Federal Register / Vol. 72, No. 197 / Friday, October 12...
58010             Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Rules and Regulations

                                                            Federal Register / Vol. 72, No. 197 / Friday, October 12...
58012             Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Rules and Regulations

Enhancing Legal Discovery With Linguistic Processing
Enhancing Legal Discovery With Linguistic Processing
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Enhancing Legal Discovery With Linguistic Processing


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  • Thanks for the info, super helpful. BTW, if anyone needs to fill out a “VA 21-A”, I found a blank fillable form here: "www.va.gov" and here "VA form 21a". I also saw some decent tutorials on how to fill it out.
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Enhancing Legal Discovery With Linguistic Processing

  1. 1. 58009 Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Rules and Regulations The commenter asked for a 6-month individuals for the preparation, DEPARTMENT OF VETERANS grace period following the effective date presentation, and prosecution of claims AFFAIRS of the regulation to achieve initial for benefits before VA. The amendments 38 CFR Part 14 compliance and asked for a 4-month to chapter 59, among other things, grace period for each subsequent require VA to: (1) Regulate the RIN 2900–AM29 recertification of an accredited qualifications and standards of conduct representative. VA acknowledges that applicable to accredited agents and Accreditation of Service Organization many service organizations, by virtue of attorneys; (2) annually collect Representatives and Agents the size of their operations, will face information about accredited agents’ Department of Veterans Affairs. AGENCY: administrative challenges in recertifying and attorneys’ standing to practice or representatives accredited by VA more appear before any court, bar, or Federal Final rule. ACTION: than 5 years before the effective date of or State agency; (3) add to the list of SUMMARY: The Department of Veterans this rule. To address this issue, the rule grounds for suspension or exclusion of Affairs (VA) is amending its regulations is being made effective 90 days after the agents or attorneys from further practice governing the accreditation of date of publication in the Federal before VA; and (4) subject veterans representatives of claimants for Register and VA is establishing a service organization representatives and veterans’ benefits. As amended, the phased series of initial compliance dates individuals recognized for a particular regulations require service organizations based on the first letter of claim to suspension and exclusion from to recertify the qualifications of their representatives’ last names. The initial further practice before VA on the same accredited representatives every 5 years, compliance date for service organization grounds as apply to agents and and to notify VA when requesting representatives accredited more than 5 attorneys. cancellation of a representative’s Section 101 of Public Law 109–461 years before the effective date of this accreditation based upon misconduct or also amends the fee provisions in rule is April 9, 2008 for representatives lack of competence, or if a chapter 59. Prior to the amendments, with last names beginning with letters A representative resigns to avoid section 5904(c)(1) proscribed the through F; July 8, 2008 for cancellation of accreditation for charging of fees by agents and attorneys representatives with last names misconduct or lack of competence. They for services provided before a first final beginning with letters G through M; also clarify that VA’s authority to cancel Board of Veterans’ Appeals (Board) October 6, 2008 for representatives with accreditation includes the authority to decision in a case. Under the last names beginning with letters N amendments, accredited agents and suspend accreditation. The purpose of through S; and January 5, 2009 for attorneys may charge fees for these amendments is to ensure that representatives with last names representational services provided after claimants for veterans’ benefits have beginning with letters T through Z. The delayed effective date and phased the claimant files a notice of responsible, qualified representation in initial compliance dates will permit disagreement in a case, and may receive the preparation, presentation, and organizations to make conforming fees for representation directly from VA prosecution of claims. changes to their procedures and phase- out of past-due benefits paid to DATES: Effective Date: This final rule is in the recertification requirements over claimants. effective January 10, 2008. See These various amendments, viewed a 15-month period. We believe that SUPPLEMENTARY INFORMATION for initial together, indicate to us that Congress these accommodations are sufficient to compliance dates. intends VA to treat agents and attorneys avoid undue burdens on recognized FOR FURTHER INFORMATION CONTACT: in the same manner for purposes of organizations. Thereafter, VA intends Michael G. Daugherty, Staff Attorney, accreditation, suspension or that organizations will recertify their Office of the General Counsel (022G2), cancellation of accreditation, and accredited representatives before the Department of Veterans Affairs, 810 payment of fees. To properly implement expiration of each 5-year certification Vermont Avenue, NW., Washington, DC the provisions of Public Law 109–461, period. Accordingly, we will not make 20420, (202) 273–6315. This is not a further changes based on these VA will withdraw the provisions of the toll-free number. comments. notice of proposed rulemaking relating SUPPLEMENTARY INFORMATION: In a One commenter, a national veterans to the accreditation of claims agents and document published in the Federal service organization, requested will revisit the issue in a later Register on December 23, 2005 (70 FR clarification about proposed § 14.629(a). rulemaking. 76221), VA proposed to amend the Specifically, the organization asked Based on the rationale described in regulations governing the accreditation whether VA’s amendment would this document and in the notice of of recognized veterans service require accredited service organization proposed rulemaking, VA adopts the organization representatives and claims representatives ‘‘to take a written proposed rule as revised in this agents. The public comment period examination administered by VA every document. ended on February 21, 2006. VA 5 years as a prerequisite for Section 14.629(a)—Periodic received comments from an individual recertification’’ as proposed for agents Recertification of Service Organization veteran, two State veterans service in § 14.629(b)(2). The organization does Representatives organizations, and three national not support such a requirement for its Five commenters expressed overall veterans service organizations. These accredited representatives. Another support for the concept of periodic comments are discussed below. commenter, a State veterans service recertification of service organization After the notice of proposed organization, expressed similar concern representatives. One of these rulemaking was published, Public Law that the rule would impose a new commenters, a national veterans service 109–461 was enacted. Section 101 of testing requirement for representatives. rfrederick on PROD1PC67 with RULES It is not VA’s intention to impose a organization, while supporting the Public Law 109–461, the Veterans new testing requirement for proposed rule, expressed concern with Benefits, Health Care, and Information recertification of accredited its ability to recertify hundreds of Technology Act of 2006, amends representatives of service organizations accredited representatives in a timely chapter 59 of title 38, United States under this rule. Section 14.629(a) manner after VA publishes a final rule. Code, governing the recognition of VerDate Aug<31>2005 14:40 Oct 11, 2007 Jkt 214001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:FRFM12OCR1.SGM 12OCR1
  2. 2. 58010 Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Rules and Regulations conflict in situations where the and convincing evidence of proscribed outlines the initial accreditation and representative is also represented by the conduct). Moreover, in Public Law 109– periodic recertification requirements for organization to which he or she is 461, Congress amended section 5902 to accredited representatives of service accredited.’’ According to this subject accredited representatives to organizations, and § 14.629(b) provides organization, ‘‘[p]roviding the VA with suspension and exclusion from further the requirements for claims agents. To information that may potentially practice before VA on the same grounds recertify an accredited representative, adversely impact the representative’s as apply to agents and attorneys as an organization files a VA Form 21 entitlement to VA benefits is in direct provided for in section 5904(b). VA (Application for Accreditation as conflict with the organization’s agrees that there is a need for greater Service Organization Representative) obligation as the individual’s clarity in the procedures for with the signature of the certifying representative.’’ We disagree. reinstatement. Accordingly, we have official indicating the representative Under the law governing recognition, revised the proposed amendments to the continues to meet the requirements of service organizations have a legal duty rule concerning suspension to provide § 14.629(a)(1) through (3) in that he or to assist VA in ensuring the competent that the General Counsel may suspend she is of good character and reputation, representation of claimants before The accreditation for a definite period or is qualified to represent veterans, meets Department. Section 5902(a) of title 38, until the individual satisfies the organizational membership United States Code, authorizes VA to conditions established by the General requirements or is a full-time employee recognize organizations for the limited Counsel for reinstatement. The General of the organization, and is not an purpose of ensuring competent Counsel will reinstate suspended employee of the United States representation of veterans in the accreditations at the end of the period Government. The organization may preparation, presentation, and of suspension or upon verification that determine for itself the best means to prosecution of claims for VA benefits. the individual has satisfied the determine the continuing qualifications See 38 CFR 14.626 (‘‘The purpose of the conditions for reinstatement. of its representatives. The service regulation of representatives is to ensure Concerning the circumstances under organization’s filing of the VA Form 21 that claimants for [VA] benefits have which a representative may be is the only requirement for responsible, qualified representation in suspended, VA believes that further recertification of accredited the preparation, presentation, and clarification is unnecessary. The plain representatives under § 14.629(a). prosecution of claims for veterans’ language of section 5904(b) authorizes Section 14.629(b)—Agents benefits.’’). VA implemented this VA to suspend or exclude from further One commenter, a State veterans authority in 38 CFR 14.628, which, practice before VA agents or attorneys service organization, objected to the among other things, requires that an found incompetent or to have engaged testing requirements in VA’s organization applying for recognition in misconduct. Congress’ recent accreditation regulations. However, the demonstrate a substantial service amendment of section 5902 in Public successful completion of an commitment to veterans. An Law 109–461 codifies VA’s examination exists as a requirement for organization applying for VA longstanding interpretation of section the initial accreditation of claims agents recognition must demonstrate that it 5902 by providing VA with authority to and the initial accreditation of county satisfies the legal requirements for suspend the accreditation of veterans’ service officers recommended recognition and then certify to VA that representatives or exclude them from by a recognized State organization, not each of the organization’s further practice before VA on the same for service organization representatives representatives who will assist veterans grounds as apply to agents and in general. For the reasons discussed in the preparation, presentation, and attorneys. VA’s decision to suspend or above relating to the enactment of prosecution of claims before VA meets cancel an individual’s accreditation will Public Law 109–461, VA will withdraw the legal requirements for accreditation be based on the facts and circumstances the proposed amendments requiring in 38 CFR 14.629(a). Furthermore, of the particular case, with suspension periodic recertification of claims agents recognized organizations are required to being appropriate in cases involving train and monitor their accredited extenuating circumstances or less and will revisit the issue in a later representatives to ensure the proper egregious conduct not warranting rulemaking. handling of claims. 38 CFR permanent cancellation of accreditation. Section 14.633—Suspension of 14.628(d)(1)(v). Thus, an organization’s Section 14.633—Duty To Inform VA of Accreditation legal duty to establish systems to ensure Misconduct or Incompetence One commenter, a national veterans the competent representation of Two commenters disagreed with the service organization, suggested that VA claimants does not end with its proposed requirement for an ‘‘better define the circumstances under recognition, but continues as long as the organization to inform VA of the reasons which accreditation can be suspended’’ organization is recognized by VA. for requesting cancellation of a and ‘‘describe the maximum length of a Under current § 14.633(c) and (d), representative’s accreditation under 38 suspension and the mechanism for cancellation of accreditation is CFR 14.633(a) when the request is due obtaining reinstatement.’’ We agree. mandatory if the General Counsel finds Section 5904(b) permits VA to to the representative’s misconduct or that a representative engaged in suspend or exclude agents and attorneys misconduct or that a representative’s lack of competence or because the from practice before VA. VA has performance before the Department representative resigned to avoid interpreted section 5902 and its demonstrates a lack of the degree of cancellation of accreditation based upon predecessor, 38 U.S.C. 3402, as similarly competence necessary to adequately misconduct or lack of competence. One commenter, a national service authorizing the suspension or exclusion prepare, present, and prosecute claims. organization, expressed concern that the of accredited representatives of However, under current § 14.633(a), rfrederick on PROD1PC67 with RULES proposed requirement would create an recognized service organizations. See 38 service organizations may request adversarial relationship between the CFR 14.627(c) (1965) (suspension or cancellation of a representative’s accreditation without informing VA of employer service organization and exclusion for cause); see also 38 CFR the reason for the request. The employee representative and that it 14.633(c) (1979) (suspension or amendments to § 14.633(a), which would create ‘‘a potential ethical exclusion based upon a finding of clear VerDate Aug<31>2005 14:40 Oct 11, 2007 Jkt 214001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:FRFM12OCR1.SGM 12OCR1
  3. 3. 58011 Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Rules and Regulations later disaccredited for misconduct or Regarding the commenter’s concern require organizations to report the incompetence, by itself, would generally about a potential adverse impact on a reason for the request if it involves not be sufficient to require veteran’s benefit entitlements by virtue misconduct or incompetence, will assist readjudication of a claim based on of the obligation to inform VA of VA in monitoring the qualifications of conduct by the representative. misconduct or incompetence, the individuals who apply for accreditation The commenter suggested that ‘‘very service organizations’ duty to inform or are cross-accredited through more few individuals would be brought to the provides VA with the information than one recognized organization. attention of the VA’’ for misconduct or necessary to investigate misconduct and The practice of cross-accreditation is incompetence because it is likely those incompetence and ensure competent defined in 38 CFR 14.627(i) as individuals would resign before any representation of claimants. It is not ‘‘accreditation based on the status of a allegations of misconduct or clear how information about a representative as an accredited and incompetence were ever substantiated. representative’s misconduct or functioning representative of another The situation described by the incompetence could adversely affect his organization.’’ Although cross- organization is foreseeable under or her own entitlement to VA benefits, accreditation enhances claimants’ current § 14.633(a) and under the unless the information relates to a opportunities for representation, it may amendments made by this rule. While scheme of fraud in obtaining benefits. conceal a representative’s misconduct or VA recognizes that individuals may Although an organization’s primary incompetence absent the amendments resign before any incompetence or purpose is to serve veterans, clearly this to § 14.633(a) in this rule. Consider the misconduct is substantiated as a means obligation does not include concealing situation where a representative, to avoid a formal inquiry, this does not fraud against the United States. accredited by several organizations, is mean that VA should forego any effort Recent changes in the law governing discharged for an offense at one to improve the quality of representation representation reinforce the obligation organization that, if proven, would in cases where an organization has of service organizations to report a clearly lead to cancellation of determined that misconduct or representative’s misconduct or accreditation by VA. If the organization incompetence is sufficient to request incompetence to VA. As discussed does not report the reason for the cancellation of VA accreditation. With earlier, Public Law 109–461 amended discharge to VA when requesting the rule in effect, the organization will 38 U.S.C. 5904(a) to require VA to cancellation of the representative’s be required to inform VA that a request regulate the qualifications and standards accreditation, the individual’s to cancel accreditation under § 14.633(a) of conduct applicable to accredited accreditations through other is based upon misconduct, agents and attorneys. Amended section organizations remain valid and the incompetence, or resignation to avoid 5902(b)(2) subjects veterans service representative may continue to provide cancellation of accreditation for organization representatives to representation through those misconduct or incompetence. Upon suspension and exclusion from further organizations. As a result, an individual receipt of such information, when practice before VA on the same grounds who engages in unlawful, unethical or appropriate, VA will initiate the as apply to agents and attorneys. VA’s unprofessional acts or is incompetent procedures under 38 CFR 14.633(e) to statutory obligation to regulate the may continue to represent veterans. determine whether the representative standards of conduct of accredited An additional rationale for the should be barred from further representatives as reflected in amendment requiring notification is the representation of VA claimants. As a amendments to chapter 59 requires that situation where a representative ends result, VA, in cooperation with service organizations fulfill the reporting his or her affiliation with the organizations, will seek to ensure the obligations described in § 14.633(a). In organization in order to avoid competent representation of claimants. May 2007, we published in the Federal cancellation of accreditation based on Another commenter, a State Register a notice of proposed misconduct and then applies for organization, expressed disagreement rulemaking implementing Public Law accreditation through another with the proposed requirement to notify 109–461, which, among other things, organization that has no knowledge of VA in cases of cancellation of established standards of conduct for the misconduct. In this case, without accreditation for misconduct ‘‘unless practice before VA applicable to all knowledge of the previous misconduct, [VA] assumes all potential civil liability service organization representatives. 72 VA would likely accredit the for the accrediting organizations.’’ The FR 25930. representative through the new organization expressed concern that it The commenter also expressed organization based upon the new might incur civil liability as a result of concern about the disclosure of organization’s unknowing certification. a lawsuit brought by a representative disaccreditation information providing a Certainly, if a representative engages in after it provides accreditation basis for claimants to seek misconduct or provides incompetent cancellation information to VA. readjudication of numerous claims. representation at one organization, VA VA cannot guarantee immunity from However, VA decisions are final absent should not accredit the individual civil suit, nor can it underwrite an reopening based on new and material through another organization. This rule, organization’s potential liability evidence or a finding of clear and which requires organizations to notify resulting from civil suit. While VA unmistakable error (CUE) in a prior VA of the reason for requesting acknowledges the potential for civil regional office or Board of Veterans’ liability in a defamation action under cancellation of a representative’s Appeals (Board) decision. See 38 U.S.C. state law for disclosure of employment- accreditation if that reason involves 5108, 5109A, 7111. To establish CUE in related information, this is a risk misconduct or incompetence, closes a final VA decision, it must be shown incurred by all employers in providing these gaps and better ensures the that VA committed a specific error in information about former employees to competent representation of claimants. adjudicating the claim and that the rfrederick on PROD1PC67 with RULES current or potential employers. The sole VA believes that these benefits greatly outcome would have been manifestly purpose of the requirement that service outweigh any potential effect on the different but for the error. Cook v. organizations disclose the reason for employer/employee relationship Principi, 318 F.3d 1334, 1343 (Fed. Cir. requesting cancellation of a between organizations and their 2002). Therefore, an allegation that a representative’s accreditation is to representatives. claimant was represented by a person VerDate Aug<31>2005 14:40 Oct 11, 2007 Jkt 214001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:FRFM12OCR1.SGM 12OCR1
  4. 4. 58012 Federal Register / Vol. 72, No. 197 / Friday, October 12, 2007 / Rules and Regulations List of Subjects in 38 CFR Part 14 Regulatory Flexibility Act ensure competent representation of claimants by cancelling accreditation Administrative practice and The Secretary hereby certifies that and preventing further accreditation in procedure, Claims, Courts, Foreign this final rule will not have a significant appropriate cases. In the commenter’s relations, Government employees, economic impact on a substantial jurisdiction, section 47(b) of the Lawyers, Legal services, Organizations number of small entities as they are California Civil Code provides an and functions (Government agencies), defined in the Regulatory Flexibility Act absolute privilege for a communication Reporting and recordkeeping (5 U.S.C 601–602). This rule will affect ‘‘in any other official proceeding requirements, Surety bonds, Trusts and the 87 veterans service organizations authorized by law.’’ See CAL. CIV. trustees, Veterans. recognized by VA to represent benefit CODE § 47(b). A ‘‘communication to an Approved: July 2, 2007. claimants. However, the rule would not official administrative agency, which have a significant economic impact on Gordon H. Mansfield, communication is designed to prompt these organizations because it would Deputy Secretary of Veterans Affairs. action by that agency’’ is considered only impose certification requirements For the reasons set forth in the I part of an official proceeding. See King the costs of which would not be preamble, the Department of Veterans v. Borges, 104 Cal. Rptr. 414, 417 (Cal. significant. Therefore, pursuant to 5 Affairs amends 38 CFR part 14 as Ct. App. 1972). Thus, an organization’s U.S.C. 605(b), this rule is exempt from follows: communication to VA concerning the the final regulatory flexibility analysis reasons for requesting cancellation of a requirements of section 604. PART 14—LEGAL SERVICES, representative’s accreditation, a GENERAL COUNSEL, AND communication required by law and Executive Order 12866 MISCELLANEOUS CLAIMS designed to prompt action by VA Executive Order 12866 directs concerning the representative’s 1. The authority citation for part 14 I agencies to assess all costs and benefits accreditation through other continues to read as follows: of available regulatory alternatives and, organizations, is absolutely privileged Authority: 5 U.S.C. 301; 28 U.S.C. 2671– when regulation is necessary, to select under California law. 2680; 38 U.S.C. 501(a), 512, 515, 5502, 5902– regulatory approaches that maximize Most States have statutory or common 5905; 28 CFR part 14, appendix to part 14, net benefits (including potential law provisions that establish truth as a unless otherwise noted. economic, environmental, public health defense in defamation actions and 2. Revise § 14.629(a) introductory text I and safety, and other advantages; protect certain communications as to read as follows: distributive impacts; and equity). The privileged. Communication of Order classifies a rule as a significant accreditation cancellation information § 14.629 Requirements for accreditation of regulatory action requiring review by to VA by a service organization, without service organization representatives; the Office of Management and Budget if agents; and attorneys. malice, and within accepted limits, it meets any one of a number of would generally be privileged and thus * * * * * specified conditions, including: having (a) Service Organization not likely to result in liability for an annual effect on the economy of $100 Representatives. A recognized defamation damages. Even in the million or more, creating a serious organization shall file with the Office of absence of a privilege, the publication of inconsistency or interfering with an the General Counsel VA Form 21 a true statement by a service action of another agency, materially (Application for Accreditation as organization to VA would not lead to altering the budgetary impact of Service Organization Representative) for liability for defamation. See Restatement entitlements or the rights of entitlement each person it desires accredited as a (Second) of Torts § 581A (1977) (‘‘One recipients, or raising novel legal or representative of that organization. The who publishes a defamatory statement policy issues. VA has examined the form must be signed by the prospective of fact is not subject to liability for economic, legal, and policy implications representative and the organization’s defamation if the statement is true.’’). of this final rule and has concluded that certifying official. For each of its Because the nature of defamation it is a significant regulatory action under accredited representatives, a recognized liability and privileged communication Executive Order 12866 because it raises organization’s certifying official shall varies from State to State, VA novel policy issues. complete, sign and file with the Office encourages organizations to seek of the General Counsel, not later than counsel regarding applicable laws. As Unfunded Mandates five years after initial accreditation an additional protection from liability, The Unfunded Mandates Reform Act through that organization or the most organizations should consider making of 1995 requires, at 2 U.S.C. 1532, that recent recertification by that disclosure of accreditation cancellation agencies prepare an assessment of organization, VA Form 21 to certify that information to VA a condition of anticipated costs and benefits before the representative continues to meet the employment by or affiliation with the issuing any rule that may result in the criteria for accreditation specified in organization and obtaining prior written expenditure by State, local, and tribal paragraph (a)(1), (2) and (3) of this authorization from the representative to governments, in the aggregate, or by the section. In recommending a person, the disclose such information. private sector, of $100 million or more organization shall certify that the Paperwork Reduction Act (adjusted annually for inflation) in any designee: year. This final rule would have no such This document contains provisions * * * * * effect on State, local, and tribal constituting collections of information I 3. Section 14.633(a) is amended by: governments, or on the private sector. at 38 CFR 14.629(a), 14.629(b), and I a. Revising paragraphs (a) and (e)(2)(i). 14.633(a) under the Paperwork I b. In paragraphs (b), (c) introductory Catalog of Federal Domestic Assistance rfrederick on PROD1PC67 with RULES Reduction Act (44 U.S.C. 3501–3521). text, and (d) adding ‘‘ suspended or ‘‘ Numbers and Titles The Office of Management and Budget before ‘‘canceled’’ each time it appears. There are no Federal Domestic (OMB) has approved these collections I c. In paragraph (e) introductory text Assistance programs associated with and has assigned OMB control number adding ‘‘suspension or’’ before this final rule. 2900–0018. ‘‘cancellation’’. VerDate Aug<31>2005 14:40 Oct 11, 2007 Jkt 214001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:FRFM12OCR1.SGM 12OCR1