Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Proposed Rules 88295 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 14 

RIN 2900–AR93 

Fee Reasonableness Reviews; Effect 

of Loss of Accreditation on Direct 

Payment 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) is issuing this proposed 

rule to address its process for reviewing, 

determining, and allocating reasonable 

fees for claim representation, and to 

address the effect on direct payment of 

the termination of an agent’s or 

attorney’s VA accreditation. 

DATES: Comments must be received on 

or before February 20, 2024. 

ADDRESSES: Comments must be 

submitted through www.regulations.gov. 

Except as provided below, comments 

received before the close of the 

comment period will be available at 

www.regulations.gov for public viewing, 

inspection, or copying, including any 

personally identifiable or confidential 

business information that is included in 

a comment. We post the comments 

received before the close of the 

comment period on the following 

website as soon as possible after they 

have been received: https://

www.regulations.gov. VA will not post 

on Regulations.gov public comments 

that make threats to individuals or 

institutions or suggest that the 

commenter will take actions to harm the 

individual. VA encourages individuals 

not to submit duplicative comments. We 

will post acceptable comments from 

multiple unique commenters even if the 

content is identical or nearly identical 

to other comments. Any public 

comment received after the comment 

period’s closing date is considered late 

and will not be considered in the final 

rulemaking. 

FOR FURTHER INFORMATION CONTACT: 

Jonathan Taylor, Office of General 

Counsel (022D), 810 Vermont Avenue 

NW, Washington, DC 20420, (202) 461– 

7699. (This is not a toll-free telephone 

number.) 

SUPPLEMENTARY INFORMATION: Congress 

has authorized VA to prescribe 

reasonable restrictions on the amount of 

fees that agents or attorneys may charge 

claimants for services on VA benefits 

claims. 38 U.S.C. 5904(a)(5). In addition, 

VA has the authority to review a fee 

agreement between an agent or attorney 

and a claimant and order a reduction in 

the fee if VA finds that fee is excessive 

or unreasonable. 38 U.S.C. 

5904(c)(3)(A). VA also has the discretion 

to directly pay the fee of an agent or 

attorney from a claimant’s past-due 

benefits if the claimant and the agent or 

attorney have entered into a fee 

agreement that requests direct payment 

and meets statutory and regulatory 

criteria, including the requirement that 

the fee not exceed 20 percent of the 

past-due benefits awarded to the 

claimant. 38 U.S.C. 5904(d). VA may 

issue all necessary or appropriate rules 

and regulations to carry out these 

authorities. 38 U.S.C. 501(a). 

Based on these authorities, VA’s 

Office of the General Counsel (OGC), 

which acts as the agency of original 

jurisdiction for reviewing fee 

agreements, currently performs a ‘‘fee 

reasonableness’’ review in two 

circumstances: (1) when the claimant or 

VA has questioned the reasonableness 

of the fee set forth in the agreement, and 

(2) when multiple agents or attorneys 

provided representation. OGC provides 

review in the latter circumstance in 

order to decide the amount to be 

directed to each agent or attorney for 

purposes of direct payment, since the 

‘‘total fee payable’’ in direct payment 

cases is limited to 20 percent of the 

past-due benefits awarded. Lippman v. 

Shinseki, 23 Vet. App. 243, 250 (2009) 

(citing Scates v. Principi, 282 F.3d 1362, 

1365–66 (Fed. Cir. 2002)). This review 

ensures that claimants are not forced to 

part with, for example, 60 percent of 

their past-due benefits just because they 

were represented by three different 

attorneys with 20-percent fee 

agreements over the course of a case. 

Congress intended to protect a 

claimant’s benefits from improper 

diminution by excessive legal fees, and 

Congress authorized VA to implement 

fair processes and reasonable 

restrictions in these circumstances. 38 

U.S.C. 5904(a)(5), (c)(3)(A); Scates, 282 

F.3d at 1366. 

Over the past decade, however, there 

has been a steady increase in cases 

involving multiple agents or attorneys, 

as well as requests for OGC review. For 

example, in fiscal year 2020, OGC 

received approximately 150 fee 

reasonableness requests or referrals; in 

fiscal year 2023, OGC received almost 

700. OGC has limited resources to issue 

determinations on reasonable fees in all 

those cases. This has led to increased 

inventory for all fee matters, which has 

delayed attorneys, agents, and claimants 

from promptly receiving their earned 

fees or benefits. To best ensure timely 

resolution of fee matters for all parties, 

VA believes it is appropriate to establish 

reasonable default allocation rules for 

fee matters and to focus OGC’s resources 

on those cases where a party has 

expressed an affirmative desire for an 

OGC determination based on the unique 

circumstances of the particular case. 

Moreover, there are many fee matters 

that can be worked out between the 

parties, without OGC involvement, and 

VA wishes to encourage such 

resolutions. Overall, these default rules 

will allow attorneys, agents, and 

claimants (as further explained below) 

to receive their fees and benefits faster. 

Under current practice, after issuing a 

decision awarding past-due benefits, if a 

direct-pay fee agreement has been filed, 

the agency of original jurisdiction 

(typically the Veterans Benefits 

Administration) issues a fee notice 

containing a determination on agent or 

attorney fee eligibility. 38 CFR 

14.636(c)(4). Under this proposed rule, 

the fee notice would provide one of two 

default fee allocations depending on the 

posture of the case. In cases where there 

is a ‘‘continuous agent or attorney’’—an 

agent or attorney who provided 

representation that continued through 

the date of the decision awarding 

benefits—who meets the requirements 

for fee eligibility and direct payment 

enumerated in other paragraphs of 

§ 14.636, the default would be allocation 

of the fee to that continuous agent or 

attorney. Otherwise, the default would 

be an equal split of the fee based on the 

number of agents or attorneys who meet 

the requirements for fee eligibility and 

direct payment plus the claimant. 

The fee notice would note that any 

party (i.e., the claimant or an agent or 

attorney who represented the claimant 

in the case) has the opportunity to 

request, within 60 days of the notice, 

OGC review of a reasonable fee 

allocation for the case. In other words, 

if any party is dissatisfied with the 

default fee allocation in a case, they 

would be free to request OGC review of 

reasonable fees in the case. Upon receipt 

of a timely request, OGC would initiate 

a review, provide an opportunity to 

respond, and issue a decision on the 

matter. Absent a timely request for OGC 

review (or a timely appeal to the Board 

of Veterans’ Appeals regarding an 

agent’s or attorney’s fee eligibility), 

however, the fee would be released in 

accord with the default allocation in the 

fee notice. 

As to the reason for proposing these 

specific default fee allocations, where a 

continuous agent or attorney meets the 

requirements for fee eligibility and 

direct payment, the default of allocating 

the fee to that agent or attorney is logical 

because that agent or attorney’s fee is 

presumed reasonable under 38 CFR 

14.636(f)(1). That agent or attorney— 

who was the representative of record 


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88296 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Proposed Rules 

when the benefits were actually 

secured—is in a different position than 

any agents or attorneys who were 

discharged or withdrew prior to the 

award of benefits (hereinafter referred to 

as ‘‘discharged agents or attorneys’’), 

whose entitlement to a fee is not 

governed by a presumption but instead 

premised on their contribution to and 

responsibility for the benefits awarded. 

38 CFR 14.636(f)(2); see Scates, 282 F.3d 

at 1366. Of course, if any discharged 

agent or attorney believes that he or she 

contributed meaningfully to the case, he 

or she can work out the matter with the 

continuous agent or attorney or (if that 

effort proves unsuccessful) request that 

OGC initiate a review of reasonable fees. 

See generally ABA Comm. On Ethics & 

Prof’l Responsibility, Formal Op. 487 

(2019) (addressing fee division with 

client’s prior counsel). Similarly, if the 

claimant believes the total fee to be 

unreasonable, he or she can work out 

the matter with the other parties or (if 

that effort proves unsuccessful) request 

an OGC determination on reasonable 

fees. 

Furthermore, where all agents or 

attorneys were discharged prior to the 

date of the decision awarding benefits, 

the default of a split of the fee is logical 

because the presumption of 38 CFR 

14.636(f)(1) does not apply to such 

agents and attorneys, and all agents or 

attorneys are generally in the same 

position vis-a`-vis the fee: they are only 

entitled to a fee based on quantum 

meruit, 38 CFR 14.636(f)(2); see Scates, 

282 F.3d at 1366. That default split 

should include the claimant because, 

historically, when OGC has reviewed 

fee reasonableness in cases where all 

agents or attorneys have been 

discharged, OGC has—more often than 

not—found it reasonable to bestow the 

agent(s) and/or attorney(s) less than the 

full potential fee (and to return the 

remainder to the claimant). For 

example, in fiscal year 2022, of the 126 

fee reasonableness decisions issued 

addressing the situation where all 

agents and attorneys had been 

discharged, OGC returned some of the 

potential fee to the claimant in 107 of 

those decisions (84%). Overall, $2.19 

million was at stake in these 126 cases, 

and OGC returned $1.31 million to 

claimants (60% of the amount at stake). 

Similar data has emerged through the 

first three quarters of fiscal year 2023. 

Of the 82 fee reasonableness decisions 

issued addressing the situation where 

all agents and attorneys had been 

discharged, OGC returned some of the 

potential fee to the claimant in 72 of 

those decisions (88%). Overall, $1.77 

million was at stake in these 82 cases, 

and OGC returned $1.22 million to 

claimants (68% of the amount at stake). 

This data reflects the practical reality 

that, when a claimant secures a 

favorable decision (sometimes months, 

often years) after agent or attorney 

discharge, it may be the claimant (or a 

Veterans Service Organization) that 

bears more responsibility for the 

benefits awarded, and the former agents 

or attorneys that bear less. It is 

reasonable for a default—which is 

merely a baseline that has no effect once 

a party requests OGC review—to reflect 

that reality, particularly given the 

general law on quantum meruit, which 

suggests that a default should be 

structured in a way that places the 

burden on discharged agents or 

attorneys to file with OGC if they 

believe their contributions warrant the 

full potential fee, not on the claimant to 

file with OGC if they believe otherwise. 

Young v. Alden Gardens of Waterford, 

LLC, 30 NE3d 631, 656 (Ill. App. Ct. 1st 

Dist. 2015); Gold, Weems, Buser, Sues & 

Rundell v. Granger, 947 So.2d 835, 842 

(La. App. 1 Cir. 2006); Bass v. Rose, 609 

SE2d 848, 853 (W. Va. 2004) (attorney 

bears burden of showing that fees 

sought are reasonable). Including the 

claimant in this default split also 

accounts for the possibility that the 

claimant may have entered into a nondirect pay agreement with other agents 

or attorneys and may be personally 

responsible for paying those other 

agents or attorneys. In any event, this 

type of split is just a default, aimed to 

provide a generally reasonable baseline 

in these cases; if any party believes the 

default split is not reasonable in a given 

case, they can work out another 

arrangement with the other parties on 

their own or (if that effort proves 

unsuccessful) request an OGC 

determination on reasonable fees. 

These changes would be incorporated 

into § 14.636(i), the current paragraph 

addressing OGC’s review of fee 

agreements. Proposed paragraph (i)(1) 

would address fee allocation notices 

and the default fee allocations therein. 

Proposed paragraph (i)(2) would address 

the release of allocated fees and finality 

at the expiration of the 60-day period for 

requesting OGC review. Proposed 

paragraph (i)(3) would address the 

process for requesting that OGC initiate 

a reasonableness review. Proposed 

paragraph (i)(4) would address the 

opportunity to submit argument and 

evidence during OGC’s review. 

Proposed paragraph (i)(5) would 

provide the standards for OGC’s 

decision. Proposed paragraph (i)(6) 

would note the right to appeal OGC’s 

decision to the Board of Veterans’ 

Appeals. 

To be clear, the default fee allocations 

of this proposed rule do not relieve 

attorneys or agents of their ethical 

obligation not to accept an unreasonable 

fee. See 84 FR 138, 151 (2019) 

(‘‘[P]ursuant to VA’s standards of 

conduct in 38 CFR 14.632, attorneys and 

agents are prohibited from charging, 

soliciting, or receiving fees that are 

clearly unreasonable, and, if an attorney 

or agent [ ] is found to have violated this 

standard of conduct, the attorney or 

agent would risk losing his or her 

accreditation to represent claimants 

before VA.’’); Model Rules of Prof’l 

Conduct r. 1.5(a) (Am. Bar Ass’n 2022). 

In other words, notwithstanding the 

default fee allocations of this proposed 

rule, it is a violation of VA’s standards 

of conduct for an attorney or agent to 

blindly pocket fees that were unearned. 

38 CFR 14.632(c)(5); cf. Scates, 282 F.3d 

at 1366 (reasonable fee for discharged 

agent or attorney is limited to a ‘‘fee that 

fairly and accurately reflects [the 

attorney or agent’s] contribution to and 

responsibility for the benefits 

awarded’’); 38 CFR 14.636(f)(2). Thus, 

upon receipt of a fee allocation notice, 

the agent or attorney has a professional 

responsibility to review the default fee 

and ensure that it is not clearly 

unreasonable; if it is, that agent or 

attorney has an ethical obligation to 

return that fee to the claimant. The 

failure to return the fee to the claimant 

in such circumstances could constitute 

a violation of VA’s standards of conduct 

warranting suspension or cancellation 

of the agent’s or attorney’s accreditation 

to represent claimants before VA. See 38 

CFR 14.633(c)(6). 

Related to that ethical issue, VA is 

proposing to update § 14.636(h) to 

address the effect on direct payment of 

the termination of an agent or attorney’s 

VA accreditation. Post-termination, VA 

has no internal enforcement mechanism 

against these individuals for violating 

VA’s standards of conduct, including 

the aforementioned standard that 

prohibits receipt of a fee that is clearly 

unreasonable; it would therefore 

complicate the ethical safeguards 

underpinning this proposed rule if 

agents or attorneys who have lost 

accreditation are included. Moreover, as 

a practical matter, it has been difficult 

to contact and directly pay agents or 

attorneys who have had their VA 

accreditation terminated, because they 

are no longer responsible for 

maintaining updated contact 

information with VA. 

VA has the discretion to decline 

direct payment in certain circumstances 

notwithstanding the submission of a 

direct-pay fee agreement. Ravin v. 

Wilkie, 956 F.3d 1346, 1350 (Fed. Cir. 


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2020); see 38 U.S.C. 5904(d)(3) 

(Secretary ‘‘may’’ directly pay a fee to an 

agent or attorney upon submission of a 

direct-pay fee agreement). For the above 

reasons, VA proposes to exercise its 

discretion and not directly pay agents 

and attorneys whose accreditation has 

been terminated. Instead, any potential 

fee for these former agents or attorneys 

would be released to the claimant, and 

the agent or attorney would be 

responsible for collecting that fee 

without assistance from VA. See 38 CFR 

14.636(g)(2). This limitation on direct 

payment would be placed in paragraph 

(h)(1)(iii). The language of current 

paragraph (h)(1)(iii) would be relocated 

to paragraph (h)(1)(iv). 

Lastly, VA is proposing additional, 

minor revisions to § 14.636. First, VA 

would remove § 14.636(c)(4), since the 

agency of original jurisdiction’s fee 

eligibility notice under that paragraph 

would now be termed a fee allocation 

notice under proposed § 14.636(i)(1). 

Second, VA would revise § 14.636(e) to 

use the term ‘‘agent or attorney’’ in lieu 

of ‘‘representative,’’ because only agents 

and attorneys (not all representatives) 

can charge a fee. Also in that paragraph, 

VA would reiterate that fees set forth in 

a fee agreement, charged, or received for 

services must be reasonable, consistent 

with VA’s standards of conduct 

discussed above, and note that fee 

reasonableness for one agent or attorney 

can be affected by the fee entitlement of 

another agent or attorney. Third, while 

filing fee agreements within 30 days of 

their execution would remain a 

regulatory requirement, § 14.636(g)(3) 

would explicitly note VA’s discretion to 

accept fee agreements filed thereafter 

upon a showing of sufficient cause. 

Fourth, VA would simplify § 14.636(k), 

since the ‘‘modernized review system’’ 

of the Veterans’ Appeals Improvement 

and Modernization Act, Public Law 

115–55 (2017), governs all decisions on 

new fee matters. Fifth, VA is proposing 

new or revised captions for paragraphs 

(e), (j), and (k) that more accurately 

convey the subject-matter of each 

paragraph. 

Executive Orders 12866, 13563, and 

14094 

Executive Orders (E.O.) 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). E.O. 

13563 (Improving Regulation and 

Regulatory Review) emphasizes the 

importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility. Executive Order 14094 

(Modernizing Regulatory Review) 

supplements and reaffirms the 

principles, structures, and definitions 

governing contemporary regulatory 

review established in Executive Orders 

12866 and 13563. The Office of 

Information and Regulatory Affairs has 

determined that this rulemaking is a 

significant regulatory action under E.O. 

12866, as amended by Executive Order 

14094. The Regulatory Impact Analysis 

associated with this rulemaking can be 

found as a supporting document at 

www.regulations.gov. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed rule would 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). The 

basis for this certification is the fact that 

the proposed rule would merely 

institute reasonable default rules for fee 

allocation and provide that agents and 

attorneys who have lost their VA 

accreditation collect any earned fees 

without VA assistance. These changes 

would not result in any loss of fees to 

which an agent or attorney is reasonably 

entitled, because, as noted above, any 

party dissatisfied with the default 

allocation in a given case can request 

OGC’s determination on reasonable fees 

in the case. Therefore, pursuant to 5 

U.S.C. 605(b), the initial and final 

regulatory flexibility analysis 

requirements of 5 U.S.C. 603 and 604 do 

not apply. 

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 proposed rule would 

have no such effect on State, local, and 

tribal governments, or on the private 

sector. 

Paperwork Reduction Act 

This proposed rule includes 

provisions associated with a collection 

of information under the Paperwork 

Reduction Act (44 U.S.C. 3501–3521) 

that require approval by the Office of 

Management and Budget (OMB). The 

collection of information was previously 

approved by OMB and assigned the 

control number of 2900–0605 but 

expired in March 2022. Accordingly, 

under 44 U.S.C. 3507(d), VA has 

submitted a copy of this rulemaking 

action to OMB for review and 

reinstatement with change. 

OMB assigns control numbers to 

collection of information it approves. 

VA may not conduct or sponsor, and a 

person is not required to respond to, a 

collection of information unless it 

displays a currently valid OMB control 

number. If OMB does not approve the 

collection of information as requested, 

VA will immediately remove the 

provisions containing the collection of 

information or take such other action as 

is directed by OMB. 

Comments on the collection of 

information associated with this 

rulemaking should be submitted 

through www.regulations.gov. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AR93, Fee Reasonableness Reviews; 

Effect of Loss of Accreditation on Direct 

Payment’’ and should be sent within 60 

days of publication of this rulemaking. 

The collection of information associated 

with this rulemaking can be viewed at: 

www.reginfo.gov/public/do/PRAMain. 

OMB is required to make a decision 

concerning the collection of information 

contained in this rulemaking between 

30 and 60 days after publication of this 

rulemaking in the Federal Register. 

Therefore, a comment to OMB is best 

assured of having its full effect if OMB 

receives it within 30 days of 

publication. This does not affect the 

deadline for the public to comment on 

the provisions of this rulemaking. 

The Department considers comments 

by the public on a collection of 

information in— 

• Evaluating whether the collection of 

information is necessary for the proper 

performance of the functions of the 

Department, including whether the 

information will have practical utility; 

• Evaluating the accuracy of the 

Department’s estimate of the burden of 

the collection of information, including 

the validity of the methodology and 

assumptions used; 

• Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

• Minimizing the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology, 

e.g., permitting electronic submission of 

responses. 

The collection of information 

associated with this rulemaking is 


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described immediately following this 

paragraph, under its respective title. 

Title: Application for Accreditation as 

a Claims Agent or Attorney, Filing of 

Representatives’ Fee Agreements and 

Motions for Review of Such Fee 

Agreements. 

OMB Control No: 2900–0605. 

CFR Provisions: 38 CFR 14.629, 

14.636. 

• Summary of collection of 

information: 

(1) Applicants seeking accreditation 

as claims agents or attorneys to 

represent benefits claimants before VA 

must file VA Form 21a with OGC. The 

information requested in VA Form 21a 

includes basic identifying information, 

as well as certain information 

concerning training and experience, 

military service, and employment. See 

38 U.S.C. 5901; 38 CFR 14.629(b). 

(2) If accredited agents and attorneys 

wish to maintain accreditation, they 

must file recertifications with OGC that 

they have completed Continuing Legal 

Education (CLE) requirements and are 

in good standing with other courts, bars, 

and Federal and State agencies. See 38 

U.S.C. 5904(a)(2)–(3); 38 CFR 14.629(b). 

(3) Accredited agents and attorneys 

must file with VA any agreement for the 

payment of fees charged for representing 

claimants before VA. 38 U.S.C. 

5904(c)(2); 38 CFR 14.636(g). 

(4) Claimants, accredited agents, or 

accredited attorneys may request an 

OGC determination on a reasonable fee 

allocation in a given case. If they do, 

OGC will solicit (optional) responses 

from the other parties in the case. 38 

U.S.C. 5904(c)(3); 38 CFR 14.636(i). 

• Description of need for information 

and proposed use of information: 

(1) The information in the VA Form 

21a is used by OGC to determine the 

applicant’s eligibility for accreditation 

as a claims agent or attorney. More 

specifically, it is used to evaluate 

qualifications, ensure against conflicts 

of interest, and to establish that 

statutory and regulatory eligibility 

requirements, e.g., good character and 

reputation, are met. 

(2) The information in recertifications 

is used by OGC to monitor whether 

accredited attorneys and agents 

continue to have appropriate character 

and reputation and whether they remain 

fit to prepare, present, and prosecute VA 

benefit claims. 

(3) The information in a fee agreement 

is used by the Veterans Benefits 

Administration (VBA) to associate the 

fee agreement with the claimant’s 

claims file, to potentially determine the 

attorney or agent’s fee eligibility, and to 

potentially process direct payment of a 

fee from the claimant’s past-due 

benefits. It is used by OGC to monitor 

whether the agreement is in compliance 

with laws governing paid 

representation, and to potentially 

review fee reasonableness. 

(4) The information in a request for 

OGC fee review, or a response to such 

request, is used by OGC to determine 

the agents’ or attorneys’ contribution to 

and responsibility for the ultimate 

outcome of the claimant’s claim, so that 

a determination on reasonable fees can 

be rendered. 

• Description of likely respondents: 

Claimants, Attorneys, Agents. 

• Estimated number of respondents: 

(1) For VA Form 21a applications, 

2,280. 

(2) For recertifications, 4,860. 

(3) For fee agreements, 27,250 (750 

first time filers and 26,500 repeat filers). 

(4) For requests for OGC fee review, 

305 (203 initial requests and 102 party 

responses). 

• Estimated frequency of responses: 

One time. 

• Estimated average burden per 

response: 

(1) For VA Form 21a applications, 45 

minutes. 

(2) For recertifications, 10 minutes. 

(3) For fee agreements, 11 minutes (1 

hour for first time filers and 10 minutes 

for repeat filers). 

(4) For requests for OGC fee review, 

2 hours (for both initial requests and 

party responses). 

• Estimated total annual reporting 

and recordkeeping burden: 

(1) For VA Form 21a applications, 

1,710 hours. 

(2) For recertifications, 810 hours. 

(3) For fee agreements, 5,167 hours 

(750 hours for first time filers and 4,417 

hours for repeat filers). 

(4) For requests for OGC fee review, 

610 hours (406 hours for initial requests 

and 204 hours for responses). 

• Estimated cost to respondents per 

year: 

(1) For VA Form 21a applications, 

$74,767. 

(2) For recertifications, $63,779. 

(3) For fee agreements, $406,850. 

(4) For requests for OGC fee review, 

$43,133. 

* To estimate the total information 

collection burden cost, VA used the 

Bureau of Labor Statistics (BLS) average 

hourly wage information available at 

https://www.bls.gov/oes/current/oes_

nat.htm. 

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. 

Signing Authority 

Denis McDonough, Secretary of 

Veterans Affairs, signed and approved 

this document on December 12, 2023, 

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. 

Luvenia Potts, 

Regulation Development Coordinator, Office 

of Regulation Policy & Management, Office 

of General Counsel, Department of Veterans 

Affairs. 

For the reasons stated in the 

preamble, the Department of Veterans 

Affairs proposes to amend 38 CFR part 

14 as set forth below: 

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. Removing paragraph (c)(4); 

■ b. Revising paragraphs (e), (g)(3), and 

(h)(1)(ii); 

■ c. Redesignating paragraph (h)(1)(iii) 

as paragraph (h)(1)(iv); 

■ d. Adding new paragraph (h)(1)(iii); 

and 

■ d. Revising paragraphs (i) through (k). 

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. 

* * * * * 

(e) Fee reasonableness factors. Fees 

set forth in a fee agreement, charged, or 

received for the services of an agent or 

attorney admitted to practice before VA 

must be reasonable. They may be based 

on a fixed fee, hourly rate, a percentage 

of benefits recovered, or a combination 

of such bases. Factors considered in 

determining whether fees are reasonable 

include: 

(1) The extent and type of services the 

agent or attorney performed; 

(2) The complexity of the case; 

(3) The level of skill and competence 

required of the agent or attorney in 

giving the services; 

(4) The amount of time the agent or 

attorney spent on the case; 


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Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Proposed Rules 88299 

(5) The results the agent or attorney 

achieved, including the amount of any 

benefits recovered; 

(6) The level of review to which the 

claim was taken and the level of the 

review at which the agent or attorney 

was retained; 

(7) Rates charged by other agents or 

attorneys for similar services; 

(8) Whether, and to what extent, the 

payment of fees is contingent upon the 

results achieved; 

(9) If applicable, the reasons why an 

agent or attorney was discharged or 

withdrew from representation before the 

date of the decision awarding benefits; 

and 

(10) If applicable, the fee entitlement 

of another agent or attorney in the case. 

* * * * * 

(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. VA 

may accept fee agreements that were not 

filed within 30 days of execution upon 

a showing of sufficient cause. 

(h) * * * 

(1) * * * 

(ii) The amount of the fee is 

contingent on whether or not the claim 

is resolved in a manner favorable to the 

claimant or appellant, 

(iii) The agent or attorney is 

accredited (see §§ 14.627(a) and 

14.629(b)) on the date of VA’s fee 

allocation notice (see paragraph (i) of 

this section), and 

(iv) The award of past-due benefits 

results in a cash payment to a claimant 

or an appellant from which the fee may 

be deducted. (An award of past-due 

benefits will not always result in a cash 

payment to a claimant or an appellant. 

For example, no cash payment will be 

made to military retirees unless there is 

a corresponding waiver of retirement 

pay. (See 38 U.S.C. 5304(a) and 38 CFR 

3.750)) 

* * * * * 

(i) Fee review. For purposes of this 

paragraph (i), ‘‘party’’ means the 

claimant or appellant or any agent or 

attorney who represented the claimant 

or appellant in the case; ‘‘eligible for 

direct payment’’ means eligible for 

direct payment of a fee under the 

requirements of paragraphs (c), (g), and 

(h) of this section; ‘‘continuous agent or 

attorney’’ means the agent or attorney 

who provided representation that 

continued through the date of the 

decision awarding benefits; and ‘‘timely 

filed’’ means within 60 days of the fee 

allocation notice. 

(1) When one or more direct-pay fee 

agreements has been filed in accordance 

with paragraph (g) of this section and a 

decision awards past-due benefits in a 

case, the agency of original jurisdiction 

that issued the decision shall issue to 

the parties a fee allocation notice. The 

fee allocation notice shall decide 

whether the agents or attorneys who 

filed direct-pay fee agreements in the 

case are eligible for direct payment, and 

shall provide one of two default fee 

allocations: 

(i) In cases where a continuous agent 

or attorney is eligible for direct 

payment, the default shall be allocation 

of the fee to the continuous agent or 

attorney. 

(ii) In cases where paragraph (i)(1)(i) 

of this section does not apply, the 

default shall be an equal split of the fee 

based on the number of agents or 

attorneys who are eligible for direct 

payment plus the claimant or appellant. 

(2) A party that disagrees with the 

default fee allocation in a given case 

may file a request for Office of the 

General Counsel fee review, as provided 

in paragraph (i)(3) of this section. A 

party that disagrees with a direct 

payment eligibility determination may 

only appeal to the Board of Veterans’ 

Appeals. Absent a timely filed request 

for Office of the General Counsel fee 

review or a timely filed appeal to the 

Board of Veterans’ Appeals, the default 

fee allocation described in paragraphs 

(i)(1)(i) and (ii) of this section is final 

and VA may release the fee. 

(3) A request for Office of the General 

Counsel fee review under this paragraph 

(i) must be filed electronically in 

accordance with the instructions on the 

Office of the General Counsel’s website, 

or at the following address: Office of the 

General Counsel (022D), 810 Vermont 

Avenue NW, Washington, DC 20420. 

The request must include the names of 

the veteran and all parties, the 

applicable VA file number, and the date 

of the decision awarding benefits. The 

request must set forth the requestor’s 

proposal as to reasonable fee allocation, 

and the reasons therefor, and must be 

accompanied by all argument and 

evidence the requestor desires to 

submit. 

(4) Upon the receipt of a timely filed 

request under paragraph (i)(3) of this 

section, or upon his or her own 

initiative, the Deputy Chief Counsel 

with subject-matter jurisdiction will 

initiate the Office of the General 

Counsel’s motion for a fee review by 

sending notice to the parties. Not later 

than 30 days from the date of the 

motion, any party may file a response, 

with all argument and evidence the 

party desires to submit, electronically in 

accordance with the instructions on the 

Office of the General Counsel’s website, 

or at the following address: Office of the 

General Counsel (022D), 810 Vermont 

Avenue NW, Washington, DC 20420. 

Such responses must be served on all 

other parties. The Deputy Chief Counsel 

with subject-matter jurisdiction may, for 

a reasonable period upon a showing of 

sufficient cause, extend the time for any 

party’s response. 

(5) The General Counsel or his or her 

designee shall render the Office of the 

General Counsel’s decision on the 

matter. The decision will be premised 

on the reasonableness factors of 

paragraph (e) of this section, the 

standards of paragraph (f) of this 

section, the limitation on direct 

payment of paragraph (h)(1)(i) of this 

section, the claims file, the parties’ 

submissions, and all relevant factors. 

The decision may address the issue of 

fee eligibility if no other agency of 

original jurisdiction has made a 

determination on that issue. 

(6) The Office of the General 

Counsel’s decision is a final 

adjudicative action that may only be 

appealed to the Board of Veterans’ 

Appeals. Unless a party files a Notice of 

Disagreement with the Office of the 

General Counsel’s decision, the parties 

must allocate any excess payment in 

accordance with the decision not later 

than the expiration of the time within 

which the Office of the General 

Counsel’s decision may be appealed to 

the Board of Veterans’ Appeals. 

(j) Failure to comply. 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 to terminate the agent’s or 

attorney’s accreditation to practice 

before VA. 


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88300 Federal Register / Vol. 88, No. 244 / Thursday, December 21, 2023 / Proposed Rules 

1 ‘‘Fact Sheet—2008 Final Revisions to the 

National Ambient Air Quality Standards for 

Ozone,’’ dated March 2008. 

(k) Appeals. Except as otherwise 

provided in this section, appeals shall 

be initiated and processed using the 

procedures in 38 CFR part 20 applicable 

to appeals under the modernized 

system. 

[FR Doc. 2023–28100 Filed 12–20–23; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2022–0955; FRL–10549– 

01–R9] 

Approval of Implementation Plans for 

Air Quality Planning Purposes; State of 

Nevada; Clark County Second 10-Year 

Maintenance Plan for the 1997 8-Hour 

Ozone Standard 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve, 

as a revision of the Nevada state 

implementation plan (SIP), the State’s 

second 10-year plan for maintaining the 

1997 8-hour ozone standard in Clark 

County (‘‘Clark County Second 

Maintenance Plan’’ or ‘‘Plan’’). The 

Clark County Second Maintenance Plan 

includes, among other elements, a base 

year emissions inventory, a 

maintenance demonstration, 

contingency provisions, and motor 

vehicle emissions budgets for use in 

transportation conformity 

determinations to ensure the continued 

maintenance of the 1997 National 

Ambient Air Quality Standards for 

ozone (‘‘1997 ozone NAAQS’’ or ‘‘1997 

8-hour ozone standard’’). With this 

proposed rulemaking, the EPA is 

initiating the adequacy process for the 

2017, 2023, and 2033 motor vehicle 

emissions budgets. The EPA is 

proposing these actions because the SIP 

revision meets the applicable statutory 

and regulatory requirements for such 

plans and motor vehicle emissions 

budgets. 

DATES: Comments must be received on 

or before January 22, 2024. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R09– 

OAR–2022–0955, at https://

www.regulations.gov. For comments 

submitted at Regulations.gov, follow the 

online instructions for submitting 

comments. Once submitted, comments 

cannot be edited or removed from 

Regulations.gov. The EPA may publish 

any comment received to its public 

docket. Do not submit electronically any 

information you consider to be 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). For 

additional submission methods, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

For the full EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets. If you need 

assistance in a language other than 

English or if you are a person with a 

disability who needs a reasonable 

accommodation at no cost to you, please 

contact the person identified in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Ledezma, EPA Region IX, 75 

Hawthorne St., San Francisco, CA 

94105. By phone: (415) 972–3985 or by 

email at Ledezma.Andrew@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us,’’ 

and ‘‘our’’ refer to the EPA. 

Table of Contents 

I. Summary of Proposed Action 

II. Background 

III. Second 10-Year Maintenance Plan 

Submittal and Procedural Requirements 

IV. Requirements for Second 10-Year 

Maintenance Plans 

V. Evaluation of the Clark County Second 

Maintenance Plan 

A. Monitoring Network Requirements 

B. Attainment Inventory 

C. Maintenance Demonstration 

D. Verification of Continued Attainment 

E. Contingency Provisions 

F. Motor Vehicle Emissions Budgets for 

Transportation Conformity 

VI. Environmental Justice Considerations 

VII. Proposed Action and Request for Public 

Comment 

VIII. Statutory and Executive Order Reviews 

I. Summary of Proposed Action 

Under Clean Air Act (CAA or ‘‘the 

Act’’) section 110(k)(3), the EPA is 

proposing to approve two submittals 

from the Nevada Division of 

Environmental Protection (NDEP) as a 

revision to the Nevada SIP: the Clark 

County Second Maintenance Plan dated 

December 21, 2021, and a supplement to 

the Clark County Second Maintenance 

Plan (‘‘Contingency Measure Revision’’) 

dated August 16, 2023. In this action, 

we refer to the Clark County Second 

Maintenance Plan and the Contingency 

Measure Revision collectively as the 

‘‘Clark County Second Maintenance 

Plan submittal.’’ 

The EPA is proposing to find that the 

maintenance demonstration, showing 

how the area will continue to attain the 

1997 8-hour ozone NAAQS for 10 

additional years beyond the approval 

the State’s first 10-year plan for 

maintaining the 1997 8-hour ozone 

standard in Clark County (‘‘Clark 

County First Maintenance Plan’’ or 

‘‘first maintenance plan’’) (i.e., through 

2033), and the contingency provisions, 

describing the actions that Clark County 

will take in the event of a future 

monitored violation, meet all applicable 

requirements for maintenance plans and 

related contingency provisions in CAA 

section 175A. The EPA is also proposing 

to approve the motor vehicle emissions 

budgets (MVEBs or ‘‘budgets’’) in the 

Clark County Second Maintenance Plan 

because we find they meet the 

applicable transportation conformity 

requirements under 40 CFR 93.118(e). 

II. Background 

Sections 108 and 109 of the CAA 

govern the establishment, review, and 

revision, as appropriate, of the NAAQS 

to protect public health and welfare. 

The CAA requires the EPA to 

periodically review the air quality 

criteria, the science upon which the 

standards are based, and the standards 

themselves. Ground-level ozone is one 

of the criteria pollutants regulated under 

the NAAQS. 

Ground-level ozone is generally not 

emitted directly by sources. Rather, 

directly emitted oxides of nitrogen 

(NOX) and volatile organic compounds 

(VOC) react in the presence of sunlight 

to form ground-level ozone, as a 

secondary pollutant, along with other 

secondary compounds. NOX and VOC 

are ‘‘ozone precursors.’’ Reduction of 

peak ground-level ozone concentrations 

is typically achieved through 

controlling VOC and NOX emissions. 

Scientific evidence indicates that 

adverse public health effects occur 

following exposure to ozone, 

particularly in children and adults with 

lung disease. Breathing air containing 

ozone can reduce lung function and 

inflame airways, which can increase 

respiratory symptoms and aggravate 

asthma or other lung diseases.1


khammond on DSKJM1Z7X2PROD with PROPOSALS