Rules Governing Hearings Before the Agency of Original Jurisdiction and the Board of Veterans' Appeals; Repeal of Prior Rule Change, 70686-70687 [2012-28621]
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70686
Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations
we do discuss the effects of this rule
elsewhere in this preamble.
7. Taking of Private Property
This rule will not cause a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
8. Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
9. Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
10. Indian Tribal Governments
This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
11. Energy Effects
This action is not a ‘‘significant
energy action’’ under Executive Order
13211, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use.
12. Technical Standards
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
wreier-aviles on DSK5TPTVN1PROD with
13. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have determined that this action is one
of a category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves the
establishment of a safety zone and,
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therefore it is categorically excluded
from further review under paragraph
34(g) of Figure 2–1 of the Commandant
Instruction. An environmental analysis
checklist supporting this determination
and a Categorical Exclusion
Determination are available in the
docket where indicated under
ADDRESSES. We seek any comments or
information that may lead to the
discovery of a significant environmental
impact from this rule.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR parts 165 as follows:
of the Port, Sector Lake Michigan to act
on his behalf.
(4) Vessel operators desiring to enter
or operate within the safety zone shall
contact the Captain of the Port, Sector
Lake Michigan or his on-scene
representative to obtain permission to
do so. The Captain of the Port, Sector
Lake Michigan or his on-scene
representative may be contacted via
VHF Channel 16. Vessel operators given
permission to enter or operate in the
safety zone must comply with all
directions given to them by the Captain
of the Port, Sector Lake Michigan, or his
on-scene representative.
Dated: November 15, 2012.
M.W. Sibley,
Captain, U. S. Coast Guard, Captain of the
Port, Sector Lake Michigan.
[FR Doc. 2012–28693 Filed 11–26–12; 8:45 am]
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
BILLING CODE 9110–04–P
■
1. The authority citation for Part 165
continues to read as follows:
DEPARTMENT OF VETERANS
AFFAIRS
Authority: 33 U.S.C. 1231; 46 U.S.C.
Chapters 701, 3306, 3703; 50 U.S.C. 191, 195;
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
Pub. L. 107–295, 116 Stat. 2064; Department
of Homeland Security Delegation No. 0170.1.
38 CFR Parts 3 and 20
RIN 2900–AO43
■
2. Add § 165.T09–0904 to read as
follows:
Rules Governing Hearings Before the
Agency of Original Jurisdiction and the
Board of Veterans’ Appeals; Repeal of
Prior Rule Change
§ 165.T09–0904 Safety Zone; Bridge
Demolition Project, Indiana Harbor Canal,
East Chicago, Indiana.
AGENCY:
(a) Location. The safety zone will
encompass all waters of the Indiana
Harbor Canal in the vicinity of the Cline
Avenue Bridge at approximate position
41°39′4.3″ N and 87°27′54.3″ W (NAD
83).
(b) Effective and Enforcement Period.
This rule is effective between 6:00 a.m.
until 9:00 a.m. on December 1, 2012.
This rule will be enforced between 6:00
a.m. until 9:00 a.m. on December 1,
2012.
(c) Regulations. (1) In accordance with
the general regulations in § 165.23 of
this part, entry into, transiting, or
anchoring within this safety zone is
prohibited unless authorized by the
Captain of the Port, Sector Lake
Michigan or his designated on-scene
representative.
(2) This safety zone is closed to all
vessel traffic, except as may be
permitted by the Captain of the Port,
Sector Lake Michigan or his designated
on-scene representative.
(3) The ‘‘on-scene representative’’ of
the Captain of the Port, Sector Lake
Michigan is any Coast Guard
commissioned, warrant or petty officer
who has been designated by the Captain
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Department of Veterans Affairs.
Final rule; confirmation of
effective date and addition of
applicability date.
ACTION:
The Department of Veterans
Affairs (VA) published a direct final rule
amending its hearing regulations to
repeal a prior amendment that specified
that the provisions regarding hearings
before the Agency of Original
Jurisdiction (AOJ) do not apply to
hearings before the Board of Veterans’
Appeals (Board). VA received no
significant adverse comment concerning
this rule. This document confirms that
the direct final rule became effective on
June 18, 2012. Additionally, in the
preamble of the direct final rule, VA did
not provide an applicability date. This
document provides an applicability
date.
SUMMARY:
Effective Date: This final rule is
effective June 18, 2012.
Applicability Date: This final rule
shall apply to decisions issued by the
Board on or after August 23, 2011.
FOR FURTHER INFORMATION CONTACT:
Laura H. Eskenazi, Principal Deputy
Vice Chairman, Board of Veterans’
Appeals (01C), Department of Veterans
Affairs, 810 Vermont Avenue NW.,
DATES:
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wreier-aviles on DSK5TPTVN1PROD with
Federal Register / Vol. 77, No. 228 / Tuesday, November 27, 2012 / Rules and Regulations
Washington, DC 20420, (202) 632–4603.
(This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On April
18, 2012, VA published in the Federal
Register, 77 FR 23128, a direct final rule
to amend, in 38 CFR part 3, § 3.103(a)
and (c)(1), and, in 38 CFR part 20,
§ 20.706 and Appendix A to repeal
amendments made by RIN 2900–AO06,
‘‘Rules Governing Hearings Before the
Agency of Original Jurisdiction and the
Board of Veterans’ Appeals;
Clarification,’’ a final rule that had been
published in the Federal Register on
August 23, 2011. As discussed in the
preamble to the direct final rule, RIN
2900–AO06 altered language upon
which the United States Court of
Appeals for Veterans Claims (Veterans
Court) relied in Bryant v. Shinseki, 23
Vet. App. 488 (2010), which applied the
provisions of § 3.103(c)(2) to a Board
hearing. The Bryant Court held that the
provisions of § 3.103(c)(2) require a
‘‘Board hearing officer’’ to ‘‘fully explain
the issues still outstanding that are
relevant and material to substantiating
the claim’’ and to ‘‘suggest that a
claimant submit evidence on an issue
material to substantiating the claim
when the record is missing any
evidence on that issue or when the
testimony at the hearing raises an issue
for which there is no evidence in the
record.’’ Id. at 496–97.
VA determined that RIN 2900–AO06
should have followed the notice-andcomment procedure of 5 U.S.C. 553(b)
and (c) of the Administrative Procedure
Act and published the direct final rule
to return the regulations to the language
in effect before August 23, 2011. The
direct final rule provided a 30-day
comment period that ended on May 18,
2012. No significant adverse comment
was received. VA received only one
comment on May 17, 2012, from the
National Organization of Veterans’
Advocates, Inc. (NOVA). In pertinent
part, NOVA stated, ‘‘[T]he full,
retroactive repeal of the invalid
[amendments made by RIN 2900–AO06]
should move forward regardless of
whether the ‘VA receives a significant
adverse comment by May 18, 2012.’
* * * VA has a responsibility to repeal
the rule as quickly as possible. Doing so
will help ensure that any veterans
harmed by the invalid rule will be able
to obtain appropriate relief.’’
Accordingly, under the direct final rule
procedures that were described in RIN
2900–AO43, the direct final rule became
effective on June 18, 2012, because no
significant adverse comment was
received within the comment period.
We take this opportunity to address
three points made by NOVA in its
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comment. NOVA criticized the direct
final rule procedure because it was
‘‘conditional rather than mandatory.’’
As we anticipated when we published
the direct final rule, no significant
adverse comment was received by VA,
and the direct final rule became
effective on June 18, 2012. Accordingly,
NOVA’s concern about the action being
conditional is moot.
NOVA also urged that the ‘‘repeal of
[the amendments made by RIN 2900–
AO06 be] retroactive to August 23,
2011.’’ In the direct final rule, we stated
that we were ‘‘repealing’’ those
amendments but provided only an
effective date—June 18, 2012. We did
not provide an applicability date.
Accordingly, in this document we have
added, in the DATES section above, an
Applicability Date paragraph, stating,
‘‘This final rule shall apply to decisions
issued by the Board on or after August
23, 2011.’’
Finally, NOVA also encouraged VA to
‘‘clarify that any veteran who suffered
any harm as a result of the invalid rule
is now entitled to obtain relief.’’ In this
regard, appellants have a statutory right
to appeal a Board decision to the
Veterans Court within 120 days after the
date on which the appellant is notified
of the Board’s decision. See 38 U.S.C.
7266(a). Additionally, VA regulations
permit appellants whose claims have
been denied by the Board to file with
the Board at any time a motion for
reconsideration of the decision. See 38
CFR 20.1001. If the Chairman of the
Board denies a motion for
reconsideration, that denial and the
underlying Board decision may be
appealed to the Veterans Court if a
timely appeal was previously filed with
the Veterans Court with respect to that
underlying Board decision. See Mayer v.
Brown, 37 F.3d 618, 620 (Fed. Cir.
1994), overruled in part by Bailey v.
West, 160 F.3d 1360 (Fed. Cir. 1998) (en
banc). Also, the Board’s decision may be
appealed to the Veterans Court if the
appellant filed the motion for
reconsideration not later than 120 days
after being notified of the Board’s
decision and then appeals to the
Veterans Court not later than 120 days
after reconsideration is denied. Rosler v.
Derwinski, 1 Vet. App. 241, 249 (1991);
see also Linville v. West, 165 F.3d 1382,
1385–86 (Fed. Cir. 1999). Additionally,
the 120-day period to appeal a Board
decision to the Veterans Court is subject
to the doctrine of equitable tolling
within certain parameters. See Bove v.
Shinseki, 25 Vet. App. 136, 140 (2011).
These procedures provide adequate
avenues of relief to any claimants who
may have been adversely affected by the
repealed rule.
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70687
Signing Authority
The Secretary of Veterans Affairs, or
designee, approved this document 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. John
R. Gingrich, Chief of Staff, Department
of Veterans Affairs, Department of
Veterans Affairs, approved this
document on November 20, 2012, for
publication.
Dated: November 20, 2012.
Robert C. McFetridge,
Director, Regulation Policy and Management,
Office of the General Counsel, Department
of Veterans Affairs.
[FR Doc. 2012–28621 Filed 11–26–12; 8:45 am]
BILLING CODE 8320–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2011–0809; FRL–9754–5]
Approval and Promulgation of
Implementation Plans; Florida; Section
128 and 110(a)(2)(E)(ii) and (G)
Infrastructure Requirements for the
1997 8-hour Ozone National Ambient
Air Quality Standards; Correction
Environmental Protection
Agency (EPA).
ACTION: Final rule, correction.
AGENCY:
EPA published in the Federal
Register of July 30, 2012, a final rule
approving portions of the State
Implementation Plan (SIP) revision
submitted by the State of Florida,
through the Florida Department of
Environmental Protection (FDEP) on
May 24, 2012, as demonstrating that the
State met the SIP requirements of the
Clean Air Act (CAA or the Act) for the
1997 8-hour ozone national ambient air
quality standards (NAAQS). In that final
rule, EPA approved Florida’s
infrastructure submission, provided to
EPA on May 24, 2012, which included
state statues to be incorporated into the
SIP to address infrastructure
requirements regarding state boards and
emergency powers. While EPA
discussed in the final rulemaking that it
was taking action to approve certain
state statues into the Florida SIP to
address the state board requirements
and emergency powers, EPA
inadvertently did not list these state
statues in the regulatory text of the July
30, 2012, final rule. Accordingly, this
rulemaking corrects that inadvertent
regulatory text omission.
SUMMARY:
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]]>Agencies
[Federal Register Volume 77, Number 228 (Tuesday, November 27, 2012)]
[Rules and Regulations]
[Pages 70686-70687]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-28621]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3 and 20
RIN 2900-AO43
Rules Governing Hearings Before the Agency of Original
Jurisdiction and the Board of Veterans' Appeals; Repeal of Prior Rule
Change
AGENCY: Department of Veterans Affairs.
ACTION: Final rule; confirmation of effective date and addition of
applicability date.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) published a direct
final rule amending its hearing regulations to repeal a prior amendment
that specified that the provisions regarding hearings before the Agency
of Original Jurisdiction (AOJ) do not apply to hearings before the
Board of Veterans' Appeals (Board). VA received no significant adverse
comment concerning this rule. This document confirms that the direct
final rule became effective on June 18, 2012. Additionally, in the
preamble of the direct final rule, VA did not provide an applicability
date. This document provides an applicability date.
DATES: Effective Date: This final rule is effective June 18, 2012.
Applicability Date: This final rule shall apply to decisions issued
by the Board on or after August 23, 2011.
FOR FURTHER INFORMATION CONTACT: Laura H. Eskenazi, Principal Deputy
Vice Chairman, Board of Veterans' Appeals (01C), Department of Veterans
Affairs, 810 Vermont Avenue NW.,
[[Page 70687]]
Washington, DC 20420, (202) 632-4603. (This is not a toll-free number.)
SUPPLEMENTARY INFORMATION: On April 18, 2012, VA published in the
Federal Register, 77 FR 23128, a direct final rule to amend, in 38 CFR
part 3, Sec. 3.103(a) and (c)(1), and, in 38 CFR part 20, Sec. 20.706
and Appendix A to repeal amendments made by RIN 2900-AO06, ``Rules
Governing Hearings Before the Agency of Original Jurisdiction and the
Board of Veterans' Appeals; Clarification,'' a final rule that had been
published in the Federal Register on August 23, 2011. As discussed in
the preamble to the direct final rule, RIN 2900-AO06 altered language
upon which the United States Court of Appeals for Veterans Claims
(Veterans Court) relied in Bryant v. Shinseki, 23 Vet. App. 488 (2010),
which applied the provisions of Sec. 3.103(c)(2) to a Board hearing.
The Bryant Court held that the provisions of Sec. 3.103(c)(2) require
a ``Board hearing officer'' to ``fully explain the issues still
outstanding that are relevant and material to substantiating the
claim'' and to ``suggest that a claimant submit evidence on an issue
material to substantiating the claim when the record is missing any
evidence on that issue or when the testimony at the hearing raises an
issue for which there is no evidence in the record.'' Id. at 496-97.
VA determined that RIN 2900-AO06 should have followed the notice-
and-comment procedure of 5 U.S.C. 553(b) and (c) of the Administrative
Procedure Act and published the direct final rule to return the
regulations to the language in effect before August 23, 2011. The
direct final rule provided a 30-day comment period that ended on May
18, 2012. No significant adverse comment was received. VA received only
one comment on May 17, 2012, from the National Organization of
Veterans' Advocates, Inc. (NOVA). In pertinent part, NOVA stated,
``[T]he full, retroactive repeal of the invalid [amendments made by RIN
2900-AO06] should move forward regardless of whether the `VA receives a
significant adverse comment by May 18, 2012.' * * * VA has a
responsibility to repeal the rule as quickly as possible. Doing so will
help ensure that any veterans harmed by the invalid rule will be able
to obtain appropriate relief.'' Accordingly, under the direct final
rule procedures that were described in RIN 2900-AO43, the direct final
rule became effective on June 18, 2012, because no significant adverse
comment was received within the comment period.
We take this opportunity to address three points made by NOVA in
its comment. NOVA criticized the direct final rule procedure because it
was ``conditional rather than mandatory.'' As we anticipated when we
published the direct final rule, no significant adverse comment was
received by VA, and the direct final rule became effective on June 18,
2012. Accordingly, NOVA's concern about the action being conditional is
moot.
NOVA also urged that the ``repeal of [the amendments made by RIN
2900-AO06 be] retroactive to August 23, 2011.'' In the direct final
rule, we stated that we were ``repealing'' those amendments but
provided only an effective date--June 18, 2012. We did not provide an
applicability date. Accordingly, in this document we have added, in the
DATES section above, an Applicability Date paragraph, stating, ``This
final rule shall apply to decisions issued by the Board on or after
August 23, 2011.''
Finally, NOVA also encouraged VA to ``clarify that any veteran who
suffered any harm as a result of the invalid rule is now entitled to
obtain relief.'' In this regard, appellants have a statutory right to
appeal a Board decision to the Veterans Court within 120 days after the
date on which the appellant is notified of the Board's decision. See 38
U.S.C. 7266(a). Additionally, VA regulations permit appellants whose
claims have been denied by the Board to file with the Board at any time
a motion for reconsideration of the decision. See 38 CFR 20.1001. If
the Chairman of the Board denies a motion for reconsideration, that
denial and the underlying Board decision may be appealed to the
Veterans Court if a timely appeal was previously filed with the
Veterans Court with respect to that underlying Board decision. See
Mayer v. Brown, 37 F.3d 618, 620 (Fed. Cir. 1994), overruled in part by
Bailey v. West, 160 F.3d 1360 (Fed. Cir. 1998) (en banc). Also, the
Board's decision may be appealed to the Veterans Court if the appellant
filed the motion for reconsideration not later than 120 days after
being notified of the Board's decision and then appeals to the Veterans
Court not later than 120 days after reconsideration is denied. Rosler
v. Derwinski, 1 Vet. App. 241, 249 (1991); see also Linville v. West,
165 F.3d 1382, 1385-86 (Fed. Cir. 1999). Additionally, the 120-day
period to appeal a Board decision to the Veterans Court is subject to
the doctrine of equitable tolling within certain parameters. See Bove
v. Shinseki, 25 Vet. App. 136, 140 (2011). These procedures provide
adequate avenues of relief to any claimants who may have been adversely
affected by the repealed rule.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document 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. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, Department of
Veterans Affairs, approved this document on November 20, 2012, for
publication.
Dated: November 20, 2012.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
[FR Doc. 2012-28621 Filed 11-26-12; 8:45 am]
BILLING CODE 8320-01-P
