[Federal Register Volume 62, Number 43 (Wednesday, March 5, 1997)]
[Rules and Regulations]
[Pages 9969-9970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-5341]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AI33


Rulemaking Procedures; Public Participation

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the ``General Provisions'' regulations of 
the Department of Veterans Affairs (VA) by eliminating a policy 
statement concerning prior notice-and-comment for rulemaking. We 
believe that there is no need to retain this policy statement. 
Furthermore, this action is warranted to prevent confusion concerning 
VA policy.

EFFECTIVE DATE: April 4, 1997.

FOR FURTHER INFORMATION CONTACT: Thomas O. Gessel, Director, Office of 
Regulations Management (02D), Office of General Counsel, Department of 
Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, (202) 
273-8605.

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on March 20, 1996 (61 FR 11309), we amended the ``General 
Provisions'' regulations in 38 CFR Part 1 by removing Sec. 1.12 
captioned ``Public participation in regulatory development.'' 
Subsequently, judicial review was sought on the basis that the removal 
did not comply with notice-and-comment provisions. Accordingly, to 
avoid unnecessary litigation, we reestablished Sec. 1.12 in a document 
published in the Federal Register on July 1, 1996 (61 FR 33850). In 
addition, in a companion document also published in the Federal 
Register on July 1, 1996 (61 FR 33878), we proposed to remove Sec. 1.12 
and requested comments on the proposal. Accordingly, this document 
relates to the proposal to remove Sec. 1.12.
    The comment period ended August 30, 1996. We received four 
comments. Three were submitted by veterans'' service organizations and 
one was submitted by a law school professor. The commenters argued in 
favor of retaining Sec. 1.12.
    The provisions of the Administrative Procedure Act (APA) at 5 
U.S.C. 553 set forth notice-and-comment requirements for rulemaking and 
include exemptions from the notice-and-comment requirements for 
rulemaking concerning public property, loans, grants, benefits, or 
contracts.
    The regulatory history of Sec. 1.12 indicates that this section was 
established for the purpose of adopting a recommendation of the 1969 
Administrative Conference of the United States, i.e., that agencies 
adopt a policy stating that they would not exempt rulemaking from 
notice-and-comment provisions solely because the rulemaking concerned 
public property, loans, grants, benefits, or contracts (see 37 FR 3552, 
February 17, 1972; 37 FR 7157, April 11, 1972).
    Subsequent to the initial promulgation of Sec. 1.12, statutory 
provisions were established that specifically apply the notice-and-
comment provisions of 5 U.S.C. 553 to VA rulemaking concerning loans, 
grants, or benefits (see 38 U.S.C. 501(d)). Also, subsequent to the 
initial promulgation of Sec. 1.12, statutory provisions were 
established that specifically apply notice-and-comment

[[Page 9970]]

provisions to certain rulemaking concerning contracts (see 41 U.S.C. 
418b). These statutory provisions do not impose notice-and-comment 
provisions for rulemaking concerning public property.
    One commenter indicated that we should retain the notice-and-
comment provisions for rulemaking concerning public property and 
contracts. We are committed to compliance with all legal requirements 
concerning rulemaking, including APA requirements. However, we believe 
that self-imposition of any other procedures for rulemaking should be 
done on a case-by-case basis and we do not believe that it is necessary 
or prudent to self-impose additional requirements by regulation.
    The commenters also argued in favor of retaining Sec. 1.12 based on 
issues relating to certain ``non-legislative rules'' (rules of agency 
management; interpretative rules; general statements of policy; rules 
of organization, procedure, or practice). In this regard, the 
provisions of 5 U.S.C. 553 contain exemptions from the notice-and-
comment requirements for ``non-legislative rules.'' The commenters 
argued that Sec. 1.12 added notice-and-comment requirements for 
rulemaking regarding such ``non-legislative rules'' and further 
included specific reasons to support the desirability of having 
additional notice-and-comment for such types of rulemaking.
    Rulemaking documents establishing ``non-legislative rules'' are 
issued by the Secretary and concurred in by the General Counsel. The 
provisions of Sec. 1.12 included internal instructions which stated: 
``Exceptions to the policy of permitting public participation in the 
regulatory development may be authorized by the Secretary or one of the 
Secretary's deputies if adequately justified and concurred in by the 
General Counsel.'' The next sentence, in part, states: ``Such 
exceptions, unless public comment is required by statute, may be 
recommended when: (a) The proposed regulations consist of 
interpretative rules, general statements of policy, or rules of 
Department of Veterans Affairs organization procedure or practice * * 
*.'' The mere finding that a rulemaking proceeding concerned a ``non-
legislative'' rule met the ``adequately justified'' standard for 
foregoing the notice-and-comment procedures. The elimination of 
Sec. 1.12 would bring VA practice into conformity with the requirements 
generally imposed on the rest of government, i.e., notice-and-comment 
issues would be governed by the provisions of 5 U.S.C. 553. Eliminating 
the regulatory provisions imposing internal procedural steps increases 
government efficiency and would not result in the diminution of the 
substantive rights of any party.
    Furthermore, the removal of Sec. 1.12 is warranted because it has 
generated much confusion, particularly with respect to ``non-
legislative rules.'
    Accordingly, based on the rationale set forth in the proposed rule 
and this document, we are removing Sec. 1.12.
    This rulemaking action concerns VA policy and internal VA 
procedures. Although we provided notice-and-comment concerning this 
rulemaking proceeding it was not required under the provisions of the 
APA and, consequently, no regulatory flexibility analysis is required 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
Nevertheless, the Secretary of Veterans Affairs certifies that this 
rule will not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act. This rule will not have a direct effect on small 
entities.
    There is no Catalog of Federal Domestic Assistance program number.

List of Subjects in 38 CFR Part 1

    Administrative practice and procedure, Claims, Freedom of 
information, Government contracts, Government employees, Government 
property, Reporting and recordkeeping requirements.

    Approved: February 24, 1997.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 1 is amended 
as set forth below:

PART 1--GENERAL PROVISIONS

    1. The authority citation for part 1 continues to read as follows:

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


Sec. 1.12  [Removed]

    2. Section 1.12 and the undesignated center heading preceding 
Sec. 1.12 are removed.

[FR Doc. 97-5341 Filed 3-4-97; 8:45 am]
BILLING CODE 8320-01-P