64790 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Proposed Rules

2. Installing a drill-head raise shutoff.

This device would be installed in the

drill-head raise pinch point and would

immediately stop the hydraulic oil flow

to the drill-head feed cylinder, thus

preventing the feed cylinder from being

raised and accidentally injuring the

operator.

3. Installing auxiliary controls for the

canopy raise/lower and boom swing

functions to eliminate the pinch point

where operators have been injured by

the swinging boom.

4. Installing control guarding or

double-acting fast-feed controls, or both,

to prevent inadvertent activation.

5. Providing visual identification of

pinch-point areas to alert the operator of

the danger area.

6. Installing self-centering controls to

prevent continued machine movement

when the control lever is released.

7. Securing the rotating drill steels or

wrench to prevent the operator from

becoming entangled in these moving

machine components.

8. Installing insertion/retrieval

devices (resin insertion tools or drill

steel retrieval) to eliminate the need for

the operator to extend his body into a

pinch point or climb onto the boom.

9. Standardizing location of controls

to prevent inadvertent actuation of

controls due to different roof-bolting

machine control layouts.

10. Conducting a pre-operational

inspection of machine controls to detect

malfunctions prior to operation.

These possible solutions are intended

to address the problems with roofbolting machines and to prevent

accidents. MSHA requests miners, mine

operators, manufacturers, and other

interested parties to comment on the

qualitative and quantitative potential

benefits and costs of compliance

associated with adoption of these

solutions, and any alternatives to these

solutions.

Although MSHA is considering

development of a proposed rule to

address the hazards associated with

roof-bolting machines, the Agency also

solicits comment from the public on

alternatives, other than rulemaking, to

address safety hazards on roof-bolting

machines used in the mines today.

IV. Specific Issues

Because a roof-bolting machine

standard would apply to both coal and

metal and nonmetal mining industries,

commenters should provide specific

justification for their positions based on

sound engineering, work practices, and

mining conditions. MSHA requests

comment on the technological and

economical feasibility and benefits of

the solutions suggested in the Report of

Findings and in this notice. Specifically,

MSHA seeks input on the following

issues: the current availability of

technology to retrofit existing machines

with two-handed fast-feed controls,

double-acting fast-feed controls, control

guarding, visual identification markers

to alert the operator of the pinch point

area, self-centering controls, or

insertion/retrieval devices; the impact

on the design and operation of existing

machines if retrofitting were to be

required; the impact of available

technology on newly-purchased

machines; the costs to manufacturers

and mine operators of available

technology; and any other information

that is relevant to the findings in the

Report. Commenters are encouraged to

provide information specific to their

mining conditions.

V. Impact

Executive Order 12866 requires that

regulatory agencies assess both the costs

and benefits of intended regulations,

and propose regulations on the basis

that the benefits justify the costs.

Regulatory agencies also are required to

base decisions on the best reasonably

obtainable scientific, technical,

economic, and other data and

information concerning the need for and

the consequences of the proposed

regulations.

MSHA is in the early stages of

developing a proposed rule. The Agency

anticipates that the benefit of a safety

standard addressing design criteria and

operating procedures for the use of roofbolting machines in underground mines

would be the prevention of fatalities and

injuries which occur when these

machines are operated.

VI. Public Participation

MSHA requests comments on the

specific issues addressed in this notice

as well as those addressed in the Report

of Findings. Interested parties are

particularly encouraged to be as specific

as possible in addressing each of

MSHA’s possible solutions and in

suggesting alternatives to these

solutions. MSHA also requests that

commenters include specific examples

and cost estimates to support their

rationale to assist the Agency in

evaluating and analyzing their

comments.

List of Subjects in 30 CFR Parts 57 and

75

Mine safety and health, Underground

mining.

Dated: December 3, 1997.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and

Health.

[FR Doc. 97–32203 Filed 12–8–97; 8:45 am]

BILLING CODE 4510–43–P

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 20

RIN 2900–AI98

Board of Veterans’ Appeals: Rules of

Practice—Attorney Fee Matters

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

SUMMARY: The Department of Veterans

Affairs (VA) proposes to amend the

Rules of Practice of the Board of

Veterans’ Appeals (Board) to

discontinue VA’s paying attorney fees

from past-due benefits, establish

safeguards in the case of ‘‘disinterested

third-party’’ payers, and simplify certain

notice procedures. We believe that

discontinuance of VA’s paying attorney

fees from past-due benefits is warranted

because the administrative resources

that it consumes would be better spent

in activities more directly beneficial to

veterans; the establishment of

safeguards regarding ‘‘disinterested

third-party’’ payers will help prevent

circumvention of the law restricting

payments by claimants and appellants;

and simplified notice procedures

relating to motions to review attorneyfee agreements or to challenge expense

charges are adequate for establishing

proof of service.

DATES: Comments must be received on

or before February 9, 1998.

ADDRESSES: Mail or hand deliver written

comments to: Director, Office of

Regulations Management (02D),

Department of Veterans Affairs, 810

Vermont Ave., NW., Room 1154,

Washington, DC 20420. Comments

should indicate that they are submitted

in response to ‘‘RIN 2900–AI98’’. All

written comments will be available for

public inspection at the above address

in the Office of Regulations

Management, Room 1158, between the

hours of 8:00 a.m. and 4:30 p.m.,

Monday through Friday (except

holidays).

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller, Chief Counsel, Board

of Veterans’ Appeals, Department of

Veterans Affairs, 810 Vermont Avenue,

NW., Washington, DC 20420 (202–565–

5978).
Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Proposed Rules 64791

SUPPLEMENTARY INFORMATION: The Board

of Veterans’ Appeals (Board) is an

administrative body that decides

appeals from denials of claims for

veterans’ benefits.

This document proposes to amend the

Board’s Rules of Practice to (1) exercise

the option provided in 38 U.S.C.

5904(d)(3) not to pay attorney fees

directly to an attorney out of past-due

benefits; (2) establish safeguards where

a ‘‘disinterested third party’’ pays an

attorney’s fees or salary on behalf of a

claimant or appellant; and (3) simplify

notice procedures in connection with

motions to review fee agreements for

reasonableness and to review a

representative’s expenses.

Paying Attorney Fees From Past-Due

VA Benefits

Beginning during the Civil War, and

continuing for more than a century,

attorneys and agents were forbidden

from charging more than $10 for

services in connection with a claim for

veterans benefits. In 1988, the

‘‘Veterans’ Judicial Review Act’’ (VJRA),

Pub. L. No. 100–687, Div. A, § 104, 102

Stat. 4105, 4108–09 (1988), removed

that limitation, and provided that, under

certain circumstances, an attorney or

agent could charge a ‘‘reasonable’’ fee

for such services. 38 U.S.C. 5904.

VJRA permitted a veteran to pay an

attorney directly or, under certain

conditions, to have the attorney paid by

VA directly out of ‘‘past-due benefits’’

awarded in connection with a

successful claim. Specifically, section

5904(d) of title 38, United States Code,

as added in 1988 by VJRA and modified

in 1992 by Pub. L. 103–446, permits the

Secretary of Veterans Affairs to pay an

attorney’s fee directly to an attorney out

of past-due VA benefits if (1) an

agreement between the attorney and the

client provides for such a payment; (2)

the total fee is contingent on whether or

not the matter is resolved in a manner

favorable to the claimant; and (3) the

total fee does not exceed 20 percent of

past-due benefits. In 1992, VA added

§ 20.609 to title 38 of the Code of

Federal Regulations, by which, among

other things, the Secretary undertook to

exercise this discretionary authority.

This document proposes to change

the regulations to state that VA will not

pay attorney fees out of past-due

benefits. This proposal is based on a

number of reasons.

First, the program puts a strain on the

already overburdened Veterans Benefits

Administration (VBA), which operates

VA’s 58 regional offices. Paying attorney

fees from past-due benefits requires that

some of the money due a claimant be

withheld pending a determination—

made by the Board of Veterans’

Appeals—that the agreement meets the

statutory and regulatory requirements

for payment. Because almost all awards

of benefits are made at individual

regional offices, and because section

5904 permits VA to pay attorney fees

only from past-due benefits, VBA has

had to develop strict and complex

procedures for withholding money. This

in turn has required the designation of

at least one ‘‘attorney fee coordinator’’ at

each of the 58 regional offices, the

involvement of at least one employee

from the finance activity and from the

agent cashier at those offices, as well as

a significant amount of correspondence

between the Board and the various

regional offices on this issue—direct

participation by as many as 175 VBA

employees.

Second, the anticipated growth in

attorney representation before VA has

not materialized. The percentage of

appellants represented by attorneys in

completed Board proceedings has varied

only slightly during the period 1993–96:

3.0 percent (786/26,400) (1993); 3.9

percent (861/22,045) (1994); 3.1 percent

(873/28,195) (1995); and 3.4 percent

(1,160/33,944) (1996).

Third, few attorneys ever qualify for

payment from past-due benefits. In

every case which results in the payment

of past-due benefits and in which an

attorney has filed an agreement with the

claimant to be paid directly from pastdue benefits, the Board makes a

determination as to whether the

agreement meets the statutory and

regulatory standards for payment. Of the

110,584 decisions the Board issued

during fiscal years 1993 through 1996,

only 222 were decisions on fee

agreements in which an attorney was to

be paid from past-due benefits awarded.

Those 222 decisions made over four

years have required the special support

of as many as 175 VBA employees per

year, most of whom would have been

spending their time in activities more

directly benefiting veterans and their

families: deciding claims and

coordinating benefit payments.

Finally, a recently-completed study

ordered by Congress recommends that

VA get out of the business of paying

attorney fees. Thus, the Veterans’

Claims Adjudication Commission,

established by Congress to determine

means for increasing the efficiency of

the VA system for claims disposition,

found that:

The provision for payment by VA of

attorney fees from past-due benefits is

administratively cumbersome and

distorts the role of government.

Attorney representatives and veterans

should be expected to transact fee

payments between themselves. VA

should not be involved in these

transactions. * * * The provision for

VA to compensate attorneys from

awards of past-due benefits thrusts VA

into a business that is excessively far

from its central purpose. VA is not well

suited to perform this function, and the

requirement that it do so represents a

significant opportunity cost. The

resources used for this purpose would

be better spent in activities of more

direct benefit to veterans.

The Veterans’ Claims Adjudication

Comm’n, Report to Congress 130 (Dec.

1996). VA concurs in those findings and

the conclusion.

While we believe that the right to hire

an attorney is an important one, we do

not believe that eliminating payment by

the Department will materially affect the

availability of such services. We think

that a veteran is as able as anyone else

to transact a fee payment without the

intervention of the Department. These

proposed amendments will not interfere

with a claimant’s ability to pay attorney

fees directly to his or her attorney out

of past-due benefits.

For all these reasons, we propose to

amend 38 CFR 20.609(h), which

provides the rules for payment of

attorney fees from past-due benefits, by

deleting all the current text and

replacing it with the following

statement: ‘‘The Department of Veterans

Affairs will not pay fees directly to an

attorney at law from past-due benefits.’’

Safeguards Where a ‘‘Disinterested

Third Party’’ Pays an Attorney’s Fee

In 1988, VA amended part 14 of title

38, Code of Federal Regulations, to

reflect an opinion from the Office of

Legal Counsel of the Department of

Justice which concluded that the thencurrent $10 fee limitation did not apply

to third parties not standing to benefit

from a veteran’s claim. 53 FR 52416,

52418 (Dec. 28, 1988) (38 CFR 14.634(a)

(1989)). VA has incorporated the

exception for third parties not standing

to benefit from a veteran’s claim into the

current rules governing the payment of

attorney fees. An organization,

governmental entity, or other

disinterested third party may pay

attorney fees under circumstances in

which a claimant or appellant may not,

for example, when there has been no

final Board decision with respect to an

issue. See 38 CFR 20.609(d)(2).

In dealing with this exception over

the years, we have reviewed fee

agreements that list individuals as

‘‘disinterested third parties’’ who appear

to be no more than ‘‘straw men,’’ i.e.,

nominal fee payers who really serve as

a mere conduit for a prohibited payment
64792 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Proposed Rules

by a claimant or appellant. Typically,

such ‘‘disinterested third parties’’ will

agree to pay a fee equal to some

percentage of the amount of any pastdue benefits awarded the claimant,

contingent on a successful outcome.

Indeed, some contracts we have

reviewed call for payment of a

percentage of the actual past-due

benefits by these third parties, a legally

impossible feat because of the

nonassignability of veterans benefits

under 38 U.S.C. 5301.

In this context, VA’s General Counsel

has informally advised that, if a third

party acts as a mere conduit for a

prohibited payment by a claimant, the

exception in the regulation would not

apply.

Accordingly, we propose three

amendments to Rule 609(d)(2) (38 CFR

20.609(d)(2)), relating to payment of fees

by disinterested third parties.

First, we propose to prohibit, in any

case involving a third-party payer, a fee

which is contingent, in whole or in part,

on whether or not the matter is resolved

in a manner favorable to the claimant or

appellant. The contingent fee functions

as a financing device that enables a

client to assert and prosecute an

otherwise unaffordable claim. See, e.g.,

Lester I. Brickman, Contingent Fees

Without Contingencies: Hamlet Without

the Prince of Denmark?, 37 UCLA L.

Rev. 29, 43 (1989). If a third party agrees

to pay an attorney to represent a veteran

(or other claimant) because the law bars

the attorney from charging the veteran a

fee, the issue of ‘‘financing’’ the cost of

the litigation through a successful

outcome is moot: By definition, a

disinterested third party will receive no

benefit from any award to the veteran,

so that the outcome can generate no

funds with which to pay the attorney.

Nevertheless, we have seen a number of

agreements in which a ‘‘disinterested

third party’’ agrees to pay an amount

equal to some percentage of a veteran’s

past-due benefits, an arrangement that

appears to merely set the stage for a

transfer from the veteran to the third

party to the attorney. In our view,

making a fee to be paid by a

disinterested third party contingent on

the outcome of the claim encourages the

parties to break the law. Accordingly,

we propose to bar contingent fees in

such circumstances.

Second, we propose to establish a

presumption that a person who is the

spouse, child, or parent of the claimant

or appellant, or who resides with the

claimant or appellant, is not a

disinterested third party. In our view,

persons in such relationships usually

have some financial or other interest in

the success of the claim and are

therefore unlikely to be disinterested.

Finally, we propose to require that the

attorney or agent file a statement

certifying that no agreement exists

under which the claimant or appellant

will provide anything of value to the

third party in return for payment of the

fee or salary. We believe that it is the

responsibility of an attorney, as an

officer of the court, and an agent, as a

licensee of VA, to make appropriate

inquiries. Cf. Fed. R. Civ. P. 11(b)

(signature of attorney on court papers

certifies, among other things, inquiry by

the attorney which is reasonable under

the circumstances). We also propose to

amend Rule 609(g) (38 CFR 20.609(g)),

relating to fee agreements, to clarify that

any agreement for the payment of fees

must include the name and mailing

address of the disinterested third party.

This will allow VA to advise such third

parties of legal requirements regarding

disinterested third parties.

Simplifying Notice Procedures

Both Rule 609(i) (38 CFR 20.609(i)),

relating to motions to review attorney

fee agreements, and Rule 610(d) (38 CFR

20.610(d)), relating to motions

challenging expenses, require service of

papers on opposing parties by certified

mail, return receipt requested, and

require filing signed certificates of

receipt with the Board. We do not

believe that this level of proof is

necessary to ensure that all parties

receive copies of various material.

Accordingly, we propose to amend both

rules to provide that proof of service in

such cases will be by filing a statement

with the Board certifying that copies

have been sent to the other parties by

first-class mail, postage prepaid. This is

in line with general rules of service in

the Federal Rules of Civil Procedure.

Fed. R. Civ. P. 5(d) (generally, a

certificate of service by a party (or

attorney) is sufficient proof of service).

Other Changes

In addition to the changes noted

above, we propose to make

nonsubstantive changes required for

purposes of clarity. We also propose to

make changes to correspond to new

organization names within the Board.

Regulatory Flexibility Act

The Secretary hereby certifies that

this proposed rule will not have a

significant economic impact on a

substantial number of small entities as

they are defined in the Regulatory

Flexibility Act, 5 U.S.C. 601–612. This

rule will affect only the processing of

claims by VA and will not affect small

businesses. Therefore, pursuant to 5

U.S.C. 605(b), this proposed rule is

exempt from the initial and final

regulatory flexibility analyses

requirements of §§ 603 and 604.

List of Subjects in 38 CFR Part 20

Administrative practice and

procedure, Claims, Veterans.

Approved: December 1, 1997.

Hershel W. Gober,

Acting Secretary of Veterans Affairs.

For the reasons set out in the

preamble, 38 CFR part 20 is proposed to

be amended as set forth below:

PART 20—BOARD OF VETERANS’

APPEALS: RULES OF PRACTICE

1. The authority citation for part 20

continues to read as follows:

Authority: 38 U.S.C. 501(a).

2. In subpart A, § 20.3, paragraphs (n),

(o), and (p) are redesignated as

paragraphs (o), (p), and (q), respectively;

and a new paragraph (n) is added to

read as follows:

§ 20.3 Rule 3. Definitions.

* * * * *

(n) Past-due benefits means a

nonrecurring payment resulting from a

benefit, or benefits, granted on appeal or

awarded on the basis of a claim

reopened after a denial by the Board of

Veterans’ Appeals or the lump sum

payment which represents the total

amount of recurring cash payments

which accrued between the effective

date of the award, as determined by

applicable laws and regulations, and the

date of the grant of the benefit by the

agency of original jurisdiction, the

Board of Veterans’ Appeals, or an

appellate court.

* * * * *

3. In subpart G, § 20.609, paragraphs

(d)(2), (f), (g), (h), and (i) are revised and

paragraph (j) is added to read as follows:

§ 20.609 Rule 609. Payment of

representative’s fees in proceedings before

Department of Veterans Affairs field

personnel and before the Board of

Veterans’ Appeals.

* * * * *

(d) * * *

(2) Payment of fee by disinterested

third party. (i) An attorney-at-law or

agent may receive a fee or salary from

an organization, governmental entity, or

other disinterested third party for

representation of a claimant or appellant

even though the conditions set forth in

paragraph (c) of this section have not

been met. In no such case may the

attorney or agent charge a fee which is

contingent, in whole or in part, on

whether the matter is resolved in a
Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Proposed Rules 64793

manner favorable to the claimant or

appellant.

(ii) For purposes of this part, a person

shall be presumed not to be

disinterested if that person is the

spouse, child, or parent of the claimant

or appellant, or if that person resides

with the claimant or appellant. This

presumption may be rebutted by clear

and convincing evidence that the person

in question has no financial interest in

the success of the claim.

(iii) The provisions of paragraph (g) of

this section (relating to fee agreements)

shall apply to all payments or

agreements to pay involving

disinterested third parties. In addition,

the agreement shall include or be

accompanied by the following

statement, signed by the attorney or

agent: ‘‘I certify that no agreement, oral

or otherwise, exists under which the

claimant or appellant will provide

anything of value to the third-party

payer in this case in return for payment

of my fee or salary, including, but not

limited to, reimbursement of any fees

paid.’’

* * * * *

(f) Presumption of reasonableness.

Fees which total no more than 20

percent of any past-due benefits

awarded, as defined in Rule 20.3(n)

(§ 20.3(n) of this part), will be presumed

to be reasonable.

(g) Fee agreements. All agreements for

the payment of fees for services of

attorneys-at-law and agents (including

agreements involving fees or salary paid

by an organization, governmental entity

or other disinterested third party) must

be in writing and signed by both the

claimant or appellant and the attorneyat-law or agent. The agreement must

include the name of the veteran, the

name of the claimant or appellant if

other than the veteran, the name of each

disinterested third-party payer (see

paragraph (d)(2)), the applicable

Department of Veterans Affairs file

number, and the specific terms under

which the amount to be paid for the

services of the attorney-at-law or agent

will be determined. A copy of the

agreement must be filed with the Board

of Veterans’ Appeals within 30 days of

its execution by mailing the copy to the

following address: Office of the Chief

Counsel (01C), Board of Veterans’

Appeals, 810 Vermont Avenue NW,

Washington, DC 20420.

(h) Payment of fees by Department of

Veterans Affairs directly to an attorneyat-law from past-due benefits. The

Department of Veterans Affairs will not

pay fees directly to an attorney at law

from past-due benefits.

(i) Motion for review of fee agreement.

The Board of Veterans’ Appeals may

review a fee agreement between a

claimant or appellant and an attorneyat-law or agent upon its own motion or

upon the motion of any party to the

agreement and may order a reduction in

the fee called for in the agreement if it

finds that the fee is excessive or

unreasonable in light of the standards

set forth in paragraph (e) of this section.

Such motions must be in writing and

must include the name of the veteran,

the name of the claimant or appellant if

other than the veteran, and the

applicable Department of Veterans

Affairs file number. Such motions must

set forth the reason, or reasons, why the

fee called for in the agreement is

excessive or unreasonable; must be

accompanied by all evidence the

moving party desires to submit; and

must include a signed statement

certifying that a copy of the motion and

any evidence was sent by first-class

mail, postage prepaid, to each other

party to the agreement, setting forth the

address to which each such copy was

mailed. Such motions (other than

motions by the Board) must be filed at

the following address: Office of the

Chief Counsel (01C), Board of Veterans’

Appeals, 810 Vermont Avenue, NW,

Washington, DC 20420. The other

parties may file a response to the

motion, with any accompanying

evidence, with the Board at the same

address not later than 30 days following

the date of receipt of the copy of the

motion and must include a signed

statement certifying that a copy of the

response and any evidence was sent by

first-class mail, postage prepaid, to each

other party to the agreement, setting

forth the address to which each such

copy was mailed. Once there has been

a ruling on the motion, an order shall

issue which will constitute the final

decision of the Board with respect to the

motion. If a reduction in the fee is

ordered, the attorney or agent must

credit the account of the claimant or

appellant with the amount of the

reduction and refund any excess

payment on account to the claimant or

appellant not later than the expiration of

the time within which the ruling may be

appealed to the Court of Veterans

Appeals.

(j) In addition to whatever other

penalties may be prescribed by law or

regulation, failure to comply with the

requirements of this section may result

in proceedings under § 14.633 of this

chapter to terminate the attorney’s or

agent’s right to practice before the

Department of Veterans Affairs and the

Board of Veterans’Appeals.

(Authority: 38 U.S.C. 5902, 5904, 5905)

4. In subpart G, § 20.610, paragraph

(d) is revised, and paragraph (e) is

added to read as follows:

§ 20.610 Rule 610. Payment of

representative’s expenses in proceedings

before Department of Veterans Affairs field

personnel and before the Board of

Veterans’ Appeals.

* * * * *

(d) Expense charges permitted;

motion for review of expenses.

Reimbursement for the expenses of a

representative may be obtained only if

the expenses are reasonable. The Board

of Veterans’ Appeals may review

expenses charged by a representative

upon the motion of the claimant or

appellant and may order a reduction in

the expenses charged if it finds that they

are excessive or unreasonable. Such

motions must be in writing and must

include the name of the veteran, the

name of the claimant or appellant if

other than the veteran, and the

applicable Department of Veterans

Affairs file number. Such motions must

specifically identify which expenses

charged are unreasonable; must set forth

the reason, or reasons, why such

expenses are excessive or unreasonable;

must be accompanied by all evidence

the claimant or appellant desires to

submit; and must include a signed

statement certifying that a copy of the

motion and any evidence was sent by

first-class mail, postage prepaid, to the

representative. Such motions must be

filed at the following address: Office of

the Chief Counsel (01C), Board of

Veterans’ Appeals, 810 Vermont Avenue

NW, Washington, DC 20420. The

representative may file a response to the

motion, with any accompanying

evidence, with the Board at the same

address not later than 30 days following

the date of receipt of the copy of the

motion and must include a signed

statement certifying that a copy of the

response and any evidence was sent by

first-class mail, postage prepaid, to the

claimant or appellant, setting forth the

address to which the copy was mailed.

Factors considered in determining

whether expenses are excessive or

unreasonable include the complexity of

the case, the potential extent of benefits

recoverable, whether travel expenses are

in keeping with expenses normally

incurred by other representatives, etc.

Once there has been a ruling on the

motion, an order shall issue which will

constitute the final decision of the

Board with respect to the motion.

(e) In addition to whatever other

penalties may be prescribed by law or

regulation, failure to comply with the

requirements of this section may result

in proceedings under § 14.633 of this
64794 Federal Register / Vol. 62, No. 236 / Tuesday, December 9, 1997 / Proposed Rules

chapter to terminate the attorney’s or

agent’s right to practice before the

Department of Veterans Affairs and the

Board of Veterans’ Appeals.

[FR Doc. 97–32107 Filed 12–8–97; 8:45 am]

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[AZ059–0005; FRL–5933–4]

Approval and Promulgation of

Implementation Plans; Arizona State

Implementation Plan Revision,

Maricopa County Environmental

Services Department

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

Maricopa County’s Ordinance P–7,

Maricopa County Trip Reduction

Ordinance, as a revision to the Arizona

State Implementation Plan (SIP). EPA’s

final approval of this proposed rule will

incorporate it into the federally

approved SIP. EPA has evaluated the

rule and is proposing to approve it

under provisions of the CAA regarding

EPA action on SIP submittals, SIPs for

national primary and secondary ambient

air quality standards and plan

requirements for nonattainment areas.

DATES: Comments must be received on

or before January 8, 1998.

ADDRESSES: Comments may be mailed

to: Frances Wicher, Office of Air

Planning, (AIR–2), Air Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105–3901.

Copies of the ordinance and EPA’s

evaluation of the ordinance is available

for public inspection at EPA’s Region 9

office during normal business hours.

FOR FURTHER INFORMATION CONTACT:

Frances Wicher, Office Of Air Planning

(AIR–2), Air Division, U.S.

Environmental Protection Agency,

Region IX, 75 Hawthorne Street, San

Francisco, CA 94105–3901, (415) 744–

1248.

SUPPLEMENTARY INFORMATION:

I. Background

Maricopa County is designated

nonattainment and classified as a

serious area for ozone, carbon monoxide

(CO), and particulate matter. See 62 FR

60001 (November 6, 1997), 61 FR 39343

(July 29, 1996) and 60 FR 30046 (June

7, 1995). Emissions from motor vehicles

contribute substantially to exceedances

of the national ambient air quality

standards for all three pollutants in the

Maricopa area. Over the years the State

has adopted a comprehensive motor

vehicle emission control program

including a number of transportation

control measures to address this

problem.

In 1988, the Arizona legislature

adopted a trip reduction program for

Maricopa County (see 1988 Session,

Arizona House Bill (H.B.) 2206, section

23, codified at Arizona Revised Statutes

(A.R.S.) Title 49, Chapter 3, Article 8)

and directed Maricopa County to

implement the program.

The State submitted this program in

its 1988 Carbon Monoxide Plan for the

Maricopa County nonattainment area

and EPA approved the program as part

of its approval of that plan. 53 FR 30224

(August 10, 1988) and 40 CFR

52.120(c)(65)(i)(A)(l). In 1990, EPA’s

approval of the 1988 CO plan was

vacated by the Ninth Circuit Court of

Appeals in Delaney v. EPA, 898 F. 2d

687 (1990). EPA subsequently restored

its approval of the control measures in

that plan, including the trip reduction

program. 56 FR 3219 (January 29, 1991).

Since 1988, the legislature has revised

the trip reduction program several times

to tighten the trip reduction goals,

decrease the threshold size of employers

subject to the program from 100 to 50

employees, extend the program to

schools, and to otherwise revise the

program. In addition, the legislature

directed Maricopa County to ‘‘make and

enforce’’ an ordinance consistent with

A.R.S. 49–588 (Requirements for major

employers). A.R.S. 49–474.01(B) (1993

6th Special Session, H.B. 2001, section

24). On May 26, 1994, in compliance

with the statute, the County

subsequently adopted Maricopa County

Environmental Services Department

(MCESD), Ordinance No. P–7 Maricopa

County Trip Reduction Ordinance.

II. Maricopa County Trip Reduction

Ordinance

MCESD Ordinance No. P–7 was

submitted as a SIP revision by the

Arizona Department of Environmental

Quality to EPA on August 31, 1995. The

submittal became complete by operation

of law under CAA section 110(k)(1)(B)

on February 29, 1996.

The ordinance requires employers

with 50 or more employees or schools

with 50 or more employees or students

to, among other things, conduct and

submit annually an employee/student

commute survey (section 7(A));

disseminate information on alternative

modes and other trip reduction

measures (section 7(E)); develop and

submit a trip reduction plan designed to

meet target reductions in singleoccupant-vehicle (SOV) trips and

vehicle miles traveled (VMT) (section

7(C)); and implement the trip reduction

plan (section 7 (B) and (D)).

Failure to meet trip reduction goals

does not constitute a violation of the

ordinance if the employer or school is

attempting in good faith to meet the

goals (section 13(C)(2)); however, failure

to comply with other specific

requirements of the ordinance, such as

the failure to submit or to implement an

approved trip reduction plan, do

constitute violations of the ordinance

and are subject to penalties as provided

in A.R.S. 49–593(D).

The Maricopa County Trip Reduction

Program is staffed by the Maricopa

County Trip Reduction Program Staff

under MCESD. The 1996 annual report

on the program states that in 1996, 2,501

employment sites were processed, more

than 570,000 employees and students

were surveyed, and more than 1,500 trip

reduction plans were reviewed. The

report demonstrates that the program

has been effective in reducing both SOV

trips and VMT in the Maricopa area. See

Annual Report 1996, Maricopa County

Trip Reduction Program, MCESD.

III. Clean Air Act Requirements

In determining the approvability of a

rule, EPA must evaluate the rule for

consistency with the requirements of

the CAA and EPA regulations, as found

in section 110 and part D of the CAA

and 40 CFR part 51 (Requirements for

Preparation, Adoption, and Submittal of

Implementation Plans).

There are currently no Clean Air Act

requirements mandating trip reduction

programs (also known as employer

commute options or ECO programs).

The CAA Amendments of 1990 required

severe and above ozone nonattainment

areas and serious CO nonattainment

areas to adopt ECO programs (see

sections 182(d)(1)(B) and 187(b)(2),

respectively, of the Clean Air Act as

amended on November 15, 1990).

However, prior to the July 1996

reclassification of the Maricopa area

from a moderate to a serious CO

nonattainment area, Congress passed

legislation amending section

182(d)(1)(B) to make the adoption and

implementation of ECO programs

voluntary (Public Law 104–70, § 1, 109

Stat. 773, signed into law on December

23, 1995). Therefore, to be approvable,

the ordinance need only meet the

general SIP provisions of CAA section

110(a) (1) and (l) and EPA’s regulations

and policies implementing these

provisions.