Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Rules and Regulations 9969

of New Jersey Department of Military

and Veterans Affairs and the State of

New Jersey Department of

Environmental Protection have

requested that the danger zone at the

National Guard Training Center at Sea

Girt, New Jersey, established by the

Corps on January 10, 1969, be

disestablished. According to the State,

the danger zone is no longer needed to

protect the public using the waters

offshore of the National Guard Training

Center, because of improvements

previously made at the small arms firing

range. Accordingly, we are hereby

removing the regulations which

establish the danger zone. We have

determined that notice of proposed

rulemaking and public procedures

thereto are unnecessary since the

revocation of the danger zones removes

a restriction on public use of the

offshore.

Procedural Requirements

A. Review Under Executive Order 12866

This rule is issued with respect to a

military function of the Defense

Department and the provisions of

Executive Order 12866 do not apply.

B. Review Under the Regulatory

Flexibility Act

These rules have been reviewed under

the Regulatory Flexibility Act (Pub. L.

96–354), which requires the preparation

of a regulatory flexibility analysis for

any regulation that will have a

significant economic impact on a

substantial number of small entities

(i.e., small businesses and small

Governments). The Corps expects that

the economic impact of the removal of

the danger zone at the National Guard

Training Center at Sea Girt, New Jersey

would have no impact on the public, no

anticipated navigational hazard or

interference with existing waterway

traffic and accordingly, certifies that this

rule will have no significant economic

impact on small entities.

C. Review Under the National

Environmental Policy Act

We have concluded that this

amendment to the danger zone

regulations which removes a restriction

on the public’s use of a water area will

not have a significant impact to the

human environment, and preparation of

an environmental impact statement is

not required.

D. Unfunded Mandates Act

This rule does not impose an

enforceable duty among the private

sector and, therefore, is not a Federal

private sector mandate and is not

subject to the requirements of Section

202 of 205 of the Unfunded Mandates

Act. We have also found under Section

203 of the Act, that small Governments

will not be significantly and uniquely

affected by this rulemaking.

E. Submission to Congress and the GAO

Pursuant to Section 801(a)(1)(A) of the

Administrative Procedure Act as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996, the Army has submitted a report

containing this rule to the U.S. Senate,

House of Representatives, and the

Comptroller General of the General

Accounting Office. This rule is not a

major rule within the meaning of

Section 804(2) of the Administrative

Procedure Act, as amended.

List of Subjects in 33 CFR Part 334

Navigation (water), Transportation,

Danger zones.

For the reasons set out in the

preamble, we are amending 33 CFR Part

334, as follows:

PART 334—DANGER ZONE AND

RESTRICTED AREA REGULATIONS

1. The authority citation for Part 334

continues to read as follows:

Authority: 40 Stat. 266; (33 U.S.C. 1) and

40 Stat. 892; (33 U.S.C. 3).

§ 334.90 [Removed]

2. Section 334.90 is removed.

Dated: February 23, 1997.

Russell L. Fuhrman,

Major General, United States Army, Director

of Civil Works.

[FR Doc. 97–5049 Filed 3–4–97; 8:45 am]

BILLING CODE 3710–92–M

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 1

RIN 2900–AI33

Rulemaking Procedures; Public

Participation

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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 § 1.12 captioned ‘‘Public

participation in regulatory

development.’’ Subsequently, judicial

review was sought on the basis that the

removal did not comply with noticeand-comment provisions. Accordingly,

to avoid unnecessary litigation, we

reestablished § 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 § 1.12 and requested

comments on the proposal. Accordingly,

this document relates to the proposal to

remove § 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 § 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 § 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-andcomment 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 § 1.12, statutory

provisions were established that

specifically apply the notice-andcomment 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 § 1.12, statutory

provisions were established that

specifically apply notice-and-comment
9970 Federal Register / Vol. 62, No. 43 / Wednesday, March 5, 1997 / Rules and Regulations

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 § 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-andcomment requirements for ‘‘nonlegislative rules.’’ The commenters

argued that § 1.12 added notice-andcomment 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

§ 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 § 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 § 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 § 1.12.

This rulemaking action concerns VA

policy and internal VA procedures.

Although we provided notice-andcomment 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.

§ 1.12 [Removed]

2. Section 1.12 and the undesignated

center heading preceding § 1.12 are

removed.

[FR Doc. 97–5341 Filed 3–4–97; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MO–015–1015a; FRL–5682–5]

Approval and Promulgation of

Implementation Plans; State of

Missouri

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: The EPA is approving the

Asarco Glover, Missouri, lead emission

control plan submitted by the state of

Missouri on August 14, 1996. The plan

was submitted by the state to satisfy

certain requirements under the Clean

Air Act (CAA) to reduce lead emissions

sufficient to bring the Glover area into

attainment with the National Ambient

Air Quality Standard (NAAQS) for lead.

DATES: This action is effective May 5,

1997 unless by April 4, 1997 adverse or

critical comments are received. If the

effective date is delayed, timely notice

will be published in the Federal

Register.

ADDRESSES: Copies of the documents

relevant to this action are available for

public inspection during normal

business hours at the: Environmental

Protection Agency, Air Planning and

Development Branch, 726 Minnesota

Avenue, Kansas City, Kansas 66101; and

the EPA Air & Radiation Docket and

Information Center, 401 M Street, SW.,

Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Josh

Tapp at (913) 551–7606.

SUPPLEMENTARY INFORMATION:

I. Background

Currently, the only significant source

of lead contributing to violations of the

lead NAAQS in the Glover area is a

primary lead smelter owned and

operated by the American Smelting and

Refining Company (Asarco). The smelter

processes lead concentrate recovered

from lead mines into pure lead or lead

compounds to meet its customer’s

specifications. The facility’s refining

capacity is approximately 140,000 tons

of refined lead per year.

The original Glover lead State

Implementation Plan (SIP) was

approved by the EPA in 1981.

Subsequent to SIP approval, the EPA

conducted modeling which predicted

continued violations of the standard.

Asarco and Missouri prepared several

SIP revisions; however, these revisions

were not approved because modeling

still showed violations in some areas

defined as ‘‘ambient air.’