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Federal Register / Vol. 86, No. 107 / Monday, June 7, 2021 / Rules and Regulations Section 5.0 is being amended by removing the language that discusses E.O. 13891.
Section 5.10 Definitions relating to guidance documents.
Section 5.10 is the definitions section.
The section generally tracks the requirements that were outlined in E.O.
13891, as applied to VA. However, we are not making any changes to this section. We note that the definition of guidance document in 5.10 largely correlates with the definition of rule from E.O. 12866, and the criteria for what makes a guidance document significant are substantively the same as the criteria for rules under E.O.
12866.
Section 5.15 Procedures for issuing guidance documents.
Section 5.15 contains procedures for issuing guidance documents. Paragraph a applies to all guidance documents, while paragraph b is specific to significant guidance documents.
We are changing paragraph a1 to state that each guidance document should include a disclaimer that the document does not have the force and effect of law and is not meant to bind the public in any way, rather than requiring such disclaimers to be included. This disclaimer is not required by E.O. 12866, and removing its requirement will minimize litigation risks associated with technical noncompliance. However, we are not entirely eliminating the use of the disclaimer because we believe it serves a beneficial purpose of clarifying the scope and limitations of guidance documents.
As with paragraph a1, we are changing paragraph a2 to state that each guidance document should include the listed information, rather than requiring the information to be included. We believe this change will provide a measure of standardization to guidance documents without requiring significant additional work and will also minimize litigation risks associated with technical noncompliance.
For paragraph b, as with paragraphs a1 and 2, we are changing the language to state that significant guidance documents should contain the disclaimer and listed information from paragraph a, rather than requiring that they do so.
We are removing paragraph b1 and renumbering the remaining paragraphs accordingly. This change will remove the requirement to conduct notice-andcomment procedures when issuing significant guidance documents. We acknowledge that providing the public an opportunity to participate in the process of issuing guidance documents
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would track the requirements from section 6a1 of E.O. 12866 that agencies provide the public meaningful participation and an opportunity to comment on proposed regulations.
However, guidance documents are not regulations, and requiring notice-andcomment procedures is an onerous process that is not required by any law or other authority. Further, there are already less burdensome methods of allowing public participation. For example, 5.20 creates a process for the public to petition for withdrawal or modification of guidance documents.
In redesignated paragraph b1, we are removing the reference to E.O.
13891. And in redesignated paragraph b3, we are removing the reference to E.Os. 13771 and 13777 as they have also been rescinded by E.O. 13992. We are also removing the phrase for regulations and rules, because as noted above, guidance documents are not regulations and thus are not subject to the same processes and requirements as regulations.
Section 5.20 Procedures for petition for the withdrawal or modification of a guidance document.
Section 5.20 contains a process for the public to petition for the withdrawal or modification of guidance documents, including the minimum amount of information that must be included in a petition. Although not mandated by any law or other authority, we are generally keeping this process in place as it is consistent with E.O. 12866s focus on allowing public participation. However, to permit the Department increased flexibility in responding to petitions, we are changing the 90-day time limit to respond in paragraph c from a requirement to a goal that the agency will seek to meet.
Section 5.25 Guidance website.
Section 5.25 will continue to provide notice of the Departments guidance document website. However, we are removing the second sentence from this section. This will remove the reference to E.O. 13891. Additionally, this will remove the limitation on how the agency may use guidance documents not available on the website to increase the agencys flexibility in utilizing guidance documents.

Paperwork Reduction Act
Administrative Procedure Act
Catalog of Federal Domestic Assistance
The Secretary of Veterans Affairs is publishing this rule without prior opportunity for public comment pursuant to 5 U.S.C. 553bA as this rule is a rule of agency organization, procedure, or practice, and thus is published as a final rule.

There are no Catalog of Federal Domestic Assistance numbers and titles for this rule.

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This rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 44 U.S.C. 35013521.
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. 601612. The regulations established by this rulemaking do not impose burdens or otherwise regulate the activities of any entities outside of VA. Therefore, pursuant to 5 U.S.C.
605b, the initial and final regulatory flexibility analysis requirements of 5
U.S.C. 603 and 604 do not apply.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct 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. E.O.
13563 Improving Regulation and Regulatory Review emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs OIRA has determined that this rule is not a significant regulatory action under E.O.
12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.
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 would have no such effect on State, local, and tribal governments, or on the private sector.

Congressional Review Act Pursuant to the Congressional Review Act 5 U.S.C. 801 et seq., OIRA

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