[Federal Register Volume 86, Number 107 (Monday, June 7, 2021)]
[Rules and Regulations]
[Pages 30182-30184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11835]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AR21


Changes to Administrative Procedures Governing Guidance Documents

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations that govern the processes and procedures for issuing and 
managing guidance documents. These changes are necessary because an 
Executive order (E.O.) entitled ``Promoting the Rule of Law Through 
Improved Agency Guidance Documents,'' under which the regulations were 
originally issued, has been rescinded by an E.O. entitled ``Revocation 
of Certain Executive Orders Concerning Federal Regulation.'' This final 
rulemaking will implement changes to ensure that the processes and 
procedures comply with the mandates of the E.Os. entitled ``Revocation 
of Certain Executive Orders Concerning Federal Regulation'' and 
``Regulatory Planning and Review,'' while also maintaining certain 
beneficial practices.

DATES: This rule is effective July 7, 2021.

FOR FURTHER INFORMATION CONTACT: Jeffrey Martin, Office of Regulation 
Policy and Management (00REG), 810 Vermont Avenue NW, Washington, DC 
20420, (202) 230-6402. (This is not a toll-free telephone number).

SUPPLEMENTARY INFORMATION: On November 13, 2020 (85 FR 72569), VA 
promulgated regulations in 38 CFR part 5 that established processes and 
procedures for issuing and managing guidance documents in accordance 
with E.O. 13891, Promoting the Rule of Law Through Improved Agency 
Guidance Documents. However, E.O. 13891 was rescinded by E.O. 13992, 
Revocation of Certain Executive Orders Concerning Federal Regulation, 
which directed agencies to ``promptly take steps to rescind any orders, 
rules, regulations, guidelines, or policies, or portions thereof, 
implementing or enforcing'' the rescinded E.O. With E.O. 13891 
rescinded, there is no requirement that VA have regulations that govern 
guidance documents. However, some of the requirements and processes 
contained in the regulations serve useful functions and are worth 
maintaining. Additionally, VA's practices for guidance documents are 
still expected to comply with E.O. 12866, Regulatory Planning and 
Review. Therefore, to ensure VA's practices regarding guidance 
documents comply with both E.O. 12866 and E.O. 13992, and continue 
certain beneficial practices, we make the following changes to the 
regulations in part 5.

Authority

    We are removing the citation to E.O. 13891 in the authority for 
part 5 and replacing it with a citation to E.O. 12866.
    Section 5.0 Purpose.

[[Page 30183]]

    Section 5.0 is being amended by removing the language that 
discusses E.O. 13891.
    Section 5.10 Definitions relating to guidance documents.
    Section 5.10 is the definitions section. The section generally 
tracks the requirements that were outlined in E.O. 13891, as applied to 
VA. However, we are not making any changes to this section. We note 
that the definition of ``guidance document'' in Sec.  5.10 largely 
correlates with the definition of ``rule'' from E.O. 12866, and the 
criteria for what makes a guidance document ``significant'' are 
substantively the same as the criteria for rules under E.O. 12866.
    Section 5.15 Procedures for issuing guidance documents.
    Section 5.15 contains procedures for issuing guidance documents. 
Paragraph (a) applies to all guidance documents, while paragraph (b) is 
specific to significant guidance documents.
    We are changing paragraph (a)(1) to state that each guidance 
document should include a disclaimer that the document does not have 
the force and effect of law and is not meant to bind the public in any 
way, rather than requiring such disclaimers to be included. This 
disclaimer is not required by E.O. 12866, and removing its requirement 
will minimize litigation risks associated with technical noncompliance. 
However, we are not entirely eliminating the use of the disclaimer 
because we believe it serves a beneficial purpose of clarifying the 
scope and limitations of guidance documents.
    As with paragraph (a)(1), we are changing paragraph (a)(2) to state 
that each guidance document should include the listed information, 
rather than requiring the information to be included. We believe this 
change will provide a measure of standardization to guidance documents 
without requiring significant additional work and will also minimize 
litigation risks associated with technical noncompliance.
    For paragraph (b), as with paragraphs (a)(1) and (2), we are 
changing the language to state that significant guidance documents 
should contain the disclaimer and listed information from paragraph 
(a), rather than requiring that they do so.
    We are removing paragraph (b)(1) and renumbering the remaining 
paragraphs accordingly. This change will remove the requirement to 
conduct notice-and-comment procedures when issuing significant guidance 
documents. We acknowledge that providing the public an opportunity to 
participate in the process of issuing guidance documents would track 
the requirements from section 6(a)(1) of E.O. 12866 that agencies 
provide the public meaningful participation and an opportunity to 
comment on proposed regulations. However, guidance documents are not 
regulations, and requiring notice-and-comment procedures is an onerous 
process that is not required by any law or other authority. Further, 
there are already less burdensome methods of allowing public 
participation. For example, Sec.  5.20 creates a process for the public 
to petition for withdrawal or modification of guidance documents.
    In redesignated paragraph (b)(1), we are removing the reference to 
E.O. 13891. And in redesignated paragraph (b)(3), we are removing the 
reference to E.Os. 13771 and 13777 as they have also been rescinded by 
E.O. 13992. We are also removing the phrase ``for regulations and 
rules,'' because as noted above, guidance documents are not regulations 
and thus are not subject to the same processes and requirements as 
regulations.
    Section 5.20 Procedures for petition for the withdrawal or 
modification of a guidance document.
    Section 5.20 contains a process for the public to petition for the 
withdrawal or modification of guidance documents, including the minimum 
amount of information that must be included in a petition. Although not 
mandated by any law or other authority, we are generally keeping this 
process in place as it is consistent with E.O. 12866's focus on 
allowing public participation. However, to permit the Department 
increased flexibility in responding to petitions, we are changing the 
90-day time limit to respond in paragraph (c) from a requirement to a 
goal that the agency will seek to meet.
    Section 5.25 Guidance website.
    Section 5.25 will continue to provide notice of the Department's 
guidance document website. However, we are removing the second sentence 
from this section. This will remove the reference to E.O. 13891. 
Additionally, this will remove the limitation on how the agency may use 
guidance documents not available on the website to increase the 
agency's flexibility in utilizing guidance documents.

Administrative Procedure Act

    The Secretary of Veterans Affairs is publishing this rule without 
prior opportunity for public comment pursuant to 5 U.S.C. 553(b)(A) as 
this rule is a rule of agency organization, procedure, or practice, and 
thus is published as a final rule.

Paperwork Reduction Act

    This rule 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 final rule 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. The regulations established by this rulemaking do not impose 
burdens or otherwise regulate the activities of any entities outside of 
VA. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final 
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do 
not apply.

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). E.O. 13563 (Improving Regulation and Regulatory Review) 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. The 
Office of Information and Regulatory Affairs (OIRA) has determined that 
this rule is not a significant regulatory action under E.O. 12866. The 
Regulatory Impact Analysis associated with this rulemaking can be found 
as a supporting document at www.regulations.gov.

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 the 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 one year. This final rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    There are no Catalog of Federal Domestic Assistance numbers and 
titles for this rule.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
OIRA

[[Page 30184]]

designated this rule as not a major rule as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Part 5

    Administrative practice and procedure.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on April 15, 2021, 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.

Luvenia Potts,
Regulation Development Coordinator, Office of Regulation Policy & 
Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 5 as follows:

PART 5--ADMINISTRATIVE PROCEDURES: GUIDANCE DOCUMENTS

0
1. The authority citation for part 5 is revised to read as follows:

    Authority:  38 U.S.C. 501; E.O. 12866, 58 FR 51735, 3 CFR, 1993 
Comp., p. 638.


0
2. Revise Sec.  5.0 to read as follows:


Sec.  5.0  Purpose.

    This part provides the Department of Veterans Affairs' (VA's) 
processes and procedures for issuing and managing guidance documents.

0
3. Amend Sec.  5.15 as follows:
0
a. Revise the first sentence of paragraph (a)(1);
0
b. Revise the introductory text of paragraph (a)(2);
0
c. Revise paragraph (a)(2)(vii);
0
d. Remove paragraph (a)(2)(viii);
0
e. Redesignate paragraph (a)(2)(ix) as paragraph (a)(2)(viii);
0
f. Revise the introductory text of paragraph (b);
0
g. Remove paragraph (b)(1);
0
h. Redesignate paragraphs (b)(2) through (b)(4) as paragraphs (b)(1) 
through (3); and
0
i. Revise newly redesignated paragraphs (b)(1) and (3).
    The revisions read as follows:


Sec.  5.15  Procedures for issuing guidance documents.

    (a) General. (1) Each guidance document should clearly and 
prominently state that it does not bind the public, except as 
authorized by law or as incorporated into a contract. * * *
    (2) Each guidance document should include the following information 
in the published guidance document:
* * * * *
    (vii) A short summary of the subject matter covered at the 
beginning of the guidance document; and
* * * * *
    (b) Significant guidance documents. VA will refer to the 
Administrator of the Office of Information and Regulatory Affairs 
(OIRA) within the Office of Management and Budget, or the 
Administrator's designee, the question of whether a guidance document 
is significant. Significant guidance documents should contain the 
disclaimer and information described in paragraph (a) of this section. 
Additionally, unless the Administrator of OIRA, pursuant to review 
under E.O. 12866, and VA agree that exigency, safety, health, or other 
compelling cause warrants an exemption, the following additional 
procedures apply:
    (1) The Secretary or a VA component head appointed by the President 
(with or without confirmation by the Senate), or by an official who is 
serving in an acting capacity as either of the foregoing, must approve 
any significant guidance document prior to issuance. This approval 
authority is not delegable.
* * * * *
    (3) Significant guidance documents must comply with the applicable 
requirements set forth in Executive Orders 12866, 13563, and 13609.

0
4. Revise Sec.  5.20(c) to read as follows:


Sec.  5.20  Procedures for petition for the withdrawal or modification 
of a guidance document.

* * * * *
    (c) VA will seek to provide a response to a petition within 90 days 
of receipt of the request.

0
5. Revise Sec.  5.25 to read as follows:


Sec.  5.25  Guidance website.

    VA has a guidance website that contains, or links to, guidance 
documents that are currently in effect. The website can be found at the 
following address: www.va.gov/orpm/va_guidance_documents.asp.

[FR Doc. 2021-11835 Filed 6-4-21; 8:45 am]
BILLING CODE 8320-01-P