[Federal Register Volume 80, Number 249 (Tuesday, December 29, 2015)]
[Rules and Regulations]
[Pages 81191-81194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32687]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 14
RIN 2900-AP28
Removal of Requirement To File Direct-Pay Fee Agreements With the
Office of the General Counsel
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) is amending its
regulations concerning the payment of fees for representation by agents
and attorneys in proceedings before VA. Specifically, this rule removes
the requirement that an agent or attorney file a direct-pay fee
agreement with both the VA Office of the General Counsel and the agency
of original jurisdiction. The intended effect of this final rule is to
require that direct-pay fee agreements be submitted only to the agency
of original jurisdiction, thereby eliminating duplicate filings by
agents and attorneys.
DATES: Effective Date: This rule is effective December 29, 2015.
Applicability Date: The provisions of this final rule shall apply
to all fee agreements transmitted to VA on or after December 29, 2015.
FOR FURTHER INFORMATION CONTACT: Dana Raffaelli, Staff Attorney, Office
of the General Counsel (022O), Department of Veterans Affairs, 810
Vermont Avenue NW., Washington, DC 20420, (202) 461-7699. (This is not
a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: This rule amends 38 CFR part 14 to remove
the requirement that agents and attorneys file direct-pay fee
agreements with the VA Office of the General Counsel in Washington, DC.
Current provisions in 38 CFR 14.636(g) and (h) require agents and
attorneys to file direct-pay fee agreements with both the Office of the
General Counsel and the agency of original jurisdiction. Removal of
this requirement will eliminate administrative burdens associated with
these direct-pay fee agreements. Agents and attorneys will be relieved
from filing direct-pay fee agreements with the Office of the General
Counsel, and the
[[Page 81192]]
Office of the General Counsel will no longer be required to process and
maintain those fee agreements. In cases where it is necessary for the
Office of the General Counsel to review fee agreements for
reasonableness, such agreements may be called to our attention and
copies of the agreements may be provided to the Office of the General
Counsel by claimants or the agencies of original jurisdiction.
Current 38 CFR 14.636(g)(2) and (g)(3) requires agents and
attorneys to file all fee agreements with the Office of the General
Counsel in Washington, DC, and to clearly specify in the agreement
whether VA is to directly pay the agent or attorney fees out of an
award of past-due benefits. Current 38 CFR 14.636(h)(4) requires agents
and attorneys to notify the agency of original jurisdiction, within 30
days of the date of execution of the agreement, of the existence of a
direct-pay fee agreement and also provide the agency of original
jurisdiction with a copy of the agreement.
The requirement that all fee agreements be filed with the Office of
the General Counsel was established in 2008. See 73 FR 29852, May 22,
2008. Prior to June 20, 2007, agents and attorneys were required to
file all fee agreements with the Board of Veterans' Appeals (Board)
because agents and attorneys could not charge fees for services
provided to VA claimants until after the Board had first made a final
decision in the case. See 38 U.S.C. 5904(c)(1), (c)(2) (2002); see also
38 CFR 20.609(g) (2007). However, on December 22, 2006, Congress
enacted Public Law 109-461, which allowed agents and attorneys to
charge fees after the filing of a notice of disagreement in a case and
required them to file any fee agreements ``with the Secretary pursuant
to regulations prescribed by the Secretary'' rather than with the
Board. Public Law 109-461, Sec. 101(d); see 38 U.S.C. 5904(c)(1),
(c)(2); see also Public Law 109-461, Sec. 101(h) (2006) (amendments to
statutory fee requirements effective June 20, 2007).
On May 22, 2008, VA implemented the statutory amendments regarding
fees in Sec. 14.636 (formerly Sec. 20.609 (2007)), one of which
directs attorneys and agents to file all fee agreements with the Office
of the General Counsel in Washington, DC. See 73 FR 29852; 38 CFR
14.636(g)(3). However, in addition to filing all fee agreements with
the Office of the General Counsel, Sec. 14.636(h)(4) requires that
direct-pay fee agreements also be filed with the agency of original
jurisdiction, so that the agency of original jurisdiction could make an
initial determination regarding an agent or attorney's eligibility for
fees following an award of past-due benefits and withhold fees from the
award when an agent or attorney is found eligible for fees.
The revisions to Sec. 14.636(g)(3) and (h)(4) eliminate the
requirement for agents and attorneys to file a direct-pay fee agreement
with the Office of the General Counsel. Any fee agreement calling for
the direct payment of fees out of any past-due benefits now must be
filed only with the agency of original jurisdiction. The agency of
original jurisdiction is the most appropriate location for such filings
as that entity must determine when direct payment of fees is called for
and authorize the correct payment. The agency of original jurisdiction
will file the fee agreement in the claimant's electronic claims file
contained in Veterans Benefits Administration's electronic database,
the Veterans Benefits Management System (VBMS), and associate the
attorney or agent's Power of Attorney (POA) code--meaning the three
digit code that was assigned to the attorney or agent at the time of
his or her VA accreditation--with the claimant's claim file. See M21-1,
pt. III, ch.3 sec. C.5. The association of attorneys' and agents' POA
codes with the claimants' files will allow VA to retrieve, from VBMS, a
list of the claims for which an attorney or agent has entered his or
her appearance, by filing a VA Form 21-22a, Appointment of Individual
as Claimant's Representative, with VA. An attorney or agent may look up
their POA code through the search feature on the accreditation Web
page's Web site at: http://www.va.gov/ogc/apps/accreditation/index.asp--with the claimant's file.
Fee agreements that do not provide for the direct payment of fees
must still be filed with the Office of the General Counsel.
The Office of the General Counsel retains authority to review all
fee agreements for reasonableness in light of the services that the
attorney or agent provided on a claim and the authority to review any
fee agreement for eligibility that has not undergone review by another
agency of original jurisdiction. See 38 CFR 14.636(i). In a
reasonableness-review case involving a direct-pay fee agreement, the
Office of the General Counsel will obtain a copy of the direct-pay fee
agreement from the agency of original jurisdiction at which the
agreement was filed. This will generally be accomplished by retrieving
the document from VBMS.
VA also makes an additional conforming amendment to 38 CFR
14.637(b) to reference fee agreements filed with either the Office of
the General Counsel or the agency of original jurisdiction under Sec.
14.636.
Administrative Procedure Act
This final rule is a procedural rule that does not impose new
rights, duties, or obligations on affected individuals but, rather,
eliminates duplicate filings under the statutory requirement that
agents and attorneys file a copy of a fee agreement ``with the
Secretary.'' See 38 U.S.C. 5904(c)(2). Therefore, it is exempt from the
prior notice-and-comment and delayed-effective-date requirements of 5
U.S.C. 553. See 5 U.S.C. 553(b)(A) and (d)(3). This rule merely removes
the prior requirement for attorneys and agents to file copies of any
direct-pay fee agreement with both the Office of the General Counsel
and the agency of original jurisdiction. Attorneys and agents must now
file a copy of any direct-pay fee agreement with the agency of original
jurisdiction and all other fee agreements with the Office of the
General Counsel.
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 Office of Management and Budget (OMB) control number.
See also 5 CFR 1320.8(b)(3)(vi).
Section 14.636 of title 38 of the Code of Federal Regulations
contains collections of information under the Paperwork Reduction Act
of 1995, which OMB approved under control number 2900-0605. This final
rule will amend Sec. 14.636(g)(3) and (h)(4) to remove the requirement
that an agent or attorney file a direct-pay fee agreement with both the
Office of the General Counsel and the agency of original jurisdiction,
i.e., the VA regional office. The intended effect of this amendment is
to require that direct-pay fee agreements be submitted only to the
agency of original jurisdiction, thereby eliminating duplicate filings
by agents and attorneys. As required by the Paperwork Reduction Act of
1995 (at 44 U.S.C. 3507(d)), VA submitted this amended information
collection to OMB for its review. OMB approved the amended information
collection requirements under existing OMB control number 2900-0605.
We also note that, in 2008, VA did not amend Sec. 14.636 to
reflect the OMB control number. Therefore, we are also
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amending Sec. 14.636 to reflect that the correct OMB control number is
2900-0605.
Regulatory Flexibility Act
The initial and final regulatory flexibility analyses requirements
of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C.
601-612, are not applicable to this rule, because a notice of proposed
rulemaking is not required for this rule. Even so, 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. At a minimum, this rule will affect
only the attorneys and agents who file fee agreements with the Office
of the General Counsel. However, it will not have a significant
economic impact on these individuals, as it will result in modest
savings for affected attorneys and agents who will avoid the expense of
duplicate filings. Therefore, pursuant to 5 U.S.C. 605(b), this
rulemaking is exempt from the initial and final regulatory flexibility
analysis requirements of sections 603 and 604.
Executive 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 of 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 final rule 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 the
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 to FYTD.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This 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 Federal Domestic Assistance programs associated with
this final rule.
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. Robert L.
Nabors II, Chief of Staff, Department of Veterans Affairs, approved
this document on December 22, 2015, for publication.
List of Subjects in 38 CFR Part 14
Administrative practice and procedure, Claims, Courts, Foreign
relations, Government employees, Lawyers, Legal services, Organization
and functions (Government agencies), Reporting and recordkeeping
requirements, Surety bonds, Trusts and trustees, Veterans.
Dated: December 23, 2015.
William F. Russo
Director, Office of Regulation Policy & Management, Office of the
General Counsel, Department of Veterans Affairs.
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. 14.636 by:
0
a. Revising paragraph (g)(3).
0
b. Revising paragraph (h)(4).
0
c. Revising the parenthetical at the end of the section.
The revisions read as follows:
Sec. 14.636 Payment of fees for representation by agents and
attorneys in proceedings before Agencies of Original Jurisdiction and
before the Board of Veterans' Appeals.
* * * * *
(g) * * *
(3) A copy of a direct-pay fee agreement, as defined in paragraph
(g)(2) of this section, must be filed with the agency of original
jurisdiction within 30 days of its execution. A copy of any fee
agreement that is not a direct-pay fee agreement must be filed with the
Office of the General Counsel within 30 days of its execution by
mailing the copy to the following address: Office of the General
Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue NW.,
Washington, DC 20420. Only fee agreements that do not provide for the
direct payment of fees, documents related to review of fees under
paragraph (i) of this section, and documents related to review of
expenses under Sec. 14.637, may be filed with the Office of the
General Counsel. All documents relating to the adjudication of a claim
for VA benefits, including any correspondence, evidence, or argument,
must be filed with the agency of original jurisdiction, Board of
Veterans' Appeals, or other VA office as appropriate.
(h) * * *
(4) As required by paragraph (g)(3) of this section, the agent or
attorney must file with the agency of original jurisdiction within 30
days of the date of execution a copy of the agreement providing for the
direct payment of fees out of any benefits subsequently determined to
be past due.
* * * * *
(The Office of Management and Budget has approved the information
collection requirements in this section under control number 2900-
0605.)
[[Page 81194]]
Sec. 14.637 [Amended]
0
3. Amend Sec. 14.637, paragraph (b), by removing ``under Sec.
14.636'' and adding, in its place, ``or the agency of original
jurisdiction under Sec. 14.636''.
[FR Doc. 2015-32687 Filed 12-28-15; 8:45 am]
BILLING CODE 8320-01-P