Removal of Requirement To File Direct-Pay Fee Agreements With the Office of the General Counsel, 81191-81194 [2015-32687]
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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:
■
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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
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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:
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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
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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:
https://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
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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
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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
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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 https://
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 https://
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
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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.)
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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:
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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: https://
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
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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.
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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: https://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 https://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
https://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
