81 FR 47087 - Recognition of Tribal Organizations for Representation of VA Claimants

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 81, Issue 139 (July 20, 2016)

Page Range47087-47094
FR Document2016-17052

The Department of Veterans Affairs (VA) is proposing to amend its regulations concerning recognition of certain national, State, and regional or local organizations for purposes of VA claims representation. Specifically, this rulemaking would allow the Secretary of Veterans Affairs to recognize tribal organizations in a similar manner as the Secretary recognizes State organizations. The proposed rule would allow a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. In addition, the proposed rule would allow an employee of a tribal government to become accredited through a recognized State organization in a similar manner as a County Veterans' Service Officer (CVSO) may become accredited through a recognized State organization. The intended effect of this proposed rule is to improve access of Native American veterans to VA-recognized organizations and VA- accredited individuals who may assist them on their benefit claims.

Federal Register, Volume 81 Issue 139 (Wednesday, July 20, 2016)
[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47087-47094]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-17052]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 14

RIN 2900-AP51


Recognition of Tribal Organizations for Representation of VA 
Claimants

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its regulations concerning recognition of

[[Page 47088]]

certain national, State, and regional or local organizations for 
purposes of VA claims representation. Specifically, this rulemaking 
would allow the Secretary of Veterans Affairs to recognize tribal 
organizations in a similar manner as the Secretary recognizes State 
organizations. The proposed rule would allow a tribal organization that 
is established and funded by one or more tribal governments to be 
recognized for the purpose of providing assistance on VA benefit 
claims. In addition, the proposed rule would allow an employee of a 
tribal government to become accredited through a recognized State 
organization in a similar manner as a County Veterans' Service Officer 
(CVSO) may become accredited through a recognized State organization. 
The intended effect of this proposed rule is to improve access of 
Native American veterans to VA-recognized organizations and VA-
accredited individuals who may assist them on their benefit claims.

DATES: Written comments must be received on or before September 19, 
2016.

ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand delivery to the Director, 
Regulation Policy and Management (00REG), Department of Veterans 
Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by 
fax to (202) 273-9026. Comments should indicate that they are submitted 
in response to ``RIN 2900-AP51, Recognition of Tribal Organizations for 
Representation of VA Claimants.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1068, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. (This is not a toll-free number.) In addition, during 
the comment period, comments may be viewed online through the Federal 
Docket Management System at http://www.regulations.gov/.

FOR FURTHER INFORMATION CONTACT: Dana Raffaelli, Staff Attorney, 
Benefits Law Group, Office of the General Counsel, (022D), Department 
of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, 
(202) 461-7699. (This is not a toll free number.)

SUPPLEMENTARY INFORMATION: This proposed rule would amend part 14 of 
title 38, Code of Federal Regulations, to provide for the recognition 
of tribal organizations that are established and funded by tribal 
governments so that representatives of the organizations may assist 
Native American veterans and their families in the preparation, 
presentation, and prosecution of their VA benefit claims. The purpose 
of this proposed rule is to address the needs of Native American 
populations who are geographically isolated from existing recognized 
Veterans Service Organizations (VSOs) or who may not be utilizing other 
recognized VSOs due to cultural barriers or lack of familiarity with 
those organizations. Native American veterans face challenges accessing 
representation in VA claims because many live in remote areas that are 
far from the nearest accredited representative. In addition, some 
Native American veterans may prefer to seek assistance from 
organizations that are associated with their tribal government, rather 
than using other organizations that are not as familiar to them. This 
proposed rule would help facilitate the VA recognition of tribal 
organizations that are established and funded by one or more tribal 
governments and whose primary purpose is to serve Native American 
veterans.
    Pursuant to 38 U.S.C. 5902, VA recognizes organizations and 
accredits their representatives for the preparation, presentation, and 
prosecution of claims under laws administered by VA. VA's regulation 
regarding the recognition of such organizations is 38 CFR 14.628, which 
currently does not expressly allow for the recognition of tribal 
organizations. Under the current regulations, however, any 
organization, including an organization created by one or more tribal 
governments, may apply for recognition by VA as either: (1) A national 
organization, or (2) a regional or local organization. To be recognized 
as a national organization, the organization must meet the requirements 
of Sec.  14.628(a) and (d). To be recognized as a regional or local 
organization, the organization must meet the requirements of Sec.  
14.628(c) and (d). VA also accredits State organizations. To be 
recognized as a State organization, the organization must meet the 
requirements of Sec.  14.628(b) and (d). Under the current regulations, 
VA has received only a few inquiries from tribal governments expressing 
interest in pursuing any type of VA recognition other than the type of 
recognition granted to State organizations. Pursuant to 38 CFR 14.627 
and 14.629, VA recognition of a State organization is limited to 
organizations established and funded by a State, possession, territory, 
or Commonwealth of the United States, and the District of Columbia. 
This proposed rule would allow tribal governments to establish and fund 
tribal organizations in a similar manner as the State governments have 
established and funded State organizations. Allowing organizations that 
are created and funded by tribal governments to be recognized as 
``tribal organizations'' rather than as national, regional or local 
organizations would afford VA the opportunity to acknowledge and affirm 
the long-standing recognition by the Federal government of tribes' 
inherent sovereignty and right to self-government.
    This proposed rule would amend 38 CFR 14.627 by adding a paragraph 
(r) that would provide that tribal government means the Federally 
recognized governing body of any Indian tribe, band, nation, or other 
organized group or community, including any Alaska Native village or 
Regional or Village Corporation as defined in or established pursuant 
to the Alaska Native Claims Settlement Act, which is recognized as 
eligible for the special programs and services provided by the United 
States to Indians because of their status as Indians. This is 
consistent with the definition of Indian tribe in 38 CFR 39.2.
    This proposed rule would amend current Sec.  14.628(b) by 
redesignating it as paragraph (b)(1), ``State organization,'' and 
adding paragraph (b)(2), ``Tribal organization.'' VA would clarify that 
a Tribal organization, for the purposes of 38 CFR 14.626 through 
14.637, is a legally established organization that is primarily funded 
and controlled, sanctioned, or chartered by one or more tribal 
governments and that has a primary purpose of serving the needs of 
Native American veterans; that only one tribal organization may be 
recognized for each tribal government; and, that, if a tribal 
organization is created and funded by more than one tribal government, 
the approval of each tribal government must be obtained prior to 
applying for VA recognition and that, if one of the supporting tribal 
governments withdraws from the tribal organization, the tribal 
organization must notify VA of the withdrawal and certify that the 
tribal organization can continue to meet the recognition requirements 
in Sec.  14.628(d) without the participation of that tribal government. 
This change is intended to allow tribal organizations to be recognized 
in a similar manner as State organizations, while still taking into 
account the unique circumstances of tribal governments being sovereign 
nations and of varying sizes.
    In order to ensure that all claimants for VA benefits receive 
responsible, qualified representation in the preparation, presentation, 
and

[[Page 47089]]

prosecution in their claims for veterans' benefits, VA has established 
general criteria that apply to all organizations requesting VA 
recognition as a national, State, regional, or local organization under 
Sec.  14.628(a) through (c). Therefore, tribal organizations would also 
need to meet these same general requirements in order to be recognized. 
Pursuant to Sec.  14.628(d), an organization requesting recognition 
must: (1) Have as a primary purpose serving veterans, (2) demonstrate a 
substantial service commitment to veterans either by showing a sizable 
organizational membership or by showing performance of veterans' 
services to a sizable number of veterans, (3) commit a significant 
portion of its assets to veterans' services and have adequate funding 
to properly perform those services, (4) maintain a policy and 
capability of providing complete claims service to each claimant 
requesting representation or give written notice of any limitation in 
its claims service with advice concerning the availability of 
alternative sources of claims service, and (5) take affirmative action, 
including training and monitoring of accredited representatives, to 
ensure proper handling of claims.
    We recognize the varying sizes of tribal governments. We further 
recognize that, due to the size of certain smaller Indian tribes, a 
single tribal government may be unable to establish an organization 
that could demonstrate a substantial service commitment to veterans 
either by showing a sizable organizational membership or by showing 
performance of veterans' services to a sizable number of veterans. A 
single tribal government may also be unable to establish an 
organization that would be able to adequately fund the necessary 
services of a tribal organization that provides assistance with VA 
benefit claims. Therefore, VA would consider applications from a tribal 
organization that is established and funded by one or more tribal 
governments to be recognized for the purpose of providing assistance on 
VA benefit claims. The approval of each tribal government would be 
necessary for VA to process the request for VA recognition. While VA is 
sensitive to the fact that some tribal governments may have difficulty 
meeting the substantial service commitment and funding requirements, VA 
must ensure that VA accredited organizations can provide long-term, 
competent representation. Therefore, VA would require that, if one of 
the supporting tribal governments withdraws from the tribal 
organization, the tribal organization must notify VA of the withdrawal 
and certify that the tribal organization continues to meet the 
recognition requirements in Sec.  14.628(d) without the participation 
of that tribal government. We note that 25 U.S.C. 450b(l) recognizes 
the existence of tribal coalitions in the definition of tribal 
organization for the purpose of entering into contracts or grants for 
certain educational benefits. Additionally, in 38 CFR 39.2, VA has 
recognized the existence of a parallel concept for the purpose of 
applying for cemetery grants.
    Based on our experience in applying Sec.  14.628, we believe the 
proposed addition to the regulation would facilitate the recognition of 
Tribal organizations and would improve Native American veterans' access 
to accredited representatives. Once a tribal organization has been 
recognized by VA, the certifying official of the organization would be 
able to file for VA accreditation for the individuals that the 
organization wishes to become accredited as its representatives. See 38 
CFR 14.629.
    VA further recognizes that not all tribal governments may want to 
establish their own Tribal veterans organization and some may have 
already established working relationships with their respective State 
organizations to help address the needs of their Native American 
veteran population. We, therefore, propose to amend 38 CFR 14.629(a)(2) 
to allow for an employee of a tribal government that is not associated 
with a tribal organization, to become accredited as a representative of 
a State organization in a similar manner as a county employee, i.e., a 
CVSO. In 1990, in order to further ensure the availability of competent 
representation for VA claimants, VA extended the opportunity for 
accreditation through State organizations to county veterans' service 
officers. See 54 FR 50772; 55 FR 38056. In extending this opportunity, 
VA cited the close association between States and county veterans' 
service officers, likening the association to that of a State employee 
under 54 FR 50772. In a previous rulemaking, VA recognized the fact 
that State governments do not have direct supervision of, or 
accountability for, CVSO, and therefore, to ensure adequate training 
and fitness to serve as a VA accredited representative, VA prescribed 
criteria that such officers must meet in order to become accredited. 
The criteria for a CVSO to become accredited through a State 
organization are outlined in Sec.  14.629(a)(2)(i) through (iii). In 
order for a CVSO to be recommended for VA accreditation by a VA-
recognized State organization, the officer must be a paid employee of 
the county working for it not less than 1,000 hours annually; have 
successfully completed a course of training and an examination which 
have been approved by a Regional Counsel with jurisdiction for the 
State; and receive either regular supervision and monitoring or annual 
training to assure continued qualification as a representative in the 
claims process. We note that the VA Office of the General Counsel (OGC) 
has recently undergone realignment and under the new structure Regional 
Counsels are now referred to as Chief Counsels. To avoid unnecessary 
confusion and because we intend to issue a direct final rule addressing 
the realignment of OGC and the changing of titles of certain OGC 
positions in the accreditation regulations in a single rulemaking, we 
are continuing to use the outdated title of Regional Counsel for this 
rulemaking.
    Although tribal governments are not politically subordinate to 
State governments like county governments are, tribal governments often 
do have close, productive relationships with State governments through 
gaming compacts, cross-deputization, and other cooperative agreements. 
Therefore, we believe that the collaborative nature of the relationship 
between tribes and States supports the proposed concept of recognizing 
tribal veterans' service officers in a manner similar to county 
veterans' service officers. As stated above, we believe this additional 
path to become an accredited representative would further facilitate 
veterans obtaining representation across county, State, and tribal 
borders.
    For consistency, the proposed rule would also amend 38 CFR 14.635 
to extend office space opportunities already granted to certain 
employees of State organizations to employees of tribal organizations. 
The proposed rule would allow the Secretary to furnish office space and 
facilities, when available, to both State and tribal organization 
employees who are also accredited to national organizations for the 
purpose of assisting claimants in the preparation, presentation, and 
prosecution of claims for benefits.
    We are also requesting from the Office of Management and Budget 
(OMB) approval for the provisions of Sec.  14.628(d) that constitute a 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521). Therefore, we would remove the current OMB control 
number parenthetical at the end of Sec.  14.628 and add, in its place, 
a placeholder parenthetical.
    Finally, we would make a technical amendment to Sec.  14.629(a)(2) 
to correct

[[Page 47090]]

``county veteran's service officer'' to read as ``county veterans' 
service officer''. In a prior rulemaking, we misplaced the location of 
the apostrophe associated with the previously mentioned phrase. See 54 
FR 50772 (Dec. 11, 1989); 55 FR 38056 (Sept. 17, 1990). Therefore, we 
would correct that error in this rulemaking.

Paperwork Reduction Act

    This proposed rule includes provisions constituting collections of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521) that require approval by OMB. Accordingly, under 44 U.S.C. 
3507(d), VA has submitted a copy of this rulemaking action to OMB for 
review.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. Proposed Sec.  14.628 contains a 
collection of information under the Paperwork Reduction Act of 1995. If 
OMB does not approve the collection of information as requested, VA 
will immediately remove the provisions containing a collection of 
information or take such other action as is directed by OMB.
    Comments on the collection of information contained in this 
proposed rule should be submitted to the Office of Management and 
Budget, Attention: Desk Officer for the Department of Veterans Affairs, 
Office of Information and Regulatory Affairs, Washington, DC 20503, 
with copies sent by mail or hand delivery to the Director, Regulation 
Policy and Management (00REG), Department of Veterans Affairs, 810 
Vermont Avenue NW., Room 1068, Washington, DC 20420; fax to (202) 273-
9026; email to www.Regulations.gov. Comments should indicate that they 
are submitted in response to ``RIN 2900-AP51.''
    OMB is required to make a decision concerning the collections of 
information contained in this proposed rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the proposed rule.
    The Department considers comments by the public on proposed 
collections of information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The collection of information contained in 38 CFR 14.628 is 
described immediately following this paragraph, under its respective 
title.
    Title: Requirements for Recognition as a VA Accredited 
Organization.
     Summary of collection of information: The collection of 
information in 38 CFR 14.628 would require organizations seeking VA 
accreditation under Sec.  14.628 to submit certain documentation to 
certify that the organization meets the requirements for VA 
accreditation. Pursuant to Sec.  14.628(d), an organization requesting 
recognition must have as a primary purpose serving veterans. In 
establishing that it meets this requirement, an organization requesting 
recognition shall submit a statement establishing the purpose of the 
organization and that veterans would benefit by recognition of the 
organization.
    The organization must also demonstrate a substantial service 
commitment to veterans either by showing a sizable organizational 
membership or by showing performance of veterans' services to a sizable 
number of veterans. In establishing that it meets this requirement, an 
organization requesting recognition shall submit: The number of members 
and number of posts, chapters, or offices and their addresses; a copy 
of the articles of incorporation, constitution, charter, and bylaws of 
the organization, as appropriate; a description of the services 
performed or to be performed in connection with programs administered 
by VA, with an approximation of the number of veterans, survivors, and 
dependents served or to be served by the organization in each type of 
service designated; and a description of the type of services, if any, 
performed in connection with other Federal and State programs which are 
designed to assist former Armed Forces personnel and their dependents, 
with an approximation of the number of veterans, survivors, and 
dependents served by the organization under each program designated.
    An organization requesting recognition must commit a significant 
portion of its assets to veterans' services and have adequate funding 
to properly perform those services. In establishing that it meets this 
requirement, an organization requesting recognition shall submit: A 
copy of the last financial statement of the organization indicating the 
amount of funds allocated for conducting particular veterans' services 
(VA may, in cases where it deems necessary, require an audited 
financial statement); and a statement indicating that use of the 
organization's funding is not subject to limitations imposed under any 
Federal grant or law which would prevent it from representing claimants 
before VA.
    An organization requesting recognition must maintain a policy and 
capability of providing complete claims service to each claimant 
requesting representation or give written notice of any limitation in 
its claims service with advice concerning the availability of 
alternative sources of claims service. In establishing that it meets 
this requirement, an organization requesting recognition shall submit 
evidence of its capability to represent claimants before VA regional 
offices and before the Board of Veterans' Appeals. If an organization 
does not intend to represent claimants before the Board of Veterans' 
Appeals, the organization shall submit evidence of an association or 
agreement with a recognized service organization for the purpose of 
representation before the Board of Veterans' Appeals, or the proposed 
method of informing claimants of the limitations in service that can be 
provided, with advice concerning the availability of alternative 
sources of claims service. If an organization does not intend to 
represent each claimant requesting assistance, the organization shall 
submit a statement of its policy concerning the selection of claimants 
and the proposed method of informing claimants of this policy, with 
advice concerning the availability of alternative sources of claims 
service.
    An organization requesting recognition must take affirmative 
action, including training and monitoring of accredited 
representatives, to ensure proper handling of claims. In establishing 
that it meets this requirement, an organization requesting recognition 
shall submit: A statement of the skills, training, and other

[[Page 47091]]

qualifications of current paid or volunteer staff personnel for 
handling veterans' claims; and a plan for recruiting and training 
qualified claim representatives, including the number of hours of 
formal classroom instruction, the subjects to be taught, the period of 
on-the-job training, a schedule or timetable for training, the 
projected number of trainees for the first year, and the name(s) and 
qualifications of the individual(s) primarily responsible for the 
training.
    In addition, the organization requesting recognition shall supply: 
A statement that neither the organization nor its accredited 
representatives will charge or accept a fee or gratuity for service to 
a claimant and that the organization will not represent to the public 
that VA recognition of the organization is for any purpose other than 
claimant representation; and the names, titles, and addresses of 
officers and the official(s) authorized to certify representatives.
     Description of need for information and proposed use of 
information: The information is used by VA in reviewing accreditation 
applications to determine whether organizations meet the requirements 
for VA accreditation under Sec.  14.628.
     Description of likely respondents: Organizations seeking 
VA accreditation under Sec.  14.628.
     Estimated number of respondents: 5 applicants per year.
     Estimated frequency of responses: This is a one-time 
collection.
     Estimated average burden per response: 5 hours.
     Estimated total annual reporting and recordkeeping burden: 
25 hours per year.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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. It does not require any action on the part of any 
entity but merely provides a new opportunity for tribal organizations 
to become recognized by VA for the purpose of assisting VA claimants in 
the preparation, presentation, and prosecution of claims for VA 
benefits. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is 
exempt from the initial and final regulatory flexibility analysis 
requirements of sections 603 and 604.

Executive Order 13175

    Executive Order 13175 provides that Federal agencies may not issue 
a regulation that has tribal implications, that imposes substantial 
direct compliance costs on tribal governments, and that is not required 
by statute, unless the Federal government provides the funds necessary 
to pay the direct compliance costs incurred by the tribal governments 
or the Federal agency consults with tribal officials early in the 
process of developing the proposed regulation, develops and publishes 
in the Federal Register a tribal summary impact statement, and provides 
to the Director of OMB any written communications submitted to the 
agency by the tribal officials.
    On March 3 and 10, 2016, respectively, VA issued letters to tribal 
leaders as well as a Federal Register notice, 81 FR 12626, seeking 
comment on VA's consideration of issuing a proposed rule that would 
amend part 14 of title 38, Code of Federal Regulations, to expressly 
provide for the recognition of tribal organizations so that 
representatives of the organizations may assist Native American 
claimants in the preparation, presentation, and prosecution of their VA 
benefit claims. Those interested in providing comment were given 30-
days to respond. Based on requests from commenters, VA expanded the 
comment period an additional 15 days to April 26, 2016. VA received 
comments from 36 commenters. A few commenters submitted more than one 
comment. Overall, the comments were supportive of issuing such a 
proposed rule.
    One commenter wrote that, currently, their tribal representatives 
are being accredited through their State as well as other national 
organizations and was curious as to the ``road blocks'' other tribal 
organizations were facing. This commenter did not provide any 
suggestions, and therefore, no change to this rulemaking is warranted.
    Several commenters noted that currently Native American veterans 
face many roadblocks to obtaining representation. One commenter noted 
that geography, economic, and culture barriers prevent Native American 
veterans from utilizing currently available representation. These 
comments were offered in support of the proposed rule, and therefore, 
no change to this rulemaking is warranted.
    A few commenters misinterpreted the language provided in the 
consultation and notice as meaning that VA intended to propose that 
VA's recognition of a tribal organization would be tied to VA's 
recognition of the corresponding State organization. One commenter 
stated that VA should recognize a tribal organization as ``equal to'' a 
State organization. VA is not tying VA recognition of a tribal 
organization to a State and is choosing not to make value judgements as 
to the importance of the recognition granted to State organizations and 
Tribal organizations. Recognition of a tribal organization would stand 
on its own. VA has chosen to use the term similar rather than the term 
equal in this proposed rule because we are proposing some differences 
in the requirements for VA recognition of a tribal organization and the 
requirements for State organizations. Specifically, the proposed rule 
would allow a single tribal government, or multiple tribal governments 
to join together to establish and fund a tribal organization, but such 
allowance is not permitted for State governments.
    A few commenters misinterpreted the language provided in the 
consultation and notice as limiting recognition of a tribal veterans' 
service officer through a State. One commenter asked for clarification 
on what type of employees would be eligible to become accredited by VA. 
The commenter stated that employees of a tribal nation as well as a 
tribal organization should be eligible. We agree, and the proposed rule 
would allow for both avenues to attain VA accreditation depending on 
the tribal government's size, relationships with other tribal 
governments, relationships with States, and the needs of Native 
American veterans in their area. After a tribal organization becomes 
recognized by VA, that organization would be able to request to have 
its own representatives accredited under 38 CFR 14.629. In addition to 
proposing to recognize tribal organizations and accredit their 
representatives, VA would provide an additional means by which VA may 
recognize an employee of a tribal government as a tribal veterans' 
service officer through a State organization. This accreditation would 
be akin to accreditation given to county veterans' service officers 
through State organizations and is only meant to provide an additional 
path to VA accreditation. We propose that the requirements for a tribal 
veterans' service officer to become accredited as a representative 
through a State organization be the same as the requirements for a 
county veterans' service officer. Therefore, VA makes no changes based 
on these comments.
    One commenter asked what happens to the accreditation of a tribal 
organization if the Director is relinquished. It seems this comment 
stems from the misinterpretation previously discussed regarding the 
accreditation of a tribal organization and the corresponding State 
organization. The commenter also asked what

[[Page 47092]]

happens if the State refuses to sponsor the replacement officer. As 
discussed above, once a tribal organization becomes recognized by VA, 
that organization would be able to request to have its own 
representatives accredited under Sec.  14.629. The tribal organization 
can file with VA to have a replacement officer accredited. Therefore, 
VA makes no changes based on this comment.
    Several commenters also expressed concern over the requirements for 
recognition in Sec.  14.628(d). Specifically, the commenters expressed 
concern that many tribal organizations may not be able to satisfy the 
primary purpose, size, funding, and training requirements, to include 
providing the required, supporting documentation. One commenter 
suggested that VA provide the funding for tribes ``to engage in this 
work.'' Another commenter suggested including Indian Health Services 
for funding assistance. A few commenters expressed concern about the 
requirement that the organization must maintain a policy of either 
providing complete claims representation or provide ``written notice of 
any limitation in its claims service with advice concerning the 
availability of alternative sources of claims service.'' 38 CFR 
14.628(d)(1)(iv). One commenter seemed to believe VA was questioning 
the level of competence of tribal representatives. VA must ensure that 
VA accredited organizations can provide long-term, competent 
representation and has found that the Sec.  14.628(d) requirements are 
protective of that mission. These requirements apply to all 
organizations seeking VA recognition. Exempting tribal organizations 
from meeting the Sec.  14.628(d) requirements would not be consistent 
with the purpose of VA recognition to ensure that veterans are 
receiving qualified, competent representation on their VA benefit 
claims. As previously discussed, VA has provided additional means to 
achieve VA recognition or accreditation for those tribal governments 
that may have difficulty establishing a tribal organization capable of 
meeting the Sec.  14.628(d) requirements, to include the ability for 
one or more tribal governments to establish and fund a tribal 
organization and the ability of an employee of a tribal government to 
become accredited as a tribal veterans' service officer through a 
recognized State organization. Therefore, VA makes no changes based on 
these comments.
    One commenter suggested that VA grant accreditation to tribes 
through a Memorandum of Understanding and included their tribe's 
Memorandum of Understanding with their State. The commenter also 
questioned the role of VA in the accreditation and monitoring process. 
The laws governing VA accreditation are set out at 38 U.S.C. 5902 and 
5904 and 38 CFR 14.626-14.637. These laws apply to all organizations, 
agents, and attorneys seeking VA accreditation. Pursuant to Sec.  
14.628, the organization requesting VA accreditation must certify to VA 
that the organization meets the Sec.  14.628(d) requirements for 
recognition. Therefore, a Memorandum of Understanding between VA and a 
tribe is not sufficient for applying for VA accreditation. Furthermore, 
VA does monitor its accredited organizations, agents, and attorneys and 
handles disciplinary matters as they arise. Therefore, VA makes no 
changes based on this comment.
    One commenter suggested that VA engage in additional consultation 
with Tribes that would be ``interested in becoming recognized 
veterans['] service organizations, but are unable to meet the 
requirements.'' In the proposed rule, VA offers alternative avenues for 
VA recognition and accreditation for tribal governments that may not be 
capable of establishing an organization that can meet the VA 
recognition requirements in the proposed rule on their own. VA further 
welcomes additional comments as to the suitability of those alternative 
avenues through comments on this proposed rule. VA declines to make any 
changes based on this comment.
    One commenter also recommended that ``VA enter into Memorandums of 
Understanding with [F]ederally-recognized tribes and tribal 
organizations for [v]eterans' [s]ervice [o]fficer training and service 
reimbursement, on individual bases.'' Another commenter objected to the 
fact that there was ``no mention of funding to train and maintain such 
a position.'' Section 5902, of title 38, United State Code, which is 
the law that authorizes VA to recognize organizations for the purpose 
of providing assistance on VA benefit claims, does not provide for the 
funding of such organizations to train and maintain representatives. 
Pursuant to Sec.  14.628(d)(iii)(B), organizations are not precluded 
from seeking and receiving other sources of State and Federal grant 
funding so long as the organization's funding is not subject to 
limitations imposed under any Federal grant or law which would prevent 
it from representing claimants before VA. Therefore, VA declines to 
make any changes based on these comments.
    One commenter wrote that VA ``. . . should include [F]ederally-
recognized tribes, not just tribal organizations funded by tribal 
governments, as an entity from which applications will be considered to 
be recognized for . . .'' VA accreditation. Another commenter suggested 
adding ``[F]ederally recognized tribes'' or ``[F]ederally recognized 
tribal governments'' as part of the definition for tribal 
organizations. Another commenter suggested adding tribal communities. 
For the purposes of the regulations pertaining to the representation of 
VA claimants, VA proposes to define a tribal government to mean ``the 
Federally recognized governing body of any Indian tribe, band, nation, 
or other organized group or community . . .''. VA finds this definition 
to be inclusive of the comments, and therefore, no change is warranted.
    One commenter suggested a legislative amendment to the definition 
of State in 38 U.S.C. 101(20) to include ``[F]ederally recognized 
tribal governments.'' Amending the statutory language is something that 
only Congress can accomplish. Since VA is defining the term ``tribal 
government'' in regulation and providing an avenue for VA recognition 
of a tribal organization separate from a State organization, VA does 
not find such a legislative amendment necessary. Therefore, no change 
is warranted based on this comment.
    Several commenters wrote that ``[s]pecial attention must be paid to 
what specifically is meant by a `[t]ribal [o]rganization' '' and that 
VA should offer a clear definition of the term. The commenters did not 
offer any suggestions for such definition. As previously discussed, VA 
is defining this term for the purposes of this rulemaking. Therefore, 
VA does not make any changes based on this comment.
    Several commenters asked VA to clarify whether tribal governments, 
including veterans departments within these governments, would be 
eligible for VA recognition. A Department of Veterans Affairs or a 
Veterans Affairs office that is established and funded by a tribal 
government would be included in the definition of tribal organization. 
Therefore, no change to this rulemaking is warranted based on these 
comments.
    One commenter asked that VA provide recognition for urban Indian 
organizations. The comment is unclear on whether such an organization 
would be able to apply for VA recognition as a tribal organization. VA 
declines to add an additional organization category at this time. In 
addition to the proposed amendments discussed in this rulemaking, an 
organization may still utilize other avenues to apply for VA 
recognition such as requesting VA

[[Page 47093]]

recognition as a regional or local organization. To be recognized as a 
regional or local organization, an organization must meet the 
requirements of Sec.  14.628(c) and (d).
    Further, there are several ways that individuals, including tribal 
members, tribal government employees, and others who work within and 
serve tribal or Native American communities, may be accredited by VA to 
represent claimants. An individual may apply for accreditation as a 
representative through an existing VA-recognized organization under 
standards set forth in Sec.  14.629(a). Alternatively, an individual 
may also seek accreditation in an individual capacity as either an 
agent or an attorney under the standards set forth in Sec.  14.629(b). 
Therefore, VA declines to make any changes based on this comment.
    A couple of commenters submitted statements certifying that their 
organization would meet the requirements for accreditation for a tribal 
organization. Applications for accreditation are outside the scope of 
this rulemaking. Therefore, no change is warranted based on these 
comments.
    One commenter asked whether accredited tribal representatives would 
be granted access to software programs containing a veteran's claims 
file information and whether that access would be on tribal grounds. 
This issue is outside the scope of this rulemaking. Therefore, no 
change is warranted based on this comment.
    One commenter expressed support for VA recognizing tribal 
organizations in an equal manner as VA recognizes State organizations 
but suggested that VA authorize a field office close to tribal 
administration locations and fund one or two veterans service officer 
positions. The tribal consultation and this proposed rulemaking are 
limited in scope to recognition for purposes of VA claims 
representation. The commenter's suggestion of adding a field office is 
beyond the scope, and therefore, VA declines to make any changes based 
on this comment. VA also declines to make any changes to the 
commenter's suggestion of funding job positions for veterans service 
officers. Part of the Sec.  14.628(d) requirements is that an 
organization seeking accreditation must commit a significant portion of 
its assets to veterans' services and have adequate funding to properly 
perform those services. 38 CFR 14.628(d)(1)(iii).
    A few commenters expressed concern that the proposed rulemaking is 
limiting VA recognition for the preparation, presentation, and 
prosecution of claims for VA benefits. One commenter seemed to think VA 
is depriving veterans from other title 38 benefits. The commenters did 
not specify what other accreditation they are seeking. As previously 
discussed, 38 CFR part 14 is limited in jurisdiction to recognizing 
organizations and accrediting individuals to assist in the preparation, 
presentation, and prosecution of VA benefit claims. Pursuant to section 
5902, VA accreditation may not be granted for any other purpose. This 
rulemaking in no way deprives any veteran of any title 38 benefits. 
Therefore, no change is warranted based on these comments.
    One commenter suggested that office space opportunities should be 
available to tribal governments and organizations in the same manner as 
they are available to State organizations. As previously discussed, 
this proposed rule would, under Sec.  14.635, allow the Secretary to 
furnish office space and facilities, when available, to both State and 
tribal organization employees who are also accredited to national 
organizations for the purpose of assisting claimants in the 
preparation, presentation, and prosecution of claims for benefits. VA 
would be furnishing office space to tribal organizations in the same 
manner as it furnishes such space to State organizations. Therefore, no 
change is warranted based on this comment.
    One commenter noted that VA should allow a tribal government 
employee to become accredited through an accredited body of their 
choice. VA in no way is limiting how a particular individual may apply 
to become an accredited VA representative. As previously discussed, VA 
is merely providing additional paths to VA accreditation than currently 
exist. Therefore, VA declines to make any changes to this rulemaking 
based on this comment.
    Several commenters suggested further outreach and collaboration. 
One commenter suggested that VA form a tribal workgroup to allow 
representatives from tribal organizations to collaborate on 
implementing the new program. One commenter provided VA with their 
tribal consultation policy. Other commenters suggested that VA engage 
in additional consultation with experts in Indian law and hold an all-
tribes call to gather additional input for this rulemaking. VA 
appreciates this information. As previously noted, VA extended the 
comment period for an additional 15 days to ensure that all interested 
parties had an appropriate time to provide input. Therefore, VA finds 
that it has complied with the requirements of Executive Order 13175. VA 
notes that an additional 60-day comment period is provided for this 
proposed rule and invites any additional comment to this rulemaking to 
be provided during that time.
    One commenter asked for the projected implementation date of this 
rulemaking. VA will publish a final rule to this proposed rule which 
will contain the effective date of the rulemaking.

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). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action'' requiring review by 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 or 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 
this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of this rulemaking and its impact analysis are available on VA's Web 
site at http://www.va.gov/orpm/, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

[[Page 47094]]

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 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 proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    There are no Catalog of Federal Domestic Assistance programs 
numbers and titles associated with this proposed rule.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized Gina S. Farrisee, Deputy Chief of Staff, 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. Gina S. Farrisee, Deputy Chief of Staff, Department 
of Veterans Affairs, approved this document on July 14, 2016 for 
publication.

List of Subjects in 38 CFR Part 14

    Administrative practice and procedure, Claims, Courts, Foreign 
relations, Government employees, Lawyers, Legal services, Organization 
and functions (Government agencies), Reporting and recordkeeping 
requirements, Surety bonds, Trusts and trustees, Veterans.

    Dated: July 14, 2016.
Janet J. Coleman,
Chief, Office of Regulation Policy & Management, Office of the 
Secretary, Department of Veterans Affairs.

    For the reasons set out in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR part 14 as follows:

PART 14--LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS

0
1. The authority citation for part 14 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 
512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14, 
unless otherwise noted.

0
2. Amend Sec.  14.627 by adding paragraph (r) to read as follows:


Sec.  14.627  Definitions.

* * * * *
    (r) Tribal government means the Federally recognized governing body 
of any Indian tribe, band, nation, or other organized group or 
community, including any Alaska Native village or Regional or Village 
Corporation as defined in or established pursuant to the Alaska Native 
Claims Settlement Act, which is recognized as eligible for the special 
programs and services provided by the United States to Indians because 
of their status as Indians.
* * * * *
0
3. Amend Sec.  14.628 by:
0
a. Redesignating paragraph (b) as paragraph (b)(1) and adding paragraph 
(b)(2); and
0
b. In the parenthetical at the end of the section, removing ``2900-
0439'' and adding, in its place, 2900-XXXX''.
    The addition reads as follows:


Sec.  14.628  Recognition of organizations.

* * * * *
    (b)(1) State organization. * * *
    (2) Tribal organization. For the purposes of 38 CFR 14.626 through 
14.637, an organization that is a legally established organization that 
is primarily funded and controlled, sanctioned, or chartered by one or 
more tribal governments and that has a primary purpose of serving the 
needs of Native American veterans. Only one tribal organization may be 
recognized for each tribal government. If a tribal organization is 
created and funded by more than one tgovernment, the approval of each 
tribal government must be obtained prior to applying for VA 
recognition. If one of the supporting tribal governments withdraws from 
the tribal organization, the tribal organization must notify VA of the 
withdrawal and certify that the tribal organization continues to meet 
the recognition requirements in paragraph (d) of this section.
* * * * *


Sec.  14.629  [Amended]

0
4. Amend Sec.  14.629 by:
0
a. In paragraph (a)(2) introductory text, removing ``county veteran's 
service officer'' and adding in its place ``county veterans' service 
officer'';
0
b. In paragraph (a)(2) introductory text, adding ``or tribal veterans' 
service officer'' immediately following ``county veterans' service 
officer''; and
0
c. In paragraph (a)(2)(i), adding ``or tribal government'' immediately 
following ``county''.


Sec.  14.635  [Amended]

0
5. Amend Sec.  14.635 by adding, in the introductory paragraph, ``or 
tribal'' immediately following ``State''.

[FR Doc. 2016-17052 Filed 7-19-16; 8:45 am]
 BILLING CODE 8320-01-P


Current View
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesWritten comments must be received on or before September 19, 2016.
ContactDana Raffaelli, Staff Attorney, Benefits Law Group, Office of the General Counsel, (022D), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7699. (This is not a toll free number.)
FR Citation81 FR 47087 
RIN Number2900-AP51
CFR AssociatedAdministrative Practice and Procedure; Claims; Courts; Foreign Relations; Government Employees; Lawyers; Legal Services; Organization and Functions (government Agencies); Reporting and Recordkeeping Requirements; Surety Bonds; Trusts and Trustees and Veterans

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