[Federal Register Volume 61, Number 127 (Monday, July 1, 1996)]
[Proposed Rules]
[Pages 33878-33879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16643]


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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: Proposed rule.

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SUMMARY: In a document recently published in the Federal Register (61 
FR 11309), the Department of Veterans Affairs (VA) amended the 
``GENERAL PROVISIONS'' regulations by eliminating a policy statement 
concerning prior notice-and-comment for rulemaking. That action, taken 
without prior notice-and-comment, concluded that the policy statement 
was unnecessary. Judicial review has been sought on the basis that such 
action did not comply with notice-and-comment provisions. While we 
believe such position is not legally correct, we do not object to 
providing interested parties with an opportunity to comment on whether 
the policy statement should be eliminated. Accordingly, a companion 
document published in the Rules and Regulations section of this issue 
of the Federal Register reestablishes the policy statement and this 
document proposes to eliminate it, thus affording interested parties 
the opportunity to comment thereon. For reasons stated below, it does 
not appear that there is a need to retain the policy statement.

DATES: Comments must be received on or before August 30, 1996.

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-AI33.'' 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 8:00 a.m. and 4:30 p.m., Monday through Friday (except 
holidays).

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: This document proposes to amend the 
``GENERAL PROVISIONS'' regulations in 38 CFR part 1 by removing 
Sec. 1.12.

[[Page 33879]]

This section consists of a policy statement concerning prior notice-
and-comment for rulemaking.
    The provisions of 5 U.S.C. 553 set forth notice-and-comment 
requirements for rulemaking and include an exemption from the notice-
and-comment requirements for rulemaking concerning public property, 
loans, grants, benefits, or contracts. Regardless of whether the 
rulemaking concerns public property, loans, grants, benefits, or 
contracts, the provisions of 5 U.S.C. 553 also contain exemptions from 
the notice-and-comment requirements for interpretative rules; general 
statements of policy; rules of organization, procedure, or practice; 
and for rules published with an appropriate statement of ``good 
cause.'' The regulatory history of Sec. 1.12 indicates that, despite 
the statutory exemption for public property, loans, grants, benefits, 
or contracts, VA intended to utilize the notice-and-comment provisions 
for rulemaking unless it were determined that it was appropriate to use 
an applicable exemption other than an exemption based on the mere fact 
that the subject matter concerned property, loans, grants, benefits, or 
contracts (see 37 FR 3552, Feb. 17, 1972).
    Subsequent to the promulgation of Sec. 1.12, statutory provisions 
were established that specifically apply the public 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)). These statutory provisions do not 
impose notice-and-comment provisions for rulemaking concerning public 
property or contracts.
    Also, subsequent to the promulgation of Sec. 1.12, statutory 
provisions were established that specifically apply notice-and-comment 
provisions to certain rulemaking concerning contracts. In this regard, 
41 U.S.C. 418b provides, with certain exceptions, that ``no procurement 
policy, regulation, procedure, or form (including amendments or 
modifications thereto) relating to the expenditure of appropriated 
funds that has (1) a significant effect beyond the internal operating 
procedures of the agency issuing the procurement policy, regulation, 
procedure or form, or (2) a significant cost or administrative impact 
on contractors or offerors, may take effect until 60 days after the 
procurement policy, regulation, procedure, or form is published for 
public comment in the Federal Register.''
    It does not appear that there is a need for VA to self-impose 
additional notice-and-comment requirements for rulemaking beyond those 
imposed by statute.
    A companion document reestablishing Sec. 1.12 is published in the 
Rules and Regulations section of this issue of the Federal Register.
    No notice of proposed rulemaking was required in connection with 
this rulemaking action. Accordingly, no regulatory flexibility analysis 
is required under the Regulatory Flexibility Act (5 U.S.C. 601-612). 
Nevertheless, the Secretary of Veterans Affairs 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. The adoption of the proposed rule would 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, Archives and records, 
Cemeteries, Claims, Courts, Flags, Freedom of information, Government 
contracts, Government employees, Government property, Infants and 
children, Inventions and patents, Investigations, Parking, Penalties, 
Postal Service, Privacy, Reporting and recordkeeping requirements, 
Seals and insignia, Security measures, Wages.

    Approved: June 21, 1996.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 1 is proposed 
to be 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]

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

[FR Doc. 96-16643 Filed 6-28-96; 8:45 am]
BILLING CODE 8320-01-P