06-3413. Board of Veterans' Appeals: Rules of Practice: Public Availability of Board Decisions

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending the Board of Veterans' Appeals (Board) Rules of Practice as relates to public availability of Board decisions, to set forth the current methods for archiving and retrieving Board decisions for public use. Due to advances in technology, Board decisions issued on or after January 1, 1992, are currently available in redacted form for public inspection and copying on Web sites that are accessible through the Internet. This is an improvement from the past practice of archiving Board decisions in microfiche form with an accompanying index to facilitate public access to the decisions.

DATES:

Effective Date: April 10, 2006.

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:

The Board is an administrative body that decides appeals from denials by agencies of original jurisdiction of claims for veterans' benefits, as well as occasional cases of original jurisdiction. The Freedom of Information Act (FOIA) requires federal agencies to make available for public inspection and copying final opinions made in the adjudication of cases. 38 U.S.C. 552(a)(2)(A).

The regulation in effect until April 10, 2006 provided a system for indexing Board decisions to facilitate access to the contents of the decisions. The index (BVA Index I-01-1) was published quarterly in microfiche form with an annual cumulation, and was made available to the public for review at VA offices around the country. However, technological advances in information management rendered this system obsolete. In fact, the Board has not indexed Board decisions in microfiche form for many years.

Currently, redacted Board decisions (i.e., decisions in which all personal identifiers except the Board-assigned docket number are removed) issued on or after January 1, 1992, are accessible to the public for inspection and copying on the Internet at http://www.index.va.gov/​search/​va/​bva.html, as well as some commercial Web sites. The former indexing system for Board decisions was upgraded and replaced by a comprehensive word-searching system, by which the public may identify particular decisions issued. Redacted Board decisions are also available for public inspection and copying in the Board's Research Center.

In light of these improvements, we are revising Rule 1301(b) (38 CFR 20.1301(b)) of the Board's Rules of Practice to reflect current practice and procedure, and to allow flexibility in implementing future advances in technology and information management when necessary. We are adding a new section, designated as 38 CFR 20.1301(b)(1), which sets forth a general description of how the Board will fulfill its responsibility under FOIA to make available for public inspection and copying final opinions made in the adjudication of cases. Section 20.1301(b)(1) is crafted in general terms to encompass future advances in technology and information management, while setting forth the principles of popular accessibility and availability for public inspection and copying, as required by FOIA.

We are also revising some of the existing language in section 20.1301(b) to clarify that Board decisions issued prior to January 1, 1992, are archived and indexed in microfiche form. This section is designated as 38 CFR 20.1301(b)(2) and sets forth details regarding the indexing methods that are used to retrieve Board decisions issued prior to January 1, 1992. The regulation in effect until April 10, 2006 provided the address of a private company that previously prepared and maintained the BVA Index I-01-1. We removed this name and address and, as an alternative, direct the public to contact the Board's Research Center for further information on obtaining a copy of the index.

Administrative Procedure Act

This final rule concerns agency organization, procedure or practice and, pursuant to 5 U.S.C. 553, is exempt from notice and comment and delayed effective date requirements.

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 an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This rule would have no such effect on State, local, or tribal governments, or the private sector.

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 Order classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget if it meets any one of a number of specified conditions, including: having an annual affect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. VA has examined the economic, legal, and policy implications of this final rule and has concluded that it is not a significant regulatory action under Executive Order 12866.

Paperwork Reduction Act

The Secretary hereby certifies that 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 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 affect VA beneficiaries and will not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirement of sections 603 and 604.

Catalog of Federal Domestic Assistance Numbers

There is no Catalog of Federal Domestic Assistance number for this proposed rule.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Veterans

Approved: March 9, 2006.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 20 as follows:

PART 20—BOARD OF VETERANS’ APPEALS: RULES OF PRACTICE

1. The authority citation for part 20 continues to read as follows:

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

2. In § 20.1301, revise paragraph (b) to read as follows:

§ 20.1301

Rule 1301. Disclosure of information.

* * * * *

(b) Public availability of Board decisions. (1) Decisions issued on or after January 1, 1992. Decisions rendered by the Board of Veterans' Appeals on or after January 1, 1992, are electronically available for public inspection and copying on the Internet at http://www.index.va.gov/​search/​va/​bva.html. All personal identifiers are redacted from the decisions prior to publication. Specific decisions may be identified by a word and/or topic search, or by the Board docket number. Board decisions will continue to be provided in a widely-used format as future advances in technology occur.

(2) Decisions issued prior to January 1, 1992. Decisions rendered by the Board of Veterans' Appeals prior to January 1, 1992, have been indexed to facilitate access to the contents of the decisions (BVA Index I-01-1). The index, which was published quarterly in microfiche form with an annual cumulation, is available for review at Department of Veterans Affairs regional offices and at the Research Center at the Board of Veterans' Appeals in Washington, DC. Information on obtaining a microfiche copy of the index is also available from the Board's Research Center. The index can be used to locate citations to decisions with issues similar to those of concern to an appellant. Each indexed decision has a locator number assigned to it. The manner in which the locator number is written depends upon the age of the decision. Decisions archived prior to late 1989 have a number such as 82-07-0001. Decisions archived at a later date have a number such as BVA-90-12345. This number must be used when requesting a paper copy of that decision. These requests must be directed to the Research Center (01C1), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.

(Authority: 5 U.S.C. 552(a)(2), 38 U.S.C. 501(a))