E7-9286. Change in Secretary's Delegation of Authority and Clarification of that Authority

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document amends the Department of Veterans Affairs (VA) delegation regulation, which authorizes a VA official to take final action on complaints of employment discrimination when the Office of Employment Discrimination Complaint Adjudication (OEDCA) recuses itself due to a conflict of interest. The amendment provides that the Secretary of Veterans Affairs has delegated authority to take such action to the Chairman, Board of Veterans' Appeals, and clarifies that such authority includes awarding remedial relief in cases where there has been a finding of discrimination.

DATES:

Effective Date: May 15, 2007.

FOR FURTHER INFORMATION CONTACT:

Charles R. Delobe, Director, Office of Employment Discrimination Complaint Adjudication (00D), Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 20420 (Tel. [phone]).

SUPPLEMENTARY INFORMATION:

Under 38 U.S.C. 319 and 38 CFR 2.6(i), OEDCA has authority to take final action on complaints of employment discrimination filed by VA employees, former employees, and applicants for employment. Under 38 U.S.C. 501, the Secretary has authority to prescribe rules and regulations necessary to carry out the laws administered by VA. Further, under 38 U.S.C. 512, the Secretary may delegate authority to officers and employees of the Department as the Secretary deems necessary. In cases where OEDCA recuses itself due to an actual, apparent, or potential conflict of interest, the Secretary delegates authority to another official in the Department to take such action. In the past, that authority was delegated to the Chairman, Board of Contract Appeals, under current 38 CFR 2.6(j). This document amends § 2.6(j) to reflect the change in this delegation of authority to the Chairman, Board of Veterans' Appeals. The change in delegated authority is necessary because there has been a transfer of functions and personnel of the VA Board of Contract Appeals to the General Services Administration, which occurred on January 6, 2007. The amendment also clarifies that the delegated authority includes the authority to grant all appropriate remedies and relief in cases where there is a finding of discrimination.

Administrative Procedures Act

This final rule concerns VA agency organization, procedure, and practice, specifically delegation of authority to offices or employees of the Department to perform certain acts or render decisions. Accordingly, the prior notice and comment and delayed effective date provisions of 5 U.S.C. 553 do not apply to this rule.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Regulatory Flexibility Act

The initial and final regulatory flexibility analysis requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs 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. This final rule would not affect any small entities. Only VA employees, former employees, and applicants for employment could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is also exempt from the regulatory flexibility analysis requirements of sections 603 and 604.

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 Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB) unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have 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 set forth in the Executive Order.

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995, codified at 2 U.S.C. 1532, requires agencies to 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 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 is no Catalog of Federal Domestic Assistance number for this final rule.

List of Subjects in 38 CFR Part 2

• Authority delegations (Government agencies)

Approved: April 19, 2007.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

For the reasons set forth in the preamble, the Department of Veterans Affairs amends 38 CFR part 2 as follows:

PART 2—DELEGATIONS OF AUTHORITY

1. The authority citation for part 2 continues to read as follows:

Authority: 5 U.S.C. 302, 552a; 38 U.S.C. 501, 512, 515, 1729, 1729A, 5711; 44 U.S.C. 3702, and as noted in specific sections.

2. Amend § 2.6, by revising paragraph (j) to read as follows:

§ 2.6

Secretary's delegations of authority to certain officials (38 U.S.C. 512).

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(j) Delegation to the Chairman, Board of Veterans' Appeals. In cases where OEDCA has recused itself from a case due to an actual, apparent, or potential conflict of interest, the Chairman, Board of Veterans' Appeals, is delegated authority to make procedural agency decisions to dismiss, in whole or in part, EEO discrimination complaints filed by agency employees, former employees, and applicants for employment; to make substantive final agency decisions where complainants do not request an EEOC hearing; to take final agency action following a decision by an EEOC Administrative Judge; and to make final agency decisions ordering appropriate remedies and relief where there is a finding of discrimination.

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