82 FR 6265 - Recognition of Tribal Organizations for Representation of VA Claimants
DEPARTMENT OF VETERANS AFFAIRS Federal Register Volume 82, Issue 12 (January 19, 2017)
Federal Register Volume 82, Issue 12 (January 19, 2017)
| Page Range | 6265-6272 | |
| FR Document | 2017-00947 |
[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)] [Rules and Regulations] [Pages 6265-6272] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-00947] ======================================================================= ----------------------------------------------------------------------- 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: Final rule. ----------------------------------------------------------------------- SUMMARY: The Department of Veterans Affairs (VA) is amending its regulations concerning recognition of certain national, State, and regional or local organizations for purposes of VA claims representation. Specifically, this rulemaking allows the Secretary to recognize tribal organizations in a similar manner as the Secretary recognizes State organizations. The final rule allows a tribal organization that is [[Page 6266]] 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 final rule allows 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 effect of this action 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. DATES: Effective Date: This rule is effective February 21, 2017. 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: On July 20, 2016, VA issued a proposed rule to 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. 81 FR 47087-47094. VA proposed to 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. Id. In addition, VA proposed to allow an employee of a tribal government to become accredited through a recognized State organization in a similar manner as a CVSO may become accredited through a recognized State organization and to extend office space opportunities already granted to certain employees of State organizations to employees of tribal organizations. Id. VA received 17 comments on the proposed rule. Overall, the comments were supportive of the proposed rule. A couple of commenters stated that they currently meet or will be able to meet the accreditation requirements for recognition as a tribal organization. The actual requests for recognition of specific tribal organizations are outside the scope of this rulemaking. However, VA invites all interested organizations or applicants to consider requesting recognition after this rulemaking takes effect. Please see VA's accreditation Web site for more information on how to request recognition of an organization and how to apply to become accredited as a representative through a recognized organization or as an attorney or agent, http://www.va.gov/ogc/accreditation.asp. No change is warranted to this rulemaking based on these comments. A few commenters misinterpreted the proposed rule 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. VA is not tying VA recognition of a tribal organization to a State. Recognition of a tribal organization will stand on its own. After a tribal organization becomes recognized by VA, that organization will be able to request to have its own representatives accredited under 38 CFR 14.629. Therefore, VA declines to make any changes based on these comments. One commenter stated that there is no need to restrict a tribal government employee to being accredited by either a tribal organization or State organization. Although in the proposed rule, we focused much of our discussion on how a tribal government employee may be accredited through a tribal organization or a State organization, we do not intend for this rulemaking to limit the availability of other avenues to achieve VA accreditation. 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. If an individual does not wish to be accredited through a tribal or State organization, the individual may seek accreditation through a National or Regional or Local organization or seek accreditation in his or her 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. One commenter asked whether a tribal veterans' service representative who worked in multiple states would be required to get approval from all of the States in which they work. If the representative is accredited through the tribal organization and representing claimants on behalf of that organization, then the representative would not need to seek any additional accreditation through a State organization. If the representative is a tribal veterans service officer (TVSO) and the representative's sole accreditation status is through a State organization, the representative should confer with that State organization to see if the State has placed any geographical limits on its accredited representatives. VA does not place any geographical or residency restrictions or limitations on State or tribal organizations as to who may be served by the organization. Therefore, no change is warranted to this rulemaking based on this comment. A couple of commenters recommended that a tribal organization should have the ability to accredit representatives of State organizations through the tribal organization as well. A VA-recognized tribal organization is welcome to put forth any representatives of its choosing for VA accreditation so long as the organization is able to certify that the potential representative is of good character and reputation, has demonstrated an ability to represent claimants, and is a paid employee working no less than 1,000 hours annually. A recognized tribal organization may also recommend a potential representative for accreditation through the tribal organization by certifying that the individual is accredited and functioning as a representative of another recognized organization, this is commonly referred to as ``cross- accreditation.'' See 38 CFR 14.627(j) and 14.629(a). Because we do not view this rulemaking as prohibiting State organization representatives from being accredited through a tribal organization as well, we do not believe that a change is warranted to this rulemaking based on these comments. One commenter asked if it would be possible for a tribal government to have their employees accredited by a tribal organization and State organization concurrently. VA does not limit an accredited representative to one method of accreditation. Therefore, no change is warranted to this rulemaking based on this comment. Several commenters appeared to interpret the proposed rule as limiting tribal organizations to representation of only veterans who are Native American and not their dependents or survivors who may not be Native American. It is not VA's intention to limit the type of claimants for VA benefits that any accredited organization, attorney, or agent may represent. The requirements for accreditation require an applying organization to state the number of veterans, survivors, and dependents that will be served by the organization. 38 CFR 14.628(d)(1)(ii)(D). VA makes no changes based on these comments. 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 [[Page 6267]] able to satisfy the requirement of having a primary purpose of serving veterans, the requirement of a substantial service commitment to veterans as shown either by a sizable organizational membership or by performance of veterans' services to a sizable number of veterans, or requirements concerning funding and training, to include providing the required supporting documentation. As stated in the proposed rule, VA must ensure that VA accredited organizations can provide long-term, competent representation and has found that the Sec. 14.628(d) requirements further that objective. 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. 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. Several commenters requested that VA further define or quantify what would constitute adequate funding and a substantial service commitment to veterans either by showing a sizeable organizational membership or by showing performance of veterans' services to a sizeable number of veterans. VA's purpose is to ensure that VA claimants have responsible, qualified representation and the above noted requirements serve as an indicator that the organization is stable. VA makes these determinations on a case-by-case basis taking into consideration all of the evidence of record. VA's goal is to ensure that VA claimants have access to the representation that they may need, and in order to provide such access, VA needs flexibility to make accreditation determinations based on the totality of the circumstances. Therefore, VA declines to make any changes based on these comments. Several commenters requested that funding be made available to establish tribal organizations. 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. Several commenters suggested further outreach and collaboration. On March 3 and 10, 2016, respectively, VA issued letters to tribal leaders and 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. In the proposed rule, VA addressed the comments received from the tribal consultation and provided an additional 60-day comment period. 81 FR 47091-47093, July 20, 2016. Therefore, VA finds that it has complied with the notice and consultation requirements of the governing Executive Orders. See Exec. Order No. 13175, 65 FR 67249-67252, Nov. 9, 2000; Exec. Order 12866 sec. 6(a), 58 FR 51735, Sept. 30, 1993; Exec. Order 13563 sec. 2(b), 76 FR 3821, 3821-22, Jan. 18, 2011. One commenter asked VA to include the veterans departments within the tribal governments as eligible for VA recognition. A Veterans Affairs office or department that is established and funded by a tribal government is included in the definition of tribal organization and may apply for recognition under the rule. Another commenter requested that tribal government be included in the definition of tribal organization. A tribal government would not fit the definition of a tribal organization because the primary purpose of a tribal government is generally much broader than serving the needs of Native American veterans. However, the definition of tribal organization allows for a tribal government to establish such an organization that will be for that specific purpose. In this same way, VA recognizes State organizations rather than the State governments themselves. Therefore, no change to this rulemaking is warranted based on these comments. Another commenter stated that, due to the geographic size of their tribal government, it would make sense for it to become its own regional council. If the commenter is asserting its intention to apply to become a VA accredited organization, VA welcomes all organizations to apply once this rulemaking becomes effective. No change is warranted to this rulemaking based on this comment. One commenter recommended that, regarding tribal government approval for tribal organization representation, the approval be recognized with a single resolution or other document on behalf of member tribal nations. The commenter stated that obtaining resolutions from each nation would be administratively burdensome. 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. As long as VA receives certification from each tribal government approving the tribal organization, VA has no objection to the format of the certification being contained in a single resolution or document. An example may be that the establishment of the tribal organization is contained in one resolution and that resolution is signed, or certified, by all of the appropriate officials. VA makes no changes based on this comment. One commenter asked that VA provide recognition for urban Indian organizations or urban Indian health programs. 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 amendments discussed in this rulemaking, an organization may still utilize other avenues to apply for VA recognition such as requesting VA 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). The same commenter asked that employees of urban Indian organizations or urban Indian health programs be recognized as accredited representatives. An individual may apply for accreditation as a representative through a 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 [[Page 6268]] agent or an attorney under the standards set forth in Sec. 14.629(b). The commenter also asked that the requirement for tribal veterans' service officers to work 1,000 hours annually be eliminated or lowered. The same hour requirements apply to county veterans' service officers being recommended for accreditation by a State and will, under this rule, apply to tribal veterans' service officers being accredited by a State. As explained in the proposed rule, VA prescribed these criteria in order to ensure adequate training and fitness to serve as a VA accredited representative. VA declines to make any changes based on these comments. One commenter asked VA to require culturally sensitive training for TVSOs. Section 14.628(d)(1)(v)(B) requires that a request for recognition of an organization include a plan for recruiting and training the organization's representatives. In addition, with regard to TVSOs, the organization's certifying official must certify that the TVSO is a paid employee of the tribal government working no less than 1,000 hours annually, has successfully completed a course of training and examination approved by VA, and that the TVSO will receive regular supervision or annual training to assure the TVSO continues to be qualified to represent claimants. 38 CFR 14.629(a)(2)(i)-(iii). The testing or training for TVSOs may include topics such as cultural sensitivity training at the discretion of the organization. VA declines to add a cultural sensitivity training requirement as we believe each organization would be the best judge of the need for cultural sensitivity training for its own representatives. In addition, such an addition would not be a logical outgrowth of the proposed rule. Therefore, VA makes no changes based on this comment. One commenter stated that, with regard to the Paperwork Reduction Act (PRA) requirements, VA had underestimated the number of applicants/ respondents that would apply to become an accredited tribal organization. However, the commenter did not provide a number of how many applicants/respondents they thought VA would receive. VA notified the Office of Management and Budget (OMB) of the commenter's concern and amended its PRA submission to double the number of applicants/ respondents from 5 to 10 per year. One commenter asked to what extent OMB was involved in the formulation of this rule. Executive Order 12866, 58 FR 51735, requires that OMB, specifically the Office of Information and Regulatory Affairs, review regulations before they are submitted for publication in the Federal Register. VA submitted the proposed rule and required supporting documents prior to the publication of the proposed rule and will comply with the requirements of the Executive Order in issuing this final rule. No change to this rulemaking is warranted based on this comment. One commenter asked to what extent VA believes that all States would support this rulemaking. VA has not received any adverse comments from States on this rulemaking. As previously stated, recognition of a tribal organization is not tied to a State organization. No change to this rulemaking is warranted based on this comment. One commenter asked what support VA could provide to tribes that do not have enough veterans per capita to participate in the process outlined to coordinate their activities with States or county veterans' service organizations while respecting a tribe's sovereign authority. It is unclear whether the commenter is requesting that VA waive certain accreditation requirements. As previously discussed, VA cannot waive the requirements for accreditation for any organization. A tribe that is unable to establish an organization that is capable of meeting the requirements to be recognized as a tribal organization may be able to have its members apply to become accredited in their individual capacity as claims agents or attorneys or as representatives through another VA-recognized organization. VA makes no changes based on this comment. One commenter said that educational benefits should be allowed to be used at tribal colleges and universities. This comment is outside the scope of this rulemaking. Therefore, no change is warranted based on this comment. Finally, VA is correcting a grammatical error in proposed Sec. 14.628(b)(2). In the third sentence, VA mistakenly referred to ``tgovernment'' when the correct reference should have been to ``tribal government.'' VA is correcting this error in this rulemaking. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid OMB control number. See also 5 CFR 1320.8(b)(3)(vi). This final rule will impose the following new information collection requirements. The collection of information in 38 CFR 14.628 requires 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. [[Page 6269]] 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 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. As required by the Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA has submitted this information collection to OMB for its review. OMB approved these new information collection requirements associated with the final rule and assigned OMB control number 2900- 0850. Regulatory Flexibility Act The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 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 final regulatory flexibility analysis requirements of section 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 and 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 a total of 37 commenters. VA addressed 36 of those comments in the proposed rule. 81 FR 47087, 47091-47093. During the drafting of the final rule, VA discovered one additional comment submitted in response to the tribal consultation. Therefore, VA is addressing the additional comment and republishing VA's responses to the other comments in this final rule. One commenter asked if tribal organizations, since they are sovereign nations, would work with their local VA regional offices to include submitting claims through their respective regional offices. VA-recognized tribal organizations will be responsible for providing representation on behalf of their clients in the same manner as all other VA-recognized organizations, which often includes filing claims and evidence in support of their client's claims with the appropriate regional office. For TVSO's whose sole accreditation is through a State organization, VA defers to the State organization on their procedures for submitting claims and evidence to VA. No change is warranted to this rulemaking based on this comment. The same commenter asked if tribal organizations will ``commit to annual/routine training [for their] veterans service officers.'' Part of the Sec. 14.628(d) requirements is that an organization seeking accreditation must ``[t]ake affirmative action, including training and monitoring of accredited representatives, to ensure proper handling of claims.'' 38 CFR 14.628(d)(1)(v). When an organization applies for VA accreditation, the organization must include a plan for recruiting and training the organization's representatives. 38 CFR 14.628(d)(1)(v)(B). No change is warranted to this rulemaking based on this comment. 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 rulemaking, and therefore, no change is warranted. [[Page 6270]] A few commenters misinterpreted the language provided in the consultation and notice as meaning that VA intended 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 will stand on its own. VA has chosen to use the term similar rather than the term equal in this rule because there are some differences in the requirements for VA recognition of a tribal organization and the requirements for State organizations. Specifically, the rule will 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 final rule allows 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 will be able to request to have its own representatives accredited under 38 CFR 14.629. In addition to recognizing tribal organizations and accredit their representatives, VA provides 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 is akin to accreditation given to county veterans' service officers through State organizations and is only meant to provide an additional path to VA accreditation. 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 happens if the State refuses to sponsor the replacement officer. As discussed above, once a tribal organization becomes recognized by VA, that organization can 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 is not 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 this 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 rule on their own. 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. [[Page 6271]] 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 defines 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 is 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 amendments discussed in this rulemaking, an organization may still utilize other avenues to apply for VA recognition such as requesting VA 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 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 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, the relevant regulations in 38 CFR part 14 are 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 rule will, 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 will 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 [[Page 6272]] time to provide input. Therefore, VA finds that it has complied with the requirements of Executive Order 13175. VA also provided an additional 60-day comment period for the proposed rule. One commenter asked for the projected implementation date of this rulemaking. The dates section of this final rule contains 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.'' 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 final rule will 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 final rule. 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. For the reasons set out in the preamble, the Department of Veterans Affairs 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 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. Designating paragraph (b) as paragraph (b)(1) and adding paragraph (b)(2); and 0 b. In the OMB approval parenthetical at the end of the section, removing ``2900-0439'' and adding, in its place, ``2900-0850''. The addition reads as follows: Sec. 14.628 Recognition of organizations. * * * * * (b) * * * (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 tribal government, 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''. 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 January 11, 2017, for publication. Dated: January 11, 2017. Jeffrey Martin, Office Program Manager, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. [FR Doc. 2017-00947 Filed 1-18-17; 8:45 am] BILLING CODE 8320-01-P
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significant for purposes of Executive and tribal governments, in the aggregate, examination of the affidavit or
Order 12866 (Sept. 30, 1993). of 100 million dollars (as adjusted) or declaration under section 8 of the Act or
Executive Order 13563 (Improving more in any one year, or a Federal for the Office to assess and promote the
Regulation and Regulatory Review): The private sector mandate that will result accuracy and integrity of the register.
USPTO has complied with Executive in the expenditure by the private sector * * * * *
Order 13563 (Jan. 18, 2011). of 100 million dollars (as adjusted) or
Specifically, the USPTO has, to the more in any one year, and will not PART 7—RULES OF PRACTICE IN
extent feasible and applicable: (1) Made significantly or uniquely affect small FILINGS PURSUANT TO THE
a reasoned determination that the governments. Therefore, no actions are PROTOCOL RELATING TO THE
benefits justify the costs of the rule necessary under the provisions of the MADRID AGREEMENT CONCERNING
changes; (2) tailored the rules to impose Unfunded Mandates Reform Act of THE INTERNATIONAL REGISTRATION
the least burden on society consistent 1995. See 2 U.S.C. 1501 et seq. OF MARKS
with obtaining the regulatory objectives; Paperwork Reduction Act: This
(3) selected a regulatory approach that rulemaking involves information ■ 3. The authority citation for 37 CFR
maximizes net benefits; (4) specified collection requirements that are subject part 7 continues to read as follows:
performance objectives; (5) identified to review by the Office of Management Authority: 15 U.S.C. 1123, 35 U.S.C. 2,
and assessed available alternatives; (6) and Budget (OMB) under the Paperwork unless otherwise noted.
provided the public with a meaningful Reduction Act of 1995 (44 U.S.C. 3501
opportunity to participate in the ■ 4. Amend § 7.37 by revising paragraph
et seq.). The collection of information (h) to read as follows:
regulatory process, including soliciting involved in this rulemaking has been
the views of those likely affected prior reviewed and previously approved by § 7.37 Requirements for a complete
to issuing a notice of proposed OMB under control numbers 0651–0051 affidavit or declaration of use in commerce
rulemaking, and provided on-line access and 0651–0055. or excusable nonuse.
to the rulemaking docket; (7) attempted Notwithstanding any other provision * * * * *
to promote coordination, simplification, of law, no person is required to respond (h) The Office may require the holder
and harmonization across government to nor shall a person be subject to a to furnish such information, exhibits,
agencies and identified goals designed penalty for failure to comply with a affidavits or declarations, and such
to promote innovation; (8) considered collection of information subject to the additional specimens as may be
approaches that reduce burdens and requirements of the Paperwork reasonably necessary to the proper
maintain flexibility and freedom of Reduction Act unless that collection of examination of the affidavit or
choice for the public; and (9) ensured information displays a currently valid declaration under section 71 of the Act
the objectivity of scientific and OMB control number. or for the Office to assess and promote
technological information and the accuracy and integrity of the
processes, to the extent applicable. List of Subjects
register.
Executive Order 13132 (Federalism):
37 CFR Part 2 * * * * *
This rulemaking does not contain
policies with federalism implications Administrative practice and Dated: January 5, 2017.
sufficient to warrant preparation of a procedure, Trademarks. Russell Slifer,
Federalism Assessment under Executive 37 CFR Part 7 Deputy Under Secretary of Commerce for
Order 13132 (Aug. 4, 1999). Intellectual Property and Deputy Director of
Congressional Review Act: Under the Administrative practice and the United States Patent and Trademark
Congressional Review Act provisions of procedure, Trademarks, International Office.
the Small Business Regulatory registration. [FR Doc. 2017–00317 Filed 1–18–17; 8:45 am]
Enforcement Fairness Act of 1996 (5 For the reasons stated in the preamble BILLING CODE 3510–16–P
U.S.C. 801 et seq.), prior to issuing any and under the authority contained in 15
final rule, the USPTO will submit a U.S.C. 1123 and 35 U.S.C. 2, as
report containing the final rule and amended, the USPTO amends parts 2 DEPARTMENT OF VETERANS
other required information to the United and 7 of title 37 as follows: AFFAIRS
States Senate, the United States House
of Representatives, and the Comptroller PART 2—RULES OF PRACTICE IN 38 CFR Part 14
General of the Government TRADEMARK CASES
Accountability Office. The changes in RIN 2900–AP51
this notice are not expected to result in ■ 1. The authority citation for 37 CFR
part 2 continues to read as follows: Recognition of Tribal Organizations for
an annual effect on the economy of 100 Representation of VA Claimants
million dollars or more, a major increase Authority: 15 U.S.C. 1113, 15 U.S.C. 1123,
in costs or prices, or significant adverse 35 U.S.C. 2, Section 10 of Pub. L. 112–29, AGENCY: Department of Veterans Affairs.
effects on competition, employment, unless otherwise noted. ACTION: Final rule.
investment, productivity, innovation, or ■ 2. Amend § 2.161 by revising
the ability of United States-based paragraph (h) to read as follows: SUMMARY: The Department of Veterans
enterprises to compete with foreign- Affairs (VA) is amending its regulations
based enterprises in domestic and § 2.161 Requirements for a complete concerning recognition of certain
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export markets. Therefore, this notice is affidavit or declaration of continued use or national, State, and regional or local
not expected to result in a ‘‘major rule’’ excusable nonuse. organizations for purposes of VA claims
as defined in 5 U.S.C. 804(2). * * * * * representation. Specifically, this
Unfunded Mandates Reform Act of (h) The Office may require the owner rulemaking allows the Secretary to
1995: The changes set forth in this to furnish such information, exhibits, recognize tribal organizations in a
rulemaking do not involve a Federal affidavits or declarations, and such similar manner as the Secretary
intergovernmental mandate that will additional specimens as may be recognizes State organizations. The final
result in the expenditure by State, local, reasonably necessary to the proper rule allows a tribal organization that is
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An organization requesting and the official(s) authorized to certify commenters. VA addressed 36 of those
recognition must maintain a policy and representatives. comments in the proposed rule. 81 FR
capability of providing complete claims As required by the Paperwork 47087, 47091–47093. During the
service to each claimant requesting Reduction Act of 1995 (at 44 U.S.C. drafting of the final rule, VA discovered
representation or give written notice of 3507(d)), VA has submitted this one additional comment submitted in
any limitation in its claims service with information collection to OMB for its response to the tribal consultation.
advice concerning the availability of review. OMB approved these new Therefore, VA is addressing the
alternative sources of claims service. In information collection requirements additional comment and republishing
establishing that it meets this associated with the final rule and VA’s responses to the other comments
requirement, an organization requesting assigned OMB control number 2900– in this final rule.
recognition shall submit evidence of its 0850. One commenter asked if tribal
capability to represent claimants before Regulatory Flexibility Act organizations, since they are sovereign
VA regional offices and before the Board nations, would work with their local VA
of Veterans’ Appeals. If an organization The Secretary hereby certifies that regional offices to include submitting
does not intend to represent claimants this final rule will not have a significant claims through their respective regional
before the Board of Veterans’ Appeals, economic impact on a substantial offices. VA-recognized tribal
the organization shall submit evidence number of small entities as they are organizations will be responsible for
of an association or agreement with a defined in the Regulatory Flexibility
providing representation on behalf of
recognized service organization for the Act, 5 U.S.C. 601–612. It does not
their clients in the same manner as all
purpose of representation before the require any action on the part of any
other VA-recognized organizations,
Board of Veterans’ Appeals, or the entity but merely provides a new
which often includes filing claims and
opportunity for tribal organizations to
proposed method of informing evidence in support of their client’s
become recognized by VA for the
claimants of the limitations in service claims with the appropriate regional
purpose of assisting VA claimants in the
that can be provided, with advice office. For TVSO’s whose sole
preparation, presentation, and
concerning the availability of alternative accreditation is through a State
prosecution of claims for VA benefits.
sources of claims service. If an organization, VA defers to the State
Therefore, pursuant to 5 U.S.C. 605(b),
organization does not intend to organization on their procedures for
this rulemaking is exempt from the final
represent each claimant requesting submitting claims and evidence to VA.
regulatory flexibility analysis
assistance, the organization shall submit No change is warranted to this
requirements of section 604.
a statement of its policy concerning the rulemaking based on this comment.
selection of claimants and the proposed Executive Order 13175 The same commenter asked if tribal
method of informing claimants of this Executive Order 13175 provides that organizations will ‘‘commit to annual/
policy, with advice concerning the Federal agencies may not issue a routine training [for their] veterans
availability of alternative sources of regulation that has tribal implications, service officers.’’ Part of the § 14.628(d)
claims service. that imposes substantial direct requirements is that an organization
An organization requesting compliance costs on tribal governments, seeking accreditation must ‘‘[t]ake
recognition must take affirmative action, and that is not required by statute, affirmative action, including training
including training and monitoring of unless the Federal government provides and monitoring of accredited
accredited representatives, to ensure the funds necessary to pay the direct representatives, to ensure proper
proper handling of claims. In compliance costs incurred by the tribal handling of claims.’’ 38 CFR
establishing that it meets this governments or the Federal agency 14.628(d)(1)(v). When an organization
requirement, an organization requesting consults with tribal officials early in the applies for VA accreditation, the
recognition shall submit: A statement of process of developing the proposed organization must include a plan for
the skills, training, and other regulation, develops and publishes in recruiting and training the
qualifications of current paid or the Federal Register a tribal summary organization’s representatives. 38 CFR
volunteer staff personnel for handling impact statement, and provides to the 14.628(d)(1)(v)(B). No change is
veterans’ claims; and a plan for Director of OMB any written warranted to this rulemaking based on
recruiting and training qualified claim communications submitted to the this comment.
representatives, including the number of agency by the tribal officials. One commenter wrote that, currently,
hours of formal classroom instruction, On March 3 and 10, 2016, their tribal representatives are being
the subjects to be taught, the period of respectively, VA issued letters to tribal accredited through their State as well as
on-the-job training, a schedule or leaders and a Federal Register notice, other national organizations and was
timetable for training, the projected 81 FR 12626, seeking comment on VA’s curious as to the ‘‘road blocks’’ other
number of trainees for the first year, and consideration of issuing a proposed rule tribal organizations were facing. This
the name(s) and qualifications of the that would amend part 14 of title 38, commenter did not provide any
individual(s) primarily responsible for Code of Federal Regulations, to suggestions, and therefore, no change to
the training. expressly provide for the recognition of this rulemaking is warranted.
In addition, the organization tribal organizations so that Several commenters noted that
requesting recognition shall supply: A representatives of the organizations may currently Native American veterans face
statement that neither the organization assist Native American claimants in the many roadblocks to obtaining
asabaliauskas on DSK3SPTVN1PROD with RULES
nor its accredited representatives will preparation, presentation, and representation. One commenter noted
charge or accept a fee or gratuity for prosecution of their VA benefit claims. that geography, economic, and culture
service to a claimant and that the Those interested in providing comment barriers prevent Native American
organization will not represent to the were given 30-days to respond. Based veterans from utilizing currently
public that VA recognition of the on requests from commenters, VA available representation. These
organization is for any purpose other expanded the comment period an comments were offered in support of the
than claimant representation; and the additional 15 days to April 26, 2016. VA rulemaking, and therefore, no change is
names, titles, and addresses of officers received comments from a total of 37 warranted.
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A few commenters misinterpreted the One commenter asked what happens employee of a tribal government to
language provided in the consultation to the accreditation of a tribal become accredited as a tribal veterans’
and notice as meaning that VA intended organization if the Director is service officer through a recognized
that VA’s recognition of a tribal relinquished. It seems this comment State organization. Therefore, VA makes
organization would be tied to VA’s stems from the misinterpretation no changes based on these comments.
recognition of the corresponding State previously discussed regarding the One commenter suggested that VA
organization. One commenter stated that accreditation of a tribal organization and grant accreditation to tribes through a
VA should recognize a tribal the corresponding State organization. Memorandum of Understanding and
organization as ‘‘equal to’’ a State The commenter also asked what included their tribe’s Memorandum of
organization. VA is not tying VA happens if the State refuses to sponsor Understanding with their State. The
recognition of a tribal organization to a the replacement officer. As discussed commenter also questioned the role of
State and is choosing not to make value above, once a tribal organization VA in the accreditation and monitoring
judgements as to the importance of the becomes recognized by VA, that process. The laws governing VA
recognition granted to State organization can request to have its own accreditation are set out at 38 U.S.C.
organizations and Tribal organizations. representatives accredited under 5902 and 5904 and 38 CFR 14.626–
Recognition of a tribal organization will § 14.629. The tribal organization can file 14.637. These laws apply to all
stand on its own. VA has chosen to use with VA to have a replacement officer organizations, agents, and attorneys
the term similar rather than the term accredited. Therefore, VA makes no seeking VA accreditation. Pursuant to
equal in this rule because there are some changes based on this comment. § 14.628, the organization requesting VA
differences in the requirements for VA accreditation must certify to VA that the
Several commenters also expressed
recognition of a tribal organization and organization meets the § 14.628(d)
concern over the requirements for
the requirements for State organizations. requirements for recognition. Therefore,
recognition in § 14.628(d). Specifically,
Specifically, the rule will allow a single a Memorandum of Understanding
the commenters expressed concern that
tribal government, or multiple tribal between VA and a tribe is not sufficient
many tribal organizations may not be
governments to join together to establish for applying for VA accreditation.
able to satisfy the primary purpose, size,
and fund a tribal organization, but such Furthermore, VA does monitor its
funding, and training requirements, to
allowance is not permitted for State accredited organizations, agents, and
include providing the required,
governments. attorneys and handles disciplinary
supporting documentation. One matters as they arise. Therefore, VA
A few commenters misinterpreted the commenter suggested that VA provide makes no changes based on this
language provided in the consultation the funding for tribes ‘‘to engage in this comment.
and notice as limiting recognition of a work.’’ Another commenter suggested One commenter suggested that VA
tribal veterans’ service officer through a including Indian Health Services for engage in additional consultation with
State. One commenter asked for funding assistance. A few commenters Tribes that would be ‘‘interested in
clarification on what type of employees expressed concern about the becoming recognized veterans[’] service
would be eligible to become accredited requirement that the organization must organizations, but are unable to meet the
by VA. The commenter stated that maintain a policy of either providing requirements.’’ In this rule, VA offers
employees of a tribal nation as well as complete claims representation or alternative avenues for VA recognition
a tribal organization should be eligible. provide ‘‘written notice of any and accreditation for tribal governments
We agree, and the final rule allows for limitation in its claims service with that may not be capable of establishing
both avenues to attain VA accreditation advice concerning the availability of an organization that can meet the VA
depending on the tribal government’s alternative sources of claims service.’’ recognition requirements in the rule on
size, relationships with other tribal 38 CFR 14.628(d)(1)(iv). One commenter their own. VA declines to make any
governments, relationships with States, seemed to believe VA was questioning changes based on this comment.
and the needs of Native American the level of competence of tribal One commenter also recommended
veterans in their area. After a tribal representatives. VA must ensure that that ‘‘VA enter into Memorandums of
organization becomes recognized by VA, VA accredited organizations can Understanding with [F]ederally-
that organization will be able to request provide long-term, competent recognized tribes and tribal
to have its own representatives representation and has found that the organizations for [v]eterans’ [s]ervice
accredited under 38 CFR 14.629. In § 14.628(d) requirements are protective [o]fficer training and service
addition to recognizing tribal of that mission. These requirements reimbursement, on individual bases.’’
organizations and accredit their apply to all organizations seeking VA Another commenter objected to the fact
representatives, VA provides an recognition. Exempting tribal that there was ‘‘no mention of funding
additional means by which VA may organizations from meeting the to train and maintain such a position.’’
recognize an employee of a tribal § 14.628(d) requirements is not Section 5902, of title 38, United State
government as a tribal veterans’ service consistent with the purpose of VA Code, which is the law that authorizes
officer through a State organization. recognition to ensure that veterans are VA to recognize organizations for the
This accreditation is akin to receiving qualified, competent purpose of providing assistance on VA
accreditation given to county veterans’ representation on their VA benefit benefit claims, does not provide for the
service officers through State claims. As previously discussed, VA has funding of such organizations to train
organizations and is only meant to provided additional means to achieve and maintain representatives. Pursuant
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provide an additional path to VA VA recognition or accreditation for to § 14.628(d)(iii)(B), organizations are
accreditation. The requirements for a those tribal governments that may have not precluded from seeking and
tribal veterans’ service officer to become difficulty establishing a tribal receiving other sources of State and
accredited as a representative through a organization capable of meeting the Federal grant funding so long as the
State organization be the same as the § 14.628(d) requirements, to include the organization’s funding is not subject to
requirements for a county veterans’ ability for one or more tribal limitations imposed under any Federal
service officer. Therefore, VA makes no governments to establish and fund a grant or law which would prevent it
changes based on these comments. tribal organization and the ability of an from representing claimants before VA.
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Therefore, VA declines to make any an additional organization category at A few commenters expressed concern
changes based on these comments. this time. In addition to the that the rulemaking is limiting VA
One commenter wrote that VA ‘‘. . . amendments discussed in this recognition for the preparation,
should include [F]ederally-recognized rulemaking, an organization may still presentation, and prosecution of claims
tribes, not just tribal organizations utilize other avenues to apply for VA for VA benefits. One commenter seemed
funded by tribal governments, as an recognition such as requesting VA to think VA is depriving veterans from
entity from which applications will be recognition as a regional or local other title 38 benefits. The commenters
considered to be recognized for . . .’’ organization. To be recognized as a did not specify what other accreditation
VA accreditation. Another commenter regional or local organization, an they are seeking. As previously
suggested adding ‘‘[F]ederally organization must meet the discussed, the relevant regulations in 38
recognized tribes’’ or ‘‘[F]ederally requirements of § 14.628(c) and (d). CFR part 14 are to recognizing
recognized tribal governments’’ as part Further, there are several ways that organizations and accrediting
of the definition for tribal organizations. individuals, including tribal members, individuals to assist in the preparation,
Another commenter suggested adding tribal government employees, and presentation, and prosecution of VA
tribal communities. For the purposes of others who work within and serve tribal benefit claims. Pursuant to section 5902,
the regulations pertaining to the or Native American communities, may VA accreditation may not be granted for
representation of VA claimants, VA be accredited by VA to represent any other purpose. This rulemaking in
defines a tribal government to mean claimants. An individual may apply for no way deprives any veteran of any title
‘‘the Federally recognized governing accreditation as a representative through 38 benefits. Therefore, no change is
body of any Indian tribe, band, nation, an existing VA-recognized organization warranted based on these comments.
or other organized group or under standards set forth in § 14.629(a). One commenter suggested that office
community. . .’’. VA finds this Alternatively, an individual may also space opportunities should be available
definition to be inclusive of the seek accreditation in an individual to tribal governments and organizations
comments, and therefore, no change is capacity as either an agent or an in the same manner as they are available
warranted. attorney under the standards set forth in to State organizations. As previously
One commenter suggested a § 14.629(b). Therefore, VA declines to discussed, this rule will, under § 14.635,
legislative amendment to the definition make any changes based on this allow the Secretary to furnish office
of State in 38 U.S.C. 101(20) to include comment. space and facilities, when available, to
‘‘[F]ederally recognized tribal A couple of commenters submitted both State and tribal organization
governments.’’ Amending the statutory statements certifying that their employees who are also accredited to
language is something that only organization would meet the national organizations for the purpose of
Congress can accomplish. Since VA is requirements for accreditation for a assisting claimants in the preparation,
defining the term ‘‘tribal government’’ tribal organization. Applications for presentation, and prosecution of claims
in regulation and providing an avenue accreditation are outside the scope of for benefits. VA will be furnishing office
for VA recognition of a tribal this rulemaking. Therefore, no change is space to tribal organizations in the same
organization separate from a State warranted based on these comments. manner as it furnishes such space to
organization, VA does not find such a One commenter asked whether State organizations. Therefore, no
legislative amendment necessary. accredited tribal representatives would change is warranted based on this
Therefore, no change is warranted based be granted access to software programs comment.
on this comment. containing a veteran’s claims file One commenter noted that VA should
Several commenters wrote that information and whether that access allow a tribal government employee to
‘‘[s]pecial attention must be paid to would be on tribal grounds. This issue become accredited through an
what specifically is meant by a ‘[t]ribal is outside the scope of this rulemaking. accredited body of their choice. VA in
[o]rganization’ ’’ and that VA should Therefore, no change is warranted based no way is limiting how a particular
offer a clear definition of the term. The on this comment. individual may apply to become an
commenters did not offer any One commenter expressed support for accredited VA representative. As
suggestions for such definition. As VA recognizing tribal organizations in previously discussed, VA is merely
previously discussed, VA is defining an equal manner as VA recognizes State providing additional paths to VA
this term for the purposes of this organizations but suggested that VA accreditation than currently exist.
rulemaking. Therefore, VA does not authorize a field office close to tribal Therefore, VA declines to make any
make any changes based on this administration locations and fund one changes to this rulemaking based on this
comment. or two veterans service officer positions. comment.
Several commenters asked VA to The tribal consultation and this Several commenters suggested further
clarify whether tribal governments, rulemaking are limited in scope to outreach and collaboration. One
including veterans departments within recognition for purposes of VA claims commenter suggested that VA form a
these governments, would be eligible for representation. The commenter’s tribal workgroup to allow
VA recognition. A Department of suggestion of adding a field office is representatives from tribal organizations
Veterans Affairs or a Veterans Affairs beyond the scope, and therefore, VA to collaborate on implementing the new
office that is established and funded by declines to make any changes based on program. One commenter provided VA
a tribal government is included in the this comment. VA also declines to make with their tribal consultation policy.
definition of tribal organization. any changes to the commenter’s Other commenters suggested that VA
asabaliauskas on DSK3SPTVN1PROD with RULES
Therefore, no change to this rulemaking suggestion of funding job positions for engage in additional consultation with
is warranted based on these comments. veterans service officers. Part of the experts in Indian law and hold an all-
One commenter asked that VA § 14.628(d) requirements is that an tribes call to gather additional input for
provide recognition for urban Indian organization seeking accreditation must this rulemaking. VA appreciates this
organizations. The comment is unclear commit a significant portion of its assets information. As previously noted, VA
on whether such an organization would to veterans’ services and have adequate extended the comment period for an
be able to apply for VA recognition as funding to properly perform those additional 15 days to ensure that all
a tribal organization. VA declines to add services. 38 CFR 14.628(d)(1)(iii). interested parties had an appropriate
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![6272 Federal Register / Vol. 82, No. 12 / Thursday, January 19, 2017 / Rules and Regulations
time to provide input. Therefore, VA Unfunded Mandates The addition reads as follows:
finds that it has complied with the The Unfunded Mandates Reform Act
requirements of Executive Order 13175. § 14.628 Recognition of organizations.
of 1995 requires, at 2 U.S.C. 1532, that
VA also provided an additional 60-day * * * * *
agencies prepare an assessment of
comment period for the proposed rule. (b) * * *
anticipated costs and benefits before
One commenter asked for the (2) Tribal organization. For the
issuing any rule that may result in
projected implementation date of this purposes of 38 CFR 14.626 through
expenditure by State, local, and tribal
rulemaking. The dates section of this 14.637, an organization that is a legally
governments, in the aggregate, or by the
final rule contains the effective date of established organization that is
private sector, of $100 million or more
the rulemaking. primarily funded and controlled,
(adjusted annually for inflation) in any
sanctioned, or chartered by one or more
Executive Orders 12866 and 13563 one year. This final rule will have no
tribal governments and that has a
Executive Orders 12866 and 13563 such effect on State, local, and tribal
primary purpose of serving the needs of
direct agencies to assess the costs and governments, or on the private sector.
Native American veterans. Only one
benefits of available regulatory Catalog of Federal Domestic Assistance tribal organization may be recognized
alternatives and, when regulation is There are no Catalog of Federal for each tribal government. If a tribal
necessary, to select regulatory Domestic Assistance programs numbers organization is created and funded by
approaches that maximize net benefits and titles associated with this final rule. more than one tribal government, the
(including potential economic, approval of each tribal government must
environmental, public health and safety List of Subjects in 38 CFR Part 14 be obtained prior to applying for VA
effects, and other advantages; Administrative practice and recognition. If one of the supporting
distributive impacts; and equity). procedure, Claims, Courts, Foreign tribal governments withdraws from the
Executive Order 13563 (Improving relations, Government employees, tribal organization, the tribal
Regulation and Regulatory Review) Lawyers, Legal services, Organization organization must notify VA of the
emphasizes the importance of and functions (Government agencies), withdrawal and certify that the tribal
quantifying both costs and benefits, Reporting and recordkeeping organization continues to meet the
reducing costs, harmonizing rules, and requirements, Surety bonds, Trusts and recognition requirements in paragraph
promoting flexibility. Executive Order trustees, Veterans. (d) of this section.
12866 (Regulatory Planning and For the reasons set out in the * * * * *
Review) defines a ‘‘significant preamble, the Department of Veterans
regulatory action’’ requiring review by Affairs amends 38 CFR part 14 as § 14.629 [Amended]
OMB, unless OMB waives such review, follows: ■ 4. Amend § 14.629 by:
as ‘‘any regulatory action that is likely ■ a. In paragraph (a)(2) introductory
to result in a rule that may: (1) Have an PART 14—LEGAL SERVICES, text, removing ‘‘county veteran’s service
annual effect on the economy of $100 GENERAL COUNSEL, AND officer’’ and adding in its place ‘‘county
million or more or adversely affect in a MISCELLANEOUS CLAIMS veterans’ service officer’’;
material way the economy, a sector of
■ b. In paragraph (a)(2) introductory
the economy, productivity, competition, ■ 1. The authority citation for part 14
continues to read as follows: text, adding ‘‘or tribal veterans’ service
jobs, the environment, public health or
officer’’ immediately following ‘‘county
safety, or State, local, or tribal Authority: 5 U.S.C. 301; 28 U.S.C. 2671– veterans’ service officer’’; and
governments or communities; (2) Create 2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901– ■ c. In paragraph (a)(2)(i), adding ‘‘or
a serious inconsistency or otherwise 5905; 28 CFR part 14, appendix to part 14,
unless otherwise noted. tribal government’’ immediately
interfere with an action taken or
following ‘‘county’’.
planned by another agency; (3) ■ 2. Amend § 14.627 by adding
Materially alter the budgetary impact of paragraph (r) to read as follows: § 14.635 [Amended]
entitlements, grants, user fees, or loan
§ 14.627 Definitions. ■ 5. Amend § 14.635 by adding, in the
programs or the rights and obligations or
introductory paragraph, ‘‘or tribal’’
recipients thereof; or (4) Raise novel * * * * *
(r) Tribal government means the immediately following ‘‘State’’.
legal or policy issues arising out of legal
mandates, the President’s priorities, or Federally recognized governing body of Signing Authority
the principles set forth in this Executive any Indian tribe, band, nation, or other
The Secretary of Veterans Affairs, or
Order.’’ organized group or community,
designee, approved this document and
The economic, interagency, including any Alaska Native village or
Regional or Village Corporation as authorized the undersigned to sign and
budgetary, legal, and policy
defined in or established pursuant to the submit the document to the Office of the
implications of this regulatory action
Alaska Native Claims Settlement Act, Federal Register for publication
have been examined, and it has been
which is recognized as eligible for the electronically as an official document of
determined not to be a significant
special programs and services provided the Department of Veterans Affairs. Gina
regulatory action under Executive Order
by the United States to Indians because S. Farrisee, Deputy Chief of Staff,
12866. VA’s impact analysis can be
of their status as Indians. Department of Veterans Affairs,
found as a supporting document at
approved this document on January 11,
http://www.regulations.gov, usually * * * * * 2017, for publication.
asabaliauskas on DSK3SPTVN1PROD with RULES
within 48 hours after the rulemaking ■ 3. Amend § 14.628 by:
document is published. Additionally, a ■ a. Designating paragraph (b) as Dated: January 11, 2017.
copy of this rulemaking and its impact paragraph (b)(1) and adding paragraph Jeffrey Martin,
analysis are available on VA’s Web site (b)(2); and Office Program Manager, Office of Regulation
at http://www.va.gov/orpm/, by ■ b. In the OMB approval parenthetical Policy & Management, Office of the Secretary,
following the link for ‘‘VA Regulations at the end of the section, removing Department of Veterans Affairs.
Published From FY 2004 Through Fiscal ‘‘2900–0439’’ and adding, in its place, [FR Doc. 2017–00947 Filed 1–18–17; 8:45 am]
Year to Date.’’ ‘‘2900–0850’’. BILLING CODE 8320–01–P
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Document Created: 2018-02-01 15:16:24
Document Modified: 2018-02-01 15:16:24
| 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 February 21, 2017. | |
| 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.) | |
| FR Citation | 82 FR 6265 | |
| RIN Number | 2900-AP51 | |
| 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 |
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