[Federal Register Volume 72, Number 224 (Wednesday, November 21, 2007)]
[Rules and Regulations]
[Pages 65461-65462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-22705]



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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1 and 2

RIN 2900-AM73


Transfer of Duties of Former VA Board of Contract Appeals

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document removes provisions in Department of Veterans 
Affairs (VA) regulations concerning VA's former Board of Contract 
Appeals and provides authority for other hearing officials to hear 
certain salary offset matters that formerly could be heard by officials 
of that Board. A new Civilian Board of Contract Appeals was established 
within the General Services Administration (GSA) to hear and decide 
contract disputes between certain Government contractors and Executive 
agencies. The Board of Contract Appeals that existed at VA was 
terminated and its cases under the Contract Disputes Act of 1978 were 
transferred to the new Civilian Board of Contract Appeals. These 
amendments are necessary due to section 847 of the National Defense 
Authorization Act for Fiscal Year 2006.

DATES: Effective Date: November 21, 2007.

FOR FURTHER INFORMATION CONTACT: William F. Russo, Director, 
Regulations Management (00REG), Office of Regulation Policy and 
Management, Department of Veterans Affairs, 810 Vermont Avenue, NW., 
Washington, DC 20420, 202-273-9515. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: VA's former Board of Contract Appeals had 
been established under regulations promulgated pursuant to the Contract 
Disputes Act of 1978, as amended, 41 U.S.C. 601-613, to resolve 
disputes between VA and its contractors concerning final decisions by 
VA's contracting officers. VA vested certain other responsibilities in 
the Chairman and other personnel of the Board of Contract Appeals, 
consistent with the Contract Disputes Act, as amended.
    On January 6, 2006, Public Law 109-163, the National Defense 
Authorization Act for Fiscal Year 2006, was enacted. Effective January 
6, 2007, section 847 of that law terminated, among other civilian 
Boards of Contract Appeals, VA's Board of Contract Appeals and 
transferred its cases to a new Civilian Board of Contract Appeals 
vested with authority to, among other things, resolve disputes over 
decisions of VA contracting officers and its contractors. The new 
Civilian Board of Contract Appeals, which is part of GSA, published 
rules of procedure in an interim rule on July 5, 2007, in the Federal 
Register (72 FR 36794).
    VA is removing all provisions currently in our regulations in 38 
CFR concerning VA's former Board of Contract Appeals and delegations of 
authority to its officials, to reflect the termination of VA's former 
Board of Contract Appeals under the provisions of section 847 and the 
transfer from VA of certain responsibilities concerning access to that 
Board's orders.
    In 38 CFR 1.552, ``Public access to information that affects the 
public when not published in the Federal Register as constructive 
notice,'' paragraph (a) currently includes provisions stating that 
``[a]ll final orders in such actions as entertained by the Contract 
Appeals Board * * * will be kept currently indexed by the office of 
primary program responsibility or the Manager, Administrative Services, 
as determined by the Secretary or designee.'' Paragraph (b) currently 
states that ``[t]he voting records of the Contract Appeals Board will 
be maintained in a public reading facility in the Office of the Board 
in Central Office and made available to the public upon request.''
    GSA now maintains copies of decisions of the former VA Board of 
Contract Appeals and these are available on GSA's Web site. Since 
passage of the Contract Disputes Act of 1978, VA's Board of Contract 
Appeals (the term which replaced ``Contract Appeals Board'') had not 
maintained any voting records. The voting records referred to in Sec.  
1.552(b) are stored by the National Archives and Records 
Administration. This final rule is therefore amending Sec.  1.552 to 
remove the references to VA's former responsibilities concerning public 
access to those orders and voting records.
    This final rule also amends VA's regulations on administrative wage 
garnishment (AWG) in 38 CFR 1.923 and Federal salary offset in Sec.  
1.983 to remove references to Board of Contract Appeals Administrative 
Judges or Hearing Examiners as hearing officials in AWG and Federal 
salary offset proceedings.
    In accordance with 31 U.S.C. 3720D and 31 CFR 285.11, VA published 
the AWG regulation at Sec.  1.923. Paragraph (c) of Sec.  1.923 
currently states that the hearing official involved in the AWG 
proceedings may be any VA Board of Contract Appeals Administrative 
Judge or Hearing Examiner, or any other VA hearing official. We are 
amending Sec.  1.923(c) to remove the reference to the VA Board of 
Contract Appeals Administrative Judge or Hearing Examiner.
    This final rule also amends 38 CFR 1.983, one of VA's regulations 
pertaining to Federal salary offset. VA published Federal salary offset 
regulations at 38 CFR 1.980 through 1.995 in accordance with 5 U.S.C. 
5514 and OPM government-wide regulations found at 5 CFR part 550, 
subpart K. 38 CFR 1.983(b)(8) currently states that a Board of Contract 
Appeals Administrative Judge or Hearing Examiner shall conduct salary 
offset hearings for VA employees. Section 1.983(b)(8) goes on to state 
that a VA Board of Contract Appeals Administrative Judge or Hearing 
Examiner may also conduct hearings for non-VA employees. VA is in this 
final rule revising Sec.  1.983(b)(8). The changes remove the 
references to VA Board of Contract Appeals Administrative Judges or 
Hearing Examiners as hearing officials. The new provisions concerning 
who can serve as hearing officials are in accord with 5 U.S.C. 
5514(a)(2)(D), which provides that an employee is entitled to a hearing 
on the existence or amount of the debt, as well as the offset schedule, 
and that such hearing must be conducted by either an administrative law 
judge or someone not under the supervision or control of the head of 
the creditor agency. Therefore, the references to Board of Contract 
Appeals Administrative Judges or Hearing Examiners are being replaced 
with references to a VA administrative law judge or a hearing official 
from an agency other than VA.

Administrative Procedure Act

    This final rule concerns agency organization, procedure, and 
practice. The rule merely concerns delegations of authority to agency 
officers or employees and the removal of procedural provisions 
concerning the former VA Board of Contract Appeals to reflect the 
statutory transfer of its functions outside VA. Accordingly, the prior 
notice and comment and delayed effective date provisions of 5 U.S.C. 
553 do not apply to this rule.

Paperwork Reduction Act of 1995

    This document 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 initial and final regulatory flexibility analysis requirements 
of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 
601-612, are not applicable to this rule because a

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notice of proposed rulemaking is not required for this rule. Even so, 
the Secretary of Veterans Affairs 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. 
This final rule would not directly affect any small entities. 
Therefore, this final rule is also exempt pursuant to 5 U.S.C. 605(b) 
from the regulatory flexibility analysis requirements of sections 603 
and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995, codified at 2 U.S.C. 
1532, requires agencies to 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 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 is no Catalog of Federal Domestic Assistance number for this 
final rule.

List of Subjects

38 CFR Part 1

    Administrative practice and procedure, Government employees.

38 CFR Part 2

    Authority delegations (Government agencies).

    Approved: November 14, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.

0
For the reasons set forth in the preamble, the Department of Veterans 
Affairs amends 38 CFR parts 1 and 2 as follows:

PART 1--GENERAL PROVISIONS

0
1. The authority citation for part 1 continues to read as follows:

    Authority: 38 U.S.C. 501(a), and as noted in specific sections.


Sec.  1.552  [Amended]

0
2. Amend Sec.  1.552 by:
0
a. In paragraph (a), removing ``All final orders in such actions as 
entertained by the Contract Appeals Board, those'' and adding, in its 
place, ``Those''.
0
b. Removing paragraph (b).
0
c. Redesignating paragraphs (c) and (d) as new paragraphs (b) and (c), 
respectively.


Sec. Sec.  1.780 through 1.783  [Removed]

0
3. Remove the undesignated center heading immediately preceding Sec.  
1.780 and remove and reserve Sec. Sec.  1.780 through 1.783.


Sec.  1.923  [Amended]

0
4. In Sec.  1.923, amend the introductory text of paragraph (c) by 
removing ``VA Board of Contract Appeals Administrative Judge or Hearing 
Examiner, or any other''.

0
5. Revise Sec.  1.983(b)(8) to read as follows:


Sec.  1.983  Notice requirements before salary offset of debts not 
involving benefits under the laws administered by VA.

* * * * *
    (b) * * *
    (8) The VA employee's right to request an oral or paper hearing on 
the Secretary or appropriate designee's determination of the existence 
or amount of the debt, or the percentage of disposable pay to be 
deducted each pay period, so long as a request is filed by the employee 
as prescribed by the Secretary. The hearing official for the hearing 
requested by a VA employee must be either a VA administrative law judge 
or a hearing official from an agency other than VA. Any VA hearing 
official may conduct an oral or paper hearing at the request of a non-
VA employee on the determination by an appropriately designated 
official of the employing agency of the existence or amount of the 
debt, or the percentage of disposable pay to be deducted each pay 
period, so long as a hearing request is filed by the non-VA employee as 
prescribed by the employing agency.
* * * * *

PART 2--DELEGATIONS OF AUTHORITY

0
6. The authority citation for part 2 continues to read as follows:

    Authority: 5 U.S.C. 302, 552(a); 38 U.S.C. 501, 512, 515, 1729, 
1729A, 5711; 44 U.S.C. 3702, and as noted in specific sections.



Sec.  2.4  [Amended]

0
7. Amend Sec.  2.4 by removing ``the Chairman, Board of Contract 
Appeals;''.

0
8. Amend Sec.  2.5 by:
0
a. Removing paragraph (b).
0
b. Redesignating paragraph (c) as new paragraph (b).
0
c. Revising the authority citation.
    The revision reads as follows:


Sec.  2.5  Delegation of authority to certify copies of documents, 
records, or papers in Department of Veterans Affairs files.

* * * * *
(Authority: 38 U.S.C. 302, 501, 512).

 [FR Doc. E7-22705 Filed 11-20-07; 8:45 am]
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