04-12625. Board of Veterans' Appeals: Rules of Practice-Motions for Revision of Decisions on Grounds of Clear and Unmistakable Error: Advancement on the Docket

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document affirms the interim final rule amending the Rules of Practice of the Board of Veterans' Appeals (Board) relating to challenges to Board decisions on the grounds of “clear and unmistakable error” (CUE). The amendment provides for advancing CUE motions on the docket.

DATES:

Effective Date: This final rule is effective June 4, 2004.

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 ([phone]).

SUPPLEMENTARY INFORMATION:

In a document published in the Federal Register on September 12, 2003 (68 FR 53681), we published an interim final rule with request for comments, which amended the Board's Rule of Practice 1405(a) (38 CFR 20.1405(a)). Rule 1405(a) requires that motions challenging decisions of the Board on the grounds of CUE be decided in accordance with their place on the Board's docket. While appeals are subject to the same requirement, 38 U.S.C. 7107(a)(1), we noted that both section 7107(a)(2) and its implementing regulation provide for earlier consideration of appeals if good cause is shown. 38 CFR 20.900(c) (Rule 900(c)). Rule 900(c) sets forth the good cause reasons for advancing an appeal on the Board's docket and the requirements for filing a motion to advance an appeal on the docket. However, because CUE motions are not appeals, and thus not subject to the various rules relating to appeals, we realized there was no regulatory provision for advancing CUE motions.

We therefore amended Rule 1405(a) to provide that a CUE motion may be advanced on the docket subject to the substantive and procedural requirements of Rule 900(c). We asked interested parties to submit comments on or before October 14, 2003. We received no comments. Based on the rationale noted above and as set forth in the interim final rule, we are adopting the interim final rule as a final rule without change.

Administrative Procedure Act

This document affirms without any changes an interim final rule that is already in effect. Accordingly, we have concluded under 5 U.S.C. 553 that there is good cause for dispensing with a delayed effective date based on the conclusion that such procedure is impracticable and unnecessary.

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 developing 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 in any given year. This final rule would have no such effect on State, local, or tribal governments, or the private sector.

Executive Order 12866

This document has been reviewed by the Office of Management and Budget under Executive Order 12866.

Paperwork Reduction Act

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 regulatory amendment 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 affects only the processing of claims by VA and does not affect small businesses, to include law firms. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Approved: April 22, 2004.

Anthony J. Principi,

Secretary of Veterans Affairs.

Accordingly, the interim final rule amending 38 CFR part 20 which was published at 68 FR 53681 on September 12, 2003 is adopted as a final rule without change.