[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 6265-6272]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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