82 FR 26751 - Expanded Delegation Authority for Procedures Related to Representation of Claimants

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 82, Issue 110 (June 9, 2017)

Page Range		26751-26754
FR Document		2017-11977
The Department of Veterans Affairs (VA) is amending its regulations on representation of claimants for VA benefits to specifically permit additional delegations of authority within the Office of the General Counsel (OGC), update the titles of certain individuals and offices in OGC, and make a minor procedural clarification. These amendments are necessary to allow OGC to streamline the procedures related to representation of claimants and to ensure correct titles of certain individuals and offices in OGC are reflected in the regulations. In addition, a procedural clarification is being made by adding a sentence that was inadvertently omitted from a previous final rule.
Federal Register, Volume 82 Issue 110 (Friday, June 9, 2017)
[Federal Register Volume 82, Number 110 (Friday, June 9, 2017)]
[Rules and Regulations]
[Pages 26751-26754]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-11977]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 14

RIN 2900-AP96


Expanded Delegation Authority for Procedures Related to 
Representation of Claimants

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations on representation of claimants for VA benefits to 
specifically permit additional delegations of authority within the 
Office of the General Counsel (OGC), update the titles of certain 
individuals and offices in OGC, and make a minor procedural 
clarification. These amendments are necessary to allow OGC to 
streamline the procedures related to representation of claimants and to 
ensure correct titles of certain individuals and offices in OGC are 
reflected in the regulations. In addition, a procedural clarification 
is being made by adding a sentence that was inadvertently omitted from 
a previous final rule.

DATES: Effective Date: This rule is effective June 9, 2017.

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

SUPPLEMENTARY INFORMATION: VA OGC is streamlining its procedures 
related to representation of VA claimants because of increased and 
higher-than-anticipated workload. This document amends 38 CFR part 14 
to specifically permit additional delegations of authority and to 
update titles of OGC positions to reflect the current organization of 
OGC.
    Under 38 U.S.C. chapter 59, the VA Secretary has authority to 
recognize attorneys, agents, and Veterans Service Organization (VSO) 
representatives for the preparation, presentation, and prosecution of 
benefit claims; regulate fees charged by accredited attorneys and 
agents; and prescribe the rules of conduct applicable while providing 
claims assistance. In December 2006, Congress enacted the Veterans 
Benefits, Health Care, and Information Technology Act of 2006 (Pub. L. 
109-461), which significantly amended chapter 59. Section 101 of the 
Act required VA to: (1) Regulate the qualifications and standards of 
conduct applicable to accredited attorneys and agents; (2) annually 
collect information about accredited attorneys' and agents' standing to 
practice or appear before any court, bar, or Federal or State agency; 
(3) proscribe accreditation of individuals who have been suspended or 
disbarred from any such entity without reinstatement; (4) add to the 
list of grounds for suspension or exclusion of attorneys or agents from 
further practice before VA; and (5) subject VSO representatives and 
individuals recognized for a particular claim to suspension and 
exclusion from further

[[Page 26752]]

practice before VA on the same grounds as apply to attorneys and 
agents.
    In addition, section 101 amended the fee provisions in chapter 59 
to allow paid representation by accredited attorneys and agents at an 
earlier stage in the VA claims adjudication process. These amendments 
authorized accredited attorneys and agents to charge fees for services 
provided after the claimant files a notice of disagreement in the case, 
rather than after the Board of Veterans' Appeals (Board) first makes a 
final decision in the case. The amendments also authorized VA to: (1) 
Restrict the amount of fees attorneys and agents may charge; (2) 
subject fee agreements between attorneys or agents and claimants to 
review by the Secretary, such review to be appealable to the Board; and 
(3) collect an assessment from any attorney or agent to whom VA pays 
fees directly from past-due benefits. Further, the amendments 
eliminated fee matters as grounds for criminal penalties under 38 
U.S.C. 5905.
    On May 22, 2008, VA published a final rule in the Federal Register 
(73 FR 29852) to implement the chapter 59 amendments. The final rule 
addressed accreditation of individuals, standards of conduct for all 
individuals authorized to assist claimants before VA, and attorneys' 
and agents' fees. Since the 2008 amendments, OGC has continued to 
develop and fine-tune the accreditation process. OGC's experience in 
administering the accreditation program over the past nine years has 
highlighted the need to streamline these procedures pertaining to the 
representation of VA claimants.
    The workload of the VA's accreditation program is at an all-time 
high. The number of VA-accredited individuals has increased rapidly 
since the publication of the final rule on May 22, 2008. Prior to the 
June 23, 2008, effective date of the final rule, licensed attorneys did 
not need to apply for accreditation. Since then, VA has accredited 
17,500 attorneys, an average of more than 2,000 per year. The number of 
VA-accredited claims agents has also increased, from 64 to 
approximately 400. OGC reviews thousands of accreditation applications 
and cancellation requests each year. Additionally, OGC must review 
complaints about the conduct of accredited individuals and disputes 
about the reasonableness of fees and expenses. Complaints and fee 
disputes have also increased rapidly since 2008; currently 121 
complaints and 193 fee disputes are pending with OGC.
    Under 38 U.S.C. 5904, Congress granted the VA Secretary the 
authority to accredit agents and attorneys for practice before VA. 
Congress has also authorized the Secretary to delegate authority to act 
and to render decisions under the laws administered by VA as necessary 
(38 U.S.C. 512). The Secretary, then the Administrator of Veterans 
Affairs, first delegated this authority for the accreditation program 
to the General Counsel in 1954 in a new 38 CFR part 14 (19 FR 5556). 
This revised rule permits the General Counsel and the Deputy General 
Counsel for Legal Policy, as well as the Chief Counsels and Deputy 
Chief Counsels of the specific OGC law groups or districts, to 
designate others as additional individuals who are authorized to make 
necessary determinations on accreditation matters. Additionally, with 
regard to proceedings to review fee agreements under Sec.  14.636(i) 
and expenses under Sec.  14.637(d), the revised rule transfers from the 
Chief Counsel level to the Deputy Chief Counsel level the authority in 
OGC to (1) initiate a review; (2) extend the time for an agent, 
attorney, claimant, or appellant to respond; and (3) make a 
recommendation to the General Counsel. These changes will increase the 
timeliness of the decisions and the overall efficiency of VA's 
accreditation program.
    In most instances, the revised rule allows the General Counsel to 
delegate authority to the Deputy General Counsel for Legal Policy, a 
Chief Counsel to delegate authority to the Deputy Chief Counsel or 
another appropriate designee, and a Deputy Chief Counsel to delegate 
authority to another appropriate designee. More broad delegation 
authority is provided for in the following cases of the General 
Counsel's authority:
    1. Under Sec.  14.629(b)(5) to grant or reinstate accreditation for 
an individual who remains suspended in a jurisdiction on grounds solely 
derivative of suspension or disbarment in another jurisdiction to which 
he or she has been subsequently reinstated,
    2. Under Sec.  14.636(i)(3) to make the final decision in 
proceedings to review fee agreements, and
    3. Under Sec.  14.637(d)(3) to make the final decision in 
proceedings to review expenses.
    This broader delegation authority extends to the Deputy General 
Counsel for Legal Policy if he or she has already been designated by 
the General Counsel to perform these functions.
    Additional revisions are being made to reflect the recent 
reorganization of OGC. The former titles of ``Assistant General 
Counsel'' and ``Regional Counsel'' have both been changed to ``Chief 
Counsel'', the previously numbered staff groups have been given titles 
based on subject matter (e.g., Benefits Law Group), and the former 23 
Regional Counsel Offices have been changed to 10 District Chief Counsel 
Offices, two for each of VA's 5 districts.
    Finally, a new sentence providing that, after an attorney or agent 
has had an opportunity to respond in proceedings to review expenses and 
a claimant or appellant has had an opportunity to reply to that 
response, the Deputy Chief Counsel will forward the record and a 
recommendation to the General Counsel (or, as discussed above, a 
designee of either the General Counsel or the Deputy General Counsel 
for Legal Policy) for a final decision, is being added to Sec.  
14.637(d)(3). A similar sentence was inadvertently omitted from the May 
22, 2008 final rule, although the procedure was described in the 
preamble to the proposed rule (72 FR 25930, 25934), and can be inferred 
from the regulatory text of the proposed and final rule (72 FR at 
25943; 73 FR at 29879). This procedure parallels that described in 38 
CFR 14.636(i)(3) regarding review of fee agreements.

Administrative Procedure Act

    These changes to 38 CFR part 14 are being published without regard 
to notice-and-comment procedures of 5 U.S.C. 553(b) because they 
involve only matters of agency organization, procedure, and practice, 
which are exempted from such notice-and-comment procedures by virtue of 
5 U.S.C. 553(b)(A). This final rule consists of only nonsubstantive 
changes that affect internal procedures. For this reason, in accordance 
with 5 U.S.C. 553(d)(3), VA has determined that there is good cause to 
waive the 30-day delayed effective date requirement under 5 U.S.C. 
553(d).

Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 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

[[Page 26753]]

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 this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined and 
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 the 
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.''

Regulatory Flexibility Act

    The initial and final regulatory flexibility analyses 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 VA 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. This rule affects only 
internal VA OGC procedures. 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.

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

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Catalog of Federal Domestic Assistance Numbers and Titles

    There are no Federal Domestic Assistance programs associated with 
this final rule.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned 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 June 5, 2017, 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: June 5, 2017.
Jeffrey Martin,
Office Program Manager, Office of Regulation Policy & Management, 
Office of the Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA amends 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:
0
a. Redesignating paragraphs (l) through (r) as paragraphs (o) through 
(u).
0
b. Redesignating paragraph (k) as paragraph (m).
0
c. Redesignating paragraphs (g) through (j) as paragraphs (h) through 
(k).
0
d. Adding new paragraphs (g), (l), and (n) to read as follows:


Sec.  14.627  Definitions.

* * * * *
    (g) Chief Counsel includes a designee of the Chief Counsel.
* * * * *
    (l) Deputy Chief Counsel includes a designee of the Deputy Chief 
Counsel.
* * * * *
    (n) General Counsel includes the Deputy General Counsel for Legal 
Policy if designated by the General Counsel. When so designated, 
references to ``the General Counsel or his or her designee'' may 
further include a designee of the Deputy General Counsel for Legal 
Policy.
* * * * *

0
3. Amend Sec.  14.629 by:
0
a. Revising the introductory text.
0
b. In paragraph (a)(2)(ii), removing the words ``a Regional Counsel 
with jurisdiction for the State'' and adding, in its place, the words 
``the appropriate District Chief Counsel''.
0
c. In paragraph (b)(1)(i), adding the words ``Office of the'' before 
the words ``General Counsel''.
0
d. In paragraph (b)(1)(ii), adding the words ``Office of the'' before 
all references to ``General Counsel''.
0
e. In paragraph (b)(2)(ix), removing the words ``a VA Regional 
Counsel'' and adding, in their place, the words ``the appropriate 
District Chief Counsel''.
0
f. In paragraph (b)(5) adding the words ``or his or her designee'' 
after the word ``Counsel''.
0
g. In paragraph (c)(1), adding the words ``Office of the'' before the 
words ``General Counsel''.
    The revision reads as follows:


Sec.  14.629  Requirements for accreditation of service organization 
representatives; agents; and attorneys.

    The Chief Counsel with subject-matter jurisdiction will conduct an 
inquiry and make an initial determination regarding any question 
relating to the qualifications of a prospective service organization 
representative, agent, or attorney. If the Chief Counsel determines 
that the prospective service organization representative, agent, or 
attorney meets the requirements for accreditation in paragraphs (a) or 
(b) of this section, notification of accreditation will be issued by 
the Chief Counsel and will constitute authority to prepare, present, 
and prosecute claims before an agency of original jurisdiction or the 
Board of Veterans' Appeals. If the Chief Counsel determines that the 
prospective representative, agent, or attorney does not meet the 
requirements for accreditation, notification will be issued by the 
Chief Counsel concerning the reasons for disapproval, an opportunity

[[Page 26754]]

to submit additional information, and any restrictions on further 
application for accreditation. If an applicant submits additional 
evidence, the Chief Counsel will consider such evidence and provide 
further notice concerning his or her final decision. The determination 
of the Chief Counsel regarding the qualifications of a prospective 
service organization representative, agent, or attorney may be appealed 
by the applicant to the General Counsel. Appeals must be in writing and 
filed with the Office of the General Counsel (022D), 810 Vermont Avenue 
NW., Washington, DC 20420, not later than 30 days from the date on 
which the Chief Counsel's decision was mailed. In deciding the appeal, 
the General Counsel's decision shall be limited to the evidence of 
record before the Chief Counsel. A decision of the General Counsel is a 
final agency action for purposes of review under the Administrative 
Procedure Act, 5 U.S.C. 701-706.
* * * * *


Sec.  14.631   [Amended]

0
4. In Sec.  14.631(d) remove the words ``Regional Counsel of 
jurisdiction'' and add, in their place, the words ``appropriate 
District Chief Counsel''.


Sec.  14.633  [Amended]

0
5. Amend Sec.  14.633 by:
0
a. In paragraph (e), removing all references to ``Assistant General'' 
and adding, in each place, the word ``Chief''.
0
b. In paragraph (e) introductory text, removing the words ``of 
jurisdiction'' and adding in their place, the words ``with subject-
matter jurisdiction''.
0
c. In paragraph (f), removing all references to ``Assistant General'' 
and adding, in each place, the word ``Chief''.
0
d. In paragraph (f), removing the words ``or his or her designee'' and 
adding in their place, the words ``with subject-matter jurisdiction''.

0
6. Amend Sec.  14.636 by:
0
a. In paragraph (i)(2), removing the words ``Assistant General 
Counsel'' and adding, in their place, the words ``Deputy Chief Counsel 
with subject-matter jurisdiction''.
0
b. Revising paragraph (i)(3) to read as follows:


Sec.  14.636  Payment of fees for representation by agents and 
attorneys in proceedings before Agencies of Original Jurisdiction and 
before the Board of Veterans' Appeals.

* * * * *
    (i) * * *
    (3) The Office of the General Counsel shall close the record in 
proceedings to review fee agreements 15 days after the date on which 
the agent or attorney served a response on the claimant or appellant, 
or 30 days after the claimant, appellant, or the Office of the General 
Counsel served the motion on the agent or attorney if there is no 
response. The Deputy Chief Counsel with subject-matter jurisdiction 
may, for a reasonable period upon a showing of sufficient cause, extend 
the time for an agent or attorney to serve an answer or for a claimant 
or appellant to serve a reply. The Deputy Chief Counsel shall forward 
the record and a recommendation to the General Counsel or his or her 
designee for a final decision. Unless either party files a Notice of 
Disagreement with the Office of the General Counsel, the attorney or 
agent must refund any excess payment to the claimant or appellant not 
later than the expiration of the time within which the Office of the 
General Counsel's decision may be appealed to the Board of Veterans' 
Appeals.
* * * * *

0
7. Amend Sec.  14.637 by:
0
a. In paragraph (d)(2) removing the words ``Assistant General Counsel'' 
and adding, in their place, the words ``Deputy Chief Counsel with 
subject-matter jurisdiction''.
0
b. Revising paragraph (d)(3) to read as follows:


Sec.  14.637  Payment of the expenses of agents and attorneys in 
proceedings before Agencies of Original Jurisdiction and before the 
Board of Veterans' Appeals.

* * * * *
    (d) * * *
    (3) The Office of the General Counsel shall close the record in 
proceedings to review expenses 15 days after the date on which the 
agent or attorney served a response on the claimant or appellant, or 30 
days after the claimant, appellant, or the Office of the General 
Counsel served the motion on the agent or attorney if there is no 
response. The Deputy Chief Counsel with subject-matter jurisdiction 
may, for a reasonable period upon a showing of sufficient cause, extend 
the time for an agent or attorney to serve an answer or for a claimant 
or appellant to serve a reply. The Deputy Chief Counsel shall forward 
the record and a recommendation to the General Counsel or his or her 
designee for a final decision. Unless either party files a Notice of 
Disagreement with the Office of the General Counsel, the attorney or 
agent must refund any excess payment to the claimant or appellant not 
later than the expiration of the time within which the Office of the 
General Counsel's decision may be appealed to the Board of Veterans' 
Appeals.
* * * * *
[FR Doc. 2017-11977 Filed 6-8-17; 8:45 am]
BILLING CODE 8320-01-P
Federal Register / Vol. 82, No. 110 / Friday, June 9, 2017 / Rules and Regulations 26751

(42 U.S.C. 4321–4370f), and have Chincoteague Channel within 60 yards benefits to specifically permit additional
determined that this action is one of a of the fireworks display located near the delegations of authority within the
category of actions that do not shoreline at a point on land at Office of the General Counsel (OGC),
individually or cumulatively have a approximate position latitude 37°55′41″ update the titles of certain individuals
significant effect on the human N., longitude 075°23′09″ W. (NAD and offices in OGC, and make a minor
environment. This rule involves a safety 1983). procedural clarification. These
zone lasting less than 15 minutes that (c) Regulations. (1) All persons are amendments are necessary to allow
will prohibit entry within 60 yards of a required to comply with the general OGC to streamline the procedures
point on land immediately adjacent to regulations governing safety zones in related to representation of claimants
navigable waters located at latitude § 165.23. and to ensure correct titles of certain
37°55′41″ N., longitude 075°23′09″ W. (2) With the exception of participants, individuals and offices in OGC are
This action is categorically excluded entry into or remaining in this safety reflected in the regulations. In addition,
from further review under paragraph zone is prohibited unless authorized by a procedural clarification is being made
34(g) of Figure 2–1 of the Commandant the Captain of the Port, Hampton Roads by adding a sentence that was
Instruction. A Record of Environmental or his designated representatives. All inadvertently omitted from a previous
Consideration supporting this vessels underway within this safety final rule.
determination is available in the docket zone at the time it is implemented are DATES: Effective Date: This rule is
where indicated under ADDRESSES. We to depart the zone immediately. effective June 9, 2017.
request any comments or information (3) The Captain of the Port, Hampton
Roads or his representative can be FOR FURTHER INFORMATION CONTACT:
that may lead to the discovery of a
significant environmental impact from contacted at telephone number (757) Jonathan Taylor, Benefits Law Group
this rule. 668–5555. The Coast Guard and Staff Attorney, Office of the General
designated security vessels enforcing Counsel (022), Department of Veterans
G. Protest Activities Affairs, 810 Vermont Avenue NW.,
the safety zone can be contacted on
The Coast Guard respects the First VHF–FM marine band radio channel 13 Washington, DC 20420, (202) 461–7699
Amendment rights of protesters. (165.65 Mhz) and channel 16 (156.8 (this is not a toll-free telephone
Protesters are asked to contact the Mhz). number.)
person listed in the FOR FURTHER (4) This section applies to all persons SUPPLEMENTARY INFORMATION: VA OGC
INFORMATION CONTACT section to or vessels wishing to transit through the is streamlining its procedures related to
coordinate protest activities so that your safety zone except participants and representation of VA claimants because
message can be received without vessels that are engaged in the following of increased and higher-than-anticipated
jeopardizing the safety or security of operations: workload. This document amends 38
people, places or vessels. (i) Enforcing laws; CFR part 14 to specifically permit
List of Subjects in 33 CFR Part 165 (ii) Servicing aids to navigation, and additional delegations of authority and
(iii) Emergency response vessels. to update titles of OGC positions to
Harbors, Marine safety, Navigation (5) The U.S. Coast Guard may be reflect the current organization of OGC.
(water), Reporting and recordkeeping assisted in the patrol and enforcement Under 38 U.S.C. chapter 59, the VA
requirements, Security measures, of the safety zone by Federal, State, and Secretary has authority to recognize
Waterways. local agencies. attorneys, agents, and Veterans Service
For the reasons discussed in the (d) Enforcement period. This section Organization (VSO) representatives for
preamble, the Coast Guard amends 33 will be enforced from 9:30 p.m. through the preparation, presentation, and
CFR part 165 as follows: 10:30 p.m. on July 1, 2017, or on July prosecution of benefit claims; regulate
8, 2017, if weather renders the primary fees charged by accredited attorneys and
PART 165—REGULATED NAVIGATION date unsuitable.
AREAS AND LIMITED ACCESS AREAS agents; and prescribe the rules of
Dated: June 5, 2017. conduct applicable while providing
■ 1. The authority citation for part 165 Richard J. Wester, claims assistance. In December 2006,
continues to read as follows: Captain, U.S. Coast Guard, Captain of the Congress enacted the Veterans Benefits,
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; Port, Hampton Road. Health Care, and Information
33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; [FR Doc. 2017–11989 Filed 6–8–17; 8:45 am] Technology Act of 2006 (Pub. L. 109–
Department of Homeland Security Delegation BILLING CODE 9110–04–P
461), which significantly amended
No. 0170.1. chapter 59. Section 101 of the Act
■ 2. Add § 165.T05–0248 to read as required VA to: (1) Regulate the
follows: DEPARTMENT OF VETERANS qualifications and standards of conduct
AFFAIRS applicable to accredited attorneys and
§ 165.T05–0248 Safety Zone, Chincoteague agents; (2) annually collect information
Channel; Chincoteague Islands, VA. 38 CFR Part 14 about accredited attorneys’ and agents’
(a) Definitions. For the purposes of standing to practice or appear before
this section, Captain of the Port means RIN 2900–AP96 any court, bar, or Federal or State
the Commander, Sector Hampton Roads. agency; (3) proscribe accreditation of
Expanded Delegation Authority for
Representative means any Coast Guard individuals who have been suspended
Procedures Related to Representation
commissioned, warrant or petty officer or disbarred from any such entity
of Claimants
jstallworth on DSK7TPTVN1PROD with RULES

who has been authorized to act on the without reinstatement; (4) add to the list
behalf of the Captain of the Port. AGENCY: Department of Veterans Affairs. of grounds for suspension or exclusion
Participants mean individuals and ACTION: Final rule. of attorneys or agents from further
vessels involved in the fireworks practice before VA; and (5) subject VSO
display. SUMMARY: The Department of Veterans representatives and individuals
(b) Locations. The following area is a Affairs (VA) is amending its regulations recognized for a particular claim to
safety zone: All navigable waters of on representation of claimants for VA suspension and exclusion from further

VerDate Sep<11>2014 14:27 Jun 08, 2017 Jkt 241001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\09JNR1.SGM 09JNR1
26752 Federal Register / Vol. 82, No. 110 / Friday, June 9, 2017 / Rules and Regulations

practice before VA on the same grounds to accredit agents and attorneys for Counsel’’ have both been changed to
as apply to attorneys and agents. practice before VA. Congress has also ‘‘Chief Counsel’’, the previously
In addition, section 101 amended the authorized the Secretary to delegate numbered staff groups have been given
fee provisions in chapter 59 to allow authority to act and to render decisions titles based on subject matter (e.g.,
paid representation by accredited under the laws administered by VA as Benefits Law Group), and the former 23
attorneys and agents at an earlier stage necessary (38 U.S.C. 512). The Regional Counsel Offices have been
in the VA claims adjudication process. Secretary, then the Administrator of changed to 10 District Chief Counsel
These amendments authorized Veterans Affairs, first delegated this Offices, two for each of VA’s 5 districts.
accredited attorneys and agents to authority for the accreditation program Finally, a new sentence providing
charge fees for services provided after to the General Counsel in 1954 in a new that, after an attorney or agent has had
the claimant files a notice of 38 CFR part 14 (19 FR 5556). This an opportunity to respond in
disagreement in the case, rather than revised rule permits the General proceedings to review expenses and a
after the Board of Veterans’ Appeals Counsel and the Deputy General claimant or appellant has had an
(Board) first makes a final decision in Counsel for Legal Policy, as well as the opportunity to reply to that response,
the case. The amendments also Chief Counsels and Deputy Chief the Deputy Chief Counsel will forward
authorized VA to: (1) Restrict the Counsels of the specific OGC law groups the record and a recommendation to the
amount of fees attorneys and agents may or districts, to designate others as General Counsel (or, as discussed above,
charge; (2) subject fee agreements additional individuals who are a designee of either the General Counsel
between attorneys or agents and authorized to make necessary or the Deputy General Counsel for Legal
claimants to review by the Secretary, determinations on accreditation matters. Policy) for a final decision, is being
such review to be appealable to the Additionally, with regard to added to § 14.637(d)(3). A similar
Board; and (3) collect an assessment proceedings to review fee agreements sentence was inadvertently omitted
from any attorney or agent to whom VA under § 14.636(i) and expenses under from the May 22, 2008 final rule,
pays fees directly from past-due § 14.637(d), the revised rule transfers although the procedure was described
benefits. Further, the amendments from the Chief Counsel level to the in the preamble to the proposed rule (72
eliminated fee matters as grounds for Deputy Chief Counsel level the FR 25930, 25934), and can be inferred
criminal penalties under 38 U.S.C. 5905. authority in OGC to (1) initiate a review; from the regulatory text of the proposed
On May 22, 2008, VA published a (2) extend the time for an agent, and final rule (72 FR at 25943; 73 FR at
final rule in the Federal Register (73 FR attorney, claimant, or appellant to 29879). This procedure parallels that
29852) to implement the chapter 59 respond; and (3) make a described in 38 CFR 14.636(i)(3)
amendments. The final rule addressed recommendation to the General regarding review of fee agreements.
accreditation of individuals, standards Counsel. These changes will increase
of conduct for all individuals authorized Administrative Procedure Act
the timeliness of the decisions and the
to assist claimants before VA, and overall efficiency of VA’s accreditation These changes to 38 CFR part 14 are
attorneys’ and agents’ fees. Since the program. being published without regard to
2008 amendments, OGC has continued In most instances, the revised rule notice-and-comment procedures of 5
to develop and fine-tune the allows the General Counsel to delegate U.S.C. 553(b) because they involve only
accreditation process. OGC’s experience authority to the Deputy General Counsel matters of agency organization,
in administering the accreditation for Legal Policy, a Chief Counsel to procedure, and practice, which are
program over the past nine years has delegate authority to the Deputy Chief exempted from such notice-and-
highlighted the need to streamline these Counsel or another appropriate comment procedures by virtue of 5
procedures pertaining to the designee, and a Deputy Chief Counsel to U.S.C. 553(b)(A). This final rule consists
representation of VA claimants. delegate authority to another of only nonsubstantive changes that
The workload of the VA’s appropriate designee. More broad affect internal procedures. For this
accreditation program is at an all-time delegation authority is provided for in reason, in accordance with 5 U.S.C.
high. The number of VA-accredited the following cases of the General 553(d)(3), VA has determined that there
individuals has increased rapidly since Counsel’s authority: is good cause to waive the 30-day
the publication of the final rule on May 1. Under § 14.629(b)(5) to grant or delayed effective date requirement
22, 2008. Prior to the June 23, 2008, reinstate accreditation for an individual under 5 U.S.C. 553(d).
effective date of the final rule, licensed who remains suspended in a
attorneys did not need to apply for Executive Orders 12866 and 13563
jurisdiction on grounds solely derivative
accreditation. Since then, VA has of suspension or disbarment in another Executive Orders 13563 and 12866
accredited 17,500 attorneys, an average jurisdiction to which he or she has been direct agencies to assess the costs and
of more than 2,000 per year. The subsequently reinstated, benefits of available regulatory
number of VA-accredited claims agents 2. Under § 14.636(i)(3) to make the alternatives and, when regulation is
has also increased, from 64 to final decision in proceedings to review necessary, to select regulatory
approximately 400. OGC reviews fee agreements, and approaches that maximize net benefits
thousands of accreditation applications 3. Under § 14.637(d)(3) to make the (including potential economic,
and cancellation requests each year. final decision in proceedings to review environmental, public health and safety
Additionally, OGC must review expenses. effects, and other advantages;
complaints about the conduct of This broader delegation authority distributive impacts; and equity).
accredited individuals and disputes extends to the Deputy General Counsel Executive Order 13563 (Improving
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about the reasonableness of fees and for Legal Policy if he or she has already Regulation and Regulatory Review)
expenses. Complaints and fee disputes been designated by the General Counsel emphasizes the importance of
have also increased rapidly since 2008; to perform these functions. quantifying both costs and benefits,
currently 121 complaints and 193 fee Additional revisions are being made reducing costs, harmonizing rules, and
disputes are pending with OGC. to reflect the recent reorganization of promoting flexibility. Executive Order
Under 38 U.S.C. 5904, Congress OGC. The former titles of ‘‘Assistant 12866 (Regulatory Planning and
granted the VA Secretary the authority General Counsel’’ and ‘‘Regional Review) defines a ‘‘significant

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Federal Register / Vol. 82, No. 110 / Friday, June 9, 2017 / Rules and Regulations 26753

regulatory action’’ requiring review by private sector, of $100 million or more § 14.627 Definitions.
the Office of Management and Budget (adjusted annually for inflation) in any * * * * *
(OMB), unless OMB waives such one year. This rule would have no such (g) Chief Counsel includes a designee
review, as ‘‘any regulatory action that is effect on State, local, and tribal of the Chief Counsel.
likely to result in a rule that may: (1) governments, or on the private sector. * * * * *
Have an annual effect on the economy (l) Deputy Chief Counsel includes a
Paperwork Reduction Act
of $100 million or more or adversely designee of the Deputy Chief Counsel.
affect in a material way the economy, a This document contains no provisions
constituting a collection of information * * * * *
sector of the economy, productivity,
under the Paperwork Reduction Act (44 (n) General Counsel includes the
competition, jobs, the environment,
U.S.C. 3501–3521). Deputy General Counsel for Legal Policy
public health or safety, or State, local,
if designated by the General Counsel.
or tribal governments or communities; Catalog of Federal Domestic Assistance When so designated, references to ‘‘the
(2) create a serious inconsistency or Numbers and Titles General Counsel or his or her designee’’
otherwise interfere with an action taken
There are no Federal Domestic may further include a designee of the
or planned by another agency; (3)
materially alter the budgetary impact of Assistance programs associated with Deputy General Counsel for Legal
entitlements, grants, user fees, or loan this final rule. Policy.
programs or the rights and obligations of * * * * *
Signing Authority
recipients thereof; or (4) raise novel ■ 3. Amend § 14.629 by:
legal or policy issues arising out of legal The Secretary of Veterans Affairs, or ■ a. Revising the introductory text.
mandates, the President’s priorities, or designee, approved this document and ■ b. In paragraph (a)(2)(ii), removing the
the principles set forth in this Executive authorized the undersigned to sign and words ‘‘a Regional Counsel with
Order.’’ submit the document to the Office of the jurisdiction for the State’’ and adding, in
The economic, interagency, Federal Register for publication its place, the words ‘‘the appropriate
budgetary, legal, and policy electronically as an official document of District Chief Counsel’’.
implications of this regulatory action the Department of Veterans Affairs. Gina ■ c. In paragraph (b)(1)(i), adding the
have been examined and determined S. Farrisee, Deputy Chief of Staff, words ‘‘Office of the’’ before the words
not to be a significant regulatory action Department of Veterans Affairs, ‘‘General Counsel’’.
under Executive Order 12866. VA’s approved this document on June 5, ■ d. In paragraph (b)(1)(ii), adding the
impact analysis can be found as a 2017, for publication. words ‘‘Office of the’’ before all
supporting document at http:// List of Subjects in 38 CFR Part 14 references to ‘‘General Counsel’’.
www.regulations.gov, usually within 48 ■ e. In paragraph (b)(2)(ix), removing
hours after the rulemaking document is Administrative practice and the words ‘‘a VA Regional Counsel’’ and
published. Additionally, a copy of the procedure, Claims, Courts, Foreign adding, in their place, the words ‘‘the
rulemaking and its impact analysis are relations, Government employees, appropriate District Chief Counsel’’.
available on VA’s Web site at http:// Lawyers, Legal services, Organization ■ f. In paragraph (b)(5) adding the words
www.va.gov/orpm/, by following the and functions (Government agencies), ‘‘or his or her designee’’ after the word
link for ‘‘VA Regulations Published Reporting and recordkeeping ‘‘Counsel’’.
From FY 2004 Through Fiscal Year to requirements, Surety bonds, Trusts and ■ g. In paragraph (c)(1), adding the
Date.’’ trustees, Veterans. words ‘‘Office of the’’ before the words
Dated: June 5, 2017. ‘‘General Counsel’’.
Regulatory Flexibility Act
Jeffrey Martin, The revision reads as follows:
The initial and final regulatory Office Program Manager, Office of Regulation
flexibility analyses requirements of Policy & Management, Office of the Secretary, § 14.629 Requirements for accreditation of
sections 603 and 604 of the Regulatory Department of Veterans Affairs. service organization representatives;
Flexibility Act, 5 U.S.C. 601–612, are agents; and attorneys.
For the reasons set forth in the
not applicable to this rule, because a The Chief Counsel with subject-matter
preamble, VA amends 38 CFR part 14 as
notice of proposed rulemaking is not jurisdiction will conduct an inquiry and
follows:
required for this rule. Even so, the VA make an initial determination regarding
Secretary hereby certifies that this final PART 14—LEGAL SERVICES, any question relating to the
rule will not have a significant GENERAL COUNSEL, AND qualifications of a prospective service
economic impact on a substantial MISCELLANEOUS CLAIMS organization representative, agent, or
number of small entities as they are attorney. If the Chief Counsel
defined in the Regulatory Flexibility ■ 1. The authority citation for part 14 determines that the prospective service
Act. This rule affects only internal VA continues to read as follows: organization representative, agent, or
OGC procedures. Therefore, pursuant to Authority: 5 U.S.C. 301; 28 U.S.C. 2671– attorney meets the requirements for
5 U.S.C. 605(b), this rulemaking is 2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901– accreditation in paragraphs (a) or (b) of
exempt from the initial and final 5905; 28 CFR part 14, appendix to part 14, this section, notification of accreditation
regulatory flexibility analysis unless otherwise noted. will be issued by the Chief Counsel and
requirements of sections 603 and 604. ■ 2. Amend § 14.627 by: will constitute authority to prepare,
■ a. Redesignating paragraphs (l) present, and prosecute claims before an
Unfunded Mandates agency of original jurisdiction or the
through (r) as paragraphs (o) through
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The Unfunded Mandates Reform Act (u). Board of Veterans’ Appeals. If the Chief
of 1995 requires, at 2 U.S.C. 1532, that ■ b. Redesignating paragraph (k) as Counsel determines that the prospective
agencies prepare an assessment of paragraph (m). representative, agent, or attorney does
anticipated costs and benefits before ■ c. Redesignating paragraphs (g) not meet the requirements for
issuing any rule that may result in an through (j) as paragraphs (h) through (k). accreditation, notification will be issued
expenditure by State, local, and tribal ■ d. Adding new paragraphs (g), (l), and by the Chief Counsel concerning the
governments, in the aggregate, or by the (n) to read as follows: reasons for disapproval, an opportunity

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Document Created: 2017-06-09 01:11:37
Document Modified: 2017-06-09 01:11:37
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Final rule.
Dates		Effective Date: This rule is effective June 9, 2017.
Contact		Jonathan Taylor, Benefits Law Group Staff Attorney, Office of the General Counsel (022), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-7699 (this is not a toll-free telephone number.)
FR Citation		82 FR 26751
RIN Number		2900-AP96
CFR Associated		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 and Veterans