[Federal Register Volume 70, Number 246 (Friday, December 23, 2005)]
[Proposed Rules]
[Pages 76221-76224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-7759]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 14

RIN 2900-AM29


Accreditation of Service Organization Representatives and Agents

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations governing accreditation of representatives of claimants for 
veterans' benefits. These proposed changes would require that 
recognized organizations periodically recertify the qualifications of 
accredited representatives, and require that VA is notified when a 
recognized organization requests cancellation of a representative's 
accreditation based upon misconduct or lack of competence, or if a 
representative resigns to avoid cancellation of accreditation for 
misconduct or lack of competence. The proposed changes would also 
require that accredited claims agents periodically reestablish their 
good character and reputation and qualifications to assist claimants 
for VA benefits. We would also clarify that the authority to cancel 
accreditation includes the authority to suspend accreditation for a 
period of time. The purpose of these proposed changes is to ensure that 
claimants for veterans' benefits have responsible, qualified 
representation in the preparation, presentation, and prosecution of 
claims.

DATES: Comments must be received on or before February 21, 2006.

ADDRESSES: Written comments may be submitted by: mail or hand-delivery 
to Director, Regulations Management (00REG1), Department of Veterans 
Affairs, 810 Vermont Ave., NW., Room 1068, Washington, DC 20420; fax to 
(202) 273-9026; e-mail through www.Regulations.gov. Comments should 
indicate that they are submitted in response to ``RIN 2900-AM29.'' All 
comments received will be available for public inspection in the Office 
of Regulation Policy and Management, Room 1063B, between the hours of 8 
a.m. and 4:30 p.m., Monday through Friday (except holidays). Please 
call (202) 273-9515 for an appointment.

FOR FURTHER INFORMATION CONTACT: Michelle D.D. Bernstein, Staff 
Attorney, Office of General Counsel (022G), Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 273-6315. 
(This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: Section 5902 of title 38, United States 
Code, authorizes the Secretary of Veterans Affairs to recognize 
representatives of approved organizations for the preparation, 
presentation, and prosecution of claims under laws administered by the 
Secretary. Section 5904 of title 38, United States Code, authorizes the 
Secretary to recognize any individual as an agent or attorney for the 
preparation, presentation, and prosecution of claims under laws 
administered by the Secretary. It further authorizes the Secretary to 
require such individuals to show that they are of good moral character 
and in good repute, are qualified to render claimants valuable service, 
and otherwise are competent to assist claimants in presenting claims as 
a prerequisite to recognition. Section 5901 of title 38, United States 
Code, prohibits an individual from acting as an agent or attorney in 
the preparation, presentation, or prosecution of any claim under laws 
administered by the Secretary, unless such individual has been 
recognized for such purposes by the Secretary. The purpose of the 
regulation of representatives is to assure that claimants for 
Department of Veterans Affairs (VA) benefits have responsible, 
qualified representation in the preparation, presentation, and 
prosecution of claims for such benefits. See 38 CFR 14.626.
    The Secretary has promulgated regulations specifying criteria that 
must be met for an individual to be approved as an accredited 
representative through a recognized organization or as an accredited 
claims agent. Pursuant to 38 CFR 14.629(a), recognized organizations

[[Page 76222]]

must certify that each prospective representative is of good character 
and reputation and has demonstrated an ability to represent claimants. 
In addition, the organization must certify that the prospective 
representative is a member in good standing or paid employee of the 
organization or accredited and functioning as a representative of 
another recognized organization. Individuals desiring accreditation as 
an agent must establish their good character and reputation and 
qualifications to assist claimants in the preparation of their claims 
under 38 CFR 14.629(b). They must file a specific application (VA Form 
21a) containing particular information and achieve a passing score on a 
written VA examination. If, subsequent to having been certified or 
accredited, a representative or agent fails to meet any of these 
criteria, they would no longer be qualified to represent claimants for 
veterans' benefits.
    After a period of time, a representative may no longer have the 
requisite ties to the certifying organization through membership or 
employment to qualify as an accredited representative, the 
representative may not have maintained the skills required for 
effective representation, or information may have come to light 
concerning the representative's competence or character. Similarly, an 
agent may not have maintained the skills, competence, or good character 
required to assist claimants. Consequently, we propose to require that 
recognized organizations periodically recertify the qualifications of 
the accredited representatives of the organization and that agents 
reestablish their character, reputation and qualifications to assist VA 
benefits claimants by refiling VA Form 21a and retaking the written 
examination. Recertification of representatives would be accomplished 
using the same VA Form 21 that is currently used for requests for 
accreditation, except that only the certifying official of the 
recognized organization, not the individual representatives, would be 
required to sign the form for purposes of recertification. The 
organization would file the form with the VA Office of General Counsel 
not later than five years after initial accreditation of the 
representative by VA or the most recent recertification of the 
representative by the organization. Thus, as an initial requirement 
under this rule, recognized organizations would be required to 
recertify the character and qualifications of any representative that 
received VA accreditation five or more years before the effective date 
of the rule. Recertification will ensure that claimants for VA benefits 
continue to have responsible, qualified representation. Requiring 
recertification every five years strikes an appropriate balance between 
the need to assure continuing qualifications and the need to avoid 
unnecessary paperwork for organizations and the Department.
    Pursuant to 38 CFR 14.633(a), VA may cancel the accreditation of a 
representative at the request of the organization that certified the 
individual to VA. Under current regulations, when an organization 
requests that VA cancel the accreditation of one of its 
representative's, the organization need not disclose the reason for 
requesting cancellation. Individuals may be accredited through more 
than one organization, and when one organization requests cancellation 
of a representative's accreditation for cause, such as misconduct or 
incompetence, it is desirable that VA and the other organization or 
organizations through which the individual is accredited know the basis 
for the cancellation, so that they may determine whether the individual 
should remain accredited through the other organization or 
organizations. Further, the individual may later seek accreditation 
through another organization, and this information would be valuable to 
VA in determining whether to approve the accreditation.
    Therefore, we propose to add a requirement to 38 CFR 14.633(a) that 
any recognized organization requesting that a particular 
representative's accreditation be cancelled inform VA if the reason for 
such request for cancellation is misconduct or lack of competence on 
the part of the representative or resignation of the representative to 
avoid cancellation of accreditation for misconduct or lack of 
competence. Only if VA learns of any improper conduct or incompetence 
on the part of an accredited representative can it investigate and, if 
necessary, take action to terminate accreditation through other 
organizations to assure that claimants have responsible, qualified 
representation.
    In addition, we propose to clarify that the authority to cancel 
accreditation includes the authority to suspend accreditation for a 
period of time. We consider our current authority to cancel 
accreditation to include the lesser sanction of suspension, and this 
amendment would make that clear. Suspension may be appropriate in cases 
involving extenuating circumstances or where misconduct is not so 
severe as to warrant the harsher penalty of permanently canceling the 
authority to represent claimants.
    Finally, we propose to remove the requirement in 38 CFR 14.633 that 
we maintain records for three years in a case that has been under 
inquiry or when accreditation has been canceled or suspended because we 
do not limit our maintenance of such records.

Paperwork Reduction Act of 1995

    In accordance with section 3507(d) of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3501 et seq.), the information collection 
requirements included in this proposed regulation are revisions of 
existing collections under Office of Management and Budget (OMB) 
Control No. 2900-0018, which pertains to the application for 
accreditation as a service organization representative, and OMB Control 
No. 2900-0605, which pertains to the application for accreditation as a 
claims agent. Comments on the information collections included in this 
proposed rule should be submitted to the Office of Management and 
Budget, Attention: Desk Officer for the Department of Veterans Affairs, 
Office of Information and Regulatory Affairs, Washington, DC 20503, 
with copies sent by mail or hand delivery to the Director, Regulations 
Management (00REG1)), Department of Veterans Affairs, 810 Vermont 
Avenue, NW, Room 1068, Washington, DC 20420; fax to (202) 273-9026; e-
mail through www.Regulations.gov. Comments should indicate that they 
are submitted in response to ``RIN 2900-AM29,'' and must be received on 
or before February 21, 2006.
    Comments by the public on proposed collections of information will 
help VA in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the proposed collections of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.

[[Page 76223]]

    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number.
    Title: Accreditation of Service Organization Representatives and 
Agents.
    Summary of collection of information:
     Section 14.629(a)--Under this section, VA requires the 
individual and organization seeking accreditation to provide basic 
information demonstrating eligibility for accreditation and VA requires 
the sponsoring recognized organization to certify that the individual 
is of good character and is qualified to present claims. VA proposes to 
require recognized veterans service organizations to recertify the 
qualifications of accredited representatives of the organization every 
five years.
     Section 14.629(b)--Under this section, VA requires 
individuals seeking accreditation to establish their good character, 
reputation, and qualifications to present claims. VA proposes to 
require agents to reestablish their good character and qualifications 
by filing VA Form 21a and passing a written VA examination every five 
years.
     Section 14.633(a)--Under this section, VA proposes to 
require recognized veterans service organizations to inform VA of the 
reason for a request to cancel a representative's accreditation under 
certain circumstances.
    Description of need for information and proposed use of 
information: The collections of information are necessary to ensure 
that claimants for VA benefits have responsible, qualified 
representation in the preparation, presentation, and prosecution of 
claims. VA will use this information to determine whether particular 
individuals are qualified to represent claimants before VA.
    Description of likely respondents: Individuals applying for 
accreditation as agents and service organization representatives and 
recognized service organizations that request accreditation of 
representatives or that have representatives accredited to represent 
claimants for VA benefits.
    Estimated number of respondents: For recertifications under 38 CFR 
14.629(a), we anticipate receiving 2,360 responses in fiscal year 2006. 
For recertifications under 38 CFR 14.629(b), we anticipate receiving 8 
responses in fiscal year 2006. Under 38 CFR 14.633(a), we anticipate 
receiving no more than 20 responses in fiscal year 2006.
    Estimated frequency of responses: For recertifications under 38 CFR 
14.629(a) and (b), once every five years. Under 38 CFR 14.633(a), on 
occasion.
    Estimated average burden per response: For recertifications under 
38 CFR 14.629(a), 10 minutes. Under 38 CFR 14.629(b), 10 minutes. Under 
38 CFR 14.633(a), 30 minutes.
    Estimated total annual reporting burden: For recertifications under 
38 CFR 14.629(a), 393 hours in fiscal year 2006. Under 38 CFR 
14.629(b), no more than 2 hours in fiscal year 2006. Under 38 CFR 
14.633(a), 10 hours in fiscal year 2006.

Executive Order 12866--Regulatory Planning and Review

    VA has examined the economic implications of this proposed rule as 
required by Executive Order 12866. Executive Order 12866 directs 
agencies to assess all 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, and other advantages; 
distributive impacts; and equity). Executive Order 12866 classifies a 
rule as significant if it meets any one of a number of specified 
conditions, including: having an annual effect on the economy of $100 
million, adversely affecting a sector of the economy in a material way, 
adversely affecting competition, or adversely affecting jobs. A 
regulation is also considered a significant regulatory action if it 
raises novel legal or policy issues.
    VA concludes that this proposed rule is a significant regulatory 
action under the Executive Order since it raises novel legal and policy 
issues under Section 3(f)(4). VA concludes, however, that this proposed 
rule does not meet the significance threshold of $100 million effect on 
the economy in any one year under Section 3(f)(1). VA requests comments 
regarding this determination, and invites commenters to submit any 
relevant data that will assist the agency in estimating the impact of 
this rulemaking.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act, 5 
U.S.C. 601 et seq. This proposed rule would affect the 87 veterans 
service organizations and 42 agents recognized by VA to represent 
benefit claimants. However, it would not have a significant economic 
impact on these organizations because it would only impose reporting 
requirements the costs of which would not be significant. Therefore, 
pursuant to 5 U.S.C. 605(b), this amendment 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 the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance Numbers

    There are no Federal Domestic Assistance programs associated with 
this proposal.

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.

    Approved: September 12, 2005.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 14 as follows:

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

    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, 5902-5905; 28 CFR part 14, appendix to part 14, 
unless otherwise noted.

    2. Revise Sec.  14.629(a) introductory text, (b)(1) introductory 
text, and (b)(2) to read as follows:


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

* * * * *
    (a) Service Organization Representatives. A recognized organization 
shall file with the Office of

[[Page 76224]]

the General Counsel VA Form 21 (Application for Accreditation as 
Service Organization Representative) for each person it desires 
accredited as a representative of that organization. For each of its 
accredited representatives, a recognized organization shall complete 
and file with the Office of the General Counsel, not later than five 
years after initial accreditation through that organization or the most 
recent recertification by that organization, VA Form 21 to certify that 
the representative continues to meet the criteria for accreditation 
specified in paragraph (a)(1), (2) and (3) of this section. In 
recommending a person, the organization shall certify that the 
designee:
* * * * *
    (b) * * * (1) An individual desiring accreditation as an agent must 
establish and demonstrate that he or she is of good character and 
reputation and is qualified to render assistance to claimants in the 
presentation of their claims(s). All accredited agents must seek 
reaccreditation every five years. An individual desiring accreditation 
or reaccreditation as an agent must file a completed application with 
the Office of the General Counsel on VA Form 21a on which the applicant 
submits the following:
* * * * *
    (2) Applicants for accreditation or reaccreditation must achieve a 
score of 75 percent or more on a written examination administered by VA 
as a prerequisite to accreditation and must achieve such score at least 
every five years to maintain accreditation. No applicant shall be 
allowed to sit for the examination more than twice in any 6-month 
period.

(Authority: 38 U.S.C. 501(a), 5940)
* * * * *
    3. Section 14.633 is amended by:
    a. Revising paragraphs (a) and (e)(2)(i).
    b. In paragraphs (b), (c) introductory text, and (d), adding ``or 
suspended'' after ``canceled'' each time it appears.
    c. In paragraph (e)(1), removing ``and maintain the record for 3 
years''.
    d. In paragraph (e)(2)(ii), adding ``or suspension'' after 
``cancellation'' and ``or suspended'' after ``cancel'' each time it 
appears.
    e. In paragraph (g), adding ``or suspension or continuation of 
suspension'' after ``termination'', and by removing the last sentence 
of the paragraph.
    The revisions read as follows:


Sec.  14.633  Termination of accreditation of agents, attorneys, and 
representatives.

    (a) Accreditation may be canceled at the request of an agent, 
attorney, representative, or canceled or suspended at the request of an 
organization. When an organization requests cancellation of the 
accreditation of a representative due to misconduct or lack of 
competence on the part of the representative or because the 
representative resigned to avoid cancellation of accreditation for 
misconduct or lack of competence, the organization shall inform VA of 
the reason for the request for cancellation and the facts and 
circumstances surrounding any incident that led to the request.
* * * * *
    (e) * * *
    (2) * * *
    (i) As to representatives, suspend accreditation immediately and 
notify the representative and the representative's organization of the 
interim suspension and of an intent to cancel or continue suspension of 
accreditation. The notice to the representative will also state the 
reasons for the interim suspension and impending cancellation or 
continuation of suspension, and inform the representative of a right to 
request a hearing on the matter or to submit additional evidence within 
10 working days following receipt of such notice. Such time may be 
extended for a reasonable period upon a showing of sufficient cause.
* * * * *
[FR Doc. E5-7759 Filed 12-22-05; 8:45 am]
BILLING CODE 8320-01-P