Daily Rules, Proposed Rules, and Notices of the Federal Government
On April 18, 2012, VA published in the
VA determined that RIN 2900-AO06 should have followed the notice-and-comment procedure of 5 U.S.C. 553(b) and (c) of the Administrative Procedure Act and published the direct final rule to return the regulations to the language in effect before August 23, 2011. The direct final rule provided a 30-day comment period that ended on May 18, 2012. No significant adverse comment was received. VA received only one comment on May 17, 2012, from the National Organization of Veterans' Advocates, Inc. (NOVA). In pertinent part, NOVA stated, “[T]he full, retroactive repeal of the invalid [amendments made by RIN 2900-AO06] should move forward regardless of whether the `VA receives a significant adverse comment by May 18, 2012.'* * * VA has a responsibility to repeal the rule as quickly as possible. Doing so will help ensure that any veterans harmed by the invalid rule will be able to obtain appropriate relief.” Accordingly, under the direct final rule procedures that were described in RIN 2900-AO43, the direct final rule became effective on June 18, 2012, because no significant adverse comment was received within the comment period.
We take this opportunity to address three points made by NOVA in its comment. NOVA criticized the direct final rule procedure because it was “conditional rather than mandatory.” As we anticipated when we published the direct final rule, no significant adverse comment was received by VA, and the direct final rule became effective on June 18, 2012. Accordingly, NOVA's concern about the action being conditional is moot.
NOVA also urged that the “repeal of [the amendments made by RIN 2900-AO06 be] retroactive to August 23, 2011.” In the direct final rule, we stated that we were “repealing” those amendments but provided only an effective date—June 18, 2012. We did not provide an applicability date. Accordingly, in this document we have added, in the
Finally, NOVA also encouraged VA to “clarify that any veteran who suffered any harm as a result of the invalid rule is now entitled to obtain relief.” In this regard, appellants have a statutory right to appeal a Board decision to the Veterans Court within 120 days after the date on which the appellant is notified of the Board's decision.
The Secretary of Veterans Affairs, or designee, approved this document 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. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, Department of Veterans Affairs, approved this document on November 20, 2012, for publication.