Removal of Requirement To File Direct-Pay Fee Agreements With the Office of the General Counsel, 81191-81194 [2015-32687]

Download as PDF Federal Register / Vol. 80, No. 249 / Tuesday, December 29, 2015 / Rules and Regulations FURTHER INFORMATION CONTACT section above. E. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble. F. Environment We have analyzed this rule under Department of Homeland Security Management Directive 023–01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321–4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2–1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule. jstallworth on DSK7TPTVN1PROD with RULES G. Protest Activities The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels. List of Subjects in 33 CFR Part 165 Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways. For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows: PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: ■ VerDate Sep<11>2014 15:24 Dec 28, 2015 Jkt 238001 Authority: 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Department of Homeland Security Delegation No. 0170.1. 2. Add § 165.T11–750 to read as follows: ■ § 165.T11–750 Safety Zone; Morro Bay Breaking Bar; Morro Bay Harbor Entrance; Morro Bay, CA. (a) Location. The following area is a safety zone: All navigable waters of the Morro Bay Harbor Entrance in approximate coordinates: from a point on the shoreline at 35°22.181′ N. 120°52.207′ W., thence westward to 35°22.181′ N. 120°52.538′ W., thence southward to 35°21.367′ N. 120°52.538′ W., thence eastward to a point on the shoreline at 35°21.366′ N. 120°51.717′ W., thence northward along the shoreline to a point inside the Morro Bay Harbor to 35°22.153′ N. 120°51.698′ W., thence northwestward to a point on land at 35°22.233′ N. 120°51.847′ W., thence southward along the shoreline to the beginning. These coordinates are based on North American Datum of 1983. (b) Definitions. For the purposes of this section: Designated representative means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the Captain of the Port Los Angeles— Long Beach (COTP) in the enforcement of the safety zone. Rough Bar means any swell, breaking surf, or wind conditions that create safety hazards. This includes but is not limited to, breaking surf 8 feet of greater or extreme steep or confused swell in the main channel or in the judgment of the COTP or the COTP’s designated representative rough conditions exist. (c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or the COTP’s designated representative. (2) To seek permission to enter, hail Coast Guard Station Morro Bay on VHF– FM Channel 16 or call at (805) 772– 2167. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP’s designated representative. (d) Enforcement period. This rule is effective from 12:01 a.m. December 9, 2015 until February 29, 2016 11:59 p.m. The safety zone will only be enforced when the COTP or her designated representative deems it necessary because of the rough bar conditions, and PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 81191 enforcement will cease immediately upon conditions returning to safe levels. Dated: December 6, 2015. J.F. Williams, Captain, U.S. Coast Guard, Captain of the Port Los Angeles—Long Beach. [FR Doc. 2015–32734 Filed 12–28–15; 8:45 am] BILLING CODE 9110–04–P 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 Department of Veterans Affairs. Final rule. AGENCY: ACTION: 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 directpay 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 SUMMARY: E:\FR\FM\29DER1.SGM 29DER1 jstallworth on DSK7TPTVN1PROD with RULES 81192 Federal Register / Vol. 80, No. 249 / Tuesday, December 29, 2015 / Rules and Regulations 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 pastdue 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, § 101(d); see 38 U.S.C. 5904(c)(1), (c)(2); see also Public Law 109–461, § 101(h) (2006) (amendments to statutory fee requirements effective June 20, 2007). On May 22, 2008, VA implemented the statutory amendments regarding fees in § 14.636 (formerly § 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, § 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 VerDate Sep<11>2014 15:24 Dec 28, 2015 Jkt 238001 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 § 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 PO 00000 Frm 00034 Fmt 4700 Sfmt 4700 filed with either the Office of the General Counsel or the agency of original jurisdiction under § 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-andcomment 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 § 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 § 14.636 to reflect the OMB control number. Therefore, we are also E:\FR\FM\29DER1.SGM 29DER1 Federal Register / Vol. 80, No. 249 / Tuesday, December 29, 2015 / Rules and Regulations amending § 14.636 to reflect that the correct OMB control number is 2900– 0605. jstallworth on DSK7TPTVN1PROD with RULES 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 VerDate Sep<11>2014 15:24 Dec 28, 2015 Jkt 238001 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 PO 00000 Frm 00035 Fmt 4700 Sfmt 4700 81193 Affairs amends 38 CFR part 14 as follows: PART 14—LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS 1. The authority citation for part 14 continues to read as follows: ■ Authority: 5 U.S.C. 301; 28 U.S.C. 2671– 2680; 38 U.S.C. 501(a), 512, 515, 5502, 5901– 5905; 28 CFR part 14, appendix to part 14, unless otherwise noted. 2. Amend § 14.636 by: a. Revising paragraph (g)(3). ■ b. Revising paragraph (h)(4). ■ c. Revising the parenthetical at the end of the section. The revisions read as follows: ■ ■ § 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 directpay 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 § 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.) E:\FR\FM\29DER1.SGM 29DER1 81194 § 14.637 Federal Register / Vol. 80, No. 249 / Tuesday, December 29, 2015 / Rules and Regulations [Amended] 3. Amend § 14.637, paragraph (b), by removing ‘‘under § 14.636’’ and adding, in its place, ‘‘or the agency of original jurisdiction under § 14.636’’. ■ [FR Doc. 2015–32687 Filed 12–28–15; 8:45 am] BILLING CODE 8320–01–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 200 [Docket No. 150227193–5999–02] RIN 0648–BE92 Establish a Single Small Business Size Standard for Commercial Fishing Businesses National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule. AGENCY: NMFS issues this final rule to establish a small business size standard of $11 million in annual gross receipts for all businesses in the commercial fishing industry (NAICS 11411), for Regulatory Flexibility Act (RFA) compliance purposes only. For the purposes of this final rule, a ‘‘commercial fishing business’’ is a business primarily engaged in commercial fishing, the ‘‘commercial fishing industry’’ is composed of all such businesses, and the $11 million standard only applies to this industry. This standard does not apply to businesses primarily engaged in seafood processing (NAICS 311170), seafood wholesale activities (NAICS 424460), or any other activity within the seafood industry. The $11 million standard will be used in RFA analyses in place of the U.S. Small Business Administration’s (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry, respectively. Establishing a single size standard of $11 million for the commercial fishing industry will simplify the RFA analyses done in support of NMFS’ rules, better meet the RFA’s intent by more accurately representing expected disproportionate effects of NMFS’ rules between small and large commercial fishing businesses, create a standard that more accurately reflects the size distribution of all businesses in the commercial jstallworth on DSK7TPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 15:24 Dec 28, 2015 Jkt 238001 fishing industry, and allow NMFS to determine when changes to the standard are necessary and appropriate. DATES: This final rule is effective July 1, 2016. ADDRESSES: Copies of the Regulatory Impact Review (RIR), proposed rule and associated comments are available via the Federal eRulemaking Portal: http:// www.regulations.gov, docket NOAA– NMFS–2015–0061. FOR FURTHER INFORMATION CONTACT: Mike Travis, Industry Economist, at (727) 209–5982, or email: mike.travis@ noaa.gov. SUPPLEMENTARY INFORMATION: Background For the purposes of this final rule, a ‘‘commercial fishing business’’ is a business primarily engaged in commercial fishing and the ‘‘commercial fishing industry’’ (NAICS 11411) is composed of all such businesses. Prior to 2013, SBA had established a single small business size standard for all businesses in the commercial fishing industry. Since 2005, this standard had been $4 million in annual gross receipts (revenues). Effective July 22, 2013, SBA established significantly different and higher size standards for the three separate sectors of the industry (78 FR 37398, June 20, 2013): $19 million for commercial finfish fishing businesses (NAICS 114111), $5.0 million for commercial shellfish fishing businesses (NAICS 114112), and $7.0 million for other commercial marine fishing businesses (NAICS 114119). These standards were subsequently adjusted for inflation to $20.5 million, $5.5 million, and $7.5 million, respectively, via an interim final rule, effective July 14, 2014 (79 FR 33647, June 12, 2014). The Small Business Jobs Act of 2010 requires SBA to review all size standards every five years to account for changes in industry structure and market conditions. SBA is also required to assess the impact of inflation on its monetary-based size standards at least once every five years (13 CFR 121.102). However, as reflected by the timing of the two recent rulemakings adjusting the size standards, SBA is not required to conduct the reviews for these two purposes simultaneously. Thus, these size standards are likely to change on a regular basis. Under the RFA, an agency must prepare an initial and final regulatory flexibility analysis (IRFA/FRFA) for each proposed and final rule, respectively, unless it certifies that a rule will not have a significant economic impact on a substantial PO 00000 Frm 00036 Fmt 4700 Sfmt 4700 number of small entities. Agencies generally rely on the SBA size standards to identify small entities for RFA purposes. For NMFS, rulemaking activities that have been impacted by changes to the size standards for defining ‘‘small’’ businesses include, but are not limited to, regulatory actions and analyses undertaken pursuant to the Magnuson-Stevens Act (MSA), Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), and National Environmental Policy Act (NEPA). Between 2012 and 2014, NMFS published an average of 285 final rules per year, more than 40 percent of which required an RFA analysis, and a majority of those directly regulated commercial fishing businesses. Thus, NMFS’ costs of complying with the RFA are significant even when the small business size standards are stable, and those costs increase substantially when the standards are changing on a recurring basis. NMFS and the Regional Fishery Management Councils (Councils) have encountered significant difficulties implementing and adjusting to the new standards because: (1) The change was from a single size standard for all commercial fishing businesses to three very different standards, (2) many commercial fishing businesses participate in both finfish and shellfish fishing activities, making it unclear which standard to apply in the RFA analyses, and (3) a number of rules simultaneously implement regulations under fishery management plans for both finfish and shellfish species (for e.g., 76 FR 82044, December 29, 2011; 76 FR 82414, December 30, 2011; 77 FR 15916, March 26, 2012; and 80 FR 41472, July 15, 2015), again making it unclear which standard to apply in the RFA analyses. Furthermore, one of the RFA’s primary purposes is to determine if proposed regulations are expected to have disproportionate economic impacts on small businesses relative to large businesses and, if so, to consider alternatives that would minimize any significant adverse economic impacts on small businesses. Under SBA’s current standards for commercial fishing businesses, practically all commercial fishing businesses, and particularly commercial finfish fishing businesses, would likely be determined to be small. Thus, in their RFA analyses, NMFS and the Councils would not be able to discern, consider, or address any disproportionate economic impacts that various regulatory alternatives might have on businesses NMFS and the Councils think are ‘‘small’’ in the commercial fishing industry. Such an E:\FR\FM\29DER1.SGM 29DER1

Agencies

[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.

-----------------------------------------------------------------------

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

[[Page 81193]]

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