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)

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, 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.

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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