laws § 5.581(d).
(iii)Special allowance payable under section 156 of Pub. L. 97-377 § 5.588(f).
(iv)Effective dates of awards for certain disabled children of Vietnam veterans § 5.591.
(v)Clothing allowance § 5.606(e).
(8)SUBPART I—BENEFITS FOR CERTAIN FILIPINO VETERANS AND SURVIVORS
(i)Filipino veterans and their survivors: Effective dates for benefits at the full-dollar rate § 5.614.
(ii)Filipino veterans and their survivors: Effective dates of reductions and discontinuances for benefits at the full-dollar rate § 5.618.
(9)SUBPART K—MATTERS AFFECTING THE RECEIPT OF BENEFITS
(i)Remission of forfeiture § 5.680(c)(2).
(ii)Effective dates—forfeiture § 5.681.
(iii)Presidential pardon for offenses causing forfeiture § 5.682(b), (d).
(iv)Renouncement of benefits § 5.683(c), (e)(1)(ii).
(10)SUBPART L—PAYMENTS AND ADJUSTMENTS TO PAYMENTS
(i)Benefits paid to a child attending an approved educational institution § 5.695(c)-(g).
(ii)General effective dates for reduction or discontinuance of benefits § 5.705.
(iii)Eligibility verification reports § 5.708(f).
(iv)Adjustment in benefits due to reduction or discontinuance of a benefit to another payee § 5.710(b).
(v)Disappearance of veteran for 90 days or more § 5.711(b)(2), (c)(2), (d)(1).
(vi)Resumption of payments when a payee's whereabouts become known § 5.712.
(vii)Restriction on VA benefit payments to an alien located in enemy territory § 5.713.
(viii)Reduction of Improved Pension when a veteran is receiving domiciliary or nursing home care § 5.720(a)(4), (d).
(ix)Reduction of Section 306 Pension when a veteran is receiving hospital care § 5.721(a)(4), (d).
(x)Reduction of Old-Law Pension when a veteran is receiving hospital care § 5.722(a)(4).
(xi)Reduction of Improved Pension when a veteran or surviving spouse is receiving Medicaid-covered nursing home care § 5.723(b).
(xii)Reduction of special monthly compensation involving aid and attendance when a veteran is receiving hospital care § 5.724(b), (e), (f).
(xiii)Reduction of special monthly pension involving aid and attendance for Improved Pension when a veteran is receiving hospital care § 5.725(b), (d), (e).
(xiv)Reduction of special monthly pension involving aid and attendance for Old-Law Pension or Section 306 Pension when a veteran is receiving hospital care § 5.726(b), (e).
(xv)Resumption of Section 306 Pension and special monthly pension involving aid and attendance when a veteran is discharged or released from hospital care § 5.727(b), (e), (f).
(xvi)Resumption of Old-Law Pension and special monthly pension involving aid and attendance when a veteran is discharged or released from hospital care § 5.728(b), (d), (e).
(xvii)General effective dates for awarding, reducing, or discontinuing VA benefits because of an election § 5.743. (xviii) Prohibition against receipt of active military service pay and VA benefits for the same period § 5.746(c), (d)(1).
(xix)Procedures for elections between VA benefits and FECA compensation § 5.752(b).
(xx)Effect of election of compensation under the Radiation Exposure Compensation Act of 1990 on payment of certain VA benefits § 5.754(d).
(xxi)Payment of multiple VA benefits to a surviving child based on the service of more than one veteran § 5.762(c)(6)(ii).
(xxii)Payment of dependents' educational assistance
(DEA)and VA pension or dependency and indemnity compensation
(DIC)for the same period § 5.764(a)(3).
(11)SUBPART M—APPORTIONMENTS TO DEPENDENTS AND PAYMENTS TO FIDUCIARIES AND INCARCERATED BENEFICIARIES
(i)Effective date of apportionment grant or increase § 5.783.
(ii)Effective date of apportionment discontinuance or reduction § 5.784.
(iii)Determinations of incompetency § 5.791(d).
(iv)Effective date after certification or when a beneficiary regains competency § 5.794.
(v)Payments upon reaching age of majority § 5.795(b).
(vi)Incarcerated beneficiaries—general provisions and definitions § 5.810(c).
(vii)Discontinuance of pension during incarceration § 5.813(b)(2).
(viii)Apportionment where a primary beneficiary is incarcerated § 5.814(e).
(ix)Resumptions of disability compensation, dependency and indemnity compensation, or death compensation upon a beneficiary's release from incarceration § 5.815(a), (b)(1), (c)(2).
(x)Resumptions of pension upon a beneficiary's release from incarceration § 5.816(b), (c)(1). (Authority: 38 U.S.C. 501, 5110(a)) § 5.151 Date of receipt.
(a)*General* . The date of receipt of a document, claim, information, or evidence is the date on which it was received by VA, except as provided in paragraph
(b)of this section, in specific provisions for claims or evidence received in a foreign country by a Department of State representative (§ 5.132(a)) or in the Social Security Administration (§§ 5.131(a) or 5.131(b)), or in rules of the Department of Defense relating to initial claims filed at or before separation.
(b)*Exception to date-of-receipt rule* . VA may establish, by notice published in the **Federal Register** , exceptions to paragraph (a), using factors such as postmark or the date the claimant signed the correspondence, when VA determines that a natural or man-made interference with the normal channels through which VA ordinarily receives correspondence has resulted in one or more VA regional offices experiencing extended delays in receipt of documents, claims, information, or evidence from claimants served by the affected office or offices to an extent that, if not addressed, would adversely affect such claimants through no fault of their own. (Authority: 38 U.S.C. 501(a), 512(a), 5110) § 5.152 Effective dates based on change of law or VA issue.
(a)*Effective date of award* . Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or by the Secretary's direction, the effective date of such award or increase shall be fixed in accordance with the date entitlement arose, but shall not be earlier than the effective date of the act or administrative issue. Where pension, compensation, dependency and indemnity compensation, or a monetary allowance under 38 U.S.C. chapter 18 for an individual who is a child of a Vietnam veteran is awarded or increased pursuant to a liberalizing law or VA issue which became effective on or after the date of its enactment or issuance, in order for a claimant to be eligible for a retroactive payment under the provisions of this paragraph the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. The provisions of this paragraph are applicable to original and reopened claims as well as claims for increase.
(1)If a claim is reviewed on the initiative of VA within 1 year from the effective date of the law or VA issue, or at the request of a claimant received within 1 year from that date, benefits may be authorized from the effective date of the law or VA issue.
(2)If a claim is reviewed on the initiative of VA more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of administrative determination of entitlement.
(3)If a claim is reviewed at the request of the claimant more than 1 year after the effective date of the law or VA issue, benefits may be authorized for a period of 1 year prior to the date of receipt of such request. (Authority: 38 U.S.C. 1822, 5110(g))
(b)*Reduction or discontinuance of benefits* . Where the reduction or discontinuance of an award is in order because of a change in law or a Department of Veterans Affairs issue, or because of a change in interpretation of a law or Department of Veterans Affairs issue, the payee will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence. If VA receives no additional evidence within the 60-day period, or the evidence received does not demonstrate that the proposed action should not be taken, the award will be reduced or discontinued effective the last day of the month in which the 60-day period expired. (Authority: 38 U.S.C. 5112(b)(6)) § 5.153 Effective date of awards based on receipt of evidence prior to end of appeal period. VA will consider information or evidence received before the expiration of the period for initiating or perfecting an appeal to the Board, or before the Board renders a decision (if a timely appeal was filed), without regard to whether the information or evidence is “new and material.” An award of the benefit sought based on that information or evidence is effective on the date prescribed by § 5.150. (Authority: 38 U.S.C. 501) §§ 5.154-5.159 [Reserved] General Rules on Revision of Decisions § 5.160 Binding effect of VA decisions.
(a)*General rule* . A decision of a duly constituted rating agency or other agency of original jurisdiction shall be binding on all field offices of the Department of Veterans Affairs as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except as provided in §§ 5.161, 5.162, and 5.163 of this part.
(b)*Particular issues* . A decision made by a Veterans Service Center on any one of the issues listed below is binding on the VA Insurance Center, and vice versa, unless the decision was based on clear and unmistakable error. Absent clear and unmistakable error, neither a Veterans Service Center nor the VA Insurance Center may change a decision of the other if doing so would involve applying the same criteria and be based on the same facts. The issues to which this paragraph
(b)applies are:
(1)Line of duty;
(2)Character of discharge;
(3)Relationship;
(4)Dependency;
(5)Domestic relations issues such as marriage, divorce, adoption and child custody and support;
(6)Homicide; and
(7)Findings of fact of death or presumption of death. (Authority: 38 U.S.C. 501) § 5.161 Review of benefit claims decisions.
(a)A claimant who has filed a timely Notice of Disagreement with a decision of an agency of original jurisdiction on a benefit claim has a right to review of that decision under this section. The review will be conducted by a Veterans Service Center Manager or Decision Review Officer, at VA's discretion. An individual who did not participate in the decision being reviewed will conduct this review. Only a decision that has not yet become final (by appellate decision or failure to timely appeal) may be reviewed. Review under this section will encompass only decisions with which the claimant has expressed disagreement in the Notice of Disagreement. The reviewer will consider all evidence of record and applicable law, and will give no deference to the decision being reviewed.
(b)Unless the claimant has requested review under this section with his or her Notice of Disagreement, VA will, upon receipt of the Notice of Disagreement, notify the claimant in writing of his or her right to review under this section. To obtain such a review, the claimant must request it not later than 60 days after the date VA mails the notice. This 60-day time limit may not be extended. If the claimant fails to request review under this section not later than 60 days after the date VA mails the notice, VA will proceed with the traditional appellate process by issuing a Statement of the Case. A claimant may not have more than one review under this section of the same decision.
(c)The reviewer may conduct whatever development he or she considers necessary to resolve any disagreements in the Notice of Disagreement, consistent with applicable law. This may include an attempt to obtain additional evidence or the holding of an informal conference with the claimant. Upon the request of the claimant, the reviewer will conduct a hearing under § 5.82.
(d)The reviewer may grant a benefit sought in the claim notwithstanding § 5.163, but, except as provided in paragraph
(e)of this section, may not revise the decision in a manner that is less advantageous to the claimant than the decision under review. A review decision made under this section will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision.
(e)Notwithstanding any other provisions of this section, the reviewer may reverse or revise (even if disadvantageous to the claimant) prior decisions of an agency of original jurisdiction (including the decision being reviewed or any prior decision that has become final due to failure to timely appeal) on the grounds of clear and unmistakable error ( *see* § 5.162).
(f)Review under this section does not limit the appeal rights of a claimant. Unless a claimant withdraws his or her Notice of Disagreement as a result of this review process, VA will proceed with the traditional appellate process by issuing a Statement of the Case.
(g)This section applies to all claims in which a Notice of Disagreement is filed on or after June 1, 2001. (Authority: 38 U.S.C. 5109A, 7105(d)) § 5.162 Revision of decisions based on clear and unmistakable error (CUE).
(a)*General* . In the absence of clear and unmistakable error (CUE), VA will accept all final decisions as correct. Where evidence establishes such CUE, a prior decision will be reversed or revised. Review to determine whether CUE exists in a case may be instituted by VA on its own motion or upon request of the claimant. A request for revision of a VA decision based on CUE may be made at any time after that decision is made. Cross-reference: Explanation of what constitutes CUE and what does not. See § 20.1403 of this chapter.
(b)*Effect of revision on benefits.* For the purpose of granting benefits, a new decision that constitutes a reversal or revision of a prior decision on the grounds of CUE has the same effect as if the new decision had been made on the date of the prior decision. For effective dates for reductions or discontinuances, based on CUE, VA will apply § 5.165(c)(1). However, for reductions or discontinuances based on CUE resulting from an act of commission or omission by the beneficiary or with the beneficiary's knowledge, VA will apply § 5.165(b). (Authority: 38 U.S.C. 5109A) § 5.163 Revision of decisions based on difference of opinion. If the Veterans Service Center Manager
(VSCM)within an agency of original jurisdiction
(AOJ)believes that revision of a previous AOJ decision (that is not final and has not been the subject of a Substantive Appeal) is warranted, based on a difference of opinion, and that revision would lead to a more favorable decision on the claim that was the subject of that previous decision, the VSCM will recommend such revision to the Director of the Compensation and Pension Service of the Veterans Benefits Administration for a binding determination. (Authority: 38 U.S.C. 501) § 5.164 Effective dates for revision of decisions based on difference of opinion. If a decision is revised based on difference of opinion under § 5.163, the effective date of the revision is the date the benefits would have been paid if the previous decision had been favorable. (Authority: 38 U.S.C. 501, 5110) § 5.165 Effective dates for reduction or discontinuance of awards based on error.
(a)*Scope.* The rules in this section apply when determining the proper effective date to assign for the reduction or discontinuance of VA benefits based on error. This section does not apply to a payment amount not authorized by a rating decision, such as a payment of an incorrect amount or a duplicative payment. Such amounts are overpayments, subject to recoupment.
(b)*Effective date of reduction or discontinuance based on beneficiary error.* If an award was based on an act of commission or omission by the beneficiary or any act of omission or commission with the beneficiary's knowledge, VA will pay a reduced rate or discontinue benefits effective the latest of the following dates:
(1)The effective date of the award;
(2)The date preceding the act of commission or omission; or
(3)The date entitlement to the benefit ceased.
(c)*VA administrative error.*
(1)*Effective date.* Except as provided in § 5.177
(d)and (f), if an award was based solely on administrative error or an error in judgment by VA, VA will pay a reduced rate or discontinue benefits effective the first of the month that follows the month for which VA last paid benefits.
(2)*Administrative error or an error in judgment.* Administrative errors or errors in judgment include:
(i)Overlooking facts;
(ii)Clerical errors; or
(iii)Failure to follow or properly apply VA instructions, regulations, or statutes. (Authority: 38 U.S.C. 5112(b)(9) and (10)) § 5.166 New and material evidence based on service department records.
(a)Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding § 3.156(a). Such records include, but are not limited to:
(1)Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of this § 5.166 are met;
(2)Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and
(3)Declassified records that could not have been obtained because the records were classified when VA decided the claim.
(b)Paragraph
(a)of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.
(c)An award made based all or in part on the records identified by paragraph
(a)of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.
(d)A retroactive rating of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive rating will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a)) §§ 5.167-5.169 [Reserved] General Rules on Protection or Reduction of Existing Ratings § 5.170 Calculation of 5-year, 10-year, and 20-year protection periods.
(a)VA will apply the following principles in determining whether service connection has been “in effect” for the 10-year period in § 5.175 and whether a rating has been “continuous” for the 5-year period in § 5.171 or the 20-year period in § 5.172.
(b)A protection period begins on the effective date of the rating decision and ends on the date that service connection would be severed or the rating would be reduced, after due process has been provided. Cross-reference: Due process provisions for reducing compensation benefits or severing service connection. *See* § 5.176.
(c)For purposes of §§ 5.171 and 5.172, a rating is not continuous if benefits based on that rating are discontinued or interrupted because the veteran reentered active service. Cross-reference: Rule on discontinuance of awards based on reentry into active service. *See* § 3.654(b).
(d)A rating period may be protected even if the beneficiary did not receive VA compensation based on that rating. This includes a beneficiary whose payments were adjusted by deduction, recoupment, apportionment, reduction in compensation due to incarceration, or because the beneficiary elected to receive retirement pay.
(e)A retroactive increase or award of service connection, including one made under § 5.162 of this part (revision based on clear and unmistakable error), which results in a veteran being rated or awarded service connection for a period of 5, 10, or 20 years will be protected under §§ 5.171, 5.175, and 5.172, respectively, of this part. This paragraph applies to any protection period, even if it includes a period based on a retroactive award. Cross-reference: Specific procedural due process in reducing ratings or severing service connection. *See* § 5.176. (Authority: 38 U.S.C. 110, 501, 1159) § 5.171 Protection of 5-year stabilized ratings.
(a)*Purpose.* VA will adjudicate cases affected by change of medical findings or diagnosis to produce the greatest degree of stability of disability ratings consistent with the laws and regulations governing disability compensation and pension.
(b)*Stabilized rating.* For the purposes of this section, if a disability has been rated at or above a specific level for 5 years or more, VA will consider it to be stabilized at that specific level.
(c)*Material improvement.* VA will not reduce a stabilized rating unless there is evidence of material improvement. VA may reduce a stabilized rating when:
(1)An examination shows sustainable material improvement, physical or mental, in the disability, as explained in paragraph
(d)of this section; and
(2)The evidence shows that it is reasonably certain that the material improvement will be maintained under the ordinary conditions of life.
(d)*How VA determines whether there has been material improvement.* VA will consider the following when determining whether a disability has undergone material improvement:
(1)In order to reduce a stabilized rating, there must be evidence of an examination demonstrating improvement. Examinations less complete than those on which payments were authorized or continued will not be used as a basis for reduction. A complete medical record includes all of the following, when such records exist:
(i)The entire case history;
(ii)Medical-industrial history;
(iii)Records related to treatment of intercurrent diseases and exacerbations, including hospital reports, bedside examinations, examinations by designated physicians, and examinations that reflect the results of tests conducted by laboratory facilities and the cooperation of specialists in related lines;
(iv)Private and VA medical examination records; and
(v)Special examinations indicated as a result of general examination.
(2)VA will not use only one examination as the basis for a reduction of stabilized ratings assigned to diseases that tend to show temporary or episodic improvement, unless the evidence of record clearly demonstrates sustained improvement. Diseases subject to temporary or episodic improvement include but are not limited to:
(i)Arteriosclerotic heart disease;
(ii)Bronchial asthma;
(iii)Epilepsy;
(iv)Gastric or duodenal ulcer;
(v)Bipolar disorders or other psychotic reaction;
(vi)Anxiety disorders;
(vii)Many skin diseases.
(3)VA will not reduce a stabilized rating assigned to a disease that becomes comparatively symptom free (findings absent) after bed rest based on an examination that reflects the results of bed rest.
(4)Material improvement will be held to exist only where, after full compliance with the procedure outlined in this paragraph (d), the medical record clearly demonstrates that the disability does not meet the requirements for the currently assigned disability rating.
(5)Where there is evidence of a change in diagnosis, VA will follow 38 CFR 4.13 (“Effect of change of diagnosis”), as well as this section. VA will consider whether evidence of a change in diagnosis represents a progression of the previously diagnosed condition, an error in prior diagnosis, or a disease entity independent of the service-connected disability. When a new diagnosis reflects only a mental deficiency or personality disorder, VA will consider the possibility of temporary remission of a super-imposed psychiatric disease.
(6)When syphilis of the central nervous system or alcoholic deterioration is diagnosed following a long prior history of psychosis, psychoneurosis, epilepsy, or the like, it is rarely possible to exclude persistence, in masked form, of the preceding innocently acquired manifestations.
(e)*Reexamination.* If VA cannot conclude that a reduction is warranted after considering the evidence as described in paragraphs
(c)and
(d)of this section, VA will continue the rating in effect, citing the former diagnosis with the new diagnosis, if any, in parentheses, with a notation that the rating will be continued pending reexamination to be conducted on a date to be determined on the basis of the facts of each individual case. (Authority: 38 U.S.C. 501) Cross-reference: For specific procedural due process in reducing ratings, *see* § 5.176. § 5.172 Protection of continuous 20-year ratings.
(a)*Compensation rating.* If a disability has been rated at or above a specific level for 20 years, VA may not reduce the rating below such level unless the rating was based on fraud.
(b)*Pension rating.* VA will not reduce a permanent total disability rating for pension purposes that has been continuously in effect for 20 or more years, unless the rating was based on fraud.
(c)*Effect of election regarding receipt of disability compensation.* The provisions of paragraph
(a)or
(b)of this section apply whether or not the veteran elects to receive disability compensation or pension during all or any part of the 20-year period. (Authority: 38 U.S.C. 110) § 5.173 Protection against reduction of disability ratings when revisions are made to the Schedule for Rating Disabilities.
(a)*General.* VA will not reduce a disability rating in effect on the effective date of a revision of the applicable Schedule for Rating Disabilities unless medical evidence establishes that the rated disability has actually improved, except when the rating was assigned under the 1925 Schedule of Disability Ratings (as provided in paragraph
(b)of this section). (Authority: 38 U.S.C. 1155)
(b)*Ratings under 1925 Schedule.*
(1)VA will reduce a rating that was assigned under the 1925 Schedule of Disability Ratings that was the basis of compensation on April 1, 1946, when the rated disability has undergone a sustained material improvement that would have required a reduction under the 1925 Schedule.
(2)Subject to paragraph (b)(3) of this section, VA will modify a rating that was assigned under the 1925 Schedule when an increased rating is appropriate under the Schedule for Rating Disabilities in part 4 of this chapter. After such modification, VA will assign all future ratings of that disability under the Schedule for Rating Disabilities in part 4 of this chapter. The increase in disability level must not be temporary (due to hospitalization, surgery, etc.). If a temporary increased rating is assigned, VA will restore the prior rating under the 1925 Schedule after the period of increase has elapsed unless:
(i)The permanent residuals require reduction under the 1925 Schedule; or
(ii)An increased rating is appropriate under the Schedule for Rating Disabilities in part 4 of this chapter.
(3)VA will not increase a rating assigned under the 1925 Schedule when the changed condition represents an increased degree of disability under either the 1925 Schedule or the Schedule for Rating Disabilities in part 4 of this chapter, but the rating provided by the Schedule for Rating Disabilities in part 4 of this chapter is less than the rating in effect under the 1925 Schedule on April 1, 1946. Cross-reference: For procedural due process before reduction of rating under this section, *see* § 5.176. (Authority: 38 U.S.C. 501) § 5.174 Protection of entitlement to benefits established before 1959.
(a)*Persons in receipt of or entitled to receive benefits on December 31, 1958.* Any person receiving or entitled to receive benefits under any public law administered by VA on December 31, 1958, may, except where there was fraud, clear and unmistakable error of fact or law, or misrepresentation of material facts, continue to receive such benefits as long as the conditions warranting such payment under those laws continue. VA will pay the greater benefit under the previous law or the corresponding current section of title 38 U.S.C. in the absence of an election to receive the lesser benefit. (Authority: Section 10, Pub. L. 85-857)
(b)*Service connection established under prior laws.* Awards of service connection and the rate of disability compensation paid under prior laws repealed by Public Law 85-56 are protected, provided that the conditions warranting such status and rate continue and the award was not based on fraud, misrepresentation of facts, or clear and unmistakable error. With respect to such protected awards, VA may award compensation and special monthly compensation under current law if such award would result in compensation payment at a rate equal to or higher than that payable on December 31, 1957. Where a changed physical condition warrants re-rating of service-connected disabilities, the amounts of compensation and special monthly compensation will be determined under 38 U.S.C. 1114. (Authority: Pub. L. 85-86; Pub. L. 85-857) § 5.175 Protection or severance of service connection.
(a)*Protected service connection.*
(1)VA may not sever service connection that has been in effect for 10 years or more unless evidence shows that:
(i)The original grant was obtained through fraud, or;
(ii)It is clear from military records that the person identified as a veteran did not have the requisite qualifying military service or the veteran's discharge from service is of a type to prevent service connection as described in § 5.30.
(2)The protection afforded in this section extends to determinations of service connection that were the basis for grants of entitlement to dependency and indemnity compensation or death compensation.
(b)*Severance of service connection.*
(1)VA will sever service connection when evidence establishes that it is clearly and unmistakably erroneous (the burden of proof being upon VA), subject to §§ 5.152 and 5.176.
(2)A change in diagnosis may be accepted as a basis for severance of service connection if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis that was the basis of the award of service connection is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion that the diagnosis is erroneous. (Authority: 38 U.S.C. 1159, 5104) § 5.176 Due process procedures for severing service connection or reducing or discontinuing compensation benefits. Except as provided in § 5.83(c), when VA is contemplating severing service connection or reducing or discontinuing compensation benefit payments (including those based on individual unemployability), VA will:
(a)Prepare a rating proposing severance of service connection or reduction or discontinuance of compensation benefit payments and setting forth all material facts and reasons;
(b)Consistent with § 5.83, notify the beneficiary at his or her latest address of record of the contemplated action and furnish detailed reasons therefor; and
(c)Allow the beneficiary 60 days from the date of the notice proposing severance, reduction, or discontinuance, to present additional evidence to show that service connection should be maintained, the rating should not be reduced, or the benefits should remain intact. If VA receives no additional evidence within the 60-day period, or the evidence received does not demonstrate that the proposed action should not be taken, VA will notify the beneficiary that VA is severing service connection or reducing or discontinuing the benefit. (Authority: 38 U.S.C. 501, 1159) § 5.177 Effective dates for severing service connection or discontinuing or reducing benefit payments.
(a)*Suspended awards.* If an award has been suspended and it is determined that no additional payments are in order, VA will discontinue the award effective the first of the month that follows the month for which VA last paid benefits.
(b)*Running awards.* If an award is running, VA will discontinue the award effective as appropriate under paragraphs
(d)through
(i)of this section.
(c)*Exceptions.* This section does not apply if:
(1)There is a change in law or a VA administrative issue or a change in interpretation of law or VA issue; if so, § 5.152 applies (effective dates based on change of law or VA issue);
(2)An award was erroneous due to an act of commission or omission by the beneficiary or with the beneficiary's knowledge; if so, § 5.165(b) applies; or
(3)An award was based solely on administrative error or an error in judgment by VA; if so, § 5.165(c) applies in cases other than severance of service connection under paragraph
(d)of this section or reduction of compensation under paragraph
(f)of this section.
(d)*Severance of service connection.* This paragraph
(d)applies when VA severs service connection. In such cases, two 60-day periods apply. After applying the 60-day notice period described in § 5.176, VA will sever service connection effective the first day of the month after a second 60-day period beginning on the day of notice to the beneficiary of the final decision.
(e)*Character of discharge or line of duty.* This paragraph
(e)applies when VA discontinues benefits based on a determination as to character of discharge or line of duty. In such cases, two 60-day periods apply. After applying the 60-day notice period described in § 5.176, VA will discontinue benefits effective the first day of the month after a second 60-day period beginning on the day of notice to the beneficiary of the final decision.
(f)*Disability compensation.* This paragraph
(f)applies when VA reduces or discontinues disability compensation because of a change in service-connected disability or employability status. In such cases, two 60-day periods apply. After applying the 60-day notice period described in § 5.176, VA will pay a reduced rate or discontinue compensation effective the first day of the month after a second 60-day period beginning on the day of notice to the beneficiary of the final decision.
(g)*Pension.* This paragraph
(g)applies when VA reduces or discontinues pension payments because of a change in disability or employability status. In such cases, VA will reduce the rate or discontinue pension effective the first day of the month after a second 60-day period beginning on the day of notice to the beneficiary of the final decision.
(h)*Chapter 18 monetary allowance.* This paragraph
(h)applies when VA reduces or discontinues payments of a monetary allowance under 38 U.S.C. chapter 18 for children with certain birth defects. In such cases, VA will pay a reduced rate or discontinue the monetary allowance effective the first day of the month that follows the end of the 60-day notice period concerning the proposed reduction or discontinuance. The 60-day notice period is the one described in § 5.176.
(i)*Other.* The effective date for other reductions or discontinuances of benefit payments will be based upon the reasons for the change as described in § 3.500 through § 3.503 of this chapter. (Authority: 38 U.S.C. 1110, 1131, 1117, 5112) §§ 5.178-5.179 [Reserved] [FR Doc. E7-9542 Filed 5-21-07; 8:45 am] BILLING CODE 8320-01-P 72 98 Tuesday, May 22, 2007 Rules and Regulations Part III Department of Labor Mine Safety and Health Administration 30 CFR Part 75 Sealing of Abandoned Areas; Final Rule DEPARTMENT OF LABOR Mine Safety and Health Administration 30 CFR Part 75 RIN 1219-AB52 Sealing of Abandoned Areas AGENCY: Mine Safety and Health Administration (MSHA), Labor. ACTION: Emergency temporary standard; Notice of public hearings; Notice of close of comment period. SUMMARY: The Mine Safety and Health Administration
(MSHA)is issuing an emergency temporary standard
(ETS)under section 101(b) of the Federal Mine Safety and Health Act of 1977 in response to the grave danger that miners face when underground seals separating abandoned areas from active workings fail. MSHA has concluded from its investigations of mine explosions that occurred and other recent reports, that additional immediate action is necessary to protect miners. This ETS includes requirements to strengthen the design, the construction, the maintenance, and the repair of seals, as well as requirements for sampling and controlling atmospheres behind seals. It also increases the level of overpressure for new seals, thus implementing the requirements of the Mine Improvement and New Emergency Response (MINER) Act of 2006. DATES: This emergency temporary standard is effective May 22, 2007. This standard must be replaced with a final rule within 9 months. MSHA will hold public hearings on July 10, 2007, July 12, 2007, July 17, 2007 and July 19, 2007 at the locations listed in the Public Hearings section below under the SUPPLEMENTARY INFORMATION section of this document. If individuals or organizations wish to make an oral presentation for the record, the Mine Safety and Health Administration
(MSHA)is asking that you submit your request at least 5 days prior to the hearing dates. The comment period will close on July 6, 2007. ADDRESSES: Comments must be clearly identified and may be submitted by any of the following methods:
(1)*Federal Rulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments.
(2)*Electronic mail: zzMSHA-Comments@dol.gov.* Include “RIN 1219-AB52” in the subject line of the message.
(3)*Telefax:*
(202)693-9441. Include “RIN 1219-AB52” in the subject.
(4)*Regular Mail:* MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-3939.
(5)*Hand Delivery or Courier:* MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-3939. Sign in at the receptionist's desk on the 21st floor. *Docket:* Comments can be accessed electronically at *www.msha.gov* under the “Rules and Regs” link. MSHA will post all comments on the Internet without change, including any personal information provided. Comments may also be reviewed at the Office of Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia. MSHA maintains a listserve that enables subscribers to receive e-mail notification when rulemaking documents are published in the **Federal Register** . To subscribe to the listserve, go to *http://www.msha.gov/subscriptions/subscribe.aspx.* *Information Collection Requirements:* Comments concerning the information collection requirements must be clearly identified as such and sent to both the Office of Management and Budget
(OMB)and MSHA as follows:
(1)OMB: All comments must be sent by mail addressed to the Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street, NW., Washington, DC 20503, Attn: Desk Officer for MSHA; and
(2)MSHA: Comments must be clearly identified by RIN 1219-AB46 as comments on the information collection requirements and transmitted either electronically to *zzMSHA-Comments@dol.gov,* by facsimile to
(202)693-9441, or by regular mail, hand delivery, or courier to MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-3939. *Hearings:* Locations of the public hearings are in the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Blvd, Room 2350, Arlington, Virginia 22209-3939, *silvey.patricia@dol.gov* (e-mail),
(202)693-9440 (voice), or
(202)693-9441. (telefax). SUPPLEMENTARY INFORMATION: The outline of this ETS is as follows: I. Public Hearings II. Introduction III. Basis for the Emergency Temporary Standard A. Regulatory Authority B. Grave Danger IV. Discussion of the Emergency Temporary Standard A. Background B. General Discussion C. Section-by-Section Analysis V. Executive Order 12866 A. Population-at-Risk B. Benefits C. Compliance Costs VI. Feasibility A. Technological Feasibility B. Economic Feasibility VII. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act (SBREFA) A. Definition of a Small Mine B. Factual Basis for Certification VIII. Paperwork Reduction Act of 1995 A. Summary B. Details IX. Other Regulatory Considerations X. References XI. Emergency Temporary Standard—Regulatory text I. Public Hearings MSHA will hold four public hearings on the ETS. The public hearings will begin at 9 a.m. and end after the last speaker speaks, and in any event not later than 5 p.m., on the following dates at the locations indicated: Date Location Phone July 10, 2007 Lakeview Golf Resort and Spa, One Lakeview Drive, Morgantown, WV 26508 800-624-8300 July 12, 2007 Crowne Plaza Hotel, 1375 South Broadway, Lexington, KY 40504 859-255-4281 July 17, 2007 Embassy Suites Denver, 7525 East Hampden Avenue, Denver, CO 80231 303-696-6644 July 19, 2007 Sheraton Birmingham Hotel, 2101 Richard Arrington Jr. Boulevard North, Birmingham, AL 35203 205-324-5000 The hearings will begin with an opening statement from MSHA, followed by an opportunity for members of the public to make oral presentations. You do not have to make a written request to speak. Speakers will speak in the order that they sign in. Any unallotted time will be made available for persons making same-day requests. At the discretion of the presiding official, the time allocated to speakers for their presentation may be limited. Speakers and other attendees may also present information to the MSHA panel for inclusion in the rulemaking record. The hearings will be conducted in an informal manner. The hearing panel may ask questions of speakers. Although formal rules of evidence or cross examination will not apply, the presiding official may exercise discretion to ensure the orderly progress of the hearing and may exclude irrelevant or unduly repetitious material and questions. A verbatim transcript of the proceedings will be prepared and made a part of the rulemaking record. Copies of the transcript will be available to the public. The transcript will also be available on MSHA's Home Page at *http://www.msha.gov,* under Statutory and Regulatory Information. MSHA will accept post-hearing written comments and other appropriate data for the record from any interested party, including those not presenting oral statements. Written comments will be included in the rulemaking record. II. Introduction This ETS is issued under section 101(b) of the Federal Mine Safety and Health Act of 1977 (Mine Act) as amended by the Mine Improvement and New Emergency Response Act of 2006 (MINER Act), 30 U.S.C. 811(b). The ETS establishes or revises standards in part 75—subpart D—Ventilation. These new standards strengthen the design, construction, maintenance, and repair of seals and monitoring and control of atmospheres behind seals in order to reduce the risk of seal failure and the risk of explosions in abandoned areas of underground coal mines. In accordance with section 101(b)(3) of the Mine Act, an Emergency Temporary Standard
(ETS)serves as both a final rule with immediate effect and a proposed rule to establish a final rule through the notice and comment process. Therefore, the final rule may differ from an ETS just as any final rule may differ from a proposed rule. The Mine Act states that the ETS is a temporary standard and must be superseded by a final rule within nine months. The Legislative History of the Mine Act reinforces the statutory language regarding the ETS serving as a proposed rule “so that all views can be carefully considered in connection with the issuance of a permanent standard.” S. Rept. 181, 95th Cong., 1st Sess. 24 (1977). The preamble discusses specific provisions that may be included in the final rule and MSHA solicits comments on these provisions. III. Basis for the Emergency Temporary Standard A. Regulatory Authority Section 101(b) of the Mine Act provides that: 1. The Secretary shall provide, without regard to the requirements of chapter 5, title 5, United States Code, for an emergency temporary mandatory health or safety standard to take immediate effect upon publication in the **Federal Register** if [s]he determines
(A)that miners are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful, or to other hazards, and
(B)that such emergency standard is necessary to protect miners from such danger. 2. A temporary mandatory health or safety standard shall be effective until superseded by a mandatory standard promulgated in accordance with the procedures prescribed in paragraph
(3)of this subsection. 3. Upon publication of such standard in the **Federal Register** , the Secretary shall commence a proceeding in accord with section 101(a) [involving notice and comment], and the standards as published shall also serve as a proposed rule for the proceeding. The Secretary shall promulgate a mandatory health or safety standard under this paragraph no later than nine months after publication of the emergency temporary standard as provided in paragraph (2). An ETS is an extraordinary measure provided by the Mine Act to enable MSHA “to react quickly to grave dangers that threaten miners before those dangers manifest themselves in serious or fatal injuries or illnesses.” S. Rept. 181, 95th Cong., 1st Sess. 23 (1977). Additionally, “* * * once the Secretary has identified a grave danger that threatens miners the Committee expects the Secretary to issue an emergency temporary standard as quickly as possible, not necessarily waiting until [she] can investigate how well that grave danger is being managed or controlled in particular mines.” *Senate Report at 24.* An ETS takes effect upon publication in the **Federal Register** , and is a fully enforceable standard. To assure the comprehensive protection of miners, the ETS authority applies to all types of grave dangers without qualification. The legislative history of the Mine Act emphasizes that “to exclude any kind of grave danger would contradict the basic purpose of emergency temporary standards protecting miners from grave dangers.” S. Rept. 181, 95th Cong., 1st Sess., 24 (1977). The ETS authority thus covers dangers arising from exposure to toxic or physically harmful substances or agents and to “other hazards.” It applies to dangers longstanding or novel, to dangers that “result from conditions whose harmful potential has just been discovered” or to which large numbers of miners are “newly exposed.” *Id.* A record of fatalities or serious injuries is not necessary before an ETS can be issued because “[d]isasters, fatalities, and disabilities are the very thing this provision is designed to prevent.” *Id.* at 23. At the same time, the legislative history of the Mine Act is clear that an ETS is not limited to new dangers in the mining industry: “That a danger has gone unremedied should not be a bar to issuing an emergency standard. Indeed, if such is the case the need for prompt action is that much more pressing.” *Id.* at 24. When issuing an ETS, MSHA is “not required to prove the existence of grave danger as a matter of record evidence prior to taking action.” *Id.* The legislative history expressly recognizes “the need to act quickly where, in the judgment of the Secretary, a grave danger to miners exists.” *Id.* The ETS is a critical statutory tool that MSHA can use to take immediate action to prevent the loss of life in the mines. MSHA accordingly has employed an ETS previously to order “hands-on” training for miners in the use of self-contained self-rescue
(SCSR)devices 52 FR 24373 (June 30, 1987), to order certain training and mine evacuation procedures for underground coal mines 67 FR 76658 (December 12, 2002) and to order new accident notification timeframes, provide new safety equipment, training and drills in mine emergency evacuations 71 FR 12252, (March 9, 2006). B. Grave Danger Based on MSHA's accident investigation reports of the Sago and Darby mine explosions, 1 the National Institute for Occupational Safety and Health's (NIOSH) reports on explosion testing and modeling, MSHA's in-mine seal evaluations, and review of technical literature, MSHA has determined that new comprehensive standards for seal design approval, strength and installation approval, construction, maintenance and repair, sampling and monitoring, training and recordkeeping are necessary to immediately protect miners from hazards of sealed areas. 1 MSHA Report of Investigation/Mine Explosion, Sago Mine, January 2, 2006 and MSHA Report of Investigation/Mine Explosion, Darby Mine Number 1, May 20, 2006. These reports can be found on MSHA's Web site at: *http://www.msha.gov.* Underground coal mines are dynamic work environments in which the working conditions can change rapidly. Caved, mined-out areas may contain coal dust and accumulated gas which can be ignited by rock falls, lightning, and in some instances, fires started by spontaneous combustion. Seals are used to isolate and contain this environment of the active workings of the mine. Adequate seals are crucial to prevent an explosion from propagating to the outby side of the seal where miners work or travel. Seals must therefore be designed to withstand elevated pressures and contain explosions by preventing potentially explosive or toxic gasses from migrating into the active working areas of underground coal mines. Miners rely on seals to protect them from the hazardous and sometimes explosive environments within the sealed area. The existing safety standards for construction of solid-concrete block seals adopt specific construction criteria. Existing requirements addressing construction of seals using equivalent alternative materials and methods were established, as an interim measure, in MSHA's Program Information Bulletin No. P06-16, “Use of Alternative Seal Methods and Materials Pursuant to 30 CFR 75.335(a)(2)),” issued on July 19, 2006 (July 2006 PIB). Under the July 2006 PIB, MSHA increased the strength requirements for new alternative seals to reliably withstand an overpressure of at least 50 pounds per square inch gauge
(psig)in the conditions in which they will be installed as demonstrated by well-defined and certified engineering designs. An alternative seal design could also be approved based on actual test results validating the psig. All seal construction must be approved by the District Manager in the mine's ventilation plan. To be considered for approval, mine operators must have a professional engineer
(PE)who is knowledgeable in structural engineering to certify seal designs and supporting data. In addition, the proposed ventilation plan must provide that a senior mine management official (such as mine manager, superintendent, etc.) certify that the construction, installation, and materials used were in accordance with the mine's approved ventilation plan. Furthermore, the July 2006 PIB requires an assessment of the atmosphere behind existing alternative seals to determine the potential for an explosion and to assess seal integrity. The July 2006 PIB requires the operator to take remedial actions which may include inerting the sealed atmosphere, increasing the capacity of the existing seal to withstand at least 50 psig overpressure, constructing an additional alternative seal having this capacity, or constructing a solid-concrete seal. Finally, the July 2006 PIB requires that high risk seals, (such as if failure could adversely affect miners' safety) and seals with a poor performance history will require additional actions to better protect miners, including periodic monitoring of the atmosphere behind the seals. MSHA determined in the Sago accident that even though the seals were not constructed as approved in the ventilation plan, they still could withstand an explosion overpressure of 21 psi. In the Agency's root cause analysis of the Sago accident, MSHA found that:
(1)The seals were not capable of withstanding the forces generated by the explosion;
(2)The atmosphere in the sealed area was not monitored and it contained explosive methane/air mixtures;
(3)Lightning was the most likely ignition source for the explosion with the energy transferring onto an abandoned pump cable in the sealed area and providing an ignition source for the explosion. MSHA found that the explosive forces generated behind the sealed area in the Sago accident were at least 93 psi. In the Darby accident, MSHA found that the seals were improperly constructed and had an inadequate pressure rating. MSHA also concluded that the use of an oxygen acetylene cutting torch to cut a metal strap outby a seal was the most likely ignition source. MSHA further concluded that when seals are improperly constructed, they present a hazard to miners, even when ignition sources are located outby the seal. When seals are improperly constructed and maintained, air may leak excessively through the seals, which may result in explosive conditions inby the seals. The air leakage causes increased levels of hazardous conditions whereby introduction of ignition sources could cause an explosion. Air leakage from the sealed area to active working areas could also contaminate the atmospheres, resulting in miners being exposed to potential explosions or toxic gasses. In addition, the ETS requires that insulated cables and metallic objects through or across seals be removed from the area to be sealed, and prohibits welding, cutting or soldering with an arc or flame within 150 feet of a seal. The July 2006 PIB's interim action has serious limitations in that it fails to provide comprehensive protection for miners from the dangers of explosions in sealed areas: it only permits testing as one method of demonstrating seal strength; it does not address explosion forces generated behind a sealed area that are greater than 50 psi; it requires only a one-time assessment of the atmosphere behind the seal rather than a sampling plan approved by MSHA as required under the ETS; although the July 2006 PIB states that periodic monitoring of sealed areas may be required for high risk seals (such as if failure could adversely affect miners' safety), a periodic monitoring frequency was not specified in the July 2006 PIB; the July 2006 PIB does not address the hazard of welding, cutting, and soldering with an arc or flame in close proximity to a seal. Therefore, hazards in existing sealed areas present a grave danger to miners. The Secretary has therefore determined that miners are exposed to grave danger if existing and new seals are not properly constructed, maintained, monitored, and repaired in accordance with this ETS. In addition, for the above-stated reasons under the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B) and (d)(3), MSHA finds good cause exists to dispense with notice and comment and make the ETS effective immediately. To delay the effective date of the ETS is contrary to the public interest because any delay in the ETS effective date further exposes miners to grave danger from inadequately designed, constructed, maintained, and repaired seals. IV. Discussion of the Emergency Temporary Standard A. Background In the Federal Coal Mine Health and Safety Act of 1969 (Coal Act), the predecessor to the existing Mine Act, Congress first recognized that mine operators must seal abandoned and isolated areas of underground coal mines for the protection of miners' safety: In the case of mines opened on or after the operative date of this title, or in the case of areas developed on or after such date in mines opened prior to such date, the mining system shall be designed, in accordance with a plan and revisions thereof approved by the Secretary and adopted by the operator, so that, as each set of cross entries, room entries, or panel entries of the mine are abandoned, they can be isolated from active workings of the mine with explosion-proof bulkheads. Pub. L. 91-173 (Dec. 1969) Section 303(2)(3)). In the conference report filed in the House, the statement of the managers on the part of the House stated, regarding the requirement that an abandoned area of a mine either be ventilated or sealed that: [t]he determination of which method [(ventilated or sealed)] is appropriate and the safest at any mine is up to the Secretary or [her] inspector to make, after taking into consideration the conditions of the mine, particularly its history of methane and other explosive gases. The objective is that [s]he require the means that will provide the greatest degree of safety in each case. * * * When sealing is required, such sealing shall be made in an approved manner so as to isolate with explosion-proof bulkheads such areas from the active working of the mine. Under the conference substitute, paragraph
(3)of section 303(z) provides that, in the case of mines opened on or after the operative date of this title, or in the case of areas developed on or after such date in mines opened prior to such date, the mining system shall be designed, in accordance with a plan and revisions thereof approved by the Secretary and adopted by the operator, so that, as each set of cross entries, room entries, or panel entries of the mine are abandoned, they can be isolated from active workings of the mine with explosion-proof bulkheads approved by the Secretary or his inspector. The managers expect the Secretary to take the lead in improving technology in this area of controlling methane accumulations in gob areas and to improve upon this important section 303(z). Conf. Rep. No. 91-761, 91Fst Cong. 1st Sess., 82 (Dec. 16, 1969) (statement of the managers on part of the House) (emphasis added). The Mine Act interim mandatory standards required seals to be “made in an approved manner so as to isolate with explosion-proof bulkheads such areas from the active workings of the mine.” 30 U.S.C. 863(z)(2). On May 15, 1992, as part of a comprehensive revision of its regulations for ventilation of underground coal mines, MSHA published standards for construction of seals in § 75.335 of the ventilation standards. The standard requires seals to be constructed of solid concrete blocks at least six inches by eight inches by sixteen inches, but allows seals to be constructed using alternative methods and materials, provided, among other things, that the seal is capable of withstanding a horizontal static pressure of 20 psi. MSHA based this threshold on a U.S. Bureau of Mines 1971 report entitled “Explosion-Proof Bulkheads—Present Practices.” A number of manufacturers developed materials, such as cementitious foams and glass-fiber material, which were tested and subsequently deemed suitable for use in alternative seals and marketed under various trade names. MSHA required the manufacturers to have full-scale seals be subjected to explosion testing at NIOSH's Lake Lynn Experimental Mine (Lake Lynn). MSHA then intended for mine operators to construct seals as constructed and tested at Lake Lynn. On January 2, 2006, an explosion at the Sago Mine in Upshur County, West Virginia caused the death of twelve miners. Later that year, on May 20, 2006, an explosion at the Darby Mine No. 1 in Harlan County, Kentucky, caused the death of five miners. Common to both of these accidents was the failure of the seals in the mine. The failed seals in both mines were constructed with the same approved alternative material for a 20 psi seal. None of the failed seals were constructed in the same manner as they were constructed at Lake Lynn. Therefore, MSHA issued a moratorium on alternative methods and materials for construction of new seals (Program Information Bulletin
(PIB)No. P06-11, June 1, 2006, reissued on June 12, 2006 as PIB No. P06-12.). Following these underground coal mine disasters in 2006, Congress passed and the President signed the MINER Act. Section 10 of the MINER Act requires that the Secretary issue mandatory health and safety standards for seals of abandoned areas no later than December 15, 2007. It also requires the Secretary to revise the current standard to increase the 20 psi standard for alternative seals. Seal failures at the Sago Mine and Darby No. 1 Mine in 2006 raised awareness of the problems with seal construction and the design criterion of a 20-psi static horizontal pressure. MSHA continued its investigation of these and other failures of alternative seals, and conducted in-mine evaluations of existing alternative seals. It also reviewed the history of seals in the United States and other countries. Presently, most coal producing countries have coal mine seal requirements that are in excess of a 20-psi overpressure. As a result of MSHA's continued investigations and in-mine evaluations, MSHA increased the strength of alternative seals to 50 psi and addressed a number of other issues related to the construction and the effectiveness of current alternative and solid concrete block seals in Program Information Bulletin No. P06-16, “Use of Alternative Seal Methods and Materials Pursuant to 30 CFR 75.335(a)(2)),” issued on July 19, 2006 (July 2006 PIB). On February 8, 2007, NIOSH issued a draft report, “Explosion Pressure Design Criteria for New Seals in U.S. Coal Mines” (2007 NIOSH Draft Report). The draft report states that “mine seals and their related systems such as the monitoring, inertization and ventilation systems require the highest level of engineering and quality assurance. Successful implementation of the seal design criteria and recommendations in this report should reduce the risk of seal failure due to explosions in abandoned areas of underground coal mines.” (2007 NIOSH Draft Report at 40). In the executive summary of the draft report, NIOSH makes recommendations for formulating seal design criteria. B. General Discussion Existing § 75.334(a) requires that inactive areas of underground coal mines be ventilated or sealed. Most inactive areas are sealed because of ground control, ventilation issues, and the long-term costs of maintaining ventilation and roof support in inactive areas. Seals are also installed to withstand overpressures resulting from explosions in inactive areas and to prevent the potentially explosive methane/air mixtures from migrating to the working areas. A methane/air mixture becomes explosive when 5 percent to 15 percent methane is present with at least a 12 percent oxygen concentration. If an ignition source is available, then an explosion can occur and create high overpressures. The homogeneity of the methane/air mixture contributes to its explosiveness. The homogeneity of the methane/air mixture can vary depending on the elevation and the methane liberation of the sealed area and outside factors such as the current temperature and barometric pressure. The speed of an explosion and the physical characteristics of a sealed area can increase the force of the explosion such that detonations and significant pressure piling are possible. In order to address mine conditions that influence the magnitude of overpressures in explosions, seals need to be designed and constructed properly and then inspected on a periodic basis and properly maintained to ensure their reliability. The 2007 NIOSH Draft Report states as follows: NIOSH engineers examined seal design criteria and practices used in the U.S., Europe and Australia and then classified seals into their various applications. Next, NIOSH engineers considered various kinds of explosive atmospheres that can accumulate within sealed areas and used simple gas explosion models to estimate worst case explosion pressures that could impact seals. Three design pressure pulses (pressure-time curves) were developed for the dynamic structural analysis of new seals under the conditions in which those seals may be used: unmonitored seals where there is a possibility of methane-air detonation behind the seal; Unmonitored seals with little likelihood of detonation; and monitored seals where the amount of potentially explosive methane-air is strictly limited and controlled. These design pressure pulses apply to new seal design and construction. For the first condition, an unmonitored seal with the possibility of detonation, the recommended design pulse rises to 4.4 MPa (640 psi) and then falls to the 800 kPa (120 psi) constant volume explosion overpressure. For unmonitored seals without the possibility of detonation, a less severe design pulse that simply rises to the 800 kPa (120 psi) constant volume explosion overpressure, but without the initial spike, may be employed. For monitored seals, engineers can use a 345 kPa (50 psi) design pulse if monitoring can assure
(1)that the maximum length of explosive mix behind a seal does not exceed 5 m (15 ft) and
(2)that the volume of explosive mix does not exceed 40% of the total sealed volume. Use of this 345 kPa (50 psi) design pulse requires monitoring and active management of the sealed area atmosphere. Based on MSHA's accident investigation reports of Sago and Darby mine explosions, NIOSH reports on explosion testing and modeling, MSHA's in-mine seal evaluations, and review of technical literature, MSHA identified a number of issues pertinent to the construction and efficacy of current alternative and solid concrete block seals. C. Section-by-Section Analysis 1. Sec. 75.335 Seals Requirements The ETS increases seal strength requirements for construction of new seals and, where necessary, establishes new requirements for monitoring and inerting atmospheres of sealed areas. New § 75.335(a) provides that seals constructed in underground coal mines after May 22, 2007 must be designed, constructed and maintained in accordance with MSHA approval of a mine operator's design application and installation procedures incorporated in the ventilation plan. The ETS establishes a three-tiered approach for overpressure loading criteria applicable to new seals:
(1)50 psi overpressure;
(2)120 psi overpressure; and
(3)an overpressure greater than 120 psi. For purposes of this ETS, MSHA intends that overpressure be any pressure exerted by the forces of an explosion that is above normal atmospheric pressure. In developing these overpressure loading criteria, MSHA relied upon the 2007 NIOSH Draft Report, the Agency's safety and health experience with respect to seals and underground mining conditions and investigations, and accepted scientific and engineering principles. Under the ETS, if a mine operator monitors and maintains the atmosphere in these areas inert, new § 75.335(a)(1) requires a seal design to withstand at least 50 psi overpressure. If a mine operator does not monitor and maintain atmospheres in these areas inert, new § 75.335(a)(2) requires a seal design to withstand at least 120 psi overpressure. A seal design that will withstand an overpressure greater than 120 psi is required under new § 75.335(a)(3) when the mine operator does not monitor and maintain the atmosphere within sealed areas inert and when:
(1)The atmosphere in the area is likely to contain homogeneous mixtures of methane between 4.5 percent and 17.0 percent, and oxygen exceeding 17.0 percent throughout the entire sealed area;
(2)or pressure piling is likely due to opening restrictions near the proposed seal area; or
(3)other conditions are encountered, such as the likelihood of a detonation in the proposed seal area. Where the conditions in § 75.335(a)(3) are likely to occur, the mine operator must revise the ventilation plan required by existing § 75.370 to address the appropriate seal strength. The ETS does not require mine operators to upgrade seals constructed prior to May 22, 2007. However, new § 75.335(b) enhances the protection afforded miners under the previous standard by requiring, among other things, that atmospheres in the sealed areas be monitored and inerted. If a mine operator does not monitor and inert the atmosphere in an existing sealed area, the strength of the seals must be increased to 120 psi or greater. a. Sec. 75.335(a) New paragraph (a)(1) requires that seals be constructed to withstand 50 psi overpressure. However, mine operators who construct these seals must monitor the atmosphere behind the seals and maintain them inert. Mine operators are currently required to construct seals that will withstand 50 psi overpressure under the July 2006 PIB. In addition, the July 2006 PIB required mine operators to assess atmospheres behind alternative seals and take remedial action where necessary. The 2007 NIOSH Draft Report also recommends a 50 psi overpressure for monitored and managed atmospheres behind sealed areas. Monitoring sealed areas allows the mine operator to know the composition of potentially hazardous gases in sealed areas. Use of a 50 psi overpressure seal requires the mine operator to maintain an inert atmosphere in the sealed area since explosions cannot occur within inert atmospheres. MSHA believes that in mines that liberate significant volumes of methane, the atmosphere in sealed areas will become inert naturally. In mines that produce very small volumes of methane, the atmosphere in sealed areas may never approach explosive methane/air mixtures of 5 percent. However, some mines may need to actively inert the atmosphere in the sealed area. To inert, an inert gas such as nitrogen or carbon dioxide may be injected into the sealed area through boreholes or pipes extending through the seals. The gas may be obtained from a bulk plant and trucked to the mine site and pumped into the sealed area through a borehole or pipe into the seal. It also may be produced at the mine using a nitrogen generator, Tomlinson Boiler, or other inertization device. This process is commonly used in underground coal mines in the United States during firefighting activities and in other countries where spontaneous combustion is common. MSHA is interested in receiving comments regarding:
(1)The economic and technological feasibility of monitoring and inerting sealed atmospheres; and
(2)methods of inerting sealed atmospheres. New paragraph (a)(2) requires 120 psi overpressure if the sealed atmosphere is not monitored and maintained inert except as provided in new paragraph (a)(3). This provision allows mine operators to install seals that withstand 120 psi overpressure if they do not choose to monitor and inert the sealed atmosphere. In MSHA's experience, the overwhelming majority of underground coal mine explosions are typically deflagrations. A deflagration occurs when the flame of an explosion propagates through unburned fuel at a velocity below the speed of sound. The faster the flame travels, the higher the pressures become. Maximum pressures in a deflagration involving methane or coal dust are limited to approximately 120 psi without the occurrence of detonation or significant pressure piling. MSHA accident reports during the past 30 years do not reference an underground coal mine explosion in the United States that generated an overpressure of greater than 120 psi except in the rare instance when detonation occurred. New paragraph (a)(3) also addresses overpressures resulting from pressure piling and detonations. Methane is explosive between 5 percent and 15 percent and requires at least 12 percent oxygen to ignite. (NIOSH 2006, IC 9486) When ignited, an explosion can occur. To account for correction factors of methane detection equipment and potential contamination of the samples, the ETS requires that methane concentrations between 4.5 percent and 17.0 percent shall be used to determine an explosive atmosphere. If ignited, large volumes of homogeneous explosive methane/air mixtures in a sealed area can generate high explosion overpressures. The homogeneity of methane/air mixtures in a sealed area is affected by a number of factors such as elevation, temperature, methane liberation, and barometric pressure. Based on Agency experience, MSHA anticipates that there will be few mines that have homogeneous explosive methane/air mixtures throughout the entire area to be sealed. Commenters are encouraged to submit information, with supporting documentation, regarding the number of mines that may have homogeneous explosive methane/air mixtures throughout the entire area to be sealed. MSHA believes that detonations and significant pressure piling may occur under certain situations. Detonations in underground coal mines are rare. A detonation occurs when the flame of an explosion propagates through the unburned fuel at a velocity exceeding the speed of sound (1129 feet per second). Pressures resulting from a detonation involving methane or coal dust can exceed 250 psi. Pressure piling occurs when the atmosphere ahead of the flame front is compressed prior to the arrival of the flame. When the flame burns through this compressed mixture, an increase in the explosion pressure occurs. Thus, if this mixture is compressed to 45 psi prior to the flame arriving, the resulting explosion pressure could exceed 300 psi. Pressure piling can occur when the physical configuration through which the explosion will propagate inhibits the flow of gases for pressure equalization, such as decreasing the number of entries, decreasing the size of the entries, or obstructing the entry. The ETS does not specify a seal strength under paragraph (a)(3). Under this provision, the mine operator would submit a strength requirement based on mine-specific conditions that are likely to result in pressure piling or detonation in the sealed area. The mine operator must first recommend the seal strength in the ventilation plan. MSHA expects that mine operators will submit a thorough engineering analysis conducted by a person knowledgeable in explosions and explosion overpressures, based on the conditions in the mine. After the seal strength is approved by the District Manager, the process in § 73.336 will apply. MSHA expects that in these few instances, the District Manager and the Office of Technical Support will coordinate MSHA activities related to the approval process. MSHA believes that most mine operators who encounter homogenous explosive methane/air mixtures and pressure piling in the entire sealed area will monitor and inert the atmosphere in sealed areas. Although the recommended maximum seal strength in the 2007 NIOSH Draft Report is 640 psi, MSHA has no empirical or other data, at this time, demonstrating that mine conditions exist that will necessitate seals stronger than 120 psi. MSHA requests comments from the mining community on the appropriateness of the strategy in this ETS for addressing seal strength greater than 120 psi. In the ETS, MSHA considered a performance-based approach to the strength requirement for seals. However, MSHA included specific numbers for the strength of seals in the ETS as the agency believes this represents a more appropriate approach. MSHA specifically solicits comments on the Agency's approach to the strength requirement for seals. MSHA is also interested in receiving comments on the appropriateness of the three-tiered approach to seal strength in the ETS. If commenters believe a different regulatory approach should be developed for the final rule the Agency would like commenters to provide:
(1)The details for such a strategy,
(2)rationale for such a strategy; and
(3)feasibility of using such strategy. The Agency particularly seeks the views of the mining community regarding whether there are other effective alternatives to the requirements in the ETS with respect to providing the most appropriate and protective action for miners exposed to hazards of existing sealed areas. Commenters should provide supporting data, and specific alternatives, including information on technological and cost implications. Most existing seals were constructed to withstand a static horizontal pressure of 20 psi. MSHA also considered requiring mine operators to remove existing seals and replace them with seals that withstand at least 50 psi. Currently, the Agency believes that replacing existing seals is impractical, and in some instances, may create safety hazards. In addition, these existing seals must be monitored and the atmospheres behind them must be maintained inert. The atmosphere inby and outby the seals near the roof, ribs, or floor adjacent to the seal may contain low oxygen and/or explosive methane/air mixtures that are highly hazardous to miners' safety. In addition, the conditions inby the seals, such as bad roofs, roof falls, and water accumulations, may prevent the mine operator from making changes to provide adequate ventilation inby the seals. MSHA seeks comments on the feasibility of including in the final rule a requirement that existing seals be removed and replaced with a higher strength seal. Another regulatory option that MSHA considered is whether to require mine operators to build new seals outby existing seals. In some cases, this may not be feasible because the seals may have been constructed too close to the outby corner of the pillar so that there is insufficient space to build new seals in the same pillar; and there may not be an additional open entry outby the existing seals allowing for construction of new seals. MSHA also considered whether to require mine operators to reinforce existing seals. The Agency is concerned with the feasibility of this option and whether such a requirement could expose miners to greater hazards as discussed earlier in this preamble. MSHA, however, will continue to explore technological advances addressing feasible and safe methods to reinforce existing seals in underground coal mines. Commenters are encouraged to submit information and supporting data regarding new technologies to reinforce seal strength. Existing § 75.335(a) included minimum specifications for seals constructed of solid concrete blocks after November 15, 1992. Also, existing § 75.335 (a)(2) allowed mine operators to use alternative construction methods or materials to construct a seal provided the seal could withstand a static horizontal pressure of 20 psi (subsequently increased to 50 psi in the July 2006 PIB). In addition, the method of installation and material used had to be approved by the District Manager under MSHA's ventilation plan procedures in § 75.370 based on a 1971 report entitled “Explosion-Proof Bulkheads—Present Practices,” issued by the former U.S. Bureau of Mines. According to that report, when a sealed atmosphere has adequate incombustible material and minimum coal dust accumulations, it is doubtful that pressures exceeding 20 psi could occur very far from the origin of the explosion. The primary disadvantage of this level of explosion protection is that current evidence establishes that explosions of coal dust or methane can generate explosion pressures of 120 psi, without detonation or pressure piling. Previous § 75.335(a)(2) also included measures to prevent exposed timber seals from quickly failing in a fire or other mine emergency. New construction of timber seals must meet the requirements set forth in this ETS. b. Sec. 75.335(b) Sampling and Monitoring Requirements ETS § 75.335(b) establishes new sampling and monitoring requirements for sealed areas. This provision requires that on the effective date of this ETS, a certified person, as defined under existing § 75.100, must immediately monitor atmospheres in all existing sealed areas when seals are outgassing, such as when the barometric pressure in the sealed area exceeds the pressure on the outby side of the sealed area. MSHA intends for mine operators to establish a baseline analysis over a 14-day sampling period, as specified under § 75.335(b)(5)(iii), followed by weekly sampling under paragraph (b)(1) of this section. While sampling is being conducted, mine operators must train certified persons in sampling procedures and develop a sampling protocol to be included in the ventilation plan and submitted to the District Manager for approval. This provision also requires that for seals constructed prior to May 22, 2007 and seals designed for 50 psi overpressure according to ETS § 75.335(a)(1), mine operators shall develop and follow a protocol to monitor methane and oxygen concentrations and to maintain an inert atmosphere in sealed areas. The protocol shall be approved in the ventilation plan. The sampling protocol must ensure that an inert atmosphere behind the seal area is maintained. An explosion will not occur in an inert atmosphere. The July 2006 PIB and this ETS require mine operators to conduct an atmospheric assessment behind existing alternative seals to determine the potential for an explosion and assess seal integrity. This ETS requirement enhances protection of miners working in the active portions of the mine adjacent to sealed areas where existing seals were installed prior to this ETS. In addition, this provision protects the miner where 50 psi seals will be installed under this rule. MSHA recognizes that conditions in mines may vary and mine operators can more appropriately address their specific conditions in the ventilation plan. During 2006, MSHA inspected existing seals. The inspections revealed that some mine operators were not adhering to their approved ventilation plan for seal installation and construction. The ETS emphasizes the importance of sampling sealed atmospheres to ensure that they remain inert. ETS § 75.335(b)(1) requires that a trained certified person sample atmospheres of sealed areas weekly when the barometric pressure is decreasing or the seal is outgassing. Because the information obtained during sampling of a sealed area is critical to the safety of miners, the ETS requires sampling to be conducted by a certified person. At least one sample shall be taken at each set of seals. If a seal is ingassing, such as when the barometric pressure outside the sealed area exceeds the pressure on the inby side of the sealed area during the weekly examinations, the ETS requires that a sample shall be collected during the next weekly examination to determine if the seal will outgas. If the seal is ingassing during the second consecutive weekly examination, the operator shall examine that seal daily until the seal is outgassing, unless the seal does not outgas. In this circumstance, an alternative protocol must be developed to effectively evaluate the atmosphere in the sealed area and submitted to the District Manager for approval. Although the ETS does not specify the length of time that the seal must be examined to determine if it will outgas, MSHA intends to require mine operators to develop the alternative protocol within a reasonable timeframe. The District Manager may approve different sampling frequencies and locations in the ventilation plan or approve the use of atmospheric monitoring systems in lieu of weekly sampling. The mine operator shall revise the protocol in the ventilation plan if repeated sampling indicates that a seal is not likely to outgas. MSHA expects that the certified person will conduct sampling required under the ETS as part of the examinations of seals required in existing § 75.360 and § 75.364 and base the time of these examinations on the barometric conditions to the extent possible. All seals and the strata around them will leak air, resulting in an air exchange near the seal during barometric changes. MSHA does not expect the air leakage to significantly impact the atmosphere in a large portion of the sealed area, but it may affect the atmosphere at a sampling location when the seal is ingassing. Therefore, it is important that samples be representative of the atmospheric conditions in the larger portion of the sealed area, rather than just the area immediately inby the seal. The certified person must take at least one sample at each set of seals during the weekly examination. Each newly constructed seal must be equipped with two sampling pipes. In accordance with the ETS, MSHA expects that most mines will need to take only one sample from a seal in each set of seals. However, the number of seals that need to be sampled will be determined from the results of the 14-day sampling period specified in paragraph (b)(5)(iii) of this section. If the seal is ingassing during the examination, the certified person must attempt to take a sample during the next weekly examination. After a second attempt is made and the seal is still ingassing, attempts must be made daily until the seal outgasses. If repeated sampling indicates that a seal is not likely to outgas, then the mine operator must submit an alternative protocol to the District Manager. The alternative protocol must address a means to effectively evaluate the atmosphere in the sealed area. The alternate protocol may address various means such as:
(1)The use of a borehole or previously installed sampling line to obtain samples,
(2)pressure balancing of the ventilation system to make the seals outgas, or
(3)the use of inert gas injection. The District Manager may approve different sampling frequencies and locations in the ventilation plan. This is intended to address those instances when the atmosphere in the sealed area is unstable, close to the explosive range, or subject to other hazardous conditions, such as a history of spontaneous combustion, which make it necessary to sample at a greater frequency. However, a less frequent sampling strategy may be approved in the ventilation plan if the atmosphere in the sealed area is stable and not at all close to explosive range. For example, the oxygen must be significantly below 10 percent, and methane far less than 3 percent or far greater than 20 percent. Sampling requirements also addresses instances when an adequate evaluation of the atmosphere in the sealed area cannot be obtained with the sampling pipes located 15 feet inby the seal and into the center of the first connecting crosscut inby the seal. In some sealed areas, the District Manager may find it necessary to require in the ventilation plan that samples be obtained at additional locations to determine that the atmosphere is inert. Additional samples may need to be taken at mines with sealed areas that are very large, have multiple sets of seals, connect with another mine, have flooded areas, have capped shafts, or in other circumstances which may cause samples of the atmosphere taken near the seals not to be representative of the entire sealed area. The ETS also allows the use of an Atmospheric Monitoring System
(AMS)in lieu of a person physically taking samples on a weekly basis. The use of AMS is discussed more fully under paragraph (b)(5)(vi) of this section. MSHA believes that the sampling strategy in this ETS will yield results that reflect a reasonable representation of the atmosphere in a sealed area. MSHA is requesting comments addressing the sampling approach in this ETS. The agency is particularly interested in comments concerning sampling, and the sampling frequency, including sampling only when a seal is outgassing. The Agency requests comments on whether another sampling approach is more appropriate for a final rule, such as when the seal is ingassing. MSHA also requests comments, information, and experiences of the mining community concerning sampling sealed areas. Paragraph (b)(2) requires that certified persons shall be trained in sampling procedures included in the protocol at paragraph (b)(5) of this section prior to conducting sampling. This requirement would ensure that certified persons conducting the sampling have the training necessary to use the sampling devices and knowledge of the sampling protocol requirements in the mine's ventilation plan. This training shall be conducted by persons with knowledge of the requirements in paragraph (b)(5) of this section. Training may be conducted by a variety of people, including a manufacturer's representative, ventilation engineer or a certified person at the mine. MSHA expects the operator to utilize appropriate people to conduct the training. At a minimum, this training should include: 1. Relevant information in the mine's ventilation plan; 2. Sampling procedures including equipment and methods to be used; 3. Location of sampling points and sampling pipes; 4. The baseline analysis of oxygen and methane concentrations in a sealed area over a 14-sampling day period; 5. Frequency of sampling for each set of seals; 6. Recording procedures required in paragraph (b)(6) of this section; 7. Sampling frequency in the mine's ventilation plan, if an AMS is used; and 8. General information concerning mine gases present in sealed areas. Training should include specific actions to take in implementing the operator's “action plan” when methane concentrations are at one of three different ranges and oxygen concentrations are 10.0 percent or greater. MSHA recognizes that the amount of time required to train a certified person will vary. For this reason, MSHA is not specifying a minimum amount of time for training, but instead a requirement that is performance-oriented. MSHA anticipates that mine operators will adjust the time required for this training based on the complexity of sampling procedures, sampling protocol, and existing knowledge and skill level of the certified person. MSHA also expects operators will include “hands-on” training during this session to assure that the certified person demonstrates the necessary skills and abilities to perform the tasks. Hands-on training would mean that a certified person demonstrates to the trainer the necessary skills and abilities to perform the testing for oxygen and methane. Hands-on training includes practical application of the type of sampling equipment and the methods to be used at the mine. Examples of this type of training include calibration of sampling equipment, setup of equipment, and recognition of the proper functioning of equipment. All certified persons shall receive refresher training annually to ensure that they maintain the competence necessary to effectively perform the requirements in paragraph (b)(5) of this section. Annual retraining shall be required within 12 months of the person receiving initial or annual training. For example, a certified person receiving initial training in May 2007 is expected to complete annual retraining no later than the end of May 2008. The month that the refresher training is completed establishes the anniversary month for the next annual retraining. This is consistent with other MSHA training requirements. This ETS also requires mine operators to certify the date and content of the training provided to the certified person. Operators are required to retain these certifications for one year from the time training was conducted. This provision is similar to other certification requirements in part 75 in which the operator certifies by signature and date that training was provided. ETS § 75.335(b)(3) states that the atmosphere in the sealed area is considered inert when any of the following conditions occur:
(1)The oxygen concentration is less than 10.0 percent;
(2)The methane concentration is less than 3.0 percent; or
(3)The methane concentration is greater than 20.0 percent. This ETS provision is consistent with MSHA guidance published in the July 2006 PIB. The explosive range of methane is 5 to 15 percent when the oxygen level is 12 percent or more (IC 9486, 2007 NIOSH Draft Report). To allow for the inaccuracy of methane and oxygen detection equipment and potential contamination of the samples, oxygen less than 10.0 percent, methane concentration less than 3.0 percent and methane concentration greater than 20.0 percent were used to determine an inert atmosphere. ETS § 75.335(b)(4) requires that when oxygen concentrations are 10.0 percent or greater and methane concentrations are from 3.0 percent to 20.0 percent in a sealed area, the mine operator shall take two additional gas samples at one hour intervals. If the two additional gas samples are from 3.0 percent to 20.0 percent methane and oxygen is 10.0 percent or greater, then the mine operator shall initiate actions required in ETS § 75.335(b)(4)(i) or (ii). The ranges for methane and oxygen in this paragraph include a margin of safety, account for errors in instrumentation or sampling methods (NIOSH IC 9486), and allow the mine operator to obtain confirming samples before implementing the actions outlined in (b)(4)(i) and (b)(4)(ii). However, because the atmosphere in the sealed area is critical to the safety of miners, the ETS requires that samples be taken at one-hour intervals under § 75.335(b)(4). Paragraphs (b)(4)(i) and (b)(4)(ii) of the ETS require the mine operator to implement the action plan specified in the protocol or to withdraw all persons from the affected area when the specified concentrations are encountered. Historically, when methane levels reached 4.5 percent in active areas of mines, miners were withdrawn from the areas that were dangerous due to high concentrations of methane. However, withdrawal of miners is not required if, under paragraph (b)(4)(i), the operator chooses to implement the action plan to address the actions to be taken by mine operators when the specified concentrations in § 75.335(b)(4) are reached; these concentrations provide a margin of safety. However, the action plan must be approved in the mine's ventilation plan and must provide protection to miners equivalent to withdrawal under paragraph (b)(4)(ii). MSHA requests comments on this approach and whether it provides adequate protection for miners. Commenters are encouraged to submit specific language, with supporting data for MSHA to consider for development of a final rule. ETS § 75.335(b)(5) establishes the elements that must be addressed in a mine operator's sampling protocol and actions to be taken when sampling results indicate that the atmosphere behind the sealed area is not inert. Paragraph (b)(5)(i) requires that the mine operator specify sampling procedures, including the type of equipment and methods to be used by the mine operator for the sampling program. MSHA believes most mine operators will use hand-held methane and oxygen detection equipment that they currently have at the mine site. Other operators may need to purchase detectors capable of measuring high levels of methane. Although the mine operator may collect samples in containers to be analyzed by a gas chromatograph, the operator must specify in the protocol when the sample will be analyzed and the procedures that will be followed when the sample results indicate action levels are reached. The methods to be used should include the physical connections to the sample pipes as well as the length of time the detector or pump should be operated to collect the sample. The length of time will be dependent on the length of the sampling pipes. ETS § 75.335(b)(5)(ii) requires that the mine operator specify in the sampling protocol the location of sampling points used for the sealed area in a set of seals. The sampling points should be identified on a mine map, or the operator should have a narrative description of the location of the sampling points that can be readily identified on a mine map. ETS § 75.335(b)(5)(iii) requires that the mine operator specify procedures in the protocol to establish a baseline analysis of oxygen and methane concentrations at each sampling point over a 14-day sampling period. For existing seals, the mine operator must begin this sampling upon the effective date of this rule. For newly constructed seals, the mine operator must begin this sampling upon completion of the seal construction. The baseline shall be established after the atmosphere in the sealed area is inert or the trend reaches equilibrium. These samples would be taken by approved hand-held gas detectors or equipment that collects samples in containers to be analyzed by gas chromatograph. These samples need to be collected over a consecutive 14-day sampling cycle to establish a baseline for a future sampling cycle at each sampling point. Samples need only be taken when the seals are outgassing during the baseline period to ensure samples are representative of the larger area inby the seals. If the seals are not outgassing during any of the days of sampling, the baseline sampling period needs to be extended until 14 samples are taken. Once a baseline is established, the seals need to be sampled at least weekly. MSHA is requesting comments on this sampling approach. The agency is particularly interested in comments concerning the establishment of a baseline, including sampling only when a seal is outgassing and whether it is appropriate to sample the atmosphere in sealed areas during ingassing. MSHA also requests comments, information, and experiences with sampling sealed areas, including data, analytical information, establishment of equilibrium, and trends. ETS § 75.335(b)(5)(iv) establishes the frequency of sampling at each seal or set of seals. Once a baseline is established, the seals must be sampled at least weekly while the seals are outgassing. Weekly examinations under existing § 75.364 cannot exceed a 7-day interval. Mine operators may conduct sampling required under this ETS in conjunction with weekly examinations under existing § 75.364. Depending on the location and the results of sampling, MSHA may require that seals or sets of seals be sampled at different sampling intervals. Additionally, there may be circumstances where seals or sets of seals within a single sealed area, have a different sampling frequency. ETS § 75.335(b)(5)(v) requires that the mine operator specify size and conditions of the sealed area. Some mine-specific conditions inby the sealed area may include the type of mining, the presence of pillared areas, the average mining height, the occurrence of bottom mining, any entry restrictions near the seals, the size of the sealed area and the number of seals in each set of seals. This information is important to determine the appropriate seal strength. ETS § 75.335(b)(5)(vi) requires that the protocol address an atmospheric monitoring system
(AMS)to monitor sealed areas, where applicable. MSHA may approve use of an AMS to monitor methane and oxygen levels and pressure differentials across the seals in lieu of a person physically taking or collecting methane samples. The AMS consists of sensors to monitor methane and oxygen levels in the sealed area and the pressure differential across the seal. ETS § 75.335(b)(5)(vii) requires that the protocol include an action plan addressing hazards presented and actions taken when gas samples indicate oxygen concentrations of 10.0 percent or greater for each of the following ranges of methane concentrations:
(1)3.0 percent or greater but less than 4.5 percent;
(2)4.5 percent or greater but less than 17.0 percent; and
(3)17.0 percent to 20 percent. MSHA expects the action plan to address the risk to miners based on the location of seals, the locations of escapeways, the size and nature of the sealed area, potential impact of seal failure on the mine ventilation system, and the exposure to miners to any potential seal failures. MSHA may require additional sampling when methane ranges are between 3.0 and up to 4.5 percent and from over 17.0 percent to 20 percent, as well as possible changes to the ventilation system, or the addition of inert gas to the sealed area. A methane range between 4.5 and 17.0 percent and an oxygen level greater than 10 percent requires the mine operator to follow the action plan set forth in the protocol in the ventilation plan or to evacuate miners from the affected area of the mine. If miners must be withdrawn, the only persons who may remain in the affected area are those persons referred to in section 104(c) of the Mine Act. ETS § 75.335(b)(6) requires that the certified person promptly record each sample result from sealed areas, including the location of sampling points, and oxygen and methane concentrations. The results of oxygen and methane samples must be recorded as the percentage of oxygen and methane measured by the certified person. Also, the ETS requires, where applicable, that the certified person promptly record monitoring results from AMS systems. If sampling and monitoring results indicate the presence of a hazardous condition to miners, the certified person must record the hazardous condition found in accordance with existing § 75.363 (Hazardous conditions; posting, correcting and recording). Also § 75.335(b)(6) requires that hazardous conditions be corrected immediately or the area must be posted. In addition, records of hazardous conditions must be reviewed and countersigned by the mine foreman, or equivalent mine official, by the end of the mine foreman's or equivalent mine officials next regularly scheduled working shift. ETS § 75.335(b)(7) requires that the mine operator retain sampling records at the mine for at least one year from the date of sampling. A one year retention period permits the mine operator to track trends or changes. The one year retention period is consistent with existing §§ 75.360 and 75.364. c. Sec. 75.335(c) Welding ETS § 75.335(c) prohibits the use of open flames or arc associated with welding, cutting, and soldering activities within 150 feet of a seal. MSHA intends to apply this requirement to seals when their construction has been completed. The use of an oxygen acetylene cutting torch to cut a metal strap at a seal was the most likely ignition source in the Darby Mine No. 1 explosion in 2006. Although the metal strap should have been removed before the seal was constructed, the event underscores the importance of the potential dangers when working near seals, and emphasizes the dangers of using open flames near a seal. A methane enriched atmosphere can leak through the seal or surrounding strata into the active area of the mine. The methane may accumulate and form a methane layer outby the seal. If ignited, a flame can propagate into the sealed area. The 150-foot limit is consistent with an existing requirement in § 75.1002(a)(1) that non-permissible equipment be excluded within 150 feet of pillar workings or longwall faces. In determining the 150-foot distance, MSHA provides guidance in MSHA's Program Policy Manual (Volume V-Coal Mines February 2003, Release V-33) which states that the 150-foot distance shall be measured by following the shortest distance that air can travel (tight string distance) through crosscuts, entries or other openings. MHSA does not believe that this requirement will present significant practical or technical problems for the underground coal mining industry. MSHA is requesting comments from the mining community on the appropriateness of the ETS requirement regarding open flames associated with welding, cutting and soldering activities within 150 feet of a seal and the feasibility of this requirement. MSHA suggests that commenters provide specific rationale in support of their position, and include alternatives, if applicable. d. Sec. 75.335(d) Sampling Pipes ETS § 75.335(d) revises previous § 75.335(b) and requires each newly constructed seal to have at least two sampling pipes. One sampling pipe must extend into the sealed area approximately 15 feet as required by previous § 75.335(b). This provision of the ETS is based upon sampling procedures recommended in the 1979 MSHA study, “Interpreting the State of a Mine Fire.” The study shows that in sampling situations involving fires behind sealed areas, sampling pipes should extend at approximately 15 feet toward the fire. This distance also applied to atmospheric sampling in sealed areas for non-fire situations. The area directly inby a seal is more likely to be affected by ingassing during normal barometric changes. Under this provision, the second sampling pipe must extend into the first connecting crosscut inby each seal and to the center of the first connecting crosscut in the middle of the intersection. MSHA has included this new provision in the ETS so that the operator can obtain a representative sample of the sealed area. The Agency believes that sampling points within the first connecting crosscut will provide a more representative sample of the sealed area because this atmosphere is less likely to be affected by ingassing. The District Manager may require more than two sampling locations in the ventilation plan under § 75.335(b)(1). ETS § 75.335(d) requires that each sampling pipe be equipped with a shut-off valve and an appropriate fitting for taking atmospheric samples behind the seals. A tapered fitting, for example, may be connected at the tip of the sampling pipe to easily accommodate a flexible tube attached to a gas analyzer. The ETS allows for other types of sampling methods that may be used to monitor sealed atmospheres. ETS § 75.335(b) allows a mine operator to use an atmospheric
(gas)monitoring system when appropriate. Although MSHA no longer requires that sampling pipes be installed with the sampling end of the pipe to be about 12 inches from the roof and in the centerline of the entry, the most appropriate placement of the sampling end of the pipe should be about 12 inches from the roof. The ETS affords flexibility to mine operators for the placement of the sampling end to allow more accurate sampling strategies to better protect miners. Therefore, the ETS requires that the location of sampling points be specified in the protocol provided under ETS § 75.335(b)(5). MSHA requests comments regarding the appropriate number and location of sampling pipes for a final rule. e. Sec. 75.335(e) Water Drainage Systems ETS § 75.335(e) requires that a corrosion-resistant, water drainage system be installed in the seal at the lowest elevation within the set of seals. Water accumulations can affect the integrity of seals since they are not designed to impound water. Previous § 75.335(c)(2) required each water drainage pipe to have a water trap outby the seal. MSHA required the water trap to prevent the exchange of air through the seal and propagation of an explosion. New seal designs under the ETS, however, must meet performance requirements for a drainage system which prevents the exchange of air and the accumulation and impoundment of mine water inby the seals. The ETS also allows for use of new and innovative designs. MSHA has determined that the ETS provision enhances the level of protection afforded under the previous standard. ETS § 75.336(a)(1)(i) requires that drainage system designs be approved by MSHA, and ETS § 75.336(b)(3)(iii)(I) requires estimation of the volume of water flow in the ventilation plan. Depending on the size and mine floor elevations of the sealed area, it may be necessary for more than one seal in a set of seals to contain a water drainage pipe. These provisions provide flexibility and additional oversight by MSHA to help ensure safe and effective water drainage systems to protect miners from seal failure due to water impoundment. The ETS prohibits seals from impounding water. MSHA requests comments from the mining community on the ETS requirement for water drainage systems for seals, including effective alternatives for a final rule. 2. Sec. 75.336 Seal Design Applications and Installation Approval The ETS requires that seal design applications and installation procedures be approved by MSHA prior to construction. The ETS approval requirements for seals are derived from previous § 75.335(a)(2), the July 2006 PIB, and Procedure Instruction Letter
(PIL)No. I-06-V-09, “Procedures for Approval of Alternative Seals,” issued on August 21, 2006 (August 2006 PIL) and are consistent with existing requirements for approving coal mine impoundments in § 77.216-2. Paragraph
(a)requires that seal design applications be submitted to MSHA's Office of Technical Support for approval. Seal design applications must conform to the provisions provided in paragraph (a)(1) or (a)(2) which address seal design and installation approval. Once a seal design is approved by MSHA, a mine operator may use the design in accordance with new provisions in paragraph
(b)of this section and the requirements of existing ventilation standards in §§ 75.370, 75.371, and 75.372, which address the submission and approval of the ventilation plan. Previous §§ 75.335(a), (b), and
(c)that address design parameters of seals are transferred to ETS §§ 75.336
(a)and
(b)and are revised. These previous provisions required mine operators to either use a seal constructed of solid concrete blocks or seals constructed of alternative methods and materials if approved in the mine's ventilation plan. Under the new provisions, a manufacturer or mine operator may submit an application for approval which can include any seal design. Seal designs specified in previous § 75.335 may be submitted to MSHA for approval, provided the proposed design meets the strength requirements of ETS § 75.335(a). The provisions of ETS § 75.336(a) are derived from the July 2006 PIB that established criteria to guide the District Managers' approval of the use of alternative seals in ventilation plans. These provisions are also derived from the August 2006 PIL that established uniform procedures for application of MSHA regulations related to review and approval of ventilation plans, which include alternative seals constructed in underground coal mines after July 19, 2006. Installation of seals is required to be approved by the District Manager in the ventilation plan in accordance with ETS § 75.336(b). a. Sec. 75.336(a)(1) Engineering Design Applications ETS § 75.336(a)(1), which is derived from the August 2006 PIL, sets forth specific requirements that an engineering design application must include. The requirements in paragraphs (a)(1)(i) through
(iii)are new and are based on sound engineering principles. They require that a seal design application shall:
(1)Address design calculations and analyses,
(2)include certification by a professional engineer, and
(3)include a Seal Design Table. The documentation required under this paragraph includes design calculations, drawings, and specifications. Design calculations are required, since they provide the technical basis for developing drawings and specifications and serve as the record of the engineering design. Drawings and specifications provide detailed information necessary to construct seals, technical requirements for a seal, and important information and guidance to be followed during seal construction. These ETS requirements are consistent with existing approval requirements for various mining-related products under subchapter B—Testing, Evaluation, and Approval of Mining Products for permissibility and for approval of impoundment designs under existing § 77.216. Existing approval regulations require applicants to submit substantial engineering documentation as the basis for approval. The engineering documentation provides MSHA with evidence that the design meets accepted engineering practices and principles. ETS § 75.336(a)(1)(i) requires each engineering design application to address essential design parameters. This information is required for MSHA to make a thorough assessment of the design application to ensure that the seal design will reliably withstand a specific overpressure, and to verify that the seal design is certified according to ETS § 75.336(a)(1)(ii). MSHA will review the application for evidence that each of these design parameters is sufficiently addressed. The design application should show the placement of gas sampling pipes required under § 75.335(b). Also, the application must address a water drainage system. The drainage system must be corrosion-resistant and should not be subject to detrimental environmental conditions. The dimensions, material type, and components of the water drainage system should be specified. The application should show how the water drainage system will prevent both the exchange of air and the propagation of an explosion through the water drainage system. Also, the application should show how the water drainage system will be able to withstand the applicable overpressure in ETS § 75.335(a). The design application must address air leakage and should specify the method and materials used to minimize air leakage along the perimeter of each seal and through any construction joints or cracks that could develop. Consistent with previous § 75.335(a)(iv) that required that a sealant material should have a flame-spread index of 25 or less, the mine operator must address the flame-spread index. The flame spread index is established through recognized laboratory testing such as that designated by ASTM E162-07, “ *Surface Flammability of Materials Using a Radiant Heat Energy Source* ” or equivalent. The design application must include appropriate information to address fire resistance, such as methods and materials used to provide at least one-hour fire resistance. The fire resistance is established through recognized laboratory testing. The seal material should not fail or allow transfer of sufficient heat while being subjected to a fire test incorporating an ASTM E-119-07 time/temperature heat input, or equivalent, for one hour. A pressure-time curve provides the necessary loading criterion for a seal design and must be provided in the seal design application. The pressure-time curve provides the reflected overpressure and constant-volume pressure plotted as a function of a specific time period. Pressure-time curves for the 50-psi and 120-psi seal strength requirements of ETS § 75.335(a) are provided in the 2007 NIOSH Draft Report. Alternative pressure-time curves may be used for designs provided the pressure-time curves are submitted to MSHA's Office of Technical Support for approval. The applicant must document the entry dimensions for which the seal design is applicable and the engineering design and analysis. MSHA expects the design documentation, the design assumptions, references of design standards and guidance, material properties and relevant test data, presumptive geotechnical properties and information, geotechnical test data used to substantiate presumed geotechnical properties, data to address the long-term durability of seal materials, loading criteria, design calculations, and the identification of computer software used and the computer input and output files with the critical design values indicated. The design should also address the factors used to account for the variability in material properties, geologic conditions, and the quality of construction. For example, the applicant must show that an appropriate approach was used to derive the geotechnical and material design values. The design should also show the methodology and the procedures used to evaluate all potential failure modes of the seal and strata. MSHA considers design standards and guidance documents as appropriate references, such as Army TM 5-1300, “ *Structures to Resist the Effects of Accidental Explosions,* ” American Concrete Institute ACI 318-05, “ *Building Code Requirements for Structural Concrete and Commentary,* ” and American Concrete Institute ACI 440.2R-02, “ *Design and Construction of Externally Bonded FRP Systems for Strengthening Concrete Structures* .” Specifications must be provided in the seal design application to define the performance requirements for construction materials and equipment used. Test methods and reference to industry standards for materials (e.g., American Society for Testing and Materials) that will be used in seal construction must also be included in the application. For construction materials whose properties and performance are not well-researched or well-documented, the applicant would be required to provide data substantiating long-term durability and strength. Applications must provide construction specifications adequately addressing the preparation of the site for seal construction. For example, construction specifications must include rock and coal removal requirements for the foundation. Specifications for foundations must address both the horizontal and vertical surfaces of the mine opening. Keys formed in rock and coal to increase the lateral restraint must be excavated with equipment that minimizes fracturing and breakout. The applicant must also specify the necessary actions to be taken to prevent water accumulation in the seal construction area since water accumulation could affect material strength. Necessary storage conditions for construction materials, such as moisture, heat, or shelf life should be specified. Construction specifications should also address formwork when a seal construction involves cast-in-place and pneumatically-applied materials. The application must list provisions that specify quality control procedures for construction and include requirements for material sampling and testing. Material testing should be conducted by personnel certified by professional organizations such as the American Concrete Institute and by Nationally-Recognized Testing Laboratories to ensure proper quality control testing. The seal design should establish the maximum allowable convergence a seal may undergo without affecting the structural integrity of the seal. The design should also address other physical limitations for a seal, such as the time required following construction to achieve the specified material strength. For example, the time required for an explosive atmosphere to develop in a sealed area must exceed the time required for the seal construction material to achieve its specified strength. The specified strength of a material must take into account variability in strength of the material. The required material strength ensures that the installed material strength of the seal exceeds the specified design strength. The professional engineer designated in ETS § 75.336(a)(1)(ii) is responsible for the preparation, signing, dating, sealing, and issuing of engineering documents for the design of a seal. Engineering decisions and actions that must be made by and must be the responsibility of the professional engineer are: 1. The selection or development of design standards or methods, and materials to be used in seal construction; 2. Development and preparation of the structural analyses and design computations, drawings, and specifications; 3. The selection or development of techniques or methods of testing to be used in evaluating materials used either during seal construction or following completion of seal construction; and 4. The development of construction procedures. ETS § 75.336(a)(1)(iii) requires that a Seal Design Table that discusses characteristics related to mine-specific construction be included in the application. These characteristics include the maximum entry width and height for which the specific design is applicable, specified strength of the seal material, thickness of the seal, and the reinforcement and foundation anchorage requirements for the seal. The mine operator may provide additional information in the seal design application. Example Concrete Seal Design Table Entry dimensions
(ft)Thickness (ft-in) Specified unconfined compressive strength
(psi)Reinforcement Foundation anchorage b. Sec. 75.336(a)(2) Full-Scale Explosion Test Application ETS § 75.336(a)(2) provides requirements for seal applications that are based on full-scale explosion testing. ETS § 75.336(a)(2)(i) requires that explosion tests be certified by a professional engineer knowledgeable in structural engineering that full-scale tests were conducted in accordance with current, prudent engineering practices and the results are applicable to an underground coal mine. Current, prudent engineering practices should include the preparation, signing, dating, certifying and issuing of engineering documents for the design of a seal. The decisions and actions that are the responsibility of the professional engineer are the same as stated above. ETS § 75.336(a)(2)(ii) requires that the application include technical information related to the methods and materials used during a successful full-scale explosion test. The testing should include, at a minimum, the following blast loadings:
(1)The reflected overpressure due to the blast wave of a methane explosion, and
(2)the constant-volume pressure due to the exothermic reaction of the combustion of methane. The overpressures stated in ETS § 75.335(a)(1) serve as the minimum peak reflected overpressures that a seal should be capable of withstanding. Ideally, the seal should be tested to its predicted ultimate strength to determine the actual strength of the seal. For example, seals should be tested with the face perpendicular to the direction of a blast wave and subjected to a reflected overpressure, rather than a side-on overpressure. The testing program must address projectile impact on the seals. ETS § 75.336(a)(2)(ii) requires the applicant to provide technical information related to the methods and material used to construct and test the seals. The properties and laboratory test data of the materials are required. The laboratory test data should be provided by personnel certified by professional organizations such as the American Concrete Institute and by a Nationally-Recognized Testing Laboratory to ensure proper quality control testing. MSHA intends to substantiate the design values used in the analysis and the full-scale testing of the seals. ETS § 75.336(a)(2)(iii) requires that the application include proper documentation. Proper documentation includes engineering analyses, construction drawings and specifications, and data that address seal material, fire resistance and flame-spread index. The applicant must establish the materials and materials properties required for adequate seal construction. Construction documentation is required to ensure that the seals are properly built and reliable, to address air leakage, and to verify that the material properties of the seal will meet the specified strength criteria. ETS § 75.336(a)(2)(iv) requires the application to include an engineering analysis addressing differences between actual full-scale test support conditions and the range of support conditions that could be encountered in an underground coal mine. MSHA recognizes that the test site may have different support conditions than an underground coal mine. This information must ensure that a tested seal design will reliably function as designed in an underground coal mine. ETS § 75.336(a)(2)(v) requires a Seal Design Table be included in the application that discusses characteristics related to mine specific seal construction. These characteristics include the maximum entry width and height for which the specific design is applicable, specified strength of the seal material, thickness of the seal and the reinforcement and anchorage requirements for the seal. Additional information may be provided at the discretion of the designer. Entry dimensions
(ft)Thickness (ft-in) Specified unconfined compressive strength
(psi)Reinforcement Foundation anchorage c. Sec. 75.336(a)(3) ETS § 75.336(a)(3) is consistent with existing § 77.216(2)(b) and Approval Policy 1009, and specifies that MSHA will notify the applicant if additional information or testing is required. The applicant must provide this information, arrange for any additional or repeat tests related to this additional information, and notify the Agency of the location, date, and time of such tests. d. Sec. 75.336(a)(4) The applicant, under ETS § 75.336(a)(4), will be notified by MSHA in writing, whether the design is approved or denied. If the design is not approved, MSHA will specify, again in writing, the deficiencies of the application, or necessary revisions for approval. This provision is consistent with existing § 77.216-2 and Approval Policy 1009. e. Sec. 75.336(a)(5) ETS § 75.336(a)(5) is consistent with existing § 77 .216-3 and requires the approval holder to promptly contact MSHA's Office of Technical Support, in writing, of all deficiencies, such as design or material flaws, when they become aware. MSHA's intent is that “promptly” means the approval holders are expected to contact MSHA as soon as they have knowledge that a deficiency exists. f. Sec. 75.336(b) Mine Specific Application; Seal Design Approval in the Ventilation Plan The ETS requires the mine operator to use an approved seal design, provided the District Manager approves installation of the design in the ventilation plan. The requirements in this section are consistent with Procedure Instruction Letter No. I06-V-9 (August 2006) that established uniform procedures for application to MSHA for approval of alternative seals constructed after July 19, 2006. ETS § 75.336(b) is new and requires that mine operators use an MSHA-approved seal design. The mine ventilation plan that addresses the installation of seals must be approved by the District Manager prior to the mine operator initiating seal construction in the mine. The Darby and Sago mine explosions revealed problems with seal construction. MSHA's accident investigation report into both explosions states that the seals were constructed without mortar between the joints. MSHA determined that overpressure was a problem in both the Sago and Darby accidents. Adequate seals are crucial to contain explosions and prevent potentially explosive or toxic gasses from migrating into the active working areas of underground coal mines. MSHA is requiring that seal installation be approved in the ventilation plan to help ensure that seals are appropriately installed to effectively protect miners. Under ETS § 75.336(b), the mine operator must use an approved seal design provided the installation is approved in the ventilation plan. These design documents will serve as historical references. Seal design applications must provide information that the seal will withstand the appropriate overpressure from an explosion in accordance with current, prudent engineering practices, design codes and guidelines, and the seal strength requirements of ETS § 75.335(a). ETS § 75.336(b)(1) requires the mine operator to retain a copy of the seal design approval information for as long as the seal is needed to serve the purpose for which it was built. MSHA intends to review mine operators' seal design approvals at the mine site to evaluate and address construction and other installation-related issues. ETS § 75.336(b)(2) requires the mine operator to designate a professional engineer to conduct or have oversight of seal installation. The professional engineer is required to certify that the site-specific seal design complies with the provisions of paragraph(a) of this section. The professional engineer will help ensure that proper seal design implementation and related analyses are performed by qualified personnel and ensure seals are constructed according to the drawings and specifications. A copy of the certification must be submitted to the District Manager with the information provided in ETS § 75.336(b)(3). The mine operator must keep a copy of the certification for as long as the seal is needed to serve the purpose for which it was built. ETS § 75.336(b)(3) lists specific information that a mine operator must address in the ventilation plan. This information will be used by the District Manager to evaluate a seal installation and determine whether the seal design is appropriate for a particular site. Paragraph (b)(3)(i) requires that mine operators include the MSHA Technical Support Approval Number of the seal design. Paragraph (b)(3)(ii) requires a mine map certified by a professional engineer showing the proposed seal location and surrounding areas to be submitted. ETS § 75.336(b)(3)(iii) requires specific information about the mine site. This information may be included on the mine map of the area to be sealed. Paragraph (b)(3)(iii)(A) requires that the type of seal be included in the ventilation plan. The type of seal must be identified by the approval number provided in (b)(3)(i) of this paragraph. ETS § 75.336(b)(3)(iii)(B) requires mine operators to include safety precautions to be taken before seals achieve their specified strength. Safety precautions could include withdrawing miners a safe distance from the seal installation site or actively inerting the sealed area. ETS § 75.336(b)(3)(iii)(C) requires that the mine operator include methods to address site-specific conditions that may affect the strength and applicability of a seal. These conditions could include: the mine opening dimensions and an estimate of dimension increases due to site preparation, such as the removal of weak roof, floor strata or friable coal; consideration of the local geology and mine conditions of the seal installation location; and a description of the ground conditions, which may include anchorage pull-test information. Other factors such as variability in material properties, geotechnical properties, geologic conditions, and the quality of construction should be considered to ensure that a seal can reliably withstand the overpressures. Adverse ground conditions, such as convergence, may be unsuitable for certain types of seals. These conditions should be addressed and resolved by the professional engineer. ETS § 75.336(b)(3)(iii)(D) requires that the mine operator specify construction techniques for each type of seal. This could include equipment, procedures, materials and general mine safety information. This information is required to help ensure that the seal is properly constructed. ETS § 75.336(b)(3)(iii)(E) requires the mine operator to address seal construction site preparation which should include localized mine water drainage and foundation preparation as required in each seal design. The foundation refers to the horizontal and vertical surfaces of the mine opening. Keys or hitches formed in rock and coal to increase the lateral restraint should be excavated with equipment that minimizes the fracturing and breakout of strata. Strata with open joints should be addressed. ETS § 75.336(b)(3)(iii)(F) requires the mine operator to include the sequence of seal installations. Ventilation controls should be managed during seal construction until the final seals are installed. ETS § 75.336(b)(3)(iii)(G) requires the mine operator to provide the projected completion date of each set of seals. Changes in ventilation controls may be necessary as seal construction progresses and may occur on a daily basis. MSHA intends for seals to be installed in a timely manner. ETS § 75.336(b)(3)(iii)(H) requires the mine operator to specify supplemental roof support to be installed inby and outby each seal. Supplemental support provides long-term stability for each seal, and it is important that the Agency know the type of support used in the sealed area. The competency of the strata surrounding the seal is critical to its long-term stability. ETS § 75.336(b)(3)(iii)(I) requires the mine operator to provide an estimation of the water flow and the dimensions of the water drainage system. This information will be used by MSHA to evaluate whether the water drainage system is appropriate since seals must not impound water. ETS § 75.336(b)(3)(iii)(J) requires the mine operator to specify the methods used to ventilate the entries outby the seals after completion. Ventilation is necessary to control methane which outgasses from the sealed area. Information about the ventilation methods will help MSHA assess the adequacy of the ventilation plan. ETS § 75.336(b)(3)(iii)(K) requires the mine operator to specify methods and materials used to maintain each type of seal. Mine operators should include information to address minor repair of cracks, spalls, and small air leaks through and about the perimeter of each seal to control leakage. Roof deterioration, roof falls, and sloughing of the coal pillars may adversely affect the overall strength of a seal by compromising the structural integrity of the supporting strata. ETS § 75.336(b)(3)(iii)(L) requires the mine operator to specify methods to address shafts and boreholes within the sealed area. The mine operator should specify how and when each borehole will be plugged and each shaft will be filled during the sealing process. ETS § 75.336(b)(3)(iii)(M) requires the mine operator to provide any additional information requested by the MSHA District Manager for inclusion in the ventilation plan. This provision will ensure that any new developments in technology or any problems related to site-specific conditions in sealing may be addressed by the mine operator through the ventilation plan. MSHA requests comments on the appropriateness of the ventilation plan contents and whether additional information should be included. Commenters should submit information in support of their positions, including data related to projected cost and technological feasibility. 3. Sec. 75.337 Construction and Repair of Seals This ETS includes new provision § 75.337 addressing requirements for: preparation of the area to be sealed; supervision of seal construction and repair; certification that the seal was built in accordance with the provisions in ETS § 75.336(b); notification to MSHA concerning construction schedules; and training miners and senior mine management officials in the construction and repair of seals. Repairs addressed by this section are limited to non-structural repairs. The scope of these repairs is related to general maintenance and includes: Excessive air leakage through and around seals; repair of minor cracks; spalling of seal coating; water drainage systems; and sampling pipes. This section of the ETS is based on MSHA experience with mine ventilation plans under existing §§ 75.334, 75.370, and 75.371, and regarding worked-out areas and areas where pillars are being recovered. MSHA believes these ETS provisions are necessary to adequately protect miners' health and safety. a. Sec. 75.337(a) Site Preparation ETS § 75.337(a) requires removal of insulated cables from the area to be sealed and removal of metallic objects through or across seals. Paragraph (a)(1) requires removal of all insulated cables, including hanging, buried, and cables within conduit, from the sealed area before seals are built. This requirement is included in the ETS because a spark could be developed if a length of insulated cable were inductively coupled to an electromagnetic pulse, such as those generated by lightning strikes. These sparks can ignite an explosive methane/air mixture. After the SAGO explosion, MSHA contracted with Sandia Corporation, the operator of Sandia National Laboratories (Sandia), to perform modeling and testing to determine if it were possible for lightning to cause electrical energy to enter the Sago Mine and cause an explosion. Sandia has preliminarily determined that a lightning strike could create enough energy in the sealed area to ignite methane. Typically, as mine operators complete mining activities in an area, they recover the more valuable cables and may only leave behind damaged or deteriorated cables. MSHA anticipates that the removal of abandoned cables will not be a significant burden for mine operators and would not adversely affect future mining activities. This requirement would improve miners' safety because removal of cables reduces the hazard of an explosion caused by an electrical discharge. MSHA believes that removal of insulated cables and metallic objects through or across seals is feasible and will not involve significant technical or practical problems. MSHA solicits comments on these measures. ETS § 75.337(a)(2) requires metallic objects that pass through or across a seal to be removed. Gas sampling pipes and water drainage systems required by ETS § 75.335(d) and (e), and form ties approved in the seal design provided by ETS § 75.336 are allowed in the sealed area. Metallic material can provide a conduit for electrical current to enter the sealed area and ignite methane/air mixtures. It is necessary to limit the use of conductors that may pass around or across seals. Screen, straps, rails, channels, and water pipes are typical metallic materials that are required to be removed under the ETS. Removal of metallic objects through or across seals before they are built will reduce the hazard of methane explosions and improve miner safety. b. Sec. 75.337(b) Supervision of Construction and Repair of Seals ETS § 75.337(b) requires a certified person designated by the mine operator to directly supervise the seal construction and repair process and make appropriate examinations. After the Sago Mine and Darby No. 1 Mine explosions, MSHA inspected seals in underground coal mines across the country. The Agency has determined that some seals were not built correctly. This new provision requires that seal construction for all seals built after May 22, 2007 be directly supervised by a certified person. Existing § 75.100 defines certified person and requires that person to obtain certification from the Secretary of Labor or the State in which the coal mine is located. A certified person shall directly supervise the construction of each seal throughout the construction or repair process. This new provision will assure that all activities related to seal construction, repair, and examination are performed safely and in accordance with appropriate requirements. ETS § 75.337(b)(1) requires a certified person to examine each seal construction or repair site prior to beginning seal construction or repair to ensure that the site conditions are in accordance with the approved ventilation plan. ETS § 75.337(b)(2) requires a certified person to observe the construction or repair process during each shift that construction or repair take place. This provision will help ensure construction or repairs of seals conform to the approved seal design and site specific information provided under § 75.336(b). ETS § 75.337(b)(3) requires a certified person to perform an examination of each seal or repair to verify that the seal or repair is complete. The District Manager may require that each examination include an assessment of any supplemental roof support, ventilation of the seals, sampling pipes and appropriate fittings, and the water drainage system as provided in the ventilation plan under ETS § 75.336(b). ETS § 75.337(b)(4) requires the certified person certify each seal construction or repair by initialing the date and time of their examination to verify that the required examinations were made. ETS § 75.337(b)(5) requires a record be made in a book or a log provided for that purpose to affirm that the examinations were conducted. The record shall describe any deficiencies in site preparation, such as construction, repairs, seal completion, and hazardous conditions and any corrections made. The record must be made by the certified person conducting the examination when the examiner arrives on the surface at the end of the shift. The record shall be countersigned by the mine foreman or equivalent mine official. Records of the deficiencies and the corrective actions provide valuable safety information about seal conditions and sealed areas in the mine and the effectiveness of corrective measures. The recordkeeping requirement for examination of seals would allow MSHA to determine if examinations have been conducted, if results are valid, and that deficiencies in site preparation, construction, repairs, and seal completion found were corrected. By requiring that a record be countersigned, MSHA expects that the mine foreman or equivalent mine official must review the record before countersigning. This provision makes certain that a mine foreman or equivalent mine official is responsible for oversight of seal installation. The countersignature shall be made by the end of the mine foreman's or equivalent mine official's next regularly scheduled working shift. The records of examinations required under ETS § 75.337(b)(5) shall be kept at the mine for one year. ETS § 75.338 sets out additional seal recordkeeping duration requirements. c. Sec. 75.337(c) Certification of Construction by Senior Mine Management ETS § 75.337(c) requires that upon completion of construction of each seal, a senior mine management official, such as a mine manager or superintendent, certify that the construction, installation, and materials used were in accordance with the approved mine ventilation plan. This requirement assures that a senior mine management official takes responsibility for making sure that seals are constructed in accordance with the provisions under ETS § 75.336(b). d. Sec. 75.337(d) Notification to MSHA ETS § 75.337(d)(1) requires the mine operator to notify the local MSHA field office between two and fourteen days prior to commencement of seal construction. This requirement provides MSHA the opportunity to observe seal construction. This is particularly critical when a mine operator is installing a new seal design or the mine liberates large amounts of methane. ETS § 75.337(d)(2) requires the mine operator to notify the MSHA District Manager, in writing, within 5 days of completion of each set of approved seals. This provision allows the District Manager to be informed when all construction is completed. This is a critical time period during the construction of seals. It involves the time period during which seals are achieving full strength and the atmosphere inby the seals may be transitioning into or through a potentially explosive methane/air mixture. MSHA may decide to inspect the newly sealed area, or sample the atmosphere. ETS § 75.337(d)(3) requires the mine operator to submit to the MSHA District Manager quality control test results required in ETS § 75.336. Material test results shall be sent to MSHA and must include all seal testing and tests of seal construction materials. e. Sec. 75.337(e) Training Failure of a seal may result in significant injury, loss of life and/or significant economic loss. Based on recent explosion investigations, MSHA learned that numerous persons involved in constructing seals that failed were not adequately trained. As a result, installation, construction, and repair tasks and the level of quality control exercised during these activities are critical to preventing seal failures and protecting miners. Under ETS § 75.337(e), the mine operator is responsible for providing training to miners constructing or repairing seals, certified persons supervising seal construction, repair, and examinations described in (b)(1) of this section, and senior mine management officials described in paragraph
(c)of this section. The training shall address materials and procedures required in the approved seal design in the mine's ventilation plan. For example, material training could include how to construct reinforced concrete, masonry block, gunite, and cementitious foam seals. Additionally, training shall include procedures in tasks such as hitching, evacuating weak materials, supporting and stabilizing roofs, and installing sampling pipes and water drainage systems. Training under this paragraph is also required for persons repairing seals. In addition to the training required for constructing seals, further training may be necessary for repairing a damaged seal. This training could include tasks such as patching small cracks, sealing leaks, and maintaining water drainage systems. MSHA recognizes that the amount of time required for training in constructing or repairing seals will vary. For this reason, MSHA is not proposing a minimum amount of time for the training. MSHA expects mine operators to adjust the time for this training based on the complexity of the seal design in the ventilation plan, construction or repair procedures, materials used, and existing knowledge and skill levels of persons receiving the training. Also, changes in the approved seal design or approved ventilation plan will require retraining. This paragraph also requires mine operators to certify the date that training was provided. Operators are required to retain these certifications for one year from the time training was conducted. This provision is similar to other certification requirements in Part 75 where the operator certifies by signature and date that training was provided. MSHA requests comments on the provisions provided in this section. In particular, MSHA requests comments concerning the scope and possible alternatives to the requirements related to site preparation, examinations, and notification provisions. 4. Sec. 75.338 Seals Records ETS § 75.338(a) sets out the recordkeeping duration required for records created under ETS §§ 75.335, 75.336, and 75.337. For the convenience of the mining community, these requirements are listed in the table entitled “Table § 75.338(a) Seal Recordkeeping Requirements.” The table lists the record which must be kept, the section requiring the record, and the required retention time. **Table to § 75.338(** a **). Seal Recordkeeping Requirements** Record Section reference Retention time
(1)Protocol to monitor methane and oxygen and maintain an inert atmosphere 75.335(b) Same as ventilation plan requirements.
(2)Training of certified persons 75.335(b)(2) 1 year.
(3)Gas sampling records 75.335(b)(6) 1 year.
(4)Approved seal design 75.336(b)(1) As long as the seal is needed to serve the purpose for which it is built.
(5)Certification of provisions of approved seal design is addressed 75.336(b)(2) As long as the seal is needed to serve the purpose for which it is built.
(6)Record of examinations 75.337(b)(5) 1 year.
(7)Seal construction certification 75.337(c) As long as the seal is needed to serve the purpose for which it is built.
(8)Certification of training 75.337(e) 1 year. ETS § 75.338(b) applies to seal records required to be kept under the ETS, except for the certification required under ETS § 75.337(b)(4) which must be retained at the seal site. Operators must retain records at the mine site. The mine operator may retain records in a computer system elsewhere, provided they are immediately accessible from the mine site by electronic transmission. Records must be secure and not subject to alteration. ETS § 75.338(c) requires that the operator allow access to any record to an authorized representative of the Secretary of Labor, the Secretary of Health and Human Services, the authorized representative of miners, or other interested parties, upon request. Mine operators are to promptly provide access to any record listed in the table in paragraph
(a)of this section. MSHA expects that an operator show due diligence in providing access to required records. Whenever an operator ceases to do business, the operator will be required to transfer all records required to be maintained by this part to any successor operator. 5. Conforming Changes to Other Sections in Part 75 Existing paragraph
(ff)of § 75.371 requires the mine operator to provide a description of methods and materials to be used to seal worked out areas when they are different from those specified in paragraph (a)(1) of § 75.335. The provisions in existing paragraph
(a)of § 75.335 are revised and moved to paragraph
(b)of § 75.335 and paragraph (b)(3) of § 75.336. Therefore, paragraph
(ff)is revised to reference sampling requirements provided by paragraph
(b)of § 75.335 and ventilation plan contents requirements provided by paragraph (b)(3) of § 75.336. V. Executive Order 12866 Executive Order (E.O.) 12866 (58 FR 51735) as amended by E.O. 13258 (Amending Executive Order 12866 on Regulatory Planning and Review (67 FR 9385)) requires regulatory agencies to assess both the costs and benefits of regulations. To comply with Executive Order 12866, MSHA has prepared a Regulatory Economic Analysis
(REA)for the ETS. The REA contains supporting data and explanation for the summary materials presented in sections V-IX of this preamble, including the covered mining industry, costs and benefits, feasibility, small business impact, and paperwork. The REA is located on MSHA's Web site at *http://www.msha.gov/regsinfo.htm.* A copy of the REA can be obtained from MSHA's Office of Standards, Regulations and Variances. MSHA requests comments on all the estimates of costs and benefits presented in this ETS and in the REA. MSHA has determined that the ETS would not have an annual effect of $100 million or more on the economy and, therefore, it is not an economically “significant regulatory action” pursuant to Sec. 2(f) of E.O. 12866. A. Population-at-Risk The ETS applies to all underground coal mines in the United States. Based on preliminary MSHA data, there were 670 underground coal mines, employing 42,667 miners, operating in the U.S. in 2006. Of these, 372 underground coal mines use seals. These 372 mines employ 33,684 miners, of which 30,095 work underground. B. Benefits To provide a preliminary quantitative estimate of benefits, MSHA analyzed the explosions in sealed areas that have taken place since 1993, and especially studied the two accidents in 2006 where the seals failed and fatalities occurred: the Sago mine explosion, where 12 miners died, and the Darby No. 1 mine explosion, where 5 miners died. It is reasonable to assume that if the ETS had been in effect, all 17 of these miners' lives might have been saved. Fourteen of these lives might have been saved by the 2006 ETS and final rule on emergency mine evacuation. However, three of the miners that perished in the Sago and Darby accidents died immediately from the explosion impact. They could not have been saved by the emergency mine evacuation rule. For purposes of estimating benefits, MSHA attributes the saving of three miners' lives to this ETS and splits the remaining 14 lives between this ETS and the 2006 emergency mine evacuation rule. Hence, MSHA attributes the saving of 10 lives to this ETS (3 + (14 ÷ 2) = 10). MSHA has good data on explosions in sealed areas only since 1993. During the period 1993-2006 (14 years) there were 13 explosions in sealed areas. However, only 11 of these explosions caused any seal damage and thus had the potential to cause fatalities or injuries. Only two of these 11 explosions actually caused fatalities or injuries. A strict division, (10 lives)/(14 years), would suggest that the ETS will save approximately 0.7 lives per year if the explosions followed approximately the same distribution as they did since 1993. However, MSHA believes that the risk from explosions in sealed areas has been increasing during this time period because the number of seals has been increasing. MSHA did not allow alternative seals until 1992. Prior to 1992, most mines did not seal, but instead ventilated. During the period from 1993 through 2006, mines went through a transition period of shifting from ventilation to seals. The current risk from explosions in sealed areas is therefore higher than the historic risk during this transition period. MSHA roughly estimates that, on average, during that transition period, the number of mines using seals was no more than 2/3 of the number of mines that currently use seals. Furthermore, the number of seals in mines is cumulative. During this period of increased seal use, MSHA roughly estimates that the average number of seals in mines that used seals was no more than 2/3 of the number in mines that currently use seals. MSHA specifically asks for comment on these estimates. After adjusting this estimate to account for the increased future risk, the ETS will save approximately 1.6 lives per year, since ( 10/14 / 2/3 / 2/3 ) = 1.6. This is MSHA's best estimate on the number of lives saved per year due to this rulemaking. MSHA also developed a higher risk estimate, based primarily on the distribution of miners put at risk and the characteristics of the explosions themselves. MSHA also asks for comment on these calculations. In the 11 explosions in sealed areas with property damage, approximately 688 miners total were underground at the time of the explosions. This is an average of 62.5 miners per explosion that were put at risk. In the two explosions at Sago and Darby only a total of 35 miners were underground at the time of the explosions, for an average risk exposure of 17.5 miners per explosion. Fortunately, no explosions in sealed areas at larger mines (so far) have caused any injuries or fatalities. If an explosion with the characteristics of the explosions at Sago or Darby occurs at a larger mine, many more lives potentially could be lost. Assuming the risk of fatality from an explosion in a sealed area is about the same at both large and small mines, and the number of potential fatalities is proportional to the number of miners working underground, during the other explosions studied by MSHA, then a higher risk estimate of the benefits of the ETS is approximately 5.7 lives saved per year, since 1.6 x (62.5/17.5) = 5.7. MSHA also calculated the cumulative risk faced by a miner over a 45 year working life. The 372 existing underground coal mines that seal employ 33,684 miners; of these, 30,095 work underground. Under MSHA's best estimate, the ETS will save 1.6 lives per year, which means that the risk of fatality per year per 1,000 miners is 0.053. Over a 45-year working lifetime, the risk of fatality from an explosion in a sealed area is 2.4 per 1,000 miners. If the ETS will save the higher estimate of benefits of 5.7 lives per year, then the risk of fatality per year per 1,000 miners is 0.191. Over a 45-year working lifetime, the risk of fatality from an explosion in a sealed area is 8.5 per 1,000 miners. With the provisions of the ETS in effect, an explosion is less likely to occur behind seals that are being actively monitored to maintain an inert atmosphere. The provisions of the ETS also strengthen seals to better withstand explosions, which reduces immediate miner injuries and fatalities and gives miners more time to react to a situation involving an explosion. MSHA requests comments on the benefit estimates developed above and in the REA, as well as on the assumptions and data sources that MSHA used. C. Compliance Costs MSHA estimates that the ETS will result in total yearly costs for underground mine operators and contractors of approximately $39.7 million. Total first year costs will be approximately $43.2 million. Disaggregated by mine size, yearly costs will be $2.6 million for the 83 mine operators with fewer than 20 employees; $34.7 million for the 279 mine operators with 20-500 employees; and $2.4 million for the 10 mine operators with more than 500 employees. Most of the compliance cost occurs in the mine size category with 20-500 employees because 75 percent of the mines that use seals are in this category. MSHA requests comments on the cost estimates developed above and in the REA, as well as on the assumptions and data sources that MSHA used. VI. Feasibility MSHA has concluded that the requirements of the ETS are technologically and economically feasible. A. Technological Feasibility MSHA concludes that the ETS is technologically feasible. MSHA based its conclusion on an analysis of the compliance requirements of the ETS provisions for training, sampling, and construction and repair. MSHA believes compliance with these requirements is technologically feasible because the materials, equipment, and methods for implementing these requirements currently exist. However, MSHA will be gathering information on seal designs at 120 psi overpressure and will make this information available to the mining community. MSHA solicits comments on this issue, and on seal designs that are greater than 120 psi overpressure. B. Economic Feasibility MSHA also believes that the ETS is economically feasible. The yearly compliance cost of the ETS is $39.7 million which is 0.30 percent of all revenues ($39.7 million/$13.1 billion) for all underground coal mines. MSHA concludes that the ETS is economically feasible for these mine operators because the total compliance costs are well below one percent of the estimated revenues for all underground coal mines. VII. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act (SBREFA) Pursuant to the Regulatory Flexibility Act
(RFA)of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the ETS on small businesses. Based on that analysis, MSHA has notified the Chief Counsel for Advocacy, Small Business Administration, and made the certification under the Regulatory Flexibility Act at 5 U.S.C. 605(b) that the ETS will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is presented in full in Chapter V of the REA and in summary form below. A. Definition of a Small Mine Under the RFA, in analyzing the impact of the ETS on small entities, MSHA must use the Small Business Administration
(SBA)definition for a small entity or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the **Federal Register** for notice and comment. MSHA has not taken such an action and hence is required to use the SBA definition. The SBA defines a small entity in the mining industry as an establishment with 500 or fewer employees. In addition to examining small entities as defined by SBA, MSHA has also looked at the impact of this ETS on underground coal mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, the cost of complying with MSHA's ETS and the impact of the ETS on small mines will also be different. It is for this reason that small mines are of special concern to MSHA. MSHA concludes that it can certify that the ETS will not have a significant economic impact on a substantial number of small entities that are covered by this ETS. The Agency has determined that this is the case both for mines with fewer than 20 employees and for mines with 500 or fewer employees. B. Factual Basis for Certification MSHA initially evaluates the impacts on “small entities” by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. When estimated compliance costs are less than one percent of the estimated revenues, the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, MSHA investigates whether a further analysis is required. For underground coal mines, the estimated 2006 production was 7,813,073 tons for mines that had fewer than 20 employees and 277,500,019 tons for mines that had 500 or fewer employees. Using the 2005 price of underground coal of $36.42 per ton 2 and total 2006 coal production in tons, underground coal revenues are estimated to be approximately $285 million for mines employing fewer than 20 employees and $10.1 billion for mines employing 500 or fewer employees. Thus, the yearly cost of the ETS for mines that have fewer than 20 employees is 0.9 percent ($2.6 million/$285 million) of annual revenues, and the yearly cost of the ETS for mines that have 500 or fewer employees is 0.4 percent ($0.037 billion/$10.1 billion) of annual revenues. Using either MSHA's traditional definition of a small mine (one having fewer than 20 employees) or SBA's definition of a small mine (one having 500 or fewer employees), the yearly costs for underground coal mines to comply with the ETS will be less than 1 percent of their estimated revenues. Accordingly, MSHA has certified that the ETS will not have a significant impact on a substantial number of small entities that are covered by the ETS. 2 U.S. Department of Energy, Energy Information Administration, Annual Coal Report 2005, Table 28. VIII. Paperwork Reduction Act of 1995 A. Summary This ETS contains information collection requirements that MSHA estimates will result in 82,037 new burden hours and approximately $4.7 million related burden costs to mine operators and manufacturers in the first year that the ETS is in effect. In the second year that the ETS is in effect, and for every year thereafter, MSHA estimates that mine operators and manufacturers will incur 73,006 new burden hours and approximately $4.6 million related burden costs. The burden is different in the first year because some information collection requirements occur only in the first year that the ETS is in effect. This ETS contains information collection requirements in the following sections: § 75.335 seal requirements; § 75.336 seal design applications and installation approval; and § 75.337 construction and repair. For a detailed explanation of how the burden hours and related costs were determined, see Chapter VII of the Regulatory Economic Analysis
(REA)associated with this ETS. The REA is located on MSHA's Web site at *http://www.msha.gov/REGSINFO.HTM.* A print copy of the REA can be obtained from the Office of Standards, Regulations, and Variances at MSHA. B. Details The information collection package has been submitted to the Office of Management and Budget
(OMB)for review under 44 U.S.C. § 3504(h) of the Paperwork Reduction Act of 1995, as amended. A copy of the information collection package can be obtained from the Department of Labor by email request to king.darrin@dol.gov or by phone request at
(202)693-4129. Comments on the provisions in the information collection requirements should be sent to both the Office of Information and Regulatory Affairs of OMB and to MSHA. Comments sent to OMB should be sent to the Attention of the Desk Officer for the Mine Safety and Health Administration. Comments sent to MSHA should be sent to the Office of Standards, Regulations, and Variances. Addresses for both offices can be found in the Addresses section of this preamble. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. MSHA will publish a notice in the **Federal Register** announcing when OMB has approved the new information collection requirements. IX. Other Regulatory Considerations A. The Unfunded Mandates Reform Act of 1995 MSHA has reviewed the ETS under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 *et seq* ). MSHA has determined that this ETS does not include any federal mandate that may result in increased expenditures by State, local, or tribal governments; nor will it increase private sector expenditures by more than $100 million in any one year or significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 *et seq.* ) requires no further agency action or analysis. B. Executive Order 13132: Federalism This ETS does not have “federalism implications” because it will not “have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Accordingly, under E.O. 13132, no further Agency action or analysis is required. C. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that this ETS will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. This ETS impacts only the underground coal mine industry. Accordingly, MSHA certifies that this ETS would not impact family well-being. D. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights This ETS does not implement a policy with takings implications. Accordingly, under E.O. 12630, no further Agency action or analysis is required. E. Executive Order 12988: Civil Justice Reform This ETS was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. Accordingly, this ETS will meet the applicable standards provided in section 3 of E.O. 12988, Civil Justice Reform. F. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This ETS will have no adverse impact on children. Accordingly, under E.O. 13045, no further Agency action or analysis is required. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This ETS does not have “tribal implications” because it will not “have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.” Accordingly, under E.O. 13175, no further Agency action or analysis is required. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Executive Order 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action that adversely affects energy supply, distribution or use. MSHA has reviewed this ETS for its energy effects because the ETS applies to the underground mining sector. Because this ETS will result in yearly costs of approximately $39.7 million to the underground coal mining industry, relative to annual revenues of $13.1 billion in 2006, MSHA has concluded that it is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, under this analysis, no further Agency action or analysis is required. X. References ACI 318-05, “Building Code Requirements for Structural Concrete and Commentary,” American Concrete Institute. ACI 440.2R-02, “Design and Construction of Externally Bonded FRP Systems for Strengthening Concrete Structures,” American Concrete Institute. Army TM 5-1300, Navy NAVFAC P0397, Air Force AFR 88-22, Departments of the Army, the Navy, and the Air Force, “Structures to Resist the Effects of Accidental Explosions,” November 1990. ASTM E119-07, “Standard Test Methods for Fire Tests of Building Construction and Materials,” ASTM International. ASTM E162-06, “Surface Flammability of Materials Using a Radiant Heat Energy Source,” ASTM International. Department of Labor, Mine Safety and Health Administration, Final Rule, Underground Coal Mine Ventilation Standards, May 15, 1992. Kissell, Fred N., “Handbook for Methane Control in Mining,” Information Circular 9486. National Institute of Occupational Safety and Health, U.S. Dept. of Health and Human Services, 2006. Mitchell, Donald W., “Explosion-Proof Bulkheads—Present Practices,” Report of Investigations No. 7581, U.S. Dept. of the Interior, Bureau of Mines, 1971. Mitchell, Donald W., Burns, Frank A., “Interpreting the State of a Mine Fire,” Investigational Report No. 1103, U.S. Department of Labor, Mine Safety and Health Administration, 1979. MSHA. Report of Investigation/Mine Explosion, Sago Mine, January 2, 2006. MSHA. Report of Investigation/Mine Explosion, Darby Mine No. 1, May 20, 2006. MSHA. Program Information Bulletin No. P06-11, “Moratorium on Future Use of Alternative Seal Methods and Materials Pursuant to 30 CFR 75.335 and Assessment of Existing Sealed Areas in Underground Bituminous Coal Mines,” June 1, 2006. MSHA. Program Information Bulletin No. P06-12, “Reissued Moratorium on Future Use of Alternative Seal Methods and Materials Pursuant to 30 CFR 75.335 and Assessment of Existing Sealed Areas in Underground Bituminous Coal Mines,” June 12, 2006. MSHA. Program Information Bulletin No. P06-16, “Use of Alternative Seal Methods and Materials Pursuant to 30 CFR 75.335(a)(2),” July 19, 2006. MSHA. Procedure Instruction Letter No. I06-V-9, “Procedures for Approval of Alternative Seals,” August 21, 2006. MSHA. Program Policy Manual, Volume V-Coal Mines, Release V-33, February 2003. MSHA, Approval and Certification Center, Application Cancellation Policy, CDS No. APOL1009, Revised February 27, 2004. Zipf, R. K., Sapko, M. J., Brune, J. F., “Explosion Pressure Design Criteria for New Seals in U.S. Coal Mines, Draft Report,” National Institute of Occupational Safety and Health, U.S. Dept. of Health and Human Services, February 8, 2007. XI. Emergency Temporary Standard—Regulatory Text List of Subjects in 30 CFR Part 75 Mine safety and health, Underground coal mines, Reporting and recordkeeping, Ventilation. Dated: May 17, 2007. Richard E. Stickler, Assistant Secretary for Mine Safety and Health. Chapter I of Title 30, part 75 of the Code of Federal Regulations is amended as follows: PART 75—SAFETY STANDARDS FOR UNDERGROUND COAL MINES 1. The authority citation for part 75 continues to read as follows: Authority: 30 U.S.C. 811, 863. 2. Revise § 75.335 to read as follows: § 75.335 Seal requirements. Seals shall be designed, constructed, and maintained to protect miners from hazards related to sealed areas. Seal designs and the installation of each seal shall be approved in accordance with § 75.336.
(a)*Seal strength requirements.* Seals constructed on or after May 22, 2007 shall be designed, constructed, and maintained to withstand—
(1)50 psi overpressure when the atmosphere in the sealed area is monitored and maintained inert in accordance with paragraph
(b)of this section;
(2)120 psi overpressure if the atmosphere is not monitored, and is not maintained inert, and the conditions in paragraphs (a)(3)(i) through
(iii)of this section are not present; or
(3)An overpressure greater than 120 psi if the atmosphere is not monitored and is not maintained inert and;
(i)The atmosphere in the area to be sealed is likely to contain homogeneous mixtures of methane between 4.5 percent and 17.0 percent and oxygen exceeding 17.0 percent throughout the entire area;
(ii)Pressure piling is likely due to opening restrictions near the proposed seal area; or
(iii)Other conditions are encountered, such as the likelihood of a detonation in the proposed seal area.
(iv)Where the conditions in paragraphs (a)(3)(i), (ii), or
(iii)of this section are encountered, the operator must revise the ventilation plan to be submitted to the District Manager to address the potential hazards. The plan shall include seal strength sufficient to address the conditions.
(b)*Sampling and monitoring requirements.* Effective May 22, 2007, a certified person as defined in § 75.100 shall monitor atmospheres of sealed areas. For seals constructed prior to May 22, 2007 and for seals designed for 50 psi overpressure, mine operators shall develop and follow a protocol to monitor methane and oxygen concentrations, and to maintain an inert atmosphere in the sealed area. The protocol shall be approved in the ventilation plan.
(1)A certified person shall sample atmospheres of sealed areas weekly when the barometric pressure is decreasing or the seal is outgassing. At least one sample shall be taken at each set of seals. If a seal is ingassing during the weekly examination, a sample shall be collected during the next weekly examination. If the seal is ingassing during the second consecutive weekly examination, the operator shall examine that seal daily until the seal is outgassing, unless the seal does not outgas. In this case, an alternative plan needs to be developed and submitted to the District Manager. The District Manager may approve different sampling frequencies and locations in the ventilation plan, or approve the use of atmospheric monitoring systems in lieu of weekly sampling. The mine operator shall revise the protocol, if repeated sampling indicates that a seal is not likely to outgas.
(2)Certified persons conducting sampling shall be trained in the sampling procedures included in the protocol, as provided by paragraph (b)(5) of this section, before they conduct sampling, and annually thereafter. The mine operator must certify the date and content of training provided certified persons and retain each certification for one year.
(3)The atmosphere shall be considered inert when—
(i)The oxygen concentration is less than 10.0 percent;
(ii)The methane concentration is less than 3.0 percent; or
(iii)The methane concentration is greater than 20.0 percent.
(4)When oxygen concentrations are 10.0 percent or greater and methane concentrations are from 3.0 percent to 20.0 percent in a sealed area, the mine operator shall take two additional gas samples at one-hour intervals. If the two additional gas samples are from 3.0 percent to 20.0 percent and oxygen is 10.0 percent or greater—
(i)The mine operator shall implement the action plan in the protocol; or
(ii)Persons shall be withdrawn from the affected area, except those persons referred to in section 104(c) of the Act.
(5)The protocol shall address—
(i)Sampling procedures, including equipment and methods to be used;
(ii)Location of sampling points;
(iii)Procedures to establish a baseline analysis of oxygen and methane concentrations at each sampling point over a 14-day sampling period. The baseline shall be established after the atmosphere in the sealed area becomes inert or the trend reaches equilibrium;
(iv)Frequency of sampling;
(v)Size and conditions of the sealed area; and
(vi)Use of atmospheric monitoring systems, where applicable;
(vii)The protocol shall include an action plan that addresses the hazards presented and actions taken when gas samples indicate oxygen concentrations of 10.0 percent or greater for each of the following ranges of methane concentrations—
(A)3.0 percent or greater but less than 4.5 percent; and
(B)4.5 percent or greater but less than 17.0 percent; and
(C)17.0 percent to 20 percent.
(6)The certified person shall promptly record each sampling result, including the location of the sampling points, and oxygen and methane concentrations. The results of oxygen and methane samples shall be recorded as the percentage of oxygen and methane measured by the certified person and any hazardous condition found, in accordance with § 75.363.
(7)The mine operator shall retain sampling records at the mine for at least one year from the date of sampling.
(c)Welding, cutting, and soldering with an arc or flame are prohibited within 150 feet of a seal.
(d)For seals constructed after May 22, 2007, at least two sampling pipes shall be installed in each seal. One pipe shall extend approximately 15 feet into the sealed area and another shall extend into the center of the first connecting crosscut inby the seal. Each sampling pipe shall be equipped with a shut-off valve and appropriate fittings for taking gas samples.
(e)For each set of seals constructed after May 22, 2007, the seal at the lowest elevation shall have a corrosion-resistant water drainage system. Seals shall not impound water. 3. Add § 75.336 to read as follows: § 75.336 Seal design applications and installation approval.
(a)Seal design applications from seal manufacturers or mine operators shall be in accordance with paragraphs (a)(1) or (a)(2) of this section and submitted for approval to MSHA's Office of Technical Support, Pittsburgh Safety and Health Technology Center, P.O. Box 18233, Cochrans Mill Road, Pittsburgh, PA 15236.
(1)An engineering design application shall:
(i)Address gas sampling pipes, water drainage systems, air leakage, fire resistance, flame spread index, pressure-time curve, entry size, engineering design and analysis, material properties, construction specifications, quality control, design references, and other information related to seal construction;
(ii)Be certified by a professional engineer that the design of the seal is in accordance with current, prudent engineering practices; and
(iii)Include a Seal Design Table that discusses characteristics related to mine-specific seal construction.
(2)Each application based on full-scale explosion tests shall address the following requirements to ensure that a seal can reliably withstand the overpressures provided by § 75.335:
(i)Certification by a professional engineer knowledgeable in structural engineering that the testing was done in accordance with current, prudent engineering practices and its applicability in a coal mine;
(ii)Technical information related to the methods and materials;
(iii)Proper documentation;
(iv)An engineering analysis to address differences between the seal support during test conditions and the range of conditions in a coal mine; and
(v)The application shall include a Seal Design Table that discusses characteristics related to mine specific seal construction.
(3)MSHA will notify the applicant if additional information or testing is required. The applicant must provide this information, arrange any additional or repeat tests, and notify MSHA of the location, date, and time of the test(s).
(4)MSHA will notify the applicant, in writing, whether the design is approved or denied. If the design is not approved, MSHA will specify, in writing, the deficiencies of the application, or necessary revisions.
(5)Once the seal design is approved, the approval holder must promptly notify MSHA, in writing, of all deficiencies of which they become aware.
(b)The mine operator shall use an approved seal design provided its installation is approved in the ventilation plan. The mine operator shall—
(1)Retain the seal design approval information for as long as the seal is needed to serve the purpose for which it was built.
(2)Designate a professional engineer to conduct or have oversight of seal installation and certify that the provisions in the approved seal design specified in paragraph
(a)of this section have been addressed. A copy of the certification shall be submitted to the District Manager with the information provided in § 75.336(b)(3) and a copy of the certification shall be retained for as long as the seal is needed to serve the purpose for which it was built.
(3)Provide information for approval in the ventilation plan—
(i)The MSHA Technical Support Approval Number;
(ii)The mine map of the area to be sealed and proposed seal locations. This portion of the mine map shall be certified by a professional engineer;
(iii)Specific mine site information, including'
(A)Type of seal;
(B)Safety precautions taken prior to seal achieving full design strength;
(C)Methods to address site specific conditions that may affect the strength and applicability of the seal;
(D)The construction techniques;
(E)Site preparation;
(F)Sequence of seal installations;
(G)Projected date of completion of each set of seals;
(H)Supplemental roof support inby and outby each seal;
(I)Water flow estimation and dimensions of the water drainage system through the seals;
(J)Methods to ventilate the outby face of seals once completed;
(K)Methods and materials used to maintain each type of seal;
(L)Methods to address shafts and boreholes in the sealed area; and
(M)Additional information required by the District Manager. 4. Add § 75.337 to read as follows: § 75.337 Construction and repair of seals.
(a)Prior to sealing, the mine operator shall—
(1)Remove insulated cables from the area to be sealed when constructing seals; and
(2)Remove metallic objects through or across seals, except water pipes, gas sampling pipes, and form ties approved in the seal design.
(b)A certified person designated by the mine operator shall directly supervise seal construction and repair and—
(1)Examine each seal site immediately prior to construction or repair to ensure that the site is in accordance with the approved ventilation plan;
(2)Examine each seal under construction or repair during each shift to ensure that the seal is being constructed or repaired in accordance with the approved ventilation plan;
(3)Examine each seal upon completion of construction or repair to ensure that construction or repair is in accordance with the approved ventilation plan;
(4)Certify by initials, date, and time that the examinations were made; and
(5)Make a record of the examination at the completion of any shift during which an examination was conducted. The record shall include each deficiency and the corrective action taken. The record shall be countersigned by the mine foreman or equivalent mine official by the end of the mine foreman's or equivalent mine official's next regularly scheduled working shift. The record shall be kept at the mine for one year.
(c)Upon completion of construction of each seal, a senior mine management official, such as a mine manager or superintendent, shall certify that the construction, installation, and materials used were in accordance with the approved ventilation plan. The mine operator shall retain the certification for as long as the seal is needed to serve the purpose for which it was built.
(d)The mine operator shall—
(1)Notify the local MSHA field office between two and fourteen days prior to commencement of seal construction;
(2)Notify the District Manager, in writing, within five days of completion of a set of seals; and
(3)Submit a copy of quality control results to the District Manager for seal material properties specified by § 75.336.
(e)Miners constructing or repairing seals, certified persons under paragraph
(b)of this section, and senior mine management officials under paragraph
(c)of this section shall be trained prior to constructing or repairing a seal. The training shall address materials and procedures in the approved seal design and ventilation plan. The mine operator must certify the date of training provided each miner, certified person, and senior mine management official and retain each certification for one year. 5. Add § 75.338 to read as follows: § 75.338 Seals records.
(a)The table entitled “Seal Recordkeeping Requirements” lists the records the operator must maintain pursuant to §§ 75.335, 75.336, and 75.337, and the duration for which particular records need to be retained. **Table to § 75.338(** a **).—Seal Recordkeeping Requirements** Record Section reference Retention time
(1)Protocol to monitor methane and oxygen and maintain an inert atmosphere. 75.335(b) Same as ventilation plan requirements.
(2)Training of certified persons 75.335(b)(2) 1 year.
(3)Gas sampling records 75.335(b)(6) 1 year.
(4)Approved seal design 75.336(b)(1) As long as the seal is needed to serve the purpose for which it is built.
(5)Certification of provisions of approved seal design is addressed 75.336(b)(2) As long as the seal is needed to serve the purpose for which it is built.
(6)Record of examinations 75.337(b)(5) 1 year.
(7)Seal construction certification 75.337(c) As long as the seal is needed to serve the purpose for which it is built.
(8)Certification of training 75.337(e) 1 year.
(b)Records required by §§ 75.335, 75.336, and 75.337 shall be retained at a surface location at the mine in a secure book that is not susceptible to alteration. The records may be retained electronically in a computer system that is secure and not susceptible to alterations, if the mine operator can immediately access the record from the mine site.
(c)Upon request from an authorized representative of the Secretary of Labor, the Secretary of Health and Human Services, or from the authorized representative of miners, mine operators must promptly provide access to any record listed in the table in this section.
(d)Whenever an operator ceases to do business, that operator must transfer all records required to be maintained by this part, or a copy thereof, to any successor operator who must maintain them for the required period. 6. Amend § 75.371 by revising paragraph
(ff)to read as follows: § 75.371 Mine ventilation plan; contents.
(ff)The sampling protocol as provided by § 75.335(b) and seal installation requirements provided by § 75.336(b)(3). [FR Doc. 07-2535 Filed 5-17-07; 3:11 pm]
Connectionstraces to 57
Traces to 57 documents
U.S. Code
16 references not yet in our index
  • 38 CFR 5
  • 38 CFR 3
  • EO 6230
  • Pub. L. 85-56
  • 449 F.3d 1204
  • 38 USC 5109A(c)
  • Pub. L. 88-445
  • 78 Stat. 464
  • Pub. L. 85-857
  • 44 USC 3501-3521
  • 5 USC 601-612
  • Pub. L. 97-377
  • 38 USC 5109A
  • Pub. L. 85-86
  • 30 CFR 75
  • Pub. L. 91-173
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cites case law
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Proposed rule
Fed. Reg.Notices
U.S.C.§ 5105
U.S.C.§ 5101
C.F.R.§ 3.159
U.S.C.§ 7332
U.S.C.§ 552a
C.F.R.§ 131.1
U.S.C.§ 3413
U.S.C.§ 3405
F. App'x449 F.3d 1204
Cite38 CFR 5
Cite38 CFR 3
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