[Federal Register Volume 85, Number 220 (Friday, November 13, 2020)]
[Rules and Regulations]
[Pages 72569-72571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25121]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 5

RIN 2900-AQ92


Administrative Procedures: Guidance Documents

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is establishing in 
regulation its processes and procedures for issuing guidance documents. 
This final rulemaking will implement the mandates of Executive Order 
13891, Promoting the Rule of Law Through Improved Agency Guidance 
Documents.

DATES: This rule is effective December 14, 2020.

FOR FURTHER INFORMATION CONTACT: Richard Murphy, Office of Policy and 
Interagency Collaboration, Office of Enterprise Integration, 810 
Vermont Avenue NW, Washington, DC 20420, (202) 714-8507. (This is not a 
toll-free telephone number).

SUPPLEMENTARY INFORMATION: On October 9, 2019, the President signed 
Executive Order (E.O.) 13891, Promoting the Rule of Law Through 
Improved Agency Guidance Documents.
    Section 4 of the E.O. mandates that each agency finalize 
regulations to set forth processes and procedures for issuing guidance 
documents. This rule complies with that mandate by adding part 5 to 
title 38 Code of Federal Regulations (38 CFR part 5). Part 5 is titled 
``Administrative Procedures: Guidance Documents,'' and informs the 
public about VA's general processes and procedures for issuing guidance 
documents. Prior to this rulemaking, VA has not previously published 
procedures relating to the issuance of guidance documents.

5.0 Purpose

    VA is stating the purpose of part 5 in Sec.  5.0, which is to 
provide VA's processes and procedures for issuing and managing guidance 
documents in accordance with E.O. 13891. Section 4 of the E.O. requires 
each agency to finalize regulations or amend existing regulations to 
set forth processes and procedures for issuing guidance documents 
within 300 days of the date on which the Office of Management and 
Budget (OMB) issues an implementing memorandum under section 6 of the 
E.O.. OMB issued its memorandum, M-20-02, on October 31, 2019. Section 
4 of the E.O.; shall require that each guidance document clearly state 
that it does not bind the public, except as authorized by law or as 
incorporated into a contract; and shall include procedures for the 
public to petition for withdrawal or modification of a particular 
guidance document. For significant guidance documents, section 4 of the 
E.O. contains additional requirements. These include that there must be 
a period of notice and comment of at least 30 days and a public 
response from the agency to major concerns raised in comments, except 
when the agency for good cause finds that notice and comment are 
impracticable, unnecessary, or contrary to public interest. Significant 
guidance documents must be approved on a non-delegable basis by the 
agency head or agency component head appointed by the President. They 
must be reviewed by OIRA under E.O. 12866 before issuance, and they 
must comply with applicable requirements for significant regulatory 
actions set forth in E.O.s. 12866, 13563, 13609, 13771, and 13777.

5.10 Definitions Relating to Guidance Documents

    Section 5.10 is the definitions section. The section generally 
tracks the requirements of E.O. 13891, as applied to VA. Because the 
definition of guidance document is broad, this rule clarifies that a 
guidance document is an agency statement of general applicability 
(i.e., it applies to more than just one person, event, or transaction), 
that is intended to have a future effect on the behavior or actions of 
regulated parties (to include non-VA actors), and that sets forth a 
policy on a statutory, regulatory, or technical issue, or an 
interpretation of a statute or regulation. The section mirrors the 
exclusion in section 2(b)(i)-(vi) of the E.O. for those documents that 
VA does not consider guidance documents.
    VA is mirroring the definition of significant guidance document to 
that provided in section 2(c) of the E.O. with minor clarifying edits.
    VA is also defining VA to mean the Department of Veterans Affairs.

5.15 Procedures for Issuing Guidance Documents

    VA is implementing the requirements of section 4(a)(i) and (iii) of 
the E.O. in Sec.  5.15. We are stating the requirements of section 
4(a)(i) in paragraph (a)(1) by stating that each guidance document must 
clearly and prominently state that it does not bind the public, except 
as authorized by law or as incorporated into a contract. VA is adding 
sample language of the disclaimer for guidance documents as follows: 
The contents of this document do not have the force and effect of law 
and are not meant to bind the public in any way. This document is 
intended only to provide clarity to the public regarding existing 
requirements under the law or agency policies.
    Paragraph 5.15(a)(2) states the information that must be included 
in each guidance document. VA is stating that a guidance document must 
include the following information: The term guidance; the agency or 
office issuing the document; to what and to whom the document applies; 
the date of issuance; title and unique identification number of the 
document; citation to statutory or regulatory authority that the 
guidance document interprets or applies; a short summary of the subject 
matter covered at the beginning of the guidance document; the statement 
required under paragraph (a)(1) of this section; and as applicable, the 
guidance document being revised or replaced.
    Paragraph 5.15(b) states the procedures for significant guidance 
documents as required in section 4(a)(iii) of the E.O. Significant 
guidance documents must follow the requirements provided in paragraph 
5.15(a). Further, unless the Administrator of the Office of Management 
and Budget's Office of Information and Regulatory Affairs (OIRA), 
pursuant to review under E.O. 12866, and VA agree that exigency, 
safety, health, or other compelling cause warrants an exemption, the 
following additional procedures apply to significant guidance 
documents. Paragraph (b)(1) states that VA will provide for a period of 
public notice and comment of at least 30 days before issuance of such 
significant guidance document and will provide a public response to 
major concerns raised in comments, except when VA for good cause finds 
(and incorporates such finding and a brief statement of reasons 
therefor into the guidance document) that notice and public comment 
thereon are impracticable, unnecessary, or contrary to the public 
interest. Paragraph (b)(2) states that the Secretary or a VA component 
head appointed by

[[Page 72570]]

the President must approve any significant guidance document prior to 
issuance; in addition, pursuant to section 4(a)(iii)(B) of the E.O., 
this approval authority is not delegable. Paragraph (b)(3) establishes 
that significant guidance documents must be reviewed by OIRA under E.O. 
12866 prior to issuance. Paragraph (b)(4) requires that significant 
guidance documents comply with the applicable requirements for 
regulations or rules set forth in E.O.s 12866, 13563, 13609, 13771, and 
13777.

5.20 Procedures for Petition for the Withdrawal or Modification of a 
Guidance Document

    Section 5.20 implements the requirements in section 4(a)(ii) of the 
E.O and states the procedures for the public to petition for the 
withdrawal or modification of a guidance document. Paragraph (a) 
provides the addresses for submitting such petitions. The email address 
is: [email protected]. The public may also submit requests via mail to the 
following address: Office of Policy and Interagency Collaboration, 
Office of Enterprise Integration, 810 Vermont Avenue NW, Washington, DC 
20420.
    Paragraph (b) provides the information that must be included in a 
petition, including: (1) The petitioner's name and address; (2) 
information identifying the guidance document to which the petition 
pertains; and (3) a statement of the reasons the petitioner believes 
the document should be withdrawn or modified.
    We are stating in paragraph (c) that VA will provide a response to 
such petition within 90 days of receipt of the request.

5.25 Guidance Website

    Section 5.25 states that VA has a guidance website that contains, 
or links to, guidance documents that are currently in effect and that 
VA will not cite, use, or rely on any guidance document that is not 
posted on the website existing under E.O. 13891, except to establish 
historical facts. Section 5.25 further provides the address for the 
guidance portal that is required by section 3 of E.O. 13891. The 
guidance portal can be accessed at www.VA.gov/guidance.

Administrative Procedure Act

    The Secretary of Veterans Affairs is publishing this rule without 
prior opportunity for public comment pursuant to 5 U.S.C. 553(b)(A) as 
this rule is a rule of agency organization, procedure, or practice, and 
thus is published as a final rule.

Paperwork Reduction Act

    This rule 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 Secretary 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, 5 U.S.C. 601-
612. The regulations established by this rulemaking do not impose 
burdens or otherwise regulate the activities of any entities outside of 
VA. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final 
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do 
not apply.

Executive Orders 12866, 13563 and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
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 effects, and other advantages; distributive impacts; 
and equity). E.O. 13563 (Improving Regulation and Regulatory Review) 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility. OIRA has 
determined that this rule is not a significant regulatory action under 
E.O. 12866. VA's impact analysis can be found as a supporting document 
at http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''
    This final rule is not expected to be an E.O. 13771 regulatory 
action because this final rule is not significant under E.O. 12866.

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 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 one 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 are no Catalog of Federal Domestic Assistance numbers and 
titles for this rule.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
OIRA designated this rule as not a major rule, as defined by 5 U.S.C. 
804(2).

List of Subjects in 38 CFR Part 5

    Administrative practice and procedure.

Signing Authority

    The Secretary of Veterans Affairs approved this document on 
November 6, 2021, for publication 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.


0
For the reasons stated in the preamble, the Department of Veterans 
Affairs adds 38 CFR part 5 as follows:

PART 5--Administrative Procedures: Guidance Documents

Sec.
5.0 Purpose.
5.10. Definitions relating to guidance documents.
5.15. Procedures for issuing guidance documents.
5.20. Procedures for petition for the withdrawal or modification of 
a guidance document
5.25. Guidance website.

    Authority: 38 U.S.C. 501; E.O. 13891, 84 FR 55235.


Sec.  5.0   Purpose.

    Sections 5.0 through 5.25 provide VA's processes and procedures for 
issuing and managing guidance documents in accordance with Executive 
Order 13891.


Sec.  5.10   Definitions relating to guidance documents.

    The following definitions apply to Sec. Sec.  5.0 through 5.25.
    Guidance document means an agency statement of general 
applicability (i.e., it applies to more than just one person, event, or 
transaction), that is intended to have a future effect on the behavior 
or actions of regulated parties (to include non-VA actors), and that 
sets forth a policy on a statutory, regulatory, or

[[Page 72571]]

technical issue, or an interpretation of a statute or regulation. A 
guidance document does not include the following:
    (1) Rules promulgated pursuant to notice and comment under section 
553 of title 5, United States Code, or similar statutory provisions;
    (2) Rules exempt from rulemaking requirements under section 553(a) 
of title 5, United States Code;
    (3) Rules of agency organization, procedure, or practice;
    (4) Decisions of agency adjudications under section 554 of title 5, 
United States Code, or similar statutory provisions;
    (5) Internal guidance directed to the issuing agency or other 
agencies that is not intended to have substantial future effect on the 
behavior of regulated parties; or
    (6) Internal executive branch legal advice or legal opinions 
addressed to executive branch officials.
    Significant guidance document means a guidance document that the 
Administrator of the Office of Information and Regulatory Affairs 
determines is reasonably anticipated to:
    (1) Lead to 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 of Executive 
Order 12866.
    VA means the Department of Veterans Affairs.


Sec.  5.15   Procedures for issuing guidance documents.

    (a) General. (1) Each guidance document must clearly and 
prominently state that it does not bind the public, except as 
authorized by law or as incorporated into a contract. Guidance 
documents may include the following or similar disclaimer language: The 
contents of this document do not have the force and effect of law and 
are not meant to bind the public in any way. This document is intended 
only to provide clarity to the public regarding existing requirements 
under the law or agency policies.
    (2) Each guidance document must include the following information 
in the published guidance document:
    (i) The term guidance;
    (ii) The agency or office issuing the document;
    (iii) To what and to whom the document applies;
    (iv) The date of issuance;
    (v) The title and unique identification number of the document;
    (vi) Citation to statutory or regulatory authority that the 
guidance document interprets or applies;
    (vii) A short summary of the subject matter covered at the 
beginning of the guidance document;
    (viii) The statement required under paragraph (a)(1) of this 
section; and
    (ix) As applicable, the guidance document being revised or 
replaced.
    (b) Significant guidance documents. We will refer to the 
Administrator of the Office of Information and Regulatory Affairs 
(OIRA) within the Office of Management and Budget, or the 
Administrator's designee, the question of whether a guidance document 
is significant. Significant guidance documents must follow the 
requirements provided in paragraph 5.15(a). Additionally, unless the 
Administrator of OIRA, pursuant to review under E.O. 12866, and VA 
agree that exigency, safety, health, or other compelling cause warrants 
an exemption, the following additional procedures apply:
    (1) VA will provide for a period of public notice and comment of at 
least 30 days before issuance of such significant guidance document and 
will provide a public response to major concerns raised in comments, 
except when VA for good cause finds (and incorporates such finding and 
a brief statement of reasons therefor into the guidance document) that 
notice and public comment thereon are impracticable, unnecessary, or 
contrary to the public interest.
    (2) The Secretary or a VA component head appointed by the President 
(with or without confirmation by the Senate), or by an official who is 
serving in an acting capacity as either of the foregoing, must approve 
any significant guidance document prior to issuance; pursuant to 
section 4(a)(iii)(B) of Executive Order 13891, this approval authority 
is not delegable.
    (3) Significant guidance documents must be submitted to OIRA for 
review under Executive Order 12866 prior to issuance.
    (4) Significant guidance documents must comply with the applicable 
requirements for regulations or rules set forth in Executive Orders 
12866, 13563, 13609, 13771, and 13777.


Sec.  5.20   Procedures for petition for the withdrawal or modification 
of a guidance document.

    Petitions for withdrawal or modification of a guidance document. 
The following procedures apply for the public to petition for 
withdrawal or modification of a guidance document.
    (a) A member of the public wishing to petition for withdrawal or 
modification of a guidance document may submit such petition via email 
to: [email protected]. Petitions may also be mailed to the following 
address: Office of Policy and Interagency Collaboration, Office of 
Enterprise Integration, 810 Vermont Avenue NW, Washington, DC 20420.
    (b) A petition for withdrawal or modification of a guidance 
document must contain the following information:
    (1) The petitioner's name and address;
    (2) Information identifying the guidance document to which the 
petition pertains;
    (3) A statement of the reasons the petitioner believes the document 
should be withdrawn or modified.
    (c) VA will provide a response to a petition within 90 days of 
receipt of the request.


Sec.  5.25   Guidance website.

    VA has a guidance website that contains, or links to, guidance 
documents that are currently in effect. VA will not cite, use, or rely 
on any guidance document that is not posted on the website existing 
under Executive Order 13891, except to establish historical facts. The 
website can be found at the following address: www.VA.gov/guidance.

[FR Doc. 2020-25121 Filed 11-12-20; 8:45 am]
BILLING CODE 8320-01-P