[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]
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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: Final rule.
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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]
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