[Federal Register Volume 60, Number 154 (Thursday, August 10, 1995)]
[Rules and Regulations]
[Pages 40756-40758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19807]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 2

RIN 2900-AH00


Delegation of Subpoena Authority and Description of Means of 
Service

AGENCY: Department of Veterans Affairs.

ACTION: Interim Final Rule with Request for Comments.

-----------------------------------------------------------------------

SUMMARY: This document amends the Department of Veterans Affairs (VA) 
regulations concerning authority of VA officials to issue subpoenas: 
(1) by revoking the delegation of authority to the Inspector General 
and subordinate officials, and (2) by adding a delegation of authority 
to the Under Secretary for Health and certain subordinate officials. 
The regulations are also amended by specifying means of service for VA 
subpoenas. These amendments are intended to make the Department's 
delegations of subpoena power consistent with legal authority and to 
ensure that VA has the means to obtain information necessary to 
determine whether individuals are entitled to income-based benefits.

DATES: This interim final rule is effective on August 10, 1995. 
Comments must be received on or before October 10, 1995.

ADDRESSES: Mail written comments concerning these proposed regulations 
to: Director, Office of Regulations Management (02D), Department of 
Veterans Affairs, 810 Vermont Ave., NW, Washington, DC 20420; or hand 
deliver written comments to: Office of Regulations Management, Room 
1176, 801 Eye Street, NW, Washington, DC 

[[Page 40757]]
20001. Comments should indicate that they are submitted in response to 
``RIN 2900-AH00.'' All written comments will be available for public 
inspection in the Office of Regulations Management, Room 1176, 801 Eye 
Street, NW, Washington, DC 20001, between the hours of 8:00 a.m. and 
4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Barry M. Tapp, Deputy Assistant 
General Counsel (023A), Office of General Counsel, Department of 
Veterans Affairs, (202) 273-6334.

SUPPLEMENTARY INFORMATION: This document amends 38 C.F.R. Sec. 2.1 to 
revoke delegations of authority to the Inspector General and 
subordinate officials for issuing subpoenas, and to provide delegations 
to the Under Secretary for Health and certain subordinates to issue 
subpoenas, and to specify means of service for VA subpoenas.

Revoking Current Inspector General Authority To Subpoena

    Title 38 U.S.C. Sec. 5711 authorizes the Secretary of Veterans 
Affairs and those employees to whom the Secretary delegates such 
authority to issue subpoenas for, and compel the attendance of, 
witnesses within a radius of 100 miles from the place of hearing and to 
require the production of documents. (38 U.S.C. Sec. 5713 authorizes 
Federal district courts to enforce VA subpoenas.)
    The Secretary delegated subpoena authority to, among others, the 
Inspector General, Deputy Inspector General, Assistant Inspector 
General for Investigation, and Deputy Assistant Inspector General for 
Investigation. No subpoenas have been issued pursuant to this 
delegation and the delegations to the Inspector General and 
subordinates of that office are revoked by this document.
    The Inspector General Act of 1978 (the Act) established the Office 
of Inspector General in the VA. The Act mandated the duties of the 
Office, specifically giving the Inspector General investigative powers. 
The Act limited the subpoena authority of Inspector Generals to 
requiring the production of documents. The Act also established the 
Inspector General as an official independent of the control of agency 
heads. In a leading case on the authority of Inspector Generals 
established under the Act, the United States Court of Appeals for the 
District of Columbia Circuit held that ``[i]f the agency head may 
delegate his subpoena authority to the agency's inspector general, . . 
. the congressional scheme is disrupted,'' making such delegations 
inconsistent with the Act's uniform distribution of power to its 
Inspector Generals. United States v. Iannone, 610 F.2d. 943, 947 (D.C. 
Cir. 1979). Accordingly, there is no authority for the delegation of 
subpoena power to the Inspector General and subordinates.
Delegating Authority to the Under Secretary for Health

    Federal law authorizes the Secretary to operate income matching 
programs with other agencies to verify the income of VA beneficiaries 
so that VA may obtain information necessary to determine whether 
individuals are entitled to income-based benefits. 38 U.S.C. Sec. 5317. 
The Secretary has delegated authority to the Under Secretary for Health 
to operate VA's income matching program. The Director, Income 
Verification Match Center, and the Associate Director for Operations 
have program responsibility for this program.
    VA may not act on adverse information from income matching programs 
unless the data are independently verified. But sources for verifying 
information are not obligated to disclose the data merely at VA's 
request. Consequently, the Under Secretary for Health, the Director, 
Income Verification Match Center, and the Associate Director for 
Operations, Income Verification Match Center, are hereby delegated 
authority to issue subpoenas, compel the attendance of witnesses, and 
require the production of evidence.

Means of Service

    This document also adds means of serving subpoenas issued by 
designated VA officials. In this regard, the regulations are amended to 
add the following:
    Subpoenas issued pursuant to this section may be served by 
registered or certified mail, return receipt requested, addressed to 
the witness only. Personal service by any VA employee or other 
authorized person may be made where authorized in writing by the 
issuing official.

Administrative Procedure Act

    This interim final rule constitutes rules of agency organization, 
procedure, or practice. Accordingly, pursuant to 5 U.S.C. 553, we are 
dispensing with prior notice and comment and with a 30-day delay of the 
effective date.

Regulatory Flexibility Act

    The Secretary certifies that this regulatory amendment 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. Secs. 601-612. This amendment will affect only individuals and 
will not directly affect any small entities. Therefore, pursuant to 5 
U.S.C. Sec. 605(b), this amendment is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance

    There are no programs listed in the Catalog of Federal Domestic 
Assistance which will be directly affected by this rule.

Executive Order 12866

    This regulatory action has been reviewed by the Office of 
Management and Budget under Executive Order 12866.

List of Subjects in 38 CFR Part 2

    Authority delegations (Government agencies), Veterans Affairs 
Department.

    Approved: June 20, 1995.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 2 is amended 
as set forth below:

PART 2--DELEGATIONS OF AUTHORITY

    1. The authority citation for part 2 continues to read as follows:

    Authority: 72 Stat. 1114; 38 U.S.C. 501, unless otherwise noted.

    2. Section 2.1 is revised to read as follows:


Sec. 2.1  Delegation of authority to employees to issue subpoenas, etc.

    (a) Authority to issue subpoenas. Employees occupying or acting in 
the positions designated in paragraph (b) of this section shall have 
the power to issue subpoenas for (by countersigning VA Form 2-4003) and 
compel the attendance of witnesses within a radius of 100 miles from 
the place of hearing and to require the production of books, papers, 
documents, and other evidence. Issuing officials shall use discretion 
when exercising this power.
    (b) Designated positions. The positions designated pursuant to 
paragraph (a) of this section are: General Counsel, Deputy General 
Counsel, Chairman, Board of Veterans' Appeals, Heads of Regional 
Offices and Centers having insurance or regional office activities, 
Under Secretary for Health (for income matching programs), Director, 
Income Verification Match 

[[Page 40758]]
Center (for income matching programs), and the Associate Director for 
Operations, Income Verification Match Center (for income matching 
programs).
    (c) Means of service. Subpoenas issued pursuant to this section may 
be served by registered or certified mail, return receipt requested, 
addressed to the witness only. Personal service by any VA employee or 
other authorized person may be made where authorized in writing by the 
issuing official.
    (d) Fees and mileage; district courts of the United States. Any 
person required by such subpoena to attend as a witness shall be 
allowed and paid the same fees and mileage as are paid witnesses in the 
district courts of the United States. In case of disobedience to any 
such subpoena, the aid of any district court of the United States may 
be invoked in requiring attendance and testimony of witnesses and the 
production of documentary evidence, and such court within the 
jurisdiction in which the inquiry is carried on may, in the case of 
contumacy or refusal to obey a subpoena issued to any officer, agent, 
or employee of any corporation or to any other person, issue an order 
requiring such corporation or other person to appear or to give 
evidence touching the matter in question, and any failure to obey such 
order of the court may be punished by such court as a contempt thereof.

(Authority: 38 U.S.C.A. Secs. 501, 5711)

[FR Doc. 95-19807 Filed 8-9-95; 8:45 am]
BILLING CODE 8320-01-P