[Federal Register Volume 81, Number 139 (Wednesday, July 20, 2016)]
[Proposed Rules]
[Pages 47087-47094]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17052]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 14
RIN 2900-AP51
Recognition of Tribal Organizations for Representation of VA
Claimants
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its regulations concerning recognition of
[[Page 47088]]
certain national, State, and regional or local organizations for
purposes of VA claims representation. Specifically, this rulemaking
would allow the Secretary of Veterans Affairs to recognize tribal
organizations in a similar manner as the Secretary recognizes State
organizations. The proposed rule would allow a tribal organization that
is established and funded by one or more tribal governments to be
recognized for the purpose of providing assistance on VA benefit
claims. In addition, the proposed rule would allow an employee of a
tribal government to become accredited through a recognized State
organization in a similar manner as a County Veterans' Service Officer
(CVSO) may become accredited through a recognized State organization.
The intended effect of this proposed rule is to improve access of
Native American veterans to VA-recognized organizations and VA-
accredited individuals who may assist them on their benefit claims.
DATES: Written comments must be received on or before September 19,
2016.
ADDRESSES: Written comments may be submitted through http://www.regulations.gov; by mail or hand delivery to the Director,
Regulation Policy and Management (00REG), Department of Veterans
Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by
fax to (202) 273-9026. Comments should indicate that they are submitted
in response to ``RIN 2900-AP51, Recognition of Tribal Organizations for
Representation of VA Claimants.'' Copies of comments received will be
available for public inspection in the Office of Regulation Policy and
Management, Room 1068, between the hours of 8 a.m. and 4:30 p.m.,
Monday through Friday (except holidays). Please call (202) 461-4902 for
an appointment. (This is not a toll-free number.) In addition, during
the comment period, comments may be viewed online through the Federal
Docket Management System at http://www.regulations.gov/.
FOR FURTHER INFORMATION CONTACT: Dana Raffaelli, Staff Attorney,
Benefits Law Group, Office of the General Counsel, (022D), Department
of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420,
(202) 461-7699. (This is not a toll free number.)
SUPPLEMENTARY INFORMATION: This proposed rule would amend part 14 of
title 38, Code of Federal Regulations, to provide for the recognition
of tribal organizations that are established and funded by tribal
governments so that representatives of the organizations may assist
Native American veterans and their families in the preparation,
presentation, and prosecution of their VA benefit claims. The purpose
of this proposed rule is to address the needs of Native American
populations who are geographically isolated from existing recognized
Veterans Service Organizations (VSOs) or who may not be utilizing other
recognized VSOs due to cultural barriers or lack of familiarity with
those organizations. Native American veterans face challenges accessing
representation in VA claims because many live in remote areas that are
far from the nearest accredited representative. In addition, some
Native American veterans may prefer to seek assistance from
organizations that are associated with their tribal government, rather
than using other organizations that are not as familiar to them. This
proposed rule would help facilitate the VA recognition of tribal
organizations that are established and funded by one or more tribal
governments and whose primary purpose is to serve Native American
veterans.
Pursuant to 38 U.S.C. 5902, VA recognizes organizations and
accredits their representatives for the preparation, presentation, and
prosecution of claims under laws administered by VA. VA's regulation
regarding the recognition of such organizations is 38 CFR 14.628, which
currently does not expressly allow for the recognition of tribal
organizations. Under the current regulations, however, any
organization, including an organization created by one or more tribal
governments, may apply for recognition by VA as either: (1) A national
organization, or (2) a regional or local organization. To be recognized
as a national organization, the organization must meet the requirements
of Sec. 14.628(a) and (d). To be recognized as a regional or local
organization, the organization must meet the requirements of Sec.
14.628(c) and (d). VA also accredits State organizations. To be
recognized as a State organization, the organization must meet the
requirements of Sec. 14.628(b) and (d). Under the current regulations,
VA has received only a few inquiries from tribal governments expressing
interest in pursuing any type of VA recognition other than the type of
recognition granted to State organizations. Pursuant to 38 CFR 14.627
and 14.629, VA recognition of a State organization is limited to
organizations established and funded by a State, possession, territory,
or Commonwealth of the United States, and the District of Columbia.
This proposed rule would allow tribal governments to establish and fund
tribal organizations in a similar manner as the State governments have
established and funded State organizations. Allowing organizations that
are created and funded by tribal governments to be recognized as
``tribal organizations'' rather than as national, regional or local
organizations would afford VA the opportunity to acknowledge and affirm
the long-standing recognition by the Federal government of tribes'
inherent sovereignty and right to self-government.
This proposed rule would amend 38 CFR 14.627 by adding a paragraph
(r) that would provide that tribal government means the Federally
recognized governing body of any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
Regional or Village Corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act, which is recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians. This is
consistent with the definition of Indian tribe in 38 CFR 39.2.
This proposed rule would amend current Sec. 14.628(b) by
redesignating it as paragraph (b)(1), ``State organization,'' and
adding paragraph (b)(2), ``Tribal organization.'' VA would clarify that
a Tribal organization, for the purposes of 38 CFR 14.626 through
14.637, is a legally established organization that is primarily funded
and controlled, sanctioned, or chartered by one or more tribal
governments and that has a primary purpose of serving the needs of
Native American veterans; that only one tribal organization may be
recognized for each tribal government; and, that, if a tribal
organization is created and funded by more than one tribal government,
the approval of each tribal government must be obtained prior to
applying for VA recognition and that, if one of the supporting tribal
governments withdraws from the tribal organization, the tribal
organization must notify VA of the withdrawal and certify that the
tribal organization can continue to meet the recognition requirements
in Sec. 14.628(d) without the participation of that tribal government.
This change is intended to allow tribal organizations to be recognized
in a similar manner as State organizations, while still taking into
account the unique circumstances of tribal governments being sovereign
nations and of varying sizes.
In order to ensure that all claimants for VA benefits receive
responsible, qualified representation in the preparation, presentation,
and
[[Page 47089]]
prosecution in their claims for veterans' benefits, VA has established
general criteria that apply to all organizations requesting VA
recognition as a national, State, regional, or local organization under
Sec. 14.628(a) through (c). Therefore, tribal organizations would also
need to meet these same general requirements in order to be recognized.
Pursuant to Sec. 14.628(d), an organization requesting recognition
must: (1) Have as a primary purpose serving veterans, (2) demonstrate a
substantial service commitment to veterans either by showing a sizable
organizational membership or by showing performance of veterans'
services to a sizable number of veterans, (3) commit a significant
portion of its assets to veterans' services and have adequate funding
to properly perform those services, (4) maintain a policy and
capability of providing complete claims service to each claimant
requesting representation or give written notice of any limitation in
its claims service with advice concerning the availability of
alternative sources of claims service, and (5) take affirmative action,
including training and monitoring of accredited representatives, to
ensure proper handling of claims.
We recognize the varying sizes of tribal governments. We further
recognize that, due to the size of certain smaller Indian tribes, a
single tribal government may be unable to establish an organization
that could demonstrate a substantial service commitment to veterans
either by showing a sizable organizational membership or by showing
performance of veterans' services to a sizable number of veterans. A
single tribal government may also be unable to establish an
organization that would be able to adequately fund the necessary
services of a tribal organization that provides assistance with VA
benefit claims. Therefore, VA would consider applications from a tribal
organization that is established and funded by one or more tribal
governments to be recognized for the purpose of providing assistance on
VA benefit claims. The approval of each tribal government would be
necessary for VA to process the request for VA recognition. While VA is
sensitive to the fact that some tribal governments may have difficulty
meeting the substantial service commitment and funding requirements, VA
must ensure that VA accredited organizations can provide long-term,
competent representation. Therefore, VA would require that, if one of
the supporting tribal governments withdraws from the tribal
organization, the tribal organization must notify VA of the withdrawal
and certify that the tribal organization continues to meet the
recognition requirements in Sec. 14.628(d) without the participation
of that tribal government. We note that 25 U.S.C. 450b(l) recognizes
the existence of tribal coalitions in the definition of tribal
organization for the purpose of entering into contracts or grants for
certain educational benefits. Additionally, in 38 CFR 39.2, VA has
recognized the existence of a parallel concept for the purpose of
applying for cemetery grants.
Based on our experience in applying Sec. 14.628, we believe the
proposed addition to the regulation would facilitate the recognition of
Tribal organizations and would improve Native American veterans' access
to accredited representatives. Once a tribal organization has been
recognized by VA, the certifying official of the organization would be
able to file for VA accreditation for the individuals that the
organization wishes to become accredited as its representatives. See 38
CFR 14.629.
VA further recognizes that not all tribal governments may want to
establish their own Tribal veterans organization and some may have
already established working relationships with their respective State
organizations to help address the needs of their Native American
veteran population. We, therefore, propose to amend 38 CFR 14.629(a)(2)
to allow for an employee of a tribal government that is not associated
with a tribal organization, to become accredited as a representative of
a State organization in a similar manner as a county employee, i.e., a
CVSO. In 1990, in order to further ensure the availability of competent
representation for VA claimants, VA extended the opportunity for
accreditation through State organizations to county veterans' service
officers. See 54 FR 50772; 55 FR 38056. In extending this opportunity,
VA cited the close association between States and county veterans'
service officers, likening the association to that of a State employee
under 54 FR 50772. In a previous rulemaking, VA recognized the fact
that State governments do not have direct supervision of, or
accountability for, CVSO, and therefore, to ensure adequate training
and fitness to serve as a VA accredited representative, VA prescribed
criteria that such officers must meet in order to become accredited.
The criteria for a CVSO to become accredited through a State
organization are outlined in Sec. 14.629(a)(2)(i) through (iii). In
order for a CVSO to be recommended for VA accreditation by a VA-
recognized State organization, the officer must be a paid employee of
the county working for it not less than 1,000 hours annually; have
successfully completed a course of training and an examination which
have been approved by a Regional Counsel with jurisdiction for the
State; and receive either regular supervision and monitoring or annual
training to assure continued qualification as a representative in the
claims process. We note that the VA Office of the General Counsel (OGC)
has recently undergone realignment and under the new structure Regional
Counsels are now referred to as Chief Counsels. To avoid unnecessary
confusion and because we intend to issue a direct final rule addressing
the realignment of OGC and the changing of titles of certain OGC
positions in the accreditation regulations in a single rulemaking, we
are continuing to use the outdated title of Regional Counsel for this
rulemaking.
Although tribal governments are not politically subordinate to
State governments like county governments are, tribal governments often
do have close, productive relationships with State governments through
gaming compacts, cross-deputization, and other cooperative agreements.
Therefore, we believe that the collaborative nature of the relationship
between tribes and States supports the proposed concept of recognizing
tribal veterans' service officers in a manner similar to county
veterans' service officers. As stated above, we believe this additional
path to become an accredited representative would further facilitate
veterans obtaining representation across county, State, and tribal
borders.
For consistency, the proposed rule would also amend 38 CFR 14.635
to extend office space opportunities already granted to certain
employees of State organizations to employees of tribal organizations.
The proposed rule would allow the Secretary to furnish office space and
facilities, when available, to both State and tribal organization
employees who are also accredited to national organizations for the
purpose of assisting claimants in the preparation, presentation, and
prosecution of claims for benefits.
We are also requesting from the Office of Management and Budget
(OMB) approval for the provisions of Sec. 14.628(d) that constitute a
collection of information under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3521). Therefore, we would remove the current OMB control
number parenthetical at the end of Sec. 14.628 and add, in its place,
a placeholder parenthetical.
Finally, we would make a technical amendment to Sec. 14.629(a)(2)
to correct
[[Page 47090]]
``county veteran's service officer'' to read as ``county veterans'
service officer''. In a prior rulemaking, we misplaced the location of
the apostrophe associated with the previously mentioned phrase. See 54
FR 50772 (Dec. 11, 1989); 55 FR 38056 (Sept. 17, 1990). Therefore, we
would correct that error in this rulemaking.
Paperwork Reduction Act
This proposed rule includes provisions constituting collections of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521) that require approval by OMB. Accordingly, under 44 U.S.C.
3507(d), VA has submitted a copy of this rulemaking action to OMB for
review.
OMB assigns control numbers to collections of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. Proposed Sec. 14.628 contains a
collection of information under the Paperwork Reduction Act of 1995. If
OMB does not approve the collection of information as requested, VA
will immediately remove the provisions containing a collection of
information or take such other action as is directed by OMB.
Comments on the collection of information contained in this
proposed rule should be submitted to the Office of Management and
Budget, Attention: Desk Officer for the Department of Veterans Affairs,
Office of Information and Regulatory Affairs, Washington, DC 20503,
with copies sent by mail or hand delivery to the Director, Regulation
Policy and Management (00REG), Department of Veterans Affairs, 810
Vermont Avenue NW., Room 1068, Washington, DC 20420; fax to (202) 273-
9026; email to www.Regulations.gov. Comments should indicate that they
are submitted in response to ``RIN 2900-AP51.''
OMB is required to make a decision concerning the collections of
information contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the proposed rule.
The Department considers comments by the public on proposed
collections of information in--
Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collections of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The collection of information contained in 38 CFR 14.628 is
described immediately following this paragraph, under its respective
title.
Title: Requirements for Recognition as a VA Accredited
Organization.
Summary of collection of information: The collection of
information in 38 CFR 14.628 would require organizations seeking VA
accreditation under Sec. 14.628 to submit certain documentation to
certify that the organization meets the requirements for VA
accreditation. Pursuant to Sec. 14.628(d), an organization requesting
recognition must have as a primary purpose serving veterans. In
establishing that it meets this requirement, an organization requesting
recognition shall submit a statement establishing the purpose of the
organization and that veterans would benefit by recognition of the
organization.
The organization must also demonstrate a substantial service
commitment to veterans either by showing a sizable organizational
membership or by showing performance of veterans' services to a sizable
number of veterans. In establishing that it meets this requirement, an
organization requesting recognition shall submit: The number of members
and number of posts, chapters, or offices and their addresses; a copy
of the articles of incorporation, constitution, charter, and bylaws of
the organization, as appropriate; a description of the services
performed or to be performed in connection with programs administered
by VA, with an approximation of the number of veterans, survivors, and
dependents served or to be served by the organization in each type of
service designated; and a description of the type of services, if any,
performed in connection with other Federal and State programs which are
designed to assist former Armed Forces personnel and their dependents,
with an approximation of the number of veterans, survivors, and
dependents served by the organization under each program designated.
An organization requesting recognition must commit a significant
portion of its assets to veterans' services and have adequate funding
to properly perform those services. In establishing that it meets this
requirement, an organization requesting recognition shall submit: A
copy of the last financial statement of the organization indicating the
amount of funds allocated for conducting particular veterans' services
(VA may, in cases where it deems necessary, require an audited
financial statement); and a statement indicating that use of the
organization's funding is not subject to limitations imposed under any
Federal grant or law which would prevent it from representing claimants
before VA.
An organization requesting recognition must maintain a policy and
capability of providing complete claims service to each claimant
requesting representation or give written notice of any limitation in
its claims service with advice concerning the availability of
alternative sources of claims service. In establishing that it meets
this requirement, an organization requesting recognition shall submit
evidence of its capability to represent claimants before VA regional
offices and before the Board of Veterans' Appeals. If an organization
does not intend to represent claimants before the Board of Veterans'
Appeals, the organization shall submit evidence of an association or
agreement with a recognized service organization for the purpose of
representation before the Board of Veterans' Appeals, or the proposed
method of informing claimants of the limitations in service that can be
provided, with advice concerning the availability of alternative
sources of claims service. If an organization does not intend to
represent each claimant requesting assistance, the organization shall
submit a statement of its policy concerning the selection of claimants
and the proposed method of informing claimants of this policy, with
advice concerning the availability of alternative sources of claims
service.
An organization requesting recognition must take affirmative
action, including training and monitoring of accredited
representatives, to ensure proper handling of claims. In establishing
that it meets this requirement, an organization requesting recognition
shall submit: A statement of the skills, training, and other
[[Page 47091]]
qualifications of current paid or volunteer staff personnel for
handling veterans' claims; and a plan for recruiting and training
qualified claim representatives, including the number of hours of
formal classroom instruction, the subjects to be taught, the period of
on-the-job training, a schedule or timetable for training, the
projected number of trainees for the first year, and the name(s) and
qualifications of the individual(s) primarily responsible for the
training.
In addition, the organization requesting recognition shall supply:
A statement that neither the organization nor its accredited
representatives will charge or accept a fee or gratuity for service to
a claimant and that the organization will not represent to the public
that VA recognition of the organization is for any purpose other than
claimant representation; and the names, titles, and addresses of
officers and the official(s) authorized to certify representatives.
Description of need for information and proposed use of
information: The information is used by VA in reviewing accreditation
applications to determine whether organizations meet the requirements
for VA accreditation under Sec. 14.628.
Description of likely respondents: Organizations seeking
VA accreditation under Sec. 14.628.
Estimated number of respondents: 5 applicants per year.
Estimated frequency of responses: This is a one-time
collection.
Estimated average burden per response: 5 hours.
Estimated total annual reporting and recordkeeping burden:
25 hours per year.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. It does not require any action on the part of any
entity but merely provides a new opportunity for tribal organizations
to become recognized by VA for the purpose of assisting VA claimants in
the preparation, presentation, and prosecution of claims for VA
benefits. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.
Executive Order 13175
Executive Order 13175 provides that Federal agencies may not issue
a regulation that has tribal implications, that imposes substantial
direct compliance costs on tribal governments, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by the tribal governments
or the Federal agency consults with tribal officials early in the
process of developing the proposed regulation, develops and publishes
in the Federal Register a tribal summary impact statement, and provides
to the Director of OMB any written communications submitted to the
agency by the tribal officials.
On March 3 and 10, 2016, respectively, VA issued letters to tribal
leaders as well as a Federal Register notice, 81 FR 12626, seeking
comment on VA's consideration of issuing a proposed rule that would
amend part 14 of title 38, Code of Federal Regulations, to expressly
provide for the recognition of tribal organizations so that
representatives of the organizations may assist Native American
claimants in the preparation, presentation, and prosecution of their VA
benefit claims. Those interested in providing comment were given 30-
days to respond. Based on requests from commenters, VA expanded the
comment period an additional 15 days to April 26, 2016. VA received
comments from 36 commenters. A few commenters submitted more than one
comment. Overall, the comments were supportive of issuing such a
proposed rule.
One commenter wrote that, currently, their tribal representatives
are being accredited through their State as well as other national
organizations and was curious as to the ``road blocks'' other tribal
organizations were facing. This commenter did not provide any
suggestions, and therefore, no change to this rulemaking is warranted.
Several commenters noted that currently Native American veterans
face many roadblocks to obtaining representation. One commenter noted
that geography, economic, and culture barriers prevent Native American
veterans from utilizing currently available representation. These
comments were offered in support of the proposed rule, and therefore,
no change to this rulemaking is warranted.
A few commenters misinterpreted the language provided in the
consultation and notice as meaning that VA intended to propose that
VA's recognition of a tribal organization would be tied to VA's
recognition of the corresponding State organization. One commenter
stated that VA should recognize a tribal organization as ``equal to'' a
State organization. VA is not tying VA recognition of a tribal
organization to a State and is choosing not to make value judgements as
to the importance of the recognition granted to State organizations and
Tribal organizations. Recognition of a tribal organization would stand
on its own. VA has chosen to use the term similar rather than the term
equal in this proposed rule because we are proposing some differences
in the requirements for VA recognition of a tribal organization and the
requirements for State organizations. Specifically, the proposed rule
would allow a single tribal government, or multiple tribal governments
to join together to establish and fund a tribal organization, but such
allowance is not permitted for State governments.
A few commenters misinterpreted the language provided in the
consultation and notice as limiting recognition of a tribal veterans'
service officer through a State. One commenter asked for clarification
on what type of employees would be eligible to become accredited by VA.
The commenter stated that employees of a tribal nation as well as a
tribal organization should be eligible. We agree, and the proposed rule
would allow for both avenues to attain VA accreditation depending on
the tribal government's size, relationships with other tribal
governments, relationships with States, and the needs of Native
American veterans in their area. After a tribal organization becomes
recognized by VA, that organization would be able to request to have
its own representatives accredited under 38 CFR 14.629. In addition to
proposing to recognize tribal organizations and accredit their
representatives, VA would provide an additional means by which VA may
recognize an employee of a tribal government as a tribal veterans'
service officer through a State organization. This accreditation would
be akin to accreditation given to county veterans' service officers
through State organizations and is only meant to provide an additional
path to VA accreditation. We propose that the requirements for a tribal
veterans' service officer to become accredited as a representative
through a State organization be the same as the requirements for a
county veterans' service officer. Therefore, VA makes no changes based
on these comments.
One commenter asked what happens to the accreditation of a tribal
organization if the Director is relinquished. It seems this comment
stems from the misinterpretation previously discussed regarding the
accreditation of a tribal organization and the corresponding State
organization. The commenter also asked what
[[Page 47092]]
happens if the State refuses to sponsor the replacement officer. As
discussed above, once a tribal organization becomes recognized by VA,
that organization would be able to request to have its own
representatives accredited under Sec. 14.629. The tribal organization
can file with VA to have a replacement officer accredited. Therefore,
VA makes no changes based on this comment.
Several commenters also expressed concern over the requirements for
recognition in Sec. 14.628(d). Specifically, the commenters expressed
concern that many tribal organizations may not be able to satisfy the
primary purpose, size, funding, and training requirements, to include
providing the required, supporting documentation. One commenter
suggested that VA provide the funding for tribes ``to engage in this
work.'' Another commenter suggested including Indian Health Services
for funding assistance. A few commenters expressed concern about the
requirement that the organization must maintain a policy of either
providing complete claims representation or provide ``written notice of
any limitation in its claims service with advice concerning the
availability of alternative sources of claims service.'' 38 CFR
14.628(d)(1)(iv). One commenter seemed to believe VA was questioning
the level of competence of tribal representatives. VA must ensure that
VA accredited organizations can provide long-term, competent
representation and has found that the Sec. 14.628(d) requirements are
protective of that mission. These requirements apply to all
organizations seeking VA recognition. Exempting tribal organizations
from meeting the Sec. 14.628(d) requirements would not be consistent
with the purpose of VA recognition to ensure that veterans are
receiving qualified, competent representation on their VA benefit
claims. As previously discussed, VA has provided additional means to
achieve VA recognition or accreditation for those tribal governments
that may have difficulty establishing a tribal organization capable of
meeting the Sec. 14.628(d) requirements, to include the ability for
one or more tribal governments to establish and fund a tribal
organization and the ability of an employee of a tribal government to
become accredited as a tribal veterans' service officer through a
recognized State organization. Therefore, VA makes no changes based on
these comments.
One commenter suggested that VA grant accreditation to tribes
through a Memorandum of Understanding and included their tribe's
Memorandum of Understanding with their State. The commenter also
questioned the role of VA in the accreditation and monitoring process.
The laws governing VA accreditation are set out at 38 U.S.C. 5902 and
5904 and 38 CFR 14.626-14.637. These laws apply to all organizations,
agents, and attorneys seeking VA accreditation. Pursuant to Sec.
14.628, the organization requesting VA accreditation must certify to VA
that the organization meets the Sec. 14.628(d) requirements for
recognition. Therefore, a Memorandum of Understanding between VA and a
tribe is not sufficient for applying for VA accreditation. Furthermore,
VA does monitor its accredited organizations, agents, and attorneys and
handles disciplinary matters as they arise. Therefore, VA makes no
changes based on this comment.
One commenter suggested that VA engage in additional consultation
with Tribes that would be ``interested in becoming recognized
veterans['] service organizations, but are unable to meet the
requirements.'' In the proposed rule, VA offers alternative avenues for
VA recognition and accreditation for tribal governments that may not be
capable of establishing an organization that can meet the VA
recognition requirements in the proposed rule on their own. VA further
welcomes additional comments as to the suitability of those alternative
avenues through comments on this proposed rule. VA declines to make any
changes based on this comment.
One commenter also recommended that ``VA enter into Memorandums of
Understanding with [F]ederally-recognized tribes and tribal
organizations for [v]eterans' [s]ervice [o]fficer training and service
reimbursement, on individual bases.'' Another commenter objected to the
fact that there was ``no mention of funding to train and maintain such
a position.'' Section 5902, of title 38, United State Code, which is
the law that authorizes VA to recognize organizations for the purpose
of providing assistance on VA benefit claims, does not provide for the
funding of such organizations to train and maintain representatives.
Pursuant to Sec. 14.628(d)(iii)(B), organizations are not precluded
from seeking and receiving other sources of State and Federal grant
funding so long as the organization's funding is not subject to
limitations imposed under any Federal grant or law which would prevent
it from representing claimants before VA. Therefore, VA declines to
make any changes based on these comments.
One commenter wrote that VA ``. . . should include [F]ederally-
recognized tribes, not just tribal organizations funded by tribal
governments, as an entity from which applications will be considered to
be recognized for . . .'' VA accreditation. Another commenter suggested
adding ``[F]ederally recognized tribes'' or ``[F]ederally recognized
tribal governments'' as part of the definition for tribal
organizations. Another commenter suggested adding tribal communities.
For the purposes of the regulations pertaining to the representation of
VA claimants, VA proposes to define a tribal government to mean ``the
Federally recognized governing body of any Indian tribe, band, nation,
or other organized group or community . . .''. VA finds this definition
to be inclusive of the comments, and therefore, no change is warranted.
One commenter suggested a legislative amendment to the definition
of State in 38 U.S.C. 101(20) to include ``[F]ederally recognized
tribal governments.'' Amending the statutory language is something that
only Congress can accomplish. Since VA is defining the term ``tribal
government'' in regulation and providing an avenue for VA recognition
of a tribal organization separate from a State organization, VA does
not find such a legislative amendment necessary. Therefore, no change
is warranted based on this comment.
Several commenters wrote that ``[s]pecial attention must be paid to
what specifically is meant by a `[t]ribal [o]rganization' '' and that
VA should offer a clear definition of the term. The commenters did not
offer any suggestions for such definition. As previously discussed, VA
is defining this term for the purposes of this rulemaking. Therefore,
VA does not make any changes based on this comment.
Several commenters asked VA to clarify whether tribal governments,
including veterans departments within these governments, would be
eligible for VA recognition. A Department of Veterans Affairs or a
Veterans Affairs office that is established and funded by a tribal
government would be included in the definition of tribal organization.
Therefore, no change to this rulemaking is warranted based on these
comments.
One commenter asked that VA provide recognition for urban Indian
organizations. The comment is unclear on whether such an organization
would be able to apply for VA recognition as a tribal organization. VA
declines to add an additional organization category at this time. In
addition to the proposed amendments discussed in this rulemaking, an
organization may still utilize other avenues to apply for VA
recognition such as requesting VA
[[Page 47093]]
recognition as a regional or local organization. To be recognized as a
regional or local organization, an organization must meet the
requirements of Sec. 14.628(c) and (d).
Further, there are several ways that individuals, including tribal
members, tribal government employees, and others who work within and
serve tribal or Native American communities, may be accredited by VA to
represent claimants. An individual may apply for accreditation as a
representative through an existing VA-recognized organization under
standards set forth in Sec. 14.629(a). Alternatively, an individual
may also seek accreditation in an individual capacity as either an
agent or an attorney under the standards set forth in Sec. 14.629(b).
Therefore, VA declines to make any changes based on this comment.
A couple of commenters submitted statements certifying that their
organization would meet the requirements for accreditation for a tribal
organization. Applications for accreditation are outside the scope of
this rulemaking. Therefore, no change is warranted based on these
comments.
One commenter asked whether accredited tribal representatives would
be granted access to software programs containing a veteran's claims
file information and whether that access would be on tribal grounds.
This issue is outside the scope of this rulemaking. Therefore, no
change is warranted based on this comment.
One commenter expressed support for VA recognizing tribal
organizations in an equal manner as VA recognizes State organizations
but suggested that VA authorize a field office close to tribal
administration locations and fund one or two veterans service officer
positions. The tribal consultation and this proposed rulemaking are
limited in scope to recognition for purposes of VA claims
representation. The commenter's suggestion of adding a field office is
beyond the scope, and therefore, VA declines to make any changes based
on this comment. VA also declines to make any changes to the
commenter's suggestion of funding job positions for veterans service
officers. Part of the Sec. 14.628(d) requirements is that an
organization seeking accreditation must commit a significant portion of
its assets to veterans' services and have adequate funding to properly
perform those services. 38 CFR 14.628(d)(1)(iii).
A few commenters expressed concern that the proposed rulemaking is
limiting VA recognition for the preparation, presentation, and
prosecution of claims for VA benefits. One commenter seemed to think VA
is depriving veterans from other title 38 benefits. The commenters did
not specify what other accreditation they are seeking. As previously
discussed, 38 CFR part 14 is limited in jurisdiction to recognizing
organizations and accrediting individuals to assist in the preparation,
presentation, and prosecution of VA benefit claims. Pursuant to section
5902, VA accreditation may not be granted for any other purpose. This
rulemaking in no way deprives any veteran of any title 38 benefits.
Therefore, no change is warranted based on these comments.
One commenter suggested that office space opportunities should be
available to tribal governments and organizations in the same manner as
they are available to State organizations. As previously discussed,
this proposed rule would, under Sec. 14.635, allow the Secretary to
furnish office space and facilities, when available, to both State and
tribal organization employees who are also accredited to national
organizations for the purpose of assisting claimants in the
preparation, presentation, and prosecution of claims for benefits. VA
would be furnishing office space to tribal organizations in the same
manner as it furnishes such space to State organizations. Therefore, no
change is warranted based on this comment.
One commenter noted that VA should allow a tribal government
employee to become accredited through an accredited body of their
choice. VA in no way is limiting how a particular individual may apply
to become an accredited VA representative. As previously discussed, VA
is merely providing additional paths to VA accreditation than currently
exist. Therefore, VA declines to make any changes to this rulemaking
based on this comment.
Several commenters suggested further outreach and collaboration.
One commenter suggested that VA form a tribal workgroup to allow
representatives from tribal organizations to collaborate on
implementing the new program. One commenter provided VA with their
tribal consultation policy. Other commenters suggested that VA engage
in additional consultation with experts in Indian law and hold an all-
tribes call to gather additional input for this rulemaking. VA
appreciates this information. As previously noted, VA extended the
comment period for an additional 15 days to ensure that all interested
parties had an appropriate time to provide input. Therefore, VA finds
that it has complied with the requirements of Executive Order 13175. VA
notes that an additional 60-day comment period is provided for this
proposed rule and invites any additional comment to this rulemaking to
be provided during that time.
One commenter asked for the projected implementation date of this
rulemaking. VA will publish a final rule to this proposed rule which
will contain the effective date of the rulemaking.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action'' requiring review by OMB, unless OMB
waives such review, as ``any regulatory action that is likely to result
in a rule that may: (1) Have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations or recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined, and it has
been determined not to be a significant regulatory action under
Executive Order 12866. VA's impact analysis can be found as a
supporting document at http://www.regulations.gov, usually within 48
hours after the rulemaking document is published. Additionally, a copy
of this rulemaking and its impact analysis are available on VA's Web
site at http://www.va.gov/orpm/, by following the link for ``VA
Regulations Published From FY 2004 Through Fiscal Year to Date.''
[[Page 47094]]
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Catalog of Federal Domestic Assistance
There are no Catalog of Federal Domestic Assistance programs
numbers and titles associated with this proposed rule.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized Gina S. Farrisee, Deputy Chief of Staff, to
sign and submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department
of Veterans Affairs, approved this document on July 14, 2016 for
publication.
List of Subjects in 38 CFR Part 14
Administrative practice and procedure, Claims, Courts, Foreign
relations, Government employees, Lawyers, Legal services, Organization
and functions (Government agencies), Reporting and recordkeeping
requirements, Surety bonds, Trusts and trustees, Veterans.
Dated: July 14, 2016.
Janet J. Coleman,
Chief, Office of Regulation Policy & Management, Office of the
Secretary, Department of Veterans Affairs.
For the reasons set out in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 14 as follows:
PART 14--LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS
0
1. The authority citation for part 14 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a),
512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14,
unless otherwise noted.
0
2. Amend Sec. 14.627 by adding paragraph (r) to read as follows:
Sec. 14.627 Definitions.
* * * * *
(r) Tribal government means the Federally recognized governing body
of any Indian tribe, band, nation, or other organized group or
community, including any Alaska Native village or Regional or Village
Corporation as defined in or established pursuant to the Alaska Native
Claims Settlement Act, which is recognized as eligible for the special
programs and services provided by the United States to Indians because
of their status as Indians.
* * * * *
0
3. Amend Sec. 14.628 by:
0
a. Redesignating paragraph (b) as paragraph (b)(1) and adding paragraph
(b)(2); and
0
b. In the parenthetical at the end of the section, removing ``2900-
0439'' and adding, in its place, 2900-XXXX''.
The addition reads as follows:
Sec. 14.628 Recognition of organizations.
* * * * *
(b)(1) State organization. * * *
(2) Tribal organization. For the purposes of 38 CFR 14.626 through
14.637, an organization that is a legally established organization that
is primarily funded and controlled, sanctioned, or chartered by one or
more tribal governments and that has a primary purpose of serving the
needs of Native American veterans. Only one tribal organization may be
recognized for each tribal government. If a tribal organization is
created and funded by more than one tgovernment, the approval of each
tribal government must be obtained prior to applying for VA
recognition. If one of the supporting tribal governments withdraws from
the tribal organization, the tribal organization must notify VA of the
withdrawal and certify that the tribal organization continues to meet
the recognition requirements in paragraph (d) of this section.
* * * * *
Sec. 14.629 [Amended]
0
4. Amend Sec. 14.629 by:
0
a. In paragraph (a)(2) introductory text, removing ``county veteran's
service officer'' and adding in its place ``county veterans' service
officer'';
0
b. In paragraph (a)(2) introductory text, adding ``or tribal veterans'
service officer'' immediately following ``county veterans' service
officer''; and
0
c. In paragraph (a)(2)(i), adding ``or tribal government'' immediately
following ``county''.
Sec. 14.635 [Amended]
0
5. Amend Sec. 14.635 by adding, in the introductory paragraph, ``or
tribal'' immediately following ``State''.
[FR Doc. 2016-17052 Filed 7-19-16; 8:45 am]
BILLING CODE 8320-01-P