23128 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Rules and Regulations 

the enforcement period for the regulated 

area as well as any changes in the 

planned schedule. 

Dated: March 27, 2012. 

D.J. Rose, 

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

Port Mobile. 

[FR Doc. 2012–9375 Filed 4–17–12; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 3 and 20 

RIN 2900–AO43 

Rules Governing Hearings Before the 

Agency of Original Jurisdiction and the 

Board of Veterans’ Appeals; Repeal of 

Prior Rule Change 

AGENCY: Department of Veterans Affairs. 

ACTION: Direct final rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is taking final action to 

amend its hearing regulations to repeal 

a prior amendment that specified that 

the provisions regarding hearings before 

the Agency of Original Jurisdiction 

(AOJ) do not apply to hearings before 

the Board of Veterans’ Appeals (Board). 

This action is being taken because of 

VA’s decision that the prior amendment 

should have followed the notice-andcomment procedure of the 

Administrative Procedure Act (APA). 

DATES: This rule is effective June 18, 

2012, without further notice, unless VA 

receives a significant adverse comment 

by May 18, 2012. If adverse comment is 

received, VA will publish a timely 

withdrawal of the rule in the Federal 

Register. 

ADDRESSES: Written comments may be 

submitted through 

www.Regulations.gov; by mail or handdelivery to the Director, Regulations 

Management (02REG), 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– 

AO43—Rules Governing Hearings 

Before the Agency of Original 

Jurisdiction and the Board of Veterans’ 

Appeals; Repeal of Prior Rule Change.’’ 

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) 461–4902 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) at www.Regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Laura H. Eskenazi, Principal Deputy 

Vice Chairman, Board of Veterans’ 

Appeals (01C2), Department of Veterans 

Affairs, 810 Vermont Avenue NW., 

Washington, DC 20420, (202) 632–4603. 

(This is not a toll-free number.) 

SUPPLEMENTARY INFORMATION: On August 

23, 2011, VA issued a final rule, ‘‘Rules 

Governing Hearings Before the Agency 

of Original Jurisdiction and the Board of 

Veterans’ Appeals; Clarification,’’ 76 FR 

52572 (RIN 2900–AO06), revising VA’s 

regulations to specify that the 

provisions governing hearings in 38 CFR 

3.103 only apply to hearings conducted 

before the AOJ and that the provisions 

in part 20 govern hearings before the 

Board. The revision was made because 

of a decision by the United States Court 

of Appeals for Veterans Claims (Court) 

in Bryant v. Shinseki, 23 Vet. App. 488 

(2010), which applied the provisions of 

§ 3.103(c)(2) to a Board hearing. The 

Bryant Court held that the provisions of 

§ 3.103(c)(2) require a ‘‘Board hearing 

officer’’ to ‘‘fully explain the issues still 

outstanding that are relevant and 

material to substantiating the claim’’ 

and to ‘‘suggest that a claimant submit 

evidence on an issue material to 

substantiating the claim when the 

record is missing any evidence on that 

issue or when the testimony at the 

hearing raises an issue for which there 

is no evidence in the record.’’ Id. at 

496–97. 

RIN 2900–AO06, among other things, 

altered the language upon which the 

Bryant Court relied. VA has determined 

that RIN 2900–AO06 should have 

followed the notice-and-comment 

procedure of 5 U.S.C. 553(b) and (c) of 

the APA. Accordingly, in this directfinal rule, VA is repealing the 

amendments made by RIN 2900–AO06. 

Based on the rationale set forth in this 

preamble, VA amends, in part 3, 

§ 3.103(a) and (c)(1), and, in part 20, 

§ 20.706 and Appendix A, to return the 

regulations to the language in effect 

before August 23, 2011. 

Administrative Procedure Act 

VA believes this rule is noncontroversial, anticipates that this rule 

will not result in any significant adverse 

comment, and therefore is issuing it as 

a direct final rule. 

For purposes of the direct final 

rulemaking, a significant adverse 

comment is one that explains why the 

rule would be inappropriate, including 

challenges to the rule’s underlying 

premise or approach, or why it would 

be ineffective or unacceptable without a 

change. In determining whether an 

adverse comment is significant and 

warrants withdrawing a direct final rule, 

we will consider whether the comment 

raises an issue serious enough to 

warrant a substantive response in a 

notice-and-comment process in 

accordance with section 553 of the APA 

(5 U.S.C. 553). Comments that are 

frivolous, insubstantial, or outside the 

scope of the rule will not be considered 

adverse under this procedure. For 

example, a comment recommending an 

additional change to the rule will not be 

considered a significant comment 

unless the comment states why the rule 

would be ineffective without the 

additional change. 

Under direct final rule procedures, if 

no significant adverse comment is 

received within the comment period, 

the rule will become effective on the 

date specified above. After the close of 

the comment period, VA will publish a 

document in the Federal Register 

indicating that no significant adverse 

comment was received and confirming 

the effective date of the rule. 

However, if any significant adverse 

comment is received, VA will publish in 

the Federal Register a notice 

acknowledging receipt of a significant 

adverse comment and withdrawing the 

direct final rule. We will then publish 

in the Federal Register a proposed rule 

document, which will be substantially 

identical to this direct final rule and 

will serve as a proposal for the 

amendments in this direct final rule. 

Any comments received in response to 

the direct final rule will be treated as 

comments regarding the proposed rule. 

VA will consider such comments in 

developing a subsequent final rule. 

Paperwork Reduction Act 

This document contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act of 

1995 (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, 5 U.S.C. 601–612. This 

rulemaking will not directly affect any 

small entities. Only VA beneficiaries 

will be directly affected. 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. 

mstockstill on DSK4VPTVN1PROD with RULES

Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Rules and Regulations 23129 

Executive Orders 12866 and 13563 

Executive Orders 12866 and 13563 

direct agencies to assess the 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 

effects, and other advantages; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

12866 (Regulatory Planning and 

Review) defines a ‘‘significant 

regulatory action,’’ which requires 

review by the Office of Management and 

Budget (OMB), as ‘‘any regulatory action 

that is likely to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; (2) Create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) Materially alter the 

budgetary impact of entitlements, 

grants, user fees, or loan programs or the 

rights and obligations of recipients 

thereof; or (4) Raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in this Executive Order.’’ 

The economic, interagency, 

budgetary, legal, and policy 

implications of this regulatory action 

have been examined and it has been 

determined not to be a significant 

regulatory action under Executive Order 

12866. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

of 1995 requires, at 2 U.S.C. 1532, that 

agencies prepare an assessment of 

anticipated costs and benefits before 

issuing any rule that may result in 

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 rule will have no such 

effect on State, local, and tribal 

governments, or on the private sector. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance program numbers and titles 

for this rule are 64.027, Post-9/11 

Veterans Educational Assistance; 

64.028, Post-9/11 Veterans Educational 

Assistance; 64.032, Montgomery GI Bill 

Selected Reserve; Reserve Educational 

Assistance Program; 64.100, 

Automobiles and Adaptive Equipment 

for Certain Disabled Veterans and 

Members of the Armed Forces; 64.101, 

Burial Expenses Allowance for 

Veterans; 64.103, Life Insurance for 

Veterans; 64.104, Pension for NonService-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; 64.114, 

Veterans Housing-Guaranteed and 

Insured Loans; 64.115, Veterans 

Information and Assistance; 

64.116,Vocational Rehabilitation for 

Disabled Veterans; 64.117, Survivors 

and Dependents Educational Assistance; 

64.118, Veterans Housing-Direct Loans 

for Certain Disabled Veterans; 64.119, 

Veterans Housing-Manufactured Home 

Loans; 64.120, Post-Vietnam Era 

Veterans’ Educational Assistance; 

64.124, All-Volunteer Force Educational 

Assistance; 64.125, Vocational and 

Educational Counseling for 

Servicemembers and Veterans; 64.126, 

Native American Veteran Direct Loan 

Program; 64.127, Monthly Allowance 

for Children of Vietnam Veterans Born 

with Spina Bifida; and 64.128, 

Vocational Training and Rehabilitation 

for Vietnam Veterans’ Children with 

Spina Bifida or Other Covered Birth 

Defects. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 

Federal Register for publication 

electronically as an official document of 

the Department of Veterans Affairs. John 

R. Gingrich, Chief of Staff, Department 

of Veterans Affairs, approved this 

document on April 10, 2012, for 

publication. 

List of Subjects 

38 CFR Part 3 

Administrative practice and 

procedure, Claims, Disability benefits, 

Health care, Pensions, Radioactive 

materials, Veterans, Vietnam. 

38 CFR Part 20 

Administrative practice and 

procedure, Claims, Veterans. 

Dated: April 13, 2012. 

Robert C. McFetridge, 

Director of Regulation Policy and 

Management, Office of the General Counsel, 

Department of Veterans Affairs. 

For the reasons set forth in the 

preamble, VA amends 38 CFR parts 3 

and 20 as follows: 

PART 3—ADJUDICATION 

Subpart A—Pension, Compensation, 

and Dependency and Indemnity 

Compensation 

■ 1. The authority citation for part 3, 

subpart A continues to read as follows: 

Authority: 38 U.S.C. 501(a), unless 

otherwise noted. 

■ 2. Amend § 3.103 by: 

■ a. Removing the last two sentences of 

paragraph (a) and adding, in its place, 

‘‘The provisions of this section apply to 

all claims for benefits and relief, and 

decisions thereon, within the purview 

of this part 3.’’. 

■ b. Revising paragraph (c)(1). 

The revision reads as follows: 

§ 3.103 Procedural due process and 

appellate rights. 

* * * * * 

(c) * * * (1) Upon request, a claimant 

is entitled to a hearing at any time on 

any issue involved in a claim within the 

purview of part 3 of this chapter, subject 

to the limitations described in § 20.1304 

of this chapter with respect to hearings 

in claims which have been certified to 

the Board of Veterans’ Appeals for 

appellate review. VA will provide the 

place of hearing in the VA office having 

original jurisdiction over the claim or at 

the VA office nearest the claimant’s 

home having adjudicative functions, or, 

subject to available resources and solely 

at the option of VA, at any other VA 

facility or federal building at which 

suitable hearing facilities are available. 

VA will provide one or more employees 

who have original determinative 

authority of such issues to conduct the 

hearing and be responsible for 

establishment and preservation of the 

hearing record. Hearings in connection 

with proposed adverse actions and 

appeals shall be held before one or more 

VA employees having original 

determinative authority who did not 

participate in the proposed action or the 

decision being appealed. All expenses 

incurred by the claimant in connection 

with the hearing are the responsibility 

of the claimant. 

* * * * * 

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23130 Federal Register / Vol. 77, No. 75 / Wednesday, April 18, 2012 / Rules and Regulations 

PART 20—BOARD OF VETERANS’ 

APPEALS: RULES OF PRACTICE 

■ 3. The authority citation for part 20 

continues to read as follows: 

Authority: 38 U.S.C. 501(a) and as noted 

in specific sections. 

Subpart H—Hearings on Appeal 

■ 4. Revise § 20.706 to read as follows: 

§ 20.706 Rule 706. Functions of the 

presiding Member. 

The presiding Member of a hearing 

panel is responsible for the conduct of 

the hearing, administration of the oath 

or affirmation, and for ruling on 

questions of procedure. The presiding 

Member will assure that the course of 

the hearing remains relevant to the 

issue, or issues, on appeal and that there 

is no cross-examination of the parties or 

witnesses. The presiding Member will 

take such steps as may be necessary to 

maintain good order at hearings and 

may terminate a hearing or direct that 

the offending party leave the hearing if 

an appellant, representative, or witness 

persists in disruptive behavior. 

■ 5. Amend the table in Appendix A to 

Part 20 by: 

■ a. Adding entry 20.1. 

■ b. Revising entry 20.1304. 

The revision and addition read as 

follows: 

APPENDIX A TO PART 20—CROSSREFERENCES 

Sec. Cross-reference Title of cross-referenced material or comment 

20.1 ........................................................ 38 CFR 3.103(a) .................................... Statement of policy. 

* * * * * * * 

20.1304 .................................................. 38 CFR 3.103(c), 20.700–20.717 .......... See also re hearings. 

38 CFR 3.156 ........................................ New and material evidence. 

38 CFR 3.160(e) .................................... Reopened claim. 

38 CFR 20.305 ...................................... Rule 305. Computation of time limit for filing. 

38 CFR 20.306 ...................................... Rule 306. Legal holidays. 

[FR Doc. 2012–9295 Filed 4–17–12; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R01–OAR–2011–0711; FRL–9660–2] 

Approval and Promulgation of Air 

Quality Implementation Plans; 

Connecticut; Determination of 

Attainment of the One-hour Ozone 

Standard for the Greater Connecticut 

Area; Correction 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; correction of docket 

number. 

SUMMARY: This document corrects an 

error in the docket number of a final 

rule pertaining to a determination that 

the Greater Connecticut serious onehour ozone nonattainment area did not 

meet the applicable deadline of 

November 15, 2007, for attaining the 

one-hour National Ambient Air Quality 

Standard (NAAQS) for ozone. In 

addition, that same final rule 

determined that the Greater Connecticut 

serious one-hour ozone nonattainment 

area is currently attaining the now 

revoked one-hour NAAQS for ozone. 

The correct docket number for this 

action is EPA–R01–OAR–2011–0711. 

DATES: This correction is effective on 

April 18, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Richard P. Burkhart, Air Quality 

Planning Unit, U.S. Environmental 

Protection Agency, EPA New England 

Regional Office, 5 Post Office Square, 

Suite 100, Boston, MA 02109–3912, 

telephone number (617) 918–1664, fax 

number (617) 918–0664, email Burkhart.

Richard@epa.gov. 

SUPPLEMENTARY INFORMATION: On, March 

16, 2012 (77 FR 15607), EPA published 

a final rulemaking notice announcing 

that the Greater Connecticut one-hour 

ozone nonattainment area did not meet 

its applicable one-hour ozone 

attainment date of November 15, 2007, 

based on 2005–2007 quality-assured 

ozone monitoring data. Separate from 

and independent of the first 

determination, EPA also determined 

that the Greater Connecticut one-hour 

ozone nonattainment area is currently 

attaining the one-hour ozone standard, 

based on the most recent three years 

(2008–2010) of complete, qualityassured ozone monitoring data at all 

monitoring sites in the area. In the 

March 16, 2012 final rulemaking, EPA 

inadvertently stated an incorrect docket 

number. The correct docket number for 

this action is EPA–R01–OAR–2011– 

0711. The Notice of Proposed 

Rulemaking (NPR) for this action (76 FR 

72377; November 23, 2011) included the 

correct docket number. Thus, the public 

had appropriate opportunity to 

comment on the NPR. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Ozone, Incorporation 

by reference, Reporting and 

recordkeeping requirements, Volatile 

organic compounds. 

Dated: April 5, 2012. 

H. Curtis Spalding, 

Regional Administrator, EPA New England. 

[FR Doc. 2012–9222 Filed 4–17–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2012–0243; FRL–9659–8] 

Revisions to the California State 

Implementation Plan, Northern Sierra 

and Sacramento Metropolitan Air 

Quality Management District 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: EPA is taking direct final 

action to approve revisions to the 

Northern Sierra Air Quality 

Management District (NSAQMD) and 

Sacramento Metropolitan Air Quality 

Management District (SMAQMD) 

portions of the California State 

Implementation Plan (SIP). These 

revisions concern negative declarations 

for volatile organic compound (VOC) 

source categories for the NSAQMD and 

SMAQMD. We are approving these 

negative declarations under the Clean 

Air Act as amended in 1990 (CAA or the 

Act). 

DATES: This rule is effective on June 18, 

2012 without further notice, unless EPA 

receives adverse comments by May 18, 

2012. If we receive such comments, we 

will publish a timely withdrawal in the 

Federal Register to notify the public 

mstockstill on DSK4VPTVN1PROD with RULES