[Federal Register Volume 88, Number 136 (Tuesday, July 18, 2023)]
[Rules and Regulations]
[Pages 45818-45821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-15062]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AQ11


VA Vocational Rehabilitation and Employment Nomenclature Change 
for Position Title--Revision

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule adopts, without change, an interim final rule 
published in the Federal Register on November 17, 2017, which affirmed 
a May 2, 2016, final rule amending Department of Veterans Affairs (VA) 
regulations to reflect a nomenclature change in the title of certain 
personnel hired by VA's Veteran Readiness and Employment (VR&E) 
Service, previously known as Vocational Rehabilitation and Employment 
Service. The preamble to the interim final rule corrected inaccuracies 
in the preamble to the 2016 final rule and provided additional 
explanation of the basis for the rule.

DATES: This rule is effective July 18, 2023.

FOR FURTHER INFORMATION CONTACT: Allison Bernheimer, Senior Policy 
Analyst, Veteran Readiness and Employment Service (28), Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Avenue NW, Washington, DC 20420, (202) 461-9600. (This is not a toll-
free telephone number.)

SUPPLEMENTARY INFORMATION: On May 2, 2016, VA published a final rule 
(referred to as ``May 2016 final rule'' or ``final rule'') in the 
Federal Register at 81 FR 26130, amending its regulations to reflect a 
nomenclature change in the title of certain personnel hired by VA's 
VR&E Program. On November 17, 2017, VA published an interim final rule 
(referred to as ``November 2017 interim final rule'' or ``interim final 
rule'') in the Federal Register at 82 FR 54295 affirming the May 2016 
final rule. In the preamble to the November 2017 interim final rule, VA 
corrected some inaccurate statements and citations in the preamble of 
the May 2016 final rule and provided additional explanation of the 
basis for the rule. Although the interim final rule was effective upon 
publication, VA provided a 30-day comment period, which ended on 
December 18, 2017.
    VA received a multitude of comments, including comments on the May 
2016 final rule, from one individual. The one commenter had challenged 
promulgation of both the May 2016 final rule and the November 2017 
interim final rule under 38 U.S.C. 502 as arbitrary, capricious, an 
abuse of discretion, and otherwise contrary to law, in the United 
States Court of Appeals for the Federal Circuit (Federal Circuit), and 
also claimed there was not good cause for dispensing with a notice-and-
comment period and a delayed effective date. The Federal Circuit found 
that promulgating the rule was not arbitrary, capricious, or a 
violation of law, and that VA had good cause to expedite implementation 
of the rule. Conyers v. Sec'y of Veterans Affairs, 750 Fed. Appx. 993 
(Fed. Cir. 2018).
    First, the commenter indicates three ``distinct factors'' to oppose 
promulgation of the interim final rule. The first factor addresses the 
differences between the duties and responsibilities of the two 
positions of counseling psychologist (CP) and vocational rehabilitation 
counselor (VRC). The commenter states, ``it is indisputable that there 
are several critical distinctions in the unique training

[[Page 45819]]

matrices, core competencies and knowledge, and qualifications that are 
unique for each of said professions.'' In addition, the commenter 
states that VA ``conflat[ed] the diverse diagnostic, psychotherapeutic, 
and paraprofessional credentials, duties, and responsibilities inherent 
for such professions'' and that VA ``fail[ed] to either acknowledge or 
account for the apposite governing standards of certification 
requisites, licensure criterions, and methodological practices for said 
professions.''
    While the education, qualifications, and experience for CPs and 
VRCs may not be absolutely identical, VRCs are qualified to meet VA's 
statutory requirements to provide rehabilitative services and perform 
the duties of the position, as outlined in the regulatory amendments 
made by the final rule. As stated in the November 2017 interim final 
rule, the requirements for the VRC position ``are comparable to the 
requirements applicable to CP positions but are more accurately aligned 
with the needs of the VR&E program, which is focused on helping 
Veterans obtain and maintain suitable employment.'' 82 FR 54296. The 
commenter's assertions of differences between CPs and VRCs does not 
change that assessment. The Federal Circuit concluded that the 
difference in hiring standards does not violate any laws that would 
render the rule unlawful. Conyers, 750 Fed. Appx. at 998. Therefore, we 
will not make any changes based on this comment.
    The second factor stated by the commenter is that VA ``conflat[ed] 
the duties and responsibilities of CPs hired in GS-0180 positions and 
VRCs hired in GS-0101 positions to provide the same type of 
rehabilitation services and perform the same work.'' In addition, the 
commenter states that VA did not collaborate with the Office of 
Personnel Management (OPM) in ``effecting modifications of, amendments 
to, or deviations from the Federal classification standards for said 
positions prior to [VA] implementing such amalgamation.'' The 
commenter's statements again focus on the differences in the roles and 
responsibilities between a CP and a VRC. Under 38 U.S.C. 3118(c), VA 
has the discretion to establish qualifications for personnel providing 
evaluation and rehabilitation services. Also, there is no requirement 
that the VA Secretary collaborate with OPM when developing policies and 
procedures relating to the establishment and maintenance of standards. 
The Federal Circuit confirmed that there is no requirement to consult 
with OPM before making hiring changes. Id. With regard to conflating 
the duties and responsibilities of CPs and VRCs, the Federal Circuit 
stated that VA ``has shown a rational connection between the facts 
found and the choice made.'' Id. at 999. Therefore, we will not make 
any changes based on these comments.
    The third factor stated by the commenter asserts ``highly dubious 
acts and omissions committed by [VA] in the course of promulgating 
regulations, policies, and procedures governing the administration and 
provisioning of Chapter 31 vocational rehabilitation benefits, 
services, and assistance.''
    With regard to this factor, the commenter raises three assertions, 
the first of which concerns the position description for VRCs. The 
commenter claims that the qualification requirements for the VRC 
position, as indicated in VR&E Letter 28-14-13, are ``on par with the 
universally-recognized core competencies, duties, and responsibilities 
commonly performed by a Counseling Psychologist even though such an 
expectation esoterically transcends commonly acknowledged and 
recognized standards regarding the curriculum, core competencies, 
certification requisites, and licensing criteria applicable in the 
training and qualifications of Vocational Rehabilitation Counselors/
Specialists.'' As the interim final rule does not utilize the term 
``Vocational Rehabilitation Specialists,'' we will assume the commenter 
is referring to the VRC position when he refers to ``Vocational 
Rehabilitation Specialists.'' The qualifications for VRCs are found in 
VA's Staffing Handbook (VA Handbook 5005/6, Part II, Appendix F2 (June 
3, 2004)), and the knowledge they must possess is described in the 
position description released with VR&E Letter 28-14-13 on February 20, 
2014. As we explained in the interim final rule, VRCs ``can capably and 
competently perform the required counseling, rehabilitation, and 
employment assistance tasks'' and are, therefore, qualified to provide 
vocational rehabilitation services and benefits to participants of the 
VR&E program. 82 FR 54296. And the Federal Circuit confirmed that VRCs, 
in performing their duties, ``meet VA's statutory obligations to 
provide rehabilitation services to veterans.'' Conyers, 750 Fed. Appx. 
at 998. Therefore, we will not make any changes based on this comment.
    Second, the commenter asserts that the administrative record, 
apparently referring to the administrative record of the final rule, 
published in the Federal Register at 81 FR 26130, is ``tenebrous.'' The 
commenter states that, since the December 16, 2003, Performance Plan 
never existed, it ``evinces [VA] committed acts and omissions that are 
arbitrary, capricious, and abuse of agency discretion, and otherwise 
contrary to law while promulgating regulatory amendments.'' VA 
acknowledged deficiencies in the record associated with the final rule 
and published an interim final rule at 82 FR 54295 to address any 
inaccuracies in that record and to explain the basis for the final rule 
more clearly. Specifically, the preamble to the interim final rule 
addressed the inaccurate statements concerning the December 16, 2003, 
Performance Plan. 82 FR 54295. As explained in the interim final rule, 
the performance plan referenced as being released on December 16, 2003, 
was delayed and subsequently released on July 1, 2004. There was no 
arbitrary or capricious act of omission, or an abuse of agency 
discretion. Rather, VA simply made inadvertent misstatements in the 
final rule preamble, including stating that the performance plan 
demonstrated that the duties of a CP and a VRC were the same; however, 
in the interim final rule, VA acknowledged and corrected all 
misstatements. Indeed, the Federal Circuit concluded that ``the 
Secretary's actions in promulgating the rules at issue [were not] 
arbitrary and capricious.'' Conyers, 750 Fed. Appx. at 998-999. Thus, 
we will not make any changes based on these comments.
    Related to the second assertion, the commenter states that, 
notwithstanding VA's ``insistence that failure to maintain the 02 May 
2016 Final Rule's regulatory amendments will adversely affect the 
processing and provisioning of Chapter 31 vocational rehabilitation 
benefits, services, and assistance to Veterans, it is abundantly clear 
that Veterans have long been, and will continue to be, harmed by [VA's] 
failure to comply [with] APA rulemaking procedures.'' We noted in the 
interim final rule that we did not have enough CPs in our national 
workforce (at the time of publication, only 10 CPs were employed across 
the nation) to fulfill all required duties, and that we were no longer 
hiring under the CP title. Thus, to provide benefits effectively and 
efficiently, we needed to amend the regulations to grant VRCs authority 
previously exercised by CPs. The Federal Circuit found that the facts 
sufficiently supported this grant of authority. Conyers, 750 Fed. Appx. 
at 999. And, given the shortage of CPs, the Federal Circuit further 
found that VA had sufficiently good cause to expedite implementation of 
the regulatory amendments while completing the rulemaking process. 
Therefore, we will

[[Page 45820]]

not make any changes based on this comment.
    The commenter's third assertion expresses concern that VA had 
``prior knowledge of deficiencies in the VR&E Program'' and references 
documents that were part of the administrative record of the interim 
final rule that indicate that VA knew the 38 CFR part 21 regulatory 
guidance only referenced CPs and not CPs and VRCs when it discussed 
certain job duties that are part of the rehabilitation process. The 
commenter is correct that certain sections of the CFR referenced only 
CPs. Publication of the final rule amended the CFR to include 
references to VRCs as well. It is not clear to what deficiencies the 
commenter refers, but we previously explained that, in the interim 
final rule published at 82 FR 54295, we addressed any misstatements and 
were revising the CFR to address any deficiencies. Thus, we will not 
make any changes based on this comment.
    The commenter offers four additional reasons for not promulgating 
the final rule. The first reason concerns an email correspondence 
between a Veteran's advocate and a VR&E staff member from September 
2014. The commenter states that the ``narration of a Veterans advocate 
contacting VR&E Service regarding the roles of CPs and VRCs is inexact 
as it disingenuously fails to convey the full substance of said 
interaction.'' The commenter seems to be dissatisfied with VR&E 
Service's response to the Veteran's advocate. The response indicated 
that we were addressing the issue with VA's Office of General Counsel 
and would likely make a regulatory change as soon as possible. The 
regulatory change was made in May 2016 by final rule, and, by interim 
final rule in November 2017, VA corrected all inaccuracies. Therefore, 
we will not make any changes based on this reason.
    The second reason states ``notwithstanding the lack of any 
qualifying information regarding the number of remanded cases or the 
period such remands were rendered, proclaiming that because BVA 
remanded VR&E cases with instructions for a CP instead of VRC to render 
the determinations required by apposite regulations necessitated the 
regulatory amendments initially pronounced in the 02 May 2017 Final 
Rule [81 FR 26130] and fully adopted in the 17 November 2017 Interim 
Final Rule is spurious reasoning.'' We explained in the interim final 
rule that the Board of Veterans' Appeals (BVA) had been remanding cases 
to VR&E regional offices with instructions to have a CP make a specific 
decision as required by regulatory guidance, and that, consequently, we 
were amending our regulations because we did not have enough CPs to 
comply with the BVA's remand instructions. The Federal Circuit found 
this reasoning to be rational and our actions not to be arbitrary and 
capricious. Conyers, 750 Fed. Appx. at 999. Therefore, we will not make 
any changes based on this reason.
    The commenter asserts as third and fourth reasons that VA's 
position that ``the regulations codified in Part 21 required amendment 
to `clear[ ] up confusion among VR&E program participants' regarding 
the roles of a CP and a VRC explicitly delegated by the apposite 
regulations is beyond fallacious. It is highly obvious such `confusion' 
directly resulted not from VR&E program participants' misunderstanding 
or misconstruing the regulations but from [VA's] noncompliance with 
Part 21.'' The commentor also mentions ``purported confused VR&E 
program participants.'' We did not state or imply that VR&E's 
population was uninformed or misled; rather we acknowledged a lack of 
consistency between the regulatory guidance in 38 CFR part 21 and 
VR&E's actual practice, and then addressed the inconsistency by 
amending the regulations to more accurately reflect VR&E's practice and 
clearly, concisely, and correctly state who will be making benefit 
determinations. Therefore, we will not make any changes based on these 
reasons.
    These four reasons culminate in the commenter's statement that VA 
had ``long possessed more-than-adequate knowledge of the systemic 
noncompliance with Part 21 in order to reasonable facilitate reasoned 
decision making and allow for a sufficient notice-and-comment period 
instead of promulgating and immediately effecting the 02 May 2016 Final 
Rule [81 FR 26130] upon conclusory and illusory rationale.'' Finally, 
the commenter discusses three ``circumstances''--which he describes as 
``mendacious stratagem,'' ``unpersuasive reasoning,'' and ``harmful 
effects to Veterans''--``which further demonstrates [VA] committed acts 
and omissions that were arbitrary, capricious, an abuse of agency 
discretion, and otherwise contrary to law in promulgating the subject 
amendments.'' He further claims that VA's ``hasty, headlong effort to 
avoid scrutiny of the VR&E program continued harming Veterans through 
improper evaluations, inappropriate counseling, and delayed 
rehabilitation programs conducted by unqualified VRCs.'' In essence, 
the commenter restates previous comments concerning what he believes to 
be improper (harmful and arbitrary and capricious) acts. However, if 
the rule changes were not promulgated, effective immediately, and CPs 
were required to make all rehabilitation determinations, it would have 
been impossible for VR&E to provide rehabilitation services to our 
beneficiaries. And, as the Federal Circuit found, the Secretary of 
Veterans Affairs has the discretion to determine the qualifications for 
personnel providing rehabilitation services and the rules promulgated 
are in accordance with law and not arbitrary and capricious. Conyers, 
750 Fed. Appx. at 997-999. Ultimately, the Federal Circuit concluded, 
``[b]ecause Mr. Conyers has not sufficiently shown a violation of 
federal law or that the Secretary's actions were arbitrary and 
capricious, we cannot now say that the Secretary was acting beyond the 
scope of his authority by promulgating the November 2017 Revised Rule 
with an immediate effective date.'' Id. at 999.
    Therefore, based on the rationale set forth in the interim final 
rule and in this document, VA is adopting the provisions of the interim 
final rule as a final rule with no changes. VA appreciates the comments 
submitted in response to the interim final rule.

Administrative Procedure Act

    On November 17, 2017, VA published an interim final rule (82 FR 
54295) and determined that there was a basis under the Administrative 
Procedure Act for issuing the interim final rule with immediate effect. 
VA has considered all relevant input and information contained in the 
comments submitted in response to the interim final rule and has 
concluded that no changes to the interim final rule are warranted. VA 
is adopting the provisions of the interim final rule as a final rule 
with no changes.

Executive Orders 12866, 13563 and 14094

    Executive Orders 12866 (Regulatory Planning and Review) directs 
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). Executive Order 13563 (Improving 
Regulation and Regulatory Review) emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. Executive Order

[[Page 45821]]

14094 (Executive Order on Modernizing Regulatory Review) supplements 
and reaffirms the principles, structures, and definitions governing 
contemporary regulatory review established in Executive Order 12866 of 
September 30, 1993 (Regulatory Planning and Review), and Executive 
Order 13563 of January 18, 2011 (Improving Regulation and Regulatory 
Review). The Office of Information and Regulatory Affairs has 
determined that this rulemaking is not a significant regulatory action 
under Executive Order 12866, as amended by Executive Order 14094. The 
Regulatory Impact Analysis associated with this rulemaking can be found 
as a supporting document at www.regulations.gov.

Paperwork Reduction Act

    This final 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. This rule will not directly affect any small entities; only 
individuals will be directly affected. Therefore, pursuant to 5 U.S.C. 
605(b), this rule is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

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 will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this document is 64.116, Vocational Rehabilitation 
for Disabled Veterans.

Congressional Review Act

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

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, Education, 
Employment, Grant programs-education, Grant programs-veterans, Health 
care, Loan programs-education, Loan programs-veterans, Manpower 
training programs, Reporting and recordkeeping requirements, Schools, 
Travel and transportation expenses, Veterans, Vocational education, 
Vocational rehabilitation.

Signing Authority:

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on July 10, 2023, 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 
General Counsel, Department of Veterans Affairs.

PART 21--VETERAN READINESS AND EMPLOYMENT AND EDUCATION

0
Accordingly, the interim final rule published in the Federal Register 
on November 17, 2017, at 82 FR 54295, amending 38 CFR part 21, is 
adopted as a final rule without change.

[FR Doc. 2023-15062 Filed 7-17-23; 8:45 am]
BILLING CODE 8320-01-P