27534 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Proposed Rules

revision would eliminate the current

requirement that such international

traffic be regularly scheduled.

Furthermore, any movement of these

vehicles in the general direction of an

export move or as part of the return

movement of the vehicles to their base

country shall be considered incidental

to the international movement.

In conjunction with the proposed

amendments to § 123.14, this document

also includes proposed conforming

amendments to § 123.16 regarding the

return of the qualifying vehicles to the

United States.

Comments

Before adopting the proposed

amendments, consideration will be

given to any written comments that are

timely submitted to Customs. Comments

submitted will be available for public

inspection in accordance with the

Freedom of Information Act (5 U.S.C.

552), § 1.4, Treasury Department

Regulations (31 CFR 1.4), and

§ 103.11(b), Customs Regulations (19

CFR 103.11(b)), on regular business days

between the hours of 9:00 a.m. and 4:30

p.m. at the Regulations Branch, 1300

Pennsylvania Avenue, NW., 3rd Floor,

Washington, DC.

Regulatory Flexibility Act and

Executive Order 12866

The proposed rule would greatly relax

current cabotage restrictions for both the

U.S. and foreign trucking industries,

enabling more efficient and economical

use of their respective vehicles both

internationally and domestically. As

such, under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), it is certified

that, if adopted, the proposed

amendments will not have a significant

economic impact on a substantial

number of small entities. Nor would the

proposed rule result in a ‘‘significant

regulatory action’’ under E.O. 12866.

List of Subjects in 19 CFR Part 123

Administrative practice and

procedure, Canada, Common carriers,

Customs duties and inspection, Imports,

International traffic, Motor carriers,

Railroads, Trade agreements, Vehicles.

Proposed Amendments to the

Regulations

It is proposed to amend part 123,

Customs Regulations (19 CFR part 123),

as set forth below.

PART 123—CUSTOMS RELATIONS

WITH CANADA AND MEXICO

1. The general authority citation for

part 123, and the relevant sectional

authority citation, would continue to

read as follows:

Authority: 19 U.S.C. 66, 1202 (General

Note 20, Harmonized Tariff Schedule of the

United States (HTSUS), 1431, 1433, 1436,

1448, 1624.

* * * * *

Sections 123.13—123.18 also issued

under 19 U.S.C. 1322;

* * * * *

2. It is proposed to amend § 123.14 by

revising paragraph (c)(1) to read as

follows:

§ 123.14 Entry of foreign-based trucks,

busses and taxicabs in international traffic.

* * * * *

(c) * * *

(1) The vehicle may carry

merchandise or passengers between

points in the United States if such

carriage is incidental to the immediately

prior or subsequent engagement of that

vehicle in international traffic. Any

such carriage by the vehicle in the

general direction of an export move or

as part of the return of the vehicle to its

base country shall be considered

incidental to its engagement in

international traffic.

* * * * *

3. It is proposed to amend § 123.16 by

revising paragraph (b) to read as follows:

§ 123.16 Entry of returning trucks, busses,

or taxicabs in international traffic.

* * * * *

(b) Use in local traffic. Trucks, busses,

and taxicabs in use in international

traffic, which may include the

incidental carrying of merchandise or

passengers for hire between points in a

foreign country, or between points in

this country, shall be admitted under

this section. However, such vehicles

taken abroad for commercial use

between points in a foreign country,

otherwise than in the course of their use

in international traffic, shall be

considered to have been exported and

must be regularly entered on return.

Approved: March 31, 1998.

Samuel H. Banks,

Acting Commissioner of Customs.

John P. Simpson,

Deputy Assistant Secretary of the Treasury.

[FR Doc. 98–13217 Filed 5–18–98; 8:45 am]

BILLING CODE 4820–02–P

DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG–209322–82]

RIN 1545–AU99

Return of Partnership Income; Hearing

Cancellation

AGENCY: Internal Revenue Service,

Treasury.

ACTION: Cancellation of notice of public

hearing on proposed regulations.

SUMMARY: This document provides

notice of cancellation of a public

hearing on proposed regulations relating

to partnership returns.

DATES: The public hearing originally

scheduled for Tuesday, May 19, 1998,

beginning at 10:00 a.m., is cancelled.

FOR FURTHER INFORMATION CONTACT:

Mike Slaughter of the Regulations Unit,

Assistant Chief Counsel (Corporate),

202) 622–7190 (not a toll-free number).

SUPPLEMENTARY INFORMATION: The

subject of the public hearing is proposed

regulations under section 6031 and 6063

of the Internal Revenue Code. A notice

of proposed rulemaking and notice of

public hearing appearing in the Federal

Register on Monday, January 26, 1998

(63 FR 3677), announced that the public

hearing would be held on Tuesday, May

19, 1998, beginning at 10:00 a.m., in the

IRS Auditorium, Internal Revenue

Building, 1111 Constitution Avenue,

NW., Washington, DC.

The public hearing scheduled for

Tuesday, May 19, 1998, is cancelled.

Michael L. Slaughter,

Acting Chief, Regulations Unit, Assistant

Chief Counsel (Corporate).

[FR Doc. 98–13221 Filed 5–18–98; 8:45 am]

BILLING CODE 4830–01–U

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 20

RIN 2900–AJ15

Board of Veterans’ Appeals: Rules of

Practice—Revision of Decisions on

Grounds of Clear and Unmistakable

Error

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

SUMMARY: The Department of Veterans

Affairs (VA) proposes to amend the

Rules of Practice of the Board of

Veterans’ Appeals (Board) to implement

the provisions of section 1(b) of Pub. L.
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Proposed Rules 27535

105–111 (Nov. 21, 1997), which permits

challenges to Board decisions on the

grounds of ‘‘clear and unmistakable

error’’ (CUE). The amendments would

provide specific application procedures;

establish decision standards based on

case law; and eliminate as duplicative

the Board Chairman’s discretionary

review under ‘‘reconsideration’’ on the

basis of obvious error. These changes

are necessary to implement the new

statutory provisions, which permit a

claimant to demand review by the Board

to determine whether CUE exists in an

appellate decision previously issued by

the Board, with a right of review of such

determinations by the U.S. Court of

Veterans Appeals.

DATES: Comments must be received on

or before July 20, 1998.

ADDRESSES: Mail or hand-deliver

written comments to: Director, Office of

Regulations Management (02D),

Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154,

Washington, DC 20420. Comments

should indicate that they are submitted

in response to ‘‘RIN 2900–AJ15.’’ All

written comments will be available for

public inspection at the above address

in the Office of Regulations

Management, Room 1158, between the

hours of 8 a.m. and 4:30 p.m., Monday

through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Chief Counsel, Board

of Veterans’ Appeals, Department of

Veterans Affairs, 810 Vermont Avenue,

NW, Washington, DC 20420, (202) 565–

5978.

SUPPLEMENTARY INFORMATION: The Board

of Veterans’ Appeals (Board) is an

administrative body that decides

appeals from denials of claims for

veterans’ benefits. There are currently

60 Board members, who decide 35,000

to 40,000 such appeals per year.

This document proposes to amend the

Board’s Rules of Practice to implement

the provisions of section 1(b) of Pub. L.

105–111 (Nov. 21, 1997), which permits

a claimant to demand review by the

Board to determine whether ‘‘clear and

unmistakable error’’ (CUE) exists in an

appellate decision previously issued by

the Board, with a right of review of such

determinations by the U.S. Court of

Veterans Appeals.

The VA Appeals Process in General

The Secretary of Veterans Affairs

decides all questions of law and fact

necessary to a decision under a law that

affects the provision of benefits by the

Secretary to veterans, or the dependents

or survivors of veterans. 38 U.S.C.

511(a). The Secretary has delegated

most of these decisions to ‘‘agencies of

original jurisdiction’’ (AOJs), typically

the 58 regional offices (ROs) maintained

by the Department of Veterans Affairs

(VA). See 38 CFR 2.6(b) (delegation to

Under Secretary for Benefits).

Decisions under 38 U.S.C. 511(a) are

subject to one review on appeal to the

Secretary. 38 U.S.C. 7104(a). Final

decisions on those appeals are made by

the Board. Id. A decision by an AOJ that

is not appealed within one year

becomes final, and can be reopened

only with ‘‘new and material evidence.’’

38 U.S.C. 5108, 7105(c).

The appeals process begins when a

claimant files a ‘‘notice of

disagreement,’’ which must be filed

within one year of the decision. 38

U.S.C. 7105 (a) and (b). The VA office

that made the decision reviews the

claim and, if benefits are not granted,

provides the claimant with a ‘‘statement

of the case.’’ Id. 7105(d)(1). The

claimant then must file a formal appeal

with the Board. Id. 7105(d)(3). The

Board decides appeals on the entire

record in the case. Id. 7104(a). The

Board may make a final decision—

allowing or denying the appeal—or may

remand the matter to the AOJ for

development of additional factual

material. 38 CFR 19.9.

If an appellant does not agree with the

Board’s final decision, and the notice of

disagreement in the case was filed on or

after November 18, 1988, the appellant

has 120 days to appeal the Board’s

decision to the U.S. Court of Veterans

Appeals. 38 U.S.C. 7266(a); Pub. L. 100–

687, Div. A, § 402, reprinted at 38 U.S.C.

7251 note. (As enacted, the Veterans’

Judicial Review Act, which established

the Court of Veterans Appeals,

permitted judicial review of Board

decisions only in cases in which a

notice of disagreement was filed on or

after the effective date of the Act, i.e.,

November 18, 1988.)

Other Remedies

Once a VA decision has become

final—whether by completion or

abandonment of the appeals process

described above—there are, generally,

three ways to revive the claim.

First, if a claimant submits new and

material evidence, VA will reopen and

reconsider the claim. 38 U.S.C. 5108.

Such claims are subject to the full range

of appellate procedures described

above.

Second, if a claim decision is final

because there was never a formal appeal

filed with the Board, and the

determination was made by an RO, a

claimant may allege that the decision

was the result of CUE. 38 CFR 3.105(a).

Such claims are subject to the full range

of appellate procedures described

above. Russell v. Principi, 3 Vet. App.

310 (1992). However, prior to enactment

of Pub. L. 105–111, a final unappealed

RO decision that is subsequently

reopened with new and material

evidence and adjudicated on the merits

by the Board could not later be the

subject of a claim of CUE. Donovan v.

Gober, 10 Vet. App. 404 (1997).

Finally, if there has been a final Board

decision on a claim, an appellant may

request that the Chairman of the Board

order ‘‘reconsideration’’ under 38 U.S.C.

7103. If the Chairman orders

reconsideration, the prior decision is

vacated, and a panel of Board members

makes a new decision based on the

entire record. The panel decision is

subject to appeal to the Court of

Veterans Appeals only if the notice of

disagreement filed in connection with

the original matter was filed on or after

November 18, 1988. The Chairman’s

decision not to grant reconsideration is

not subject to appeal independently of

the underlying Board decision. Mayer v.

Brown, 37 F.3d 618, 620 & n.3 (Fed. Cir.

1994) (holding that there was no

jurisdiction to review the Chairman’s

denial of a motion for reconsideration

absent jurisdiction over the underlying

Board decision, but reserving judgment

on the issue of whether the Chairman’s

decision can ever be subject to judicial

review).

Board decisions are not subject to a

CUE challenge under 38 CFR 3.105(a).

Smith (William) v. Brown, 35 F.3d 1516,

1521 (Fed. Cir. 1994). Further,

unappealed RO decisions can be

‘‘subsumed’’ in subsequent Board

decisions, so that the RO decisions are

no longer subject to the review

otherwise available under 38 CFR

3.105(a). Donovan v. Gober, 10 Vet.

App. 404 (1997).

‘‘Clear and Unmistakable Error’’

The term ‘‘clear and unmistakable

error’’ originated in veterans regulations

some 70 years ago, see generally Smith

(William) v. Brown, 35 F.3d 1516, 1524–

25 (Fed. Cir. 1994), and is now

incorporated in VA regulations

governing VA RO determinations. 38

CFR 3.105(a). The term has been

interpreted by the Court of Veterans

Appeals over the past several years.

CUE is a very specific and rare kind

of error. Fugo v. Brown, 6 Vet. App. 40,

43 (1993). It is the kind of error, of fact

or of law, that when called to the

attention of later reviewers compels the

conclusion, to which reasonable minds

could not differ, that the result would

have been manifestly different but for

the error. Fugo, 6 Vet. App. at 43.

A determination that there was CUE

must be based on the record and the law
27536 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Proposed Rules

that existed at the time of the prior

decision. Russell v. Principi, 3 Vet. App.

310, 314 (1992). Either the correct facts,

as they were known at the time, were

not before the adjudicator or the

statutory or regulatory provisions extant

at the time were incorrectly applied.

Russell, 3 Vet. App at 313. With respect

to Board decisions issued on or after

July 21, 1992, the Court of Veterans

Appeals has held that documents which

were actually in VA’s possession—even

though not physically before the

adjudicator—are constructively a part of

the record. Bell v. Derwinski, 2 Vet.

App. 611 (1992); Damrel v. Brown, 6

Vet. App. 242, 245–46 (1994).

In order for there to be a valid claim

of CUE, there must have been an error

in the prior adjudication of the appeal

which, had it not been made, would

have manifestly changed the outcome at

the time it was made. Russell, 3 Vet.

App. at 313. Thus, even where the

premise of error is accepted, if it is not

absolutely clear that a different result

would have ensued, the error

complained of cannot be clear and

unmistakable. Fugo, 6 Vet. App. at 43–

44.

A new medical diagnosis that

‘‘corrects’’ an earlier diagnosis ruled on

by previous adjudicators is the kind of

‘‘error’’ that could not be considered an

error in the original adjudication.

Russell, 3 Vet. App. at 314. A claim of

CUE that asserts no more than a

disagreement as to how the facts were

weighed or evaluated is insufficient.

Russell, 3 Vet. App. at 313. Mere

allegations of failure to follow

regulations or failure to give due

process, or any other general, nonspecific claims of error, are insufficient

to raise a claim of CUE. Fugo, 6 Vet.

App. at 44. An allegation that the

Secretary did not fulfill the duty to

assist is insufficient to raise the issue of

CUE. E.g., Crippen v. Brown, 9 Vet. App.

412, 418 (1996).

Once there is a final decision on the

issue of CUE because the RO decision

was not timely appealed, or because a

Board decision not to revise or amend

the original RO decision was not

appealed, or because the Court of

Veterans Appeals has rendered a

decision on the issue in that particular

case, that particular claim of CUE may

not be raised again. Russell, 3 Vet. App.

at 315.

The ‘‘benefit of the doubt’’ rule of 38

U.S.C. 5107(b) does not apply to

determinations as to whether there was

CUE. Russell, 3 Vet. App. at 314.

‘‘Two Tracks’’ for CUE Claims

The Court of Veterans Appeals has

held that it has jurisdiction to review

claims of CUE with respect to RO

determinations based on the regulatory

right assigned in 38 CFR 3.105(a).

Russell v. Principi, 3 Vet. App. 310

(1992).

However, the CUE challenge available

under 38 CFR 3.105(a) does not apply to

Board decisions. Smith (William) v.

Brown, 35 F.3d 1516, 1521 (Fed. Cir.

1994); Wright v. Brown, 9 Vet. App. 300,

303–04 (1996). Because an RO decision

appealed to the Board is ‘‘subsumed’’ in

a Board decision on the merits, such an

RO decision would no longer be subject

to a CUE challenge. Donovan v. Gober,

10 Vet. App. 404 (1997). The Court has

held that even unappealed RO decisions

are ‘‘subsumed’’—and thus not subject

to CUE challenges—if such claims are

later reopened and decided on the

merits by the Board. Chisem v. Gober,

10 Vet. App. 526 (1997).

The Effect of the Legislation

Section 1(b) of Pub. L. 105–111

changed existing law by providing that

a decision by the Board is subject to

revision on the grounds of CUE. The

statute provides that such review may

be instituted by the Board on the

Board’s own motion or upon request of

the claimant, and that such a request

may be made at any time after the Board

decision is made. The Board is to decide

all such requests on the merits, without

referral to any adjudicative or hearing

official acting on behalf of the Secretary.

The statute also provides that,

notwithstanding the notice of

disagreement requirements for judicial

review (described earlier in this

document), judicial review is available

with respect to any Board decision on

a claim alleging that a previous

determination of the Board was the

product of CUE if that claim is filed

after, or was pending before VA, the

Court of Veterans Appeals, the Court of

Appeals for the Federal Circuit, or the

Supreme Court on the date of the

enactment of the Act (November 21,

1997).

The legislative history of H.R. 1090,

105th Congress, which became Pub. L.

105–111, indicates that the Congress

expected the Department would

implement section 1(b) of the bill in

accordance with current definitions of

CUE. H.R. Rep. No. 52, 105th Cong., 1st

Sess. 3 (1997) (report of House

Committee on Veterans’ Affairs on H.R.

1090) (‘‘Given the Court’s clear guidance

on this issue [of CUE], it would seem

that the Board could adopt procedural

rules consistent with this guidance to

make consideration of appeals raising

clear and unmistakable error less

burdensome’’); 143 Cong. Rec. 1567,

1568 (daily ed. Apr. 16, 1997) (remarks

of Rep. Evans, sponsor of H.R. 1090, in

connection with House passage) (‘‘The

bill does not alter the standard for

evaluation of claims of clear and

unmistakable error’’).

Implementing Regulations

The proposed regulations restate

statutory provisions, restate legal

standards reflecting court decisions, and

establish procedures for requesting

revision of a Board decision.

The proposed regulations would also

eliminate the use of the Board’s

reconsideration process for challenges

based on ‘‘obvious error,’’ 38 CFR

20.1000(a), while continuing that

process based on (1) the discovery of

new and material evidence in the form

of relevant records or reports of the

service department concerned, or (2) an

allegation that an allowance of benefits

by the Board has been materially

influenced by false or fraudulent

evidence submitted by or on behalf of

the appellant. Since the ‘‘obvious error

of fact or law’’ standard of current 38

CFR 20.1000(a) is the same standard as

that of CUE, Smith (William) v. Brown,

35 F.3d 1516, 1526 (Fed. Cir. 1994), and

since the new remedy under Pub. L.

105–111 provides for a Board decision

and judicial review, there is no longer

any need—particularly in light of the

Board’s limited resources—for what is a

duplicative remedy.

Accordingly, the proposed regulations

would amend 38 CFR 20.1000, relating

to motions for reconsideration, by

deleting paragraph (a), which provides

that obvious error of fact or law is a

basis for reconsideration. The proposed

regulations would also amend 38 CFR

20.1001(a), relating to filing motions for

reconsideration, to eliminate a reference

to allegations of obvious errors of fact or

law.

The proposed regulations would

create a new subpart O in part 20 of title

38, Code of Federal Regulations,

devoted specifically to revision of Board

decisions on grounds of CUE.

Proposed Rule 1400 (38 CFR 20.1400)

would begin the review process with a

motion, either by a party to the decision

being challenged or by the Board. In

addition, because it would be

inappropriate for an inferior tribunal to

review the actions of a superior, Smith

(William) v. Brown, 35 F.3d 1516, 1526

(Fed. Cir. 1994); Duran v. Brown, 7 Vet.

App. 216, 224 (1994), the rule would

provide that a Board decision on an

issue decided by a court of competent

jurisdiction on appeal is not subject to

revision on the grounds of clear and

unmistakable error.

Proposed Rule 1401 (38 CFR 20.1401)

would define the terms ‘‘issue’’ and
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Proposed Rules 27537

‘‘party’’ for purposes of the proposed

subpart. Generally, the term ‘‘issue’’

would be defined as a matter upon

which the Board made a final decision

(other than a decision under the

proposed subpart) which was

appealable under Chapter 72 of title 38,

United States Code, or which would

have been appealable if the Notice of

Disagreement with respect to such

matter had been received by the agency

of original jurisdiction on or after

November 18, 1988. The purposes of

this definition are to clarify (1) that only

final, outcome-determinative decisions

of the Board are subject to revision on

the grounds of CUE, so as to avoid, in

the interests of judicial economy,

atomization of Board decisions into

myriad component parts; and (2) the

scope of the finality referred to in

proposed Rule 1409(c) (38 CFR

20.1409(c)), discussed later in this

document. For example, since a Board

remand is in the nature of a preliminary

order and does not constitute a final

Board decision, Zevalkink v. Brown, 6

Vet. App. 483, 488 (1994), aff’d, 102

F.3d 1236 (Fed. Cir. 1996), cert. denied,

117 S. Ct. 2478 (1997); 38 CFR

20.1100(b), it is not appealable under

Chapter 72 of title 38, United States

Code, and would not be subject to

revision on the grounds of CUE.

Similarly, since the jurisdiction of the

Court of Veterans Appeals is limited to

‘‘decisions’’ of the Board, 38 U.S.C.

7252(a), individual findings of fact or

conclusions of law, 38 U.S.C.

7104(d)(1), would not be subject to

revision on the grounds of CUE except

as part of such revision of the decision

they support. At the same time, as

discussed in connection with proposed

Rule 1409 later in this document, once

there is a final decision on a motion

under this proposed subpart, the prior

Board decision on the underlying

‘‘issue’’ would no longer be subject to

revision on grounds of CUE.

Proposed Rule 1401 would also define

‘‘party’’ as any party to the Board

proceeding that resulted in the final

Board decision which is the subject of

a motion under the proposed subpart.

Because 38 U.S.C. 7111(c), as added by

Pub. L. 105–111, limits the right to

initiate CUE review to the Board and to

claimants, the term would not include

officials authorized to file

administrative appeals pursuant to

§ 19.51 of this title.

Proposed Rule 1402 (38 CFR 20.1402)

would clarify that motions under

proposed subpart O are not appeals and,

accordingly, not subject to the

provisions of parts 19 and 20 of Chapter

I, Title 38, Code of Federal Regulations,

to the extent those provisions relate to

the processing and disposition of

appeals.

Proposed Rule 1403 (38 CFR 20.1403)

would set forth the standards for what

constitutes CUE, as well as the record to

be reviewed. The various standards and

the specific examples of situations that

are not CUE are drawn directly from

court opinions cited earlier in this

document under the heading ‘‘Clear and

Unmistakable Error.’’ In addition, the

rule would provide that CUE does not

include the otherwise correct

application of a statute or regulation

where, subsequent to the Board decision

challenged, there has been a change in

the interpretation of the statute or

regulation. This latter provision is

borrowed in part from 38 CFR 3.105,

discussed earlier in this document,

relating to CUE in RO decisions. An

interpretation of a statute or regulation

could, in light of future

interpretations—whether by the General

Counsel or a court—be viewed as

erroneous. That would not, however, be

the kind of error required for CUE, i.e.,

an error about which reasonable persons

could not differ. See VAOPGCPREC 25–

95, 61 FR 10,063, 10,065 (1996) (holding

that the Board’s application of a

subsequently invalidated regulation in a

decision does not constitute obvious

error or provide a basis for

reconsideration of the decision).

Proposed Rule 1404 (38 CFR 20.1404)

would establish filing and pleading

requirements for motions for revision of

a Board decision based on CUE. The

rule would require specific pleading of

the error, and provide that motions

which fail to do so would be denied,

although motions that merely fail to

identify the claimant, the Board

decision challenged, or the issue(s)

being challenged, or which are

unsigned, would be dismissed without

prejudice to a proper filing. The

proposed rule would also provide that

a request transmitted to the Board by the

Secretary pursuant to 38 U.S.C. 7111(f)

(generally relating to claims for CUE

filed with the Secretary) would be

treated as a motion filed under this rule.

Proposed Rule 1405 (38 CFR 20.1405)

would provide that motions to revise

Board decisions on the grounds of CUE

would be docketed in the order received

and be assigned in accordance with the

appellate assignment procedures in 38

CFR 19.3. The proposed rule, following

the current standards applicable to

reconsideration decisions, would

prohibit assignment of the motion to

any Board member who participated in

the decision which is the subject of the

motion. 38 U.S.C. 7103(b)(2); 38 CFR

19.11(c). Since a CUE determination

must be made on the facts before the

Board at the time the original decision

was made, the rule would also provide

that no new evidence would be

considered in connection with the

motion (although material included on

the basis of proposed Rule 1403(b)(2),

discussed above, would not be

considered new evidence) and that the

Board may, for good cause shown, grant

a request for a hearing for the purpose

of argument only. Nevertheless, the

proposed rule would permit the Board,

subject to the limitation on new

evidence, to use the various AOJs to

ensure completeness of the record. The

Board would also be permitted to seek

the opinion of the General Counsel,

with notice to the party to the decision

and an opportunity to respond. In

accordance with the specific

requirements of the new statute, the rule

would prohibit referral of the motion to

the AOJ or any hearing officer acting on

behalf of the Secretary for the purpose

of making a decision. Finally, in order

to facilitate judicial review, the rule

would require decisions on these

motions to include separately stated

findings of fact and conclusions of law,

and the reasons and bases for those

findings and conclusions. Cf. 38 U.S.C.

7104(d); 38 CFR 19.7(b) (‘‘reasons and

bases’’ requirement for appellate

decisions).

Proposed Rule 1406 (38 CFR 20.1406),

following the new statute, would

provide that a decision of the Board that

revises a prior Board decision on the

grounds of CUE has the same effect as

if the decision had been made on the

date of the prior decision. The proposed

rule would also provide that decisions

that discontinue or reduce benefits

would be subject to the laws and

regulations governing such

discontinuances or reductions based

solely on administrative error or errors

in judgment. See generally 38 U.S.C.

5112(b)(10) (reduction or

discontinuance on such bases effective

on the date of last payment).

Proposed Rule 1407 (38 CFR 20.1407)

would provide special procedural rules

in those cases where the Board, on its

own motion, reviews a prior decision on

the grounds of CUE. The rule would

provide for notification to the party to

the prior Board decision and that party’s

representative, with a period of 60 days

to file a brief or argument. Nevertheless,

failure of a party to so respond would

not affect the finality of the Board’s

decision on the motion.

Proposed Rule 1408 (38 CFR 20.1408)

would provide special rules in the case

of challenges to Board decisions in

simultaneously contested claims. See 38

U.S.C. 7105A. Generally, the rule would

require notice to all parties to such
27538 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Proposed Rules

Board decisions, with limited time for

non-moving parties to respond.

Proposed Rule 1409 (38 CFR 20.1409),

in accordance with the discussion under

‘‘Clear and Unmistakable Error’’ earlier

in this document, would provide that,

once there is a final decision on a

motion under the proposed subpart—

whether initiated by a party or by the

Board—with respect to a particular

issue, the prior Board decision on that

issue would no longer be subject to

revision on the grounds of CUE and that

subsequent motions on such decisions

would be dismissed with prejudice. For

example, if a party challenged a

decision on service connection for

failing to apply the proper diagnostic

code in the Schedule for Rating

Disabilities, 38 CFR part 4, and the

Board denied the motion, a subsequent

motion which alleged that the Board

failed to apply the presumption of

sound condition at the time of entry into

service, 38 U.S.C. 1111, would be

dismissed with prejudice. It would be

clearly important that a moving party

carefully determine all possible bases

for CUE before he or she files a motion

under the proposed subpart. Since the

effect of a successful challenge is the

same no matter when the motion is

filed, i.e., the revision has the same

effect as if the decision had been made

on the date of the earlier decision, there

is no particular filing date that must be

observed in order to maximize potential

benefits. At the same time, because, as

the court has observed, CUE is a ‘‘very

specific and rare kind of error,’’ Fugo v.

Brown, 6 Vet. App. 40, 43 (1993), and

because the availability of a CUE

challenge does not mean that the issue

may be ‘‘endlessly reviewed,’’ Russell v.

Principi, 3 Vet. App. 310, 315 (1992) (en

banc), we believe that one challenge per

decision on an issue is justified not only

as a proper statement of the law, but

also as a rule serving the interests of

judicial economy. The rule would also

clarify that a dismissal without

prejudice under proposed Rule 1404(a)

or a referral to ensure completeness of

the record under proposed Rule 1405(e)

would not be a final decision of the

Board.

Proposed Rule 1410 (38 CFR 20.1410)

would provide that, if a Board decision

is appealed to a court of competent

jurisdiction, the Board will stay any

consideration of a motion under this

subpart with respect to that Board

decision. Generally, once a case has

been certified for appeal to the court on

a particular issue, the Board no longer

has jurisdiction. Cerullo v. Derwinski, 1

Vet. App. 195 (1991). Processing of the

motion under proposed subpart O

would continue upon conclusion of the

court appeal or an appropriate order

from the court.

Proposed Rule 1411 (38 CFR 20.1411)

would set forth the relationship between

motions under proposed subpart O and

certain other statutes. First, in

accordance with the discussion under

‘‘Clear and Unmistakable Error’’ earlier

in this document, the rule would

provide that the ‘‘benefit of the doubt’’

rule of 38 U.S.C. 5107(b) would not

apply to determinations as to whether

there was CUE. Second, because review

under this proposed subpart is limited

to the evidence of record at the time of

the Board decision challenge, and

because a motion under this subpart

would be a collateral challenge to a

Board decision rather than a ‘‘claim’’ for

benefits, cf. Duran v. Brown, 7 Vet. App.

216, 223–24 (1994) (claim of CUE is a

collateral attack on a prior final VA

decision), the rule would also provide

that a motion under this subpart is not

a claim subject to reopening under 38

U.S.C. 5108 (relating to reopening

claims on the grounds of new and

material evidence). Third, because a

motion under proposed subpart O is a

statutory challenge to an otherwise final

Board decision rather than an

‘‘application for benefits,’’ the rule

would provide that the notification

requirements in 38 U.S.C. 5103(a)

(relating to applications for benefits)

would not apply to such motions.

Finally, because a motion would not be

a claim for benefits, and because the

notion of a ‘‘well-grounded claim’’

would be irrelevant to a motion under

proposed subpart O, the rule would

provide that the ‘‘duty to assist’’

requirements in 38 U.S.C. 5107(a)

(relating to VA’s duty following the

filing of a well-grounded claim) would

not apply to such motions.

Attorney Fees

The proposed regulations would also

add a new paragraph (4) to Rule 609(c)

(38 CFR 20.609(c), relating to payment

of a representative’s fees in connection

with VA proceedings), which would

provide that the term ‘‘issue’’ referred to

in Rule 609(c) would have the same

meaning as that term in proposed Rule

1401(a), discussed earlier in this

document.

Generally, attorneys may charge a fee

in connection with VA proceedings only

if (1) there has been a final Board

decision on the issue (or issues)

involved; (2) the Notice of Disagreement

(discussed earlier in this document)

which preceded the Board decision with

respect to the issue, or issues, involved

was received on or after November 18,

1988; and (3) the attorney was retained

within one year of the relevant Board

decision. 38 U.S.C. 5904(c)(1); 38 CFR

20.609(c).

In the case of a motion under

proposed subpart O, it is our view that

the issue for purposes of Rule 609 is the

issue associated with the Board decision

which is being challenged in the motion

under proposed subpart O. Accordingly,

an attorney could charge a fee in

connection with a motion under

proposed subpart O if (1) the challenged

Board decision was preceded by a

notice of disagreement received by the

AOJ on or after November 18, 1988, and

(2) the attorney was retained not later

than one year following the date of the

challenged Board decision.

We note that proposed Rule 609(c)(4)

would not affect the ability of an

attorney to charge a fee in connection

with proceedings before a court, because

such charges are not subject to VA’s

jurisdiction.

The Secretary hereby certifies that

this proposed rule would 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

rule would affect only the processing of

claims by VA and would not affect

small businesses. Therefore, pursuant to

5 U.S.C. 605(b), this proposed rule is

exempt from the initial and final

regulatory flexibility analyses

requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 19

Administrative practice and

procedure, Claims, Veterans.

Approved: May 11, 1998.

Togo D. West, Jr.,

Secretary.

For the reasons set out in the

preamble, 38 CFR part 20 is proposed to

be amended as set forth below:

PART 20—BOARD OF VETERANS’

APPEALS: RULES OF PRACTICE

1. The authority citation for part 20

continues to read as follows:

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

2. In subpart G, § 20.609, paragraph

(c)(4) is added to read as follows:

§ 20.609. Rule 609. Payment of

representative’s fees in proceedings before

Department of Veterans Affairs field

personnel and before the Board of

Veterans’ Appeals.

* * * * *

(c) * * *

(4) For the purposes of this section, in

the case of a motion under Subpart O of

this part (relating to requests for

revision of prior Board decisions on the

grounds of clear and unmistakable
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Proposed Rules 27539

error), the ‘‘issue’’ referred to in this

paragraph (c) shall have the same

meaning as ‘‘issue’’ in Rule 1401(a)

(§ 20.1401(a) of this part).

* * * * *

§ 20.1000 [Amended]

3. In subpart K, § 20.1000 is amended

by removing paragraph (a) and

redesignating paragraphs (b) and (c) as

(a) and (b), respectively.

§ 20.1001 [Amended]

4. In subpart K, § 20.1001(a), the

second sentence is amended by

removing ‘‘alleged obvious error, or

errors, of fact or law in the applicable

decision, or decisions, of the Board or

other appropriate’’.

5. A new subpart O is added to read

as follows:

Subpart O—Revision of Decisions on

Grounds of Clear and Unmistakable Error

Sec.

20.1400 Rule 1400. Motions to revise Board

decisions.

20.1401 Rule 1401. Definitions.

20.1402 Rule 1402. Inapplicability of other

rules.

20.1403 Rule 1403. What constitutes clear

and unmistakable error; what does not.

20.1404 Rule 1404. Filing and pleading

requirements.

20.1405 Rule 1405. Disposition.

20.1406 Rule 1406. Effect of revision.

20.1407 Rule 1407. Motions by the Board.

20.1408 Rule 1408. Special rules for

simultaneously contested claims.

20.1409 Rule 1409. Finality and appeal.

20.1410 Rule 1410. Stays pending court

action.

20.1411 Rule 1411. Relationship to other

statutes.

Subpart O—Revision of Decisions on

Grounds of Clear and Unmistakable

Error

§ 20.1400 Rule 1400. Motions to revise

Board decisions.

(a) Review to determine whether clear

and unmistakable error exists in a final

Board decision may be initiated by the

Board, on its own motion, or by a party

to that decision (as the term ‘‘party’’ is

defined in Rule 1401(b) (§ 20.1401(b) of

this part) in accordance with Rule 1404

(§ 20.1404 of this part).

(b) A Board decision on an issue

decided by a court of competent

jurisdiction on appeal is not subject to

revision on the grounds of clear and

unmistakable error.

(Authority: 38 U.S.C. 501(a), 7111)

§ 20.1401 Rule 1401. Definitions.

(a) Issue. Unless otherwise specified,

the term ‘‘issue’’ in this subpart means

a matter upon which the Board made a

final decision (other than a decision

under this subpart) which was

appealable under Chapter 72 of title 38,

United States Code, or which would

have been so appealable if the Notice of

Disagreement with respect to such

matter had been received by the agency

of original jurisdiction on or after

November 18, 1988.

(b) Party. As used in this subpart, the

term ‘‘party’’ means any party to the

proceeding before the Board that

resulted in the final Board decision

which is the subject of a motion under

this subpart, but does not include

officials authorized to file

administrative appeals pursuant to

§ 19.51 of this title.

(Authority: 38 U.S.C. 501(a), 7104(a))

§ 20.1402 Rule 1402. Inapplicability of

other rules.

Motions filed under this subpart are

not appeals and, except as otherwise

provided, are not subject to the

provisions of parts 19 or 20 of this

chapter which relate to the processing

and disposition of appeals.

§ 20.1403 Rule 1403. What constitutes

clear and unmistakable error; what does

not.

(a) General. Clear and unmistakable

error is a very specific and rare kind of

error. It is the kind of error, of fact or

of law, that when called to the attention

of later reviewers compels the

conclusion, to which reasonable minds

could not differ, that the result would

have been manifestly different but for

the error. Generally, either the correct

facts, as they were known at the time,

were not before the Board, or the

statutory and regulatory provisions

extant at the time were incorrectly

applied.

(b) Record to be reviewed.—(1)

General. Review for clear and

unmistakable error in a prior Board

decision must be based on the record

and the law that existed when that

decision was made.

(2) Special rule for Board decisions

issued on or after July 21, 1992. For a

Board decision issued on or after July

21, 1992, the record that existed when

that decision was made includes

relevant documents possessed by the

Department of Veterans Affairs not later

than 90 days before such record was

transferred to the Board for review in

reaching that decision, provided that the

documents could reasonably be

expected to be part of the record.

(c) Errors that constitute clear and

unmistakable error. To warrant revision

of a Board decision on the grounds of

clear and unmistakable error, there must

have been an error in the Board’s

adjudication of the appeal which, had it

not been made, would have manifestly

changed the outcome when it was made.

If it is not absolutely clear that a

different result would have ensued, the

error complained of cannot be clear and

unmistakable.

(d) Examples of situations that are not

clear and unmistakable error.—(1)

Changed diagnosis. A new medical

diagnosis that ‘‘corrects’’ an earlier

diagnosis considered in a Board

decision.

(2) Duty to assist. The Secretary’s

failure to fulfill the duty to assist.

(3) Evaluation of evidence. A

disagreement as to how the facts were

weighed or evaluated.

(e) Change in interpretation. Clear and

unmistakable error does not include the

otherwise correct application of a

statute or regulation where, subsequent

to the Board decision challenged, there

has been a change in the interpretation

of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

§ 20.1404 Rule 1404. Filing and pleading

requirements.

(a) General. A motion for revision of

a decision based on clear and

unmistakable error must be in writing,

and must be signed by the moving party

or that party’s representative. The

motion must include the name of the

veteran; the name of the moving party

if other than the veteran; the applicable

Department of Veterans Affairs file

number; and the date of the Board of

Veterans’ Appeals decision to which the

motion relates. If the applicable

decision involved more than one issue

on appeal, the motion must identify the

specific issue, or issues, to which the

motion pertains. Motions which fail to

comply with the requirements set forth

in this paragraph shall be dismissed

without prejudice to refiling under this

subpart.

(b) Specific allegations required. The

motion must set forth clearly and

specifically the alleged clear and

unmistakable error, or errors, of fact or

law in the Board decision, the legal or

factual basis for such allegations, and

why the result would have been

manifestly different but for the alleged

error. Non-specific allegations of failure

to follow regulations or failure to give

due process, or any other general, nonspecific allegations of error, are

insufficient to satisfy the requirement of

the previous sentence. Motions which

fail to comply with the requirements set

forth in this paragraph shall be denied.

(c) Filing. A motion for revision of a

decision based on clear and

unmistakable error may be filed at any

time. Such motions should be filed at

the following address: Director,

Administrative Service (014), Board of
27540 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Proposed Rules

Veterans’ Appeals, 810 Vermont

Avenue, NW, Washington, DC 20420.

(d) Requests not filed at the Board. A

request for revision transmitted to the

Board by the Secretary pursuant to 38

U.S.C. 7111(f) (relating to requests for

revision filed with the Secretary other

than at the Board) shall be treated as if

a motion had been filed pursuant to

paragraph (d) of this section.

(Authority: 38 U.S.C. 501(a), 7111)

§ 20.1405 Rule 1405. Disposition.

(a) Docketing and assignment.

Motions under this subpart will be

docketed in the order received and will

be assigned in accordance with § 19.3 of

this part (relating to assignment of

proceedings). Where an appeal is

pending on the same underlying issue at

the time the motion is received, the

motion and the appeal may be

consolidated under the same docket

number and disposed of as part of the

same proceeding. A motion may not be

assigned to any Member who

participated in the decision that is the

subject of the motion. If a motion is

assigned to a panel, the decision will be

by a majority vote of the panel

Members.

(b) Evidence. No new evidence will be

considered in connection with the

disposition of the motion. Material

included in the record on the basis of

Rule 1403(b)(2) (§ 20.1403(b)(2) of this

part) is not considered new evidence.

(c) Hearing.—(1) Availability. The

Board may, for good cause shown, grant

a request for a hearing for the purpose

of argument. No testimony or other

evidence will be admitted in connection

with such a hearing. The determination

as to whether good cause has been

shown shall be made by the member or

panel to whom the motion is assigned.

(2) Submission of requests. Requests

for such a hearing shall be submitted to

the following address: Director,

Administrative Service (014), Board of

Veterans’ Appeals, 810 Vermont

Avenue, NW, Washington, DC 20420.

(d) Decision to be by the Board. The

decision on a motion under this subpart

shall be made by the Board. There shall

be no referral of the matter to any

adjudicative or hearing official acting on

behalf of the Secretary for the purpose

of deciding the motion.

(e) Referral to ensure completeness of

the record. Subject to the provisions of

paragraph (b) of this section, the Board

may use the various agencies of original

jurisdiction to ensure completeness of

the record in connection with a motion

under this subpart.

(f) General Counsel opinions. The

Board may secure opinions of the

General Counsel in connection with a

motion under this subpart. In such

cases, the Board will notify the party

and his or her representative, if any.

When the opinion is received by the

Board, a copy of the opinion will be

furnished to the party’s representative

or, subject to the limitations provided in

38 U.S.C. 5701(b)(1), to the party if there

is no representative. A period of 60 days

from the date of mailing of a copy of the

opinion will be allowed for response.

The date of mailing will be presumed to

be the same as the date of the letter or

memorandum which accompanies the

copy of the opinion for purposes of

determining whether a response was

timely filed.

(g) Decision. The decision of the

Board on a motion will be in writing.

The decision will include separately

stated findings of fact and conclusions

of law on all material questions of fact

and law presented on the record, the

reasons or bases for those findings and

conclusions, and an order granting or

denying the motion.

(Authority: 38 U.S.C. 501(a), 7104(d), 7111)

§ 20.1406 Rule 1406. Effect of revision

A decision of the Board that revises a

prior Board decision on the grounds of

clear and unmistakable error has the

same effect as if the decision had been

made on the date of the prior decision.

Revision of a prior Board decision under

this subpart that results in the

discontinuance or reduction of benefits

is subject to laws and regulations

governing the reduction or

discontinuance of benefits by reason of

erroneous award based solely on

administrative error or errors in

judgment.

(Authority: 38 U.S.C. 7111(b)

§ 20.1407 Rule 1407. Motions by the Board

If the Board undertakes, on its own

motion, a review pursuant to this

subpart, the party to that decision and

that party’s representative (if any) will

be notified of such motion and provided

an adequate summary thereof and, if

applicable, outlining any proposed

discontinuance or reduction in benefits

that would result from revision of the

Board’s prior decision. They will be

allowed a period of 60 days to file a

brief or argument in answer. The failure

of a party to so respond does not affect

the finality of the Board’s decision on

the motion.

(Authority: 38 U.S.C. 501(a), 7111)

§ 20.1408 Rule 1408. Special rules for

simultaneously contested claims.

In the case of a motion under this

subpart to revise a final Board decision

in a simultaneously contested claim, as

that term is used in Rule 3(o) (§ 20.3(o)

of this part), a copy of such motion

shall, to the extent practicable, be sent

to all other contesting parties. Other

parties have a period of 30 days from

the date of mailing of the copy of the

motion to file a brief or argument in

answer. The date of mailing of the copy

will be presumed to be the same as the

date of the letter which accompanies the

copy. Notices in simultaneously

contested claims will be forwarded to

the last address of record of the parties

concerned and such action will

constitute sufficient evidence of notice.

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

§ 20.1409 Rule 1409. Finality and appeal.

(a) A decision on a motion filed by a

party or initiated by the Board pursuant

to this subpart will be stamped with the

date of mailing on the face of the

decision, and is final on such date. The

party and his or her representative, if

any, will be provided with copies of the

decision.

(b) For purposes of this section, a

dismissal without prejudice under Rule

1404(a) (§ 20.1404(a) of this part) or a

referral under Rule 1405(e) is not a final

decision of the Board.

(c) Once there is a final decision on

a motion under this subpart relating to

a prior Board decision on an issue, that

prior Board decision on that issue is no

longer subject to revision on the

grounds of clear and unmistakable error.

Subsequent motions relating to that

prior Board decision on that issue shall

be dismissed with prejudice.

(d) Chapter 72 of title 38, United

States Code (relating to judicial review),

applies with respect to final decisions

on motions filed by a party or initiated

by the Board pursuant to this subpart.

(Authority: 38 U.S.C. 501(a); Pub. L. 105–

111)

§ 20.1410 Rule 1410. Stays pending court

action.

The Board will stay its consideration

of a motion under this subpart upon

receiving notice that the Board decision

that is the subject of the motion has

been appealed to a court of competent

jurisdiction until the appeal has been

concluded or the court has issued an

order permitting, or directing, the Board

to proceed with the motion.

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

§ 20.1411 Rule 1411. Relationship to other

statutes.

(a) The ‘‘benefit of the doubt’’ rule of

38 U.S.C. 5107(b) does not apply to the

Board’s decision, on a motion under this

subpart, as to whether there was clear

and unmistakable error in a prior Board

decision.
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Proposed Rules 27541

(b) A motion under this subpart is not

a claim subject to reopening under 38

U.S.C. 5108 (relating to reopening

claims on the grounds of new and

material evidence).

(c) A motion under this subpart is not

an application for benefits subject to any

duty associated with 38 U.S.C. 5103(a)

(relating to applications for benefits).

(d) A motion under this subpart is not

a claim for benefits subject to the

requirements and duties associated with

38 U.S.C. 5107(a) (requiring ‘‘wellgrounded’’ claims and imposing a duty

to assist).

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

[FR Doc. 98–13197 Filed 5–18–98; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[IL169–1b; FRL–6012–8]

Approval and Promulgation of State

Implementation Plan; Illinois

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

the March 5, 1998, Illinois State

Implementation Plan (SIP) revision

request containing amendments to

volatile organic material emission

control rules for wood furniture coating

operations in the Chicago and MetroEast ozone nonattainment areas. In the

final rules section of this Federal

Register, the EPA is approving the

State’s requests as a direct final rule

without prior proposal because EPA

views this action as noncontroversial

and anticipates no adverse comments. A

detailed rationale for approving the

State’s request is set forth in the direct

final rule. The direct final rule will

become effective without further notice

unless the Agency receives relevant

adverse written comment on this

proposed rule. Should the Agency

receive such comment, it will publish a

final rule informing the public that the

direct final rule did not take effect and

such public comment received will be

addressed in a subsequent final rule

based on this proposed rule. If no

adverse written comments are received,

the direct final rule will take effect on

the date stated in that document and no

further activity will be taken on this

proposed rule. EPA does not plan to

institute a second comment period on

this action. Any parties interested in

commenting on this action should do so

at this time.

DATES: Written comments on this

proposed rule must be received on or

before June 18, 1998.

ADDRESSES: Written comments should

be mailed to: J. Elmer Bortzer, Chief,

Regulation Development Section, Air

Programs Branch (AR–18J),

Environmental Protection Agency,

Region 5, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

Copies of the State submittal are

available for inspection at: Regulation

Development Section, Air Programs

Branch (AR–18J), Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604.

FOR FURTHER INFORMATION CONTACT:

Mark J. Palermo, Environmental

Protection Specialist, Regulation

Development Section, Air Programs

Branch (AR–18J), Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604, (312) 886–6082.

SUPPLEMENTARY INFORMATION: For

additional information see the direct

final rule published in the final rules

section of this Federal Register.

Dated: April 29, 1998.

Barry C. DeGraff,

Acting Regional Administrator.

[FR Doc. 98–13298 Filed 5–18–98; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[MI67–01–7275; FRL–6014–7]

Approval and Promulgation of

Implementation Plans; Michigan

AGENCY: Environmental Protection

Agency.

ACTION: Notice of proposed rulemaking.

SUMMARY: In this document, the

Environmental Protection Agency (EPA)

is proposing to correct the State

Implementation Plan (SIP) for the State

of Michigan regarding the State’s

emission limitations and prohibitions

for air contaminant or water vapor,

pursuant to section 110(k)(6) of the

Clean Air Act, as amended in 1990.

In the final rules section of this

Federal Register, the EPA is approving

the State’s request as a direct final rule

without prior proposal because EPA

views this action as noncontroversial

and anticipates no adverse comments. A

detailed rationale for approving the

State’s request is set forth in the direct

final rule. The direct final rule will

become effective without further notice

unless the Agency receives relevant

adverse written comment on this

proposed rule within 30 days of this

publication. Should the Agency receive

such comment, it will publish a

document informing the public that the

direct final rule did not take effect and

such public comment received will be

addressed in a subsequent final rule

based on this proposed rule. If no

adverse comments are received, the

direct final rule will take effect on the

date stated in that document and no

further activity will be taken on this

proposed rule. USEPA does not plan to

institute a second comment period on

this action. Any parties interested in

commenting on this document should

do so at this time.

DATES: Comments on this proposed

action must be received on or before

June 18, 1998.

ADDRESSES: Written comments should

be sent to: Carlton T. Nash, Chief,

Regulation Development Section, Air

Programs Branch (AR–18J), U.S.

Environmental Protection Agency, 77

West Jackson Boulevard, Chicago,

Illinois 60604.

Copies of the documents relevant to

this action are available for public

inspection during normal business

hours at the following address: United

States Environmental Protection

Agency, Region 5, Air and Radiation

Division, 77 West Jackson Boulevard,

Chicago, Illinois 60604. (Please

telephone Victoria Hayden at (312) 886–

4023 before visiting the Region 5

Office.)

FOR FURTHER INFORMATION CONTACT:

Victoria Hayden, Regulation

Development Section, Air Programs

Branch (AR–18J), U.S. Environmental

Protection Agency, Region 5, 77 West

Jackson Boulevard, Chicago, Illinois

60604, Telephone Number (312) 886-

4023.

SUPPLEMENTARY INFORMATION: See the

information provided in the Direct Final

rule of the same title which is located

in the Rules Section of this Federal

Register.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Reporting and

recordkeeping.

Authority: 42 U.S.C. 7401–7671q.

Dated: May 7, 1998.

Robert Springer,

Acting Regional Administrator, Region 5.

[FR Doc. 98–13296 Filed 5–18–98; 8:45 am]

BILLING CODE 6560–50–P