[Federal Register Volume 69, Number 108 (Friday, June 4, 2004)]
[Rules and Regulations]
[Page 31523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12625]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AJ85


Board of Veterans' Appeals: Rules of Practice--Motions for 
Revision of Decisions on Grounds of Clear and Unmistakable Error: 
Advancement on the Docket

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document affirms the interim final rule amending the 
Rules of Practice of the Board of Veterans' Appeals (Board) relating to 
challenges to Board decisions on the grounds of ``clear and 
unmistakable error'' (CUE). The amendment provides for advancing CUE 
motions on the docket.

DATES: Effective Date: This final rule is effective June 4, 2004.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420 ((202) 565-5978).

SUPPLEMENTARY INFORMATION: In a document published in the Federal 
Register on September 12, 2003 (68 FR 53681), we published an interim 
final rule with request for comments, which amended the Board's Rule of 
Practice 1405(a) (38 CFR 20.1405(a)). Rule 1405(a) requires that 
motions challenging decisions of the Board on the grounds of CUE be 
decided in accordance with their place on the Board's docket. While 
appeals are subject to the same requirement, 38 U.S.C. 7107(a)(1), we 
noted that both section 7107(a)(2) and its implementing regulation 
provide for earlier consideration of appeals if good cause is shown. 38 
CFR 20.900(c) (Rule 900(c)). Rule 900(c) sets forth the good cause 
reasons for advancing an appeal on the Board's docket and the 
requirements for filing a motion to advance an appeal on the docket. 
However, because CUE motions are not appeals, and thus not subject to 
the various rules relating to appeals, we realized there was no 
regulatory provision for advancing CUE motions.
    We therefore amended Rule 1405(a) to provide that a CUE motion may 
be advanced on the docket subject to the substantive and procedural 
requirements of Rule 900(c). We asked interested parties to submit 
comments on or before October 14, 2003. We received no comments. Based 
on the rationale noted above and as set forth in the interim final 
rule, we are adopting the interim final rule as a final rule without 
change.

Administrative Procedure Act

    This document affirms without any changes an interim final rule 
that is already in effect. Accordingly, we have concluded under 5 
U.S.C. 553 that there is good cause for dispensing with a delayed 
effective date based on the conclusion that such procedure is 
impracticable and unnecessary.

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 developing any rule that may result in an expenditure 
by State, local, or tribal governments, in the aggregate, or by the 
private sector, of $100 million or more in any given year. This final 
rule would have no such effect on State, local, or tribal governments, 
or the private sector.

Executive Order 12866

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

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby 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. 601-612. This rule affects only the processing of claims by VA 
and does not affect small businesses, to include law firms. Therefore, 
pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial 
and final regulatory flexibility analysis requirements of sections 603 
and 604.

    Approved: April 22, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.
    Accordingly, the interim final rule amending 38 CFR part 20 which 
was published at 68 FR 53681 on September 12, 2003 is adopted as a 
final rule without change.

[FR Doc. 04-12625 Filed 6-3-04; 8:45 am]
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