[Federal Register Volume 89, Number 216 (Thursday, November 7, 2024)]
[Proposed Rules]
[Pages 88192-88215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23840]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 14 and 36

RIN 2900-AS05


Legal Services, General Counsel, and Miscellaneous Claims

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations governing Legal Services, the Office of General Counsel, 
and Miscellaneous Claims to reflect nomenclature changes regarding 
employees and groups within the Office of General Counsel as well as to 
make other changes intended to further clarify and explain various 
functions and procedures within the Office of General Counsel.

DATES: Comments must be received on or before January 6, 2025.

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 
www.regulations.gov as soon as possible after they have been received. 
VA will not post on www.regulations.gov public comments that make 
threats to individuals or institutions or suggest that the commenter 
will take actions to harm an individual. VA encourages individuals not 
to submit duplicative comments; however, we will post 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. In accordance with the Providing 
Accountability Through Transparency Act of 2023, a 100 word Plain-
Language Summary of this proposed rule is available at Regulations.gov, 
under RIN 2900-AS05.

FOR FURTHER INFORMATION CONTACT: Michael Gibbs, Executive Director, 
Management, Planning and Analysis, Office of General Counsel (026), 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420, (202) 461-4995. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: Title 38 of the Code of Federal Regulations, 
chapter I, part 14, governs Legal Services, General Counsel, and 
Miscellaneous Claims. Executive Order 13563 requires agencies to carry 
out retrospective analyses of rules that ``may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them in accordance with what has been 
learned.'' Exec. Order No. 13563, section 6, 76 FR 3821, 3822 (Jan. 21, 
2011). After a review of 38 CFR part 14, VA's Office of General Counsel 
(OGC) is proposing revisions to reflect nomenclature changes to the 
names of certain Office of General Counsel offices and the employees in 
those offices. The proposed revisions would also make changes in 
certain policies, procedures, and authorities. In the amendatory text

[[Page 88193]]

of this proposed rule, OGC is removing 38 CFR 14.503 through 14.504 and 
revising 38 CFR 14.500 through 14.502, 14.505 through 507, 14.514 
through 14.518, 14.560 through 14.561, 14.600 through 14.605, 14.615 
through 14.619, 14.664 through 14.669, and 14.800 through 14.810, when 
necessary to (1) decrease the likelihood of introducing errors, (2) 
improve efficiency during the publication process, and (3) meet Office 
of the Federal Register drafting and formatting requirements for 
publication. The substantive individual changes to the affected CFR 
units are detailed elsewhere in this preamble.
    As a result of a reorganization, the Office of General Counsel 
changed its organizational structure from regions to districts, and 
further changed the names of the leadership in those districts from 
Regional Counsel to Chief Counsel or District Chief Counsel. To reflect 
those changes, the following sections are proposed to be amended to 
reflect the change in position titles from ``Regional Counsel'' to 
``Chief Counsel:'' Sec. Sec.  14.500(e), 14.501's title and paragraphs 
(a) and (c) through (e), 14.514(a), (b), and (e), and 14.516. The 
Regulation's Table of Contents is also proposed to be amended to 
reflect the new ``Chief Counsel'' language in Sec.  14.501.
    Multiple sections are proposed to be amended to reflect a 
nomenclature change from ``Regional Counsel'' to ``District Chief 
Counsel.'' The sections proposed to be amended to reflect the new 
language of ``District Chief Counsel'' are Sec. Sec.  14.517, 14.518(a) 
and (b)(1) through (4), 14.560, 14.561, 14.605(b), 14.709(a) through 
(c), and 14.807(b). Additional sections are proposed to be amended to 
reflect a nomenclature change from ``his or her'' to ``their'' in 
Sec. Sec.  14.500(a), 14.514(b) and (c), 14.518(a), 14.600(a), (c) and 
(d), 14.605(b) through (e), 14.615(b) and (c), 14.618(a), 14.619(a), 
14.560, 14.665(a), 14.667(a), 14.807(a), and 14.810(f). Proposed 
amendments are included in Sec. Sec.  14.605(a), 14.665(a), and 
14.807(a) to change ``he or she'' to ``they.''
    Multiple sections in part 14 are proposed to be amended with 
various other nomenclature changes as well as changes intended to 
clarify the meaning of the regulations. The language in Sec.  14.500, 
``Functions and responsibilities of General Counsel'' and specifically 
paragraph (e) is proposed to be amended to remove ``field'' from the 
phrase ``system of field offices'' and substitute the word 
``organizations'' for the phrase ``field installations.'' This 
amendment is proposed as the current language in the regulation is 
outdated and is no longer used to describe the Agency's various 
offices, locations, and organizations. In Sec.  14.500(e), the last 
phrase is proposed to be changed from ``the Regional Counsel'' to ``a 
Chief Counsel'' for consistency in reference to the updated title for 
these positions and to reflect that these matters may be reported to 
different Chief Counsels, depending on the type of case. Finally, in 
paragraph (f), the word ``as'' is proposed to be inserted in the 
existing phrase so that it now states: ``Other matters as assigned.''
    Additional amendments are proposed in Sec.  14.501 which is 
proposed to be renamed to ``Functions and Responsibilities of Chief 
Counsels'' to reflect the new position titles of employees formerly 
referred to as Regional Counsels. Specifically, paragraph (b) is 
proposed to be amended to include the phrase ``Deputy Chief Counsels'' 
before the phrase ``and designated staff attorneys'' to provide a more 
comprehensive list of the Office of General Counsel employees who are 
authorized to perform the tasks listed in this paragraph. Paragraph (c) 
includes an additional proposed amendment to replace the phrase 
``installations within the district assigned'' with the phrase 
``organizations within their geographic area of responsibility and/or 
legal practice area of responsibility.'' This amendment is proposed as 
the term ``installations'' is outdated and is no longer used to 
describe the Office of General Counsel's areas of responsibility. 
Additional changes are proposed in paragraph (b) to correct the 
spelling of ``affidavits'' and in paragraph (c) to change the word 
``authority'' to ``authorized'' for readability.
    The language in Sec.  14.501(e) is proposed to be amended to remove 
the sentence ``Where it is impractical for the Regional Counsel to 
perform the legal service because of cost, distance, etc., the 
customary fee for the service rendered by a local attorney employed by 
the Regional Counsel will be borne by the administration requesting 
such action.'' This sentence is proposed to be removed as the process 
described does not have a corresponding statutory authority.
    Additional amendments are proposed in paragraph (f), including the 
removal of the phrase ``addresses of Regional Counsels are as follows'' 
and the removal of the list of regions within the Office of General 
Counsel, the Regional Counsel's physical addresses, and the states over 
which those Regional Counsel offices had jurisdiction. This information 
is proposed to be replaced with the following statement: ``locations 
and jurisdictions of the District Chief Counsels can be found here: 
https://www.va.gov/OGC/DistrictOffices.asp.'' This web page link and 
the new language in Sec.  14.501(f) are proposed to reflect the updated 
office names, jurisdictions, and locations of the District Chief 
Counsels.
    The language in Sec.  14.502, ``Requests for legal opinions from 
Central Office'' describes the Department officials who may make a 
request for formal legal advice from the Office of General Counsel. 
This rulemaking proposes to update this section to reflect grammatical 
and nomenclature changes. Specifically, the phrase ``requests for'' is 
proposed to be replaced with ``A request for'' at the beginning of the 
paragraph for readability. To reflect updated titles for individuals 
who hold various leadership positions in the Department, the following 
nomenclature changes have been proposed: the phrase ``an Under 
Secretary'' will be inserted after ``Deputy Secretary'' and the phrases 
``Assistant Secretaries'' and ``Deputy Assistant Secretaries'' will be 
updated to ``an Assistant Secretary'' and ``a Deputy Assistant 
Secretary.'' The phrase ``administration head or top staff office'' is 
proposed to be removed as the individuals described with that language 
are now referred to more specifically. Finally, the word ``and'' will 
be replaced with the word ``or'' after the phrase ``Deputy Assistant 
Secretary'' to indicate that any one of the individuals listed may 
submit a request for formal legal advice from the Office of General 
Counsel.
    The Office of General Counsel proposes to remove certain 
regulations in their entirety as they contain outdated procedures, do 
not reflect current Office of General Counsel operations, and describe 
communications between offices and teams within the Office of General 
Counsel that do not require reference in Federal regulations. 
Specifically, this rulemaking proposes to remove Sec.  14.503, 
``Requests for legal advice and assistance in other than domestic 
relations matters'' and Sec.  14.504, ``Domestic relations questions, 
authority and exceptions'' in their entirety for these reasons. 
Reference to these regulations is also proposed to be removed from the 
Table of Contents in part 14.
    Further amendments are proposed to Sec.  14.505, ``Submissions'' 
which describes how certain Department officials can request formal 
legal advice from the Office of General Counsel. Specifically, it is 
proposed that the language in this section be amended to clarify that 
it refers to requests for legal opinions pursuant to Sec.  14.502. For 
clarity and coherence in the paragraph's

[[Page 88194]]

first sentence, it is proposed that the phrase ``on which the opinion 
is desired'' be replaced with ``underlying the opinion requested.'' In 
the paragraph's second sentence, the rulemaking proposes to replace the 
phrase ``original papers will not be submitted unless pertinent 
portions thereof cannot practicably be summarized or copies made and 
attached as exhibits'' with the phrase ``relevant documents should be 
attached as exhibits to the submission.'' This proposed replacement is 
intended to further clarify and simplify these instructions and to 
remove the outdated term of ``original papers.''
    The language and structure in Sec.  14.507, ``Opinions'' is 
proposed to be revised to clarify that it relates only to those things 
that the General Counsel has designated as precedent, conclusive, or 
advisory opinions and does not apply to most of the guidance written by 
the General Counsel or the Office of General Counsel. The section is 
proposed to be further amended to clearly delineate and describe the 
three categories of opinions.
    The newly proposed paragraph (a) in Sec.  14.507 would provide a 
general overview and introduction of the three types of legal opinions 
described in this section that may be requested under Sec.  14.502 or 
issued when determined necessary or appropriate. Under this rulemaking, 
all of the existing language in paragraph (a) is proposed to be removed 
or moved to paragraph (b) and the newly proposed paragraph (f).
    The proposed changes to paragraph (b) in Sec.  14.507 include 
inserting the title ``Precedent Opinions'' to clarify the subject of 
this paragraph and inserting the word ``Principal'' before the phrase 
``Deputy General Counsel acting as or for the General Counsel'' to 
reflect that the Principal Deputy General Counsel is the individual who 
may be acting as or for the General Counsel. Proposed revisions to the 
second sentence in (b) include the addition of the phrase ``The 
designated holdings in written legal opinions'' at the beginning of the 
sentence to clarify that OGC will affirmatively designate certain 
holdings or conclusions as precedent opinions in a written legal 
opinion. Paragraph (b) includes a proposed revision to add the phrase 
``The holdings in an opinion designated as a precedent opinion are 
binding'' at the beginning of the third sentence to further clarify 
that only holdings in an opinion that has been affirmatively designated 
as a ``precedent opinion'' are the subject of this section. The third 
sentence includes another proposed addition where the phrase ``or the 
opinion has been withdrawn'' has been added at the end of the sentence. 
This proposed language is intended to further clarify that the 
withdrawal of an opinion which has been designated as a precedent 
opinion is another action which will reverse the status of the opinion 
such that the holdings in that opinion are no longer binding on 
Department officials and employees in subsequent matters involving a 
legal issue decided in that opinion. Finally, the third sentence 
includes two proposed revisions for grammatical reasons and 
specifically, the replacement of ``is'' with the word ``are'' and 
removal of the word ``or'' before the phrase ``the opinion has been 
overruled.''
    This rulemaking proposes to re-write paragraph (c) in its entirety 
to provide additional information and explanation for the category of 
opinions designated as ``conclusive opinions'' which is mentioned in 
paragraph (a) but not fully described in the existing regulation. To 
provide additional description and guidance on ``conclusive opinions,'' 
the current language in paragraph (c) is proposed to be removed as it 
is outdated and references procedures for legal opinions that are no 
longer followed. The existing text in paragraph (c) is proposed to be 
replaced with the following language: ``Conclusive opinions. The 
designated holdings in written legal opinions designated as conclusive 
opinions under this section shall be considered by the Department of 
Veterans Affairs to be subject to the provisions of 5 U.S.C. 552(a)(2). 
The holdings in an opinion designated as a conclusive opinion are 
binding as to all Department officials and employees with respect to 
the particular matter at issue, unless there has been a material change 
in controlling statute or regulation; the opinion has been overruled or 
modified by a subsequent precedent opinion, applicable conclusive 
opinion, or judicial decision; or the opinion has been withdrawn.'' 
This proposed language is intended to describe conclusive opinions and 
clearly delineate this type of opinion from the others listed in the 
section.
    The Office of General Counsel proposes to include a new paragraph 
in paragraph (d) to describe ``advisory opinions'' which are mentioned 
in the current version of the regulation in paragraph (a) but were not 
specifically defined. The new proposed language in paragraph (d) 
describes advisory opinions as opinions that are not binding but are 
issued to provide legal guidance or recommendations to Department 
officials.
    Two additional paragraphs are proposed to be added to Sec.  14.507 
to provide further guidance on the scope of this section and to include 
language from the existing paragraph (a) which describes where 
conclusive opinions are maintained. A proposed new paragraph (e) would 
include language to clarify that this regulation applies to the 
specific types of legal opinions issued by the General Counsel or 
designee as described in paragraphs (a) through (d) and acknowledges 
that employees in the Office of General Counsel provide other types of 
informal legal opinions or legal guidance in accordance with existing 
policies and practice.
    Finally, a proposed new paragraph (f) would describe where opinions 
from this regulation are maintained. Except for the newly proposed 
phrase ``described in paragraphs (a) through (d),'' the language in the 
proposed paragraph (e) is included in the current version of the 
regulation in paragraph (a). The Office of General Counsel proposes to 
move this language to paragraph (e) to clarify that it applies to all 
opinions described in this section. For grammatical and consistency 
reasons, it is proposed that the word ``the'' be inserted before the 
phrase ``Department of Veterans Affairs'' in multiple locations 
throughout the section.

Litigation (Other Than Under the Federal Tort Claims Act); 
Indemnification

    The Office of General Counsel proposes to amend Sec.  14.514, 
``Suits by or against United States or Department of Veterans Affairs 
officials; indemnification of Department of Veterans Affairs 
employees'' with additional nomenclature changes. This section outlines 
the procedures to be followed when lawsuits are filed against the 
Department, the Secretary, and individual Department employees. In 
paragraphs (a) and (b), the word ``petition'' is proposed to be 
replaced with ``complaint'' to correct outdated language. In paragraph 
(b), the phrase ``(or equivalent position)'' is proposed to be included 
in the second sentence after ``facility Director'' to clarify that the 
official who completes an affidavit regarding an employee's scope of 
employment may hold a position other than facility Director. The phrase 
``two copies of'' is proposed to be removed from the last sentence as 
it refers to an outdated process for transmitting paper copies. In 
paragraph (c)(4), the word ``advice'' is proposed to replace the word 
``view'' in the third sentence such that it now reads: ``Where the 
Department of Veterans Affairs determines it appropriate, the Agency 
shall seek the advice of the Department

[[Page 88195]]

of Justice.'' Additional proposed changes to paragraph (e) include 
revisions to the second sentence where the phrase ``two copies of such 
report'' is proposed to be replaced with ``will forward a copy of such 
report . . .'' This proposed change is intended to reflect that the 
language of ``two copies'' is outdated as most communications and 
reports are sent electronically within VA. Paragraph (e) is further 
revised to change the last sentence to reflect OGC's current 
organizational structure and direct Chief Counsels to send a copy of 
the report to their Deputy General Counsel, rather than directly to the 
General Counsel.
    The language in Sec.  14.515, ``Suits involving loan guaranty 
matters'' is proposed to be revised in its entirety to reflect the 
language in 38 U.S.C. 3730(a). Under 38 U.S.C. 3730(a), Congress 
authorized VA to use the services of both VA and non-VA attorneys to 
protect VA's interests in home loans arising from or related to VA's 
home loan benefit programs. The authority is subject to the direction 
and supervision of the United States Attorney General and to such terms 
and conditions as the United States Attorney General may prescribe, and 
nothing in section 3730 derogates from the authority of the Attorney 
General under sections 516 and 519 of title 28 to direct and supervise 
all litigation to which the United States or an agency or officer of 
the United States is a party. 38 U.S.C. 3730(a), (b).
    Proposed Sec.  14.515(a) would essentially restate the statute. It 
would provide that attorneys employed by the Office of General Counsel 
may exercise the right of the United States to bring suit in any court 
of competent jurisdiction for the limited purposes authorized under 38 
U.S.C. 3730. The first limited purpose would be to foreclose a loan 
made or acquired by the Secretary under any home loan program 
administered by the Veterans Benefits Administration. The second would 
be to recover possession of any property conveyed to the Secretary 
after the foreclosure of a home loan previously described.
    Proposed Sec.  14.515(b) and (c) would clarify the scope of the 
section. Paragraph (b) would provide that to carry out the activities 
described in Sec.  14.515(a), the Office of General Counsel may 
acquire, or oversee the acquisition and performance of, legal services 
provided by attorneys other than those who are employees of the 
Department of Veterans Affairs. Paragraph (c) would provide that the 
authority to bring suit also means representation in bankruptcy 
proceedings, as well as other activities necessary to preserve the 
Secretary's interest in a loan guaranteed, insured, or made under 38 
U.S.C. chapter 37, or in a property acquired under such chapter. The 
clarifications would codify, without change, the longstanding policies 
and procedures VA implemented in coordination with, and subject to the 
supervision of, the Department of Justice.
    Proposed Sec.  14.515(d) would restate the element of the statute 
requiring that the activities described in Sec.  14.515 are subject to 
the direction and supervision of the United States Attorney General and 
to such terms and conditions as the United States Attorney General may 
prescribe. Proposed Sec.  14.515(e) would provide that in any legal or 
equitable proceeding to which the Secretary is a party (including 
probate and bankruptcy proceedings) related to any home loan program 
administered by the Veterans Benefits Administration, original process 
and any other process prior to appearance that may be served on the 
Secretary must be delivered to the Office of General Counsel, 810 
Vermont Ave. NW (02), Washington, DC 20420. Additionally, proposed 
Sec.  14.515(e) would provide that copies of such process must also be 
served on the United States Attorney General and the United States 
Attorney having jurisdiction over that area, and that failure to comply 
with the requirements of proposed Sec.  14.515(e) renders the service 
improper. The proposed change is necessary to reflect the Office of 
General Counsel's restructure, help the public understand whom to 
contact with questions about service of process related to the home 
loan programs, and further ensure timely responses to service of 
process. Because proposed Sec.  14.515(e) would render 38 CFR 36.4321 
obsolete, VA proposes to remove Sec.  36.4321.
    The language in Sec.  14.516 ``Escheat and post fund cases'' 
includes minimal proposed edits. This section describes procedures to 
be followed when the Department receives assets or property under 
escheat, gift, or General Post Fund authorities. This section's 
proposed amendments include the addition of the phrase ``where the 
assets or property are not surrendered upon entitlement'' after the 
citation ``38 U.S.C. Ch. 85'' to further clarify when the Department of 
Veterans Affairs is entitled to possession of assets or property under 
the listed escheat, gifts, and General Post Fund provisions. 
Additionally, another amendment proposed throughout the section is to 
include the phrase ``or entity'' after ``person'' to clarify that the 
assets or property described in this section may be in possession of an 
entity and not a singular person in every case.
    The language in Sec.  14.517 ``Cases affecting the Department of 
Veterans Affairs generally'' is proposed to be amended to add the 
phrase ``and related State and Federal agencies'' to expand the 
entities with which the Office of General Counsel will liaise to ensure 
the Agency is notified of all cases involving the Department of 
Veterans Affairs. Additional proposed amendments include replacement of 
the word ``insure'' with ``ensure'' to correct a typographical error in 
the existing regulation and replacement of the phrase ``Such 
information'' with ``Cases affecting substantial interest of the 
Department of Veterans Affairs.'' This proposed amendment is intended 
to specify the types of cases that will be forwarded to the General 
Counsel.
    The Office of General Counsel proposes to amend Sec.  14.518 
``Litigation involving beneficiaries in custody of Department of 
Veterans Affairs employees acting in official capacity'' to reflect 
nomenclature changes. In paragraph (a), the phrase ``field facility'' 
is proposed to be replaced with ``Department of Veterans Affairs 
medical facility'' and in paragraphs (b)(1) and (3), the word 
``hospital'' is proposed to be replaced with ``medical facility.'' In 
paragraph (b)(4), the Office of General Counsel proposes to replace the 
words ``installations'' and ``installation'' with the words 
``facilities'' and ``facility'' respectively. These terminology changes 
are proposed to reflect the updated and most commonly used terms for 
medical facilities within the Department.
    Paragraph (b) in Sec.  14.518 describes procedures for when 
Department employees are served with a writ of habeas corpus involving 
a VA beneficiary. Explanatory language is proposed to be added to 
paragraph (b)(3) for clarity and comprehensiveness. The term ``or other 
representative'' is proposed to be included after the phrase 
``Veteran's attorney'' to explain that the medical facility can notify 
representatives other than attorneys when a Veteran is to be 
discharged. The addition of the phrase ``subject to existence of an 
appropriate release authority'' is proposed at the end of the second 
sentence to ensure that authority to release the patient has been 
received prior to discharge in the context of involuntary confinement 
of a mentally ill patient. Additional proposed amendments include the 
addition of hyphens to the word ``self-protection'' in paragraph (a) 
and to the word ``self-

[[Page 88196]]

injury'' in paragraph (b)(3) for grammatical reasons.

Prosecution

    The title of 38 CFR 14.560 is proposed to be updated to reflect the 
plural of the word ``crimes'' so that it matches the name of the 
statute it is referencing. Specifically, the proposed new title will 
now read ``Procedure where violation of penal statutes is involved 
including those offenses coming within the purview of the Assimilative 
Crimes Act (18 U.S.C. 13).'' This section includes additional proposed 
nomenclature changes, including to correct the spelling of the word 
``warrant'' and, in the third sentence, to substitute ``the Chief 
Counsel'' for ``he or she.''
    The language in Sec.  14.561 ``Administrative action prior to 
submission'' is proposed to be amended to reflect updated citations. 
Specifically, the parenthetical citation in Sec.  14.561 is proposed to 
be replaced with ``38 U.S.C. 6103'' to reflect the correct current 
citation.

Federal Tort Claims

    The Office of General Counsel proposes multiple amendments 
throughout the ``Federal Tort Claims'' section of the regulations. 
Proposed amendments to Sec.  14.600 are intended to remove outdated 
citations and language. This regulation provides an overview of the 
Federal Tort Claims Act and describes various delegations of authority 
for the settlement of any claim and the authority to reconsider the 
final denial of a claim. One proposed edit to Sec.  14.600 is to update 
the title of the regulation from ``Federal Tort Claims Act--general'' 
to ``Federal Tort Claims Act generally.'' An additional proposed 
amendment in paragraph (a) is the revision of the first sentence to 
remove reference to 28 U.S.C. 2402, 2411 and 2412 as these citations 
are not helpful. Specifically, the first sentence is now proposed to 
state: ``The Federal Tort Claims Act (28 U.S.C. 1291, 1346, 1402, 
2401(b)), and 2671 through 2680).'' In paragraph (c), the phrase ``and 
other necessary instruments in connection therewith'' is proposed to be 
removed as it is outdated and vague language. The phrase ``or 
stipulation for settlement'' is proposed to replace the removed 
language to provide more explanation regarding the authority for 
settlement that is delegated to the individuals listed in this 
paragraph. In paragraph (c)(3), the phrase ``General Counsel, Deputy 
General Counsel, and Chief Counsel, Torts Law Group'' is proposed to be 
replaced with ``Deputy Chief Counsels, Torts Law Group'' to clarify 
that Torts Law Group's Deputy Chief Counsels are authorized to act 
regarding claims, subject to the parameters described in paragraphs 
(c)(3)(i) through (iii). Additionally, the phrase ``but not more than 
$500,000'' is proposed to be removed from paragraph (c)(3)(i) as it is 
redundant to the language in paragraph (c)(3) which describes the 
approval required for awards, settlements, and compromises in excess of 
$500,000.
    The Office of General Counsel proposes significant amendments to 
Sec.  14.601 ``Investigation and development,'' a section which 
describes the processes for the submission, investigation, and 
processing of tort claims. The proposed amendments include new language 
to provide clearer descriptions regarding the processing of tort claims 
and the removal of language that exists in other regulations, is no 
longer applicable, or is outdated. First, the title of paragraph (a) is 
proposed to be changed to replace the phrase ``untoward incidents'' 
with the phrase ``general tort claims'' to reflect the updated language 
that is used by the Office of General Counsel to describe this category 
of tort claims.
    In paragraph (a)(1), the phrase ``Department of Veterans Affairs'' 
is proposed to be inserted before phrase ``Government-owned vehicle'' 
in the first sentence to specify that the procedures in this section 
relate to government-owned vehicles used by the Department. In the 
second sentence of paragraph (a)(1), additional nomenclature changes 
are proposed, including the replacement of the word ``said'' with the 
word ``the'' so that the beginning of the sentence now reads ``A copy 
of the report.'' This sentence is proposed to be amended to clarify 
that the SF 91 and VA Form 2162 should initially be sent to the 
Director of the facility involved in the motor vehicle accident.
    Additional amendments are proposed for paragraph (a)(2) in Sec.  
14.601 and specifically, the existing paragraphs (a)(2)(i) and (ii) are 
proposed to be combined and streamlined to comprise a new single 
paragraph in (a)(2) which outlines procedures for all property damage 
or loss, including that which relates to patients' personal effects. 
Proposed amendments to the first sentence in the newly combined 
paragraph (a)(2) include the insertion of the phrase ``non-medical 
malpractice'' before the term ``incident'' and replacement of the 
phrase ``other than'' with ``including'' prior to the phrase ``personal 
effects of the patient'' in the new paragraph (a)(2). The phrase ``to 
the facility Director or designee'' is added to the end of the first 
sentence to clarify where incidents described in this paragraph should 
be reported. Nomenclature changes are also proposed to reduce 
extraneous language, including replacement of the phrase ``due 
apparently or allegedly to the'' with the phrase ``due to alleged'' and 
replacement of the phrase ``an employee of the Department of Veterans 
Affairs acting within the scope of his or her office of employment, or 
damage to or loss of Government-owned property caused by other than a 
Department of Veterans Affairs employee acting within the scope of his 
or her office '' with ``a VA employee acting within the scope of their 
employment will be immediately reported to the facility Director or 
designee''
    The newly edited paragraph (a)(2) also includes a proposed new 
sentence which states: ``If a claim is filed seeking damages of $5,000 
or less, it will be adjudicated by the facility.'' This sentence is 
proposed to be included to reflect the same information provided in 
Sec.  14.600(c)(1) which was amended via rulemaking on October 20, 
2022. To further clarify the parameters of the $5,000 settlement 
authority for VA facility Directors, this section is proposed to be 
amended to include the additional phrase: ``If the claim seeks damages 
in excess of $5,000'' prior to the phrase ``the Director of the 
facility where such occurrence took place will promptly transmit a copy 
of the report.'' Finally, this sentence is proposed to be amended to 
replace the phrase ``Regional Counsel who will authorize such 
additional investigation as the circumstance of the case may warrant'' 
with the phrase ``Office of General Counsel Torts Law Group for 
investigation and adjudication.'' This proposed replacement is intended 
to consistently reiterate that the Torts Law Group manages the 
investigation and adjudication of these claims. Additionally, a 
sentence is being added to clarify that the Office of General Counsel, 
Torts Law Group will investigate and adjudicate non-medical malpractice 
claims brought against the Veterans Benefits Administration and 
National Cemetery Administration. As these proposed amendments ensure 
that all of the relevant information related to the investigation and 
development of these types of tort claims is described in the newly 
proposed paragraph (a)(2), the existing paragraphs (a)(2)(ii) and 
(a)(3) and (4) are proposed to be removed.
    The Office of General Counsel proposes to revise paragraph (b) of 
Sec.  14.601 to remove language that describes outdated procedures. The 
existing language regarding referral to the Under Secretary for Health 
via the Director, Medical-Legal Affairs and the

[[Page 88197]]

language stating that the responsible Regional Counsel involved and the 
General Counsel will be guided by the views of the Under Secretary for 
Health does not accurately describe current procedures for the 
investigation and development of medical malpractice claims. As a 
result, these sentences are proposed to be replaced with the following 
statement which concisely summarizes the current process for medical 
malpractice claims: ``All medical malpractice claims will be referred 
to the Office of General Counsel, Torts Law Group for investigation and 
adjudication.''
    The procedures described in Sec.  14.602, ``Requests for medical 
information'' include proposed amendments as the information in the 
existing regulation does not accurately reflect current processes. 
Specifically, the following statement in paragraph (a): ``Where there 
is indication that a tort claim will be filed, medical records or other 
information shall not be released without approval of the Regional 
Counsel'' is proposed to be removed from this regulation as it is 
outdated and does not accurately reflect current procedures. The 
statement in paragraph (b) will remain and comprise the only language 
in this regulation and is intended to reflect that the Department 
follows the Freedom of Information Act (FOIA) and its implementing 
regulations in the release of documents.
    The language in Sec.  14.603, ``Disposition of claims'' includes 
proposed amendments. This regulation section generally describes that a 
claimant's indebtedness to the Government will be included in a tort 
claim award. The proposed amendments include the removal of the last 
two sentences: ``The amount of the indebtedness is for credit to the 
appropriation account from which the services were provided. The 
voucher prepared for settlement of the claim will specify the amount to 
be deposited to the credit of the designated account and the balance of 
the aware be paid to the claimant.'' These statements are proposed to 
be removed as they include extraneous language that describes outdated 
procedures regarding the settlement of tort claims with debt related to 
unauthorized medical treatment.
    The Office of General Counsel proposes to amend Sec.  14.604, 
``Filing a claim'' to reflect nomenclature changes and to specifically 
describe certain procedures regarding the filing of administrative tort 
claims and the processing of tort claims immediately after their 
receipt. In the first sentence of paragraph (a), the phrase ``an 
alleged'' before negligent or wrongful act or omission is proposed to 
be included to convey that the acts or omissions at issue in the claim 
have not been fully adjudicated by this point in the tort claim 
process. The phrase ``a Standard Form 95 (SF 95)'' is proposed to 
replace the phrase ``SF 95'' to explain the abbreviation for this 
document. In the second sentence in paragraph (a), the phrase ``Office 
of General Counsel, Torts Law Group'' is proposed to replace ``Regional 
Counsel having jurisdiction of the area wherein the occurrence 
complained of took place'' to reflect that after a reorganization, the 
Torts Law Group handles administrative tort claims for the Office of 
General Counsel. Language has also been added to this sentence to 
provide a link to a website with further instructions for submitting a 
claim.
    Additional nomenclature changes are proposed in the third and 
fourth sentence of Sec.  14.604(a), including the replacement of ``He 
or she'' with ``The claimant'' and the replacement of ``Department of 
Veterans Affairs'' with ``VA'' for readability. Finally, the proposed 
amendment in the fourth sentence in paragraph (a) will replace the 
phrase ``it will be forwarded to the Department of Veterans Affairs 
General Counsel, for appropriate action'' with ``the Office of General 
Counsel will immediately transfer the claim to the appropriate agency 
in accord with 28 CFR 14.2(b)(1).'' This substitution is intended to 
accurately describe current practice when other Federal agencies may be 
involved in a claim.
    In paragraph (b) of Sec.  14.604, the phrase ``an executed SF 95'' 
is proposed to be replaced with the phrase ``a signed SF 95'' for 
clarity. Additionally, the phrase ``written notification of an 
incident'' is proposed to be replaced with ``detailed written statement 
of the facts and circumstances giving rise to the claim, including the 
time, place, and date of the accident or'' in order to provide a 
detailed explanation to the previously vague phrase of 
``notification.'' This section also proposes to remove the final 
sentence regarding the receipt of an SF-95 as it is outdated and no 
longer describes current procedures.
    Several amendments are proposed throughout Sec.  14.605 ``Suits 
against Department of Veterans Affairs employees arising out of a 
wrongful act or omission or based upon medical care and treatment 
furnished in or for the Veterans Health Administration'' to replace 
outdated language and procedures. In paragraph (a)(2)(ii), the phrase 
``property damage'' is proposed to be removed because paragraph (a)(2) 
describes the applicability of 38 U.S.C. 7316 which applies to personal 
injury, including death, and medical malpractice but does not apply to 
property damage. Throughout paragraph (b), the phrase ``or to the 
Office of General Counsel, Torts Law Group'' is proposed to be added to 
clarify that employees can provide a copy of all papers received 
regarding a Federal lawsuit to their local Chief Counsel or to the 
Torts Law Group. Additionally, the phrase ``he or she'' is proposed to 
be replaced with ``the employee'' in two places in this paragraph for 
grammatical consistency.
    Paragraphs (c) and (d) in Sec.  14.605 are proposed to be amended 
to use the term ``immunity'', rather than ``representation'', 
``protection'', or ``immunization'' to clarify the protection of 
employees acting within the scope of their employment. Paragraph (c) is 
further amended to remove language that describes outdated procedures 
that are no longer followed when a lawsuit has been filed against a VA 
employee. The first sentence includes a proposed amendment to replace 
the phrase ``the Regional Counsel having jurisdiction over the place 
where the employee works'' with the phrase ``Office of General Counsel, 
Torts Law Group'' as the Torts Law Group is the group within the Office 
of General Counsel that conducts preliminary investigations when a 
lawsuit against a VA employee is filed. Additionally, the sentences 
which describe the submission of a preliminary report to the General 
Counsel, the Regional Counsel investigation, and the submission of the 
investigation report to the General Counsel and to the appropriate U.S. 
Attorney are proposed to be removed from this paragraph. These 
procedures are no longer followed as the Office of General Counsel, 
Torts Law Group manages the process by which a VA employee requests 
representation from the U.S. Attorney's Office and handles all 
communications with the U.S. Attorney's office. For consistency, the 
phrase ``Regional Counsel'' is proposed to be replaced with ``Torts Law 
Group'' throughout paragraph (c).
    In paragraph (d), the phrase ``local Regional Counsel'' is proposed 
to be replaced with ``Office of General Counsel, Torts Law Group'' and 
the last two sentences in this paragraph are proposed to be combined 
for nomenclature changes and readability. In paragraph (e), the phrase 
``specifically excluded under the provisions of 28 U.S.C. 2680(h)'' is 
proposed to be replaced with ``otherwise not actionable under the

[[Page 88198]]

Federal Tort Claims Act'' for readability and clarity. A misspelling in 
paragraph (e) is proposed to be corrected to read ``cognizable.'' 
Finally, the term ``immunization'' is proposed to be replaced with 
``immunity'' in both paragraphs (c) and (d) for grammatical reasons.

Administrative Settlement of Tort Claims Arising in Foreign Countries

    The Office of General Counsel proposes amendments to Sec. Sec.  
14.615 through 14.617, ``Administrative Settlement of Tort Claims 
Arising in Foreign Countries'' to remove or correct outdated or 
inaccurate information. The language in Sec.  14.615 ``General'' 
provides general information for filing tort claims involving the 
Department that arise in foreign countries. One amendment is proposed 
in paragraph (a) to remove the word ``abroad'' from the end of the 
sentence due to redundancy.
    Significant amendments are proposed in Sec.  14.616, ``Form and 
place of filing claim.'' This section outlines specific instructions 
for how claimants can submit a tort claim when the events described in 
the claim arose in a foreign country and involve the Department. 
Paragraph (a) includes a proposed amendment to combine the first two 
sentences and to remove the redundant phrase ``sworn statement,'' the 
outdated language of ``submitted in duplicate'' and ``original copy of 
the claim,'' and the vague phrase ``at least.'' Additional new language 
is proposed to provide guidance regarding the submission of a Standard 
Form 95 as the way to submit a claim in compliance with the 
instructions in the regulation. As a result of these revisions, the 
proposed new combined sentence in paragraph (a) will now read: ``Claims 
arising under 38 U.S.C. 515(b) will be submitted on a Standard Form 95 
or prepared in the form of a statement sworn to or affirmed before an 
official with authority to administer oaths or affirmations and will 
contain the following information . . .''
    Additional nomenclature changes are proposed for Sec.  14.616(a)(8) 
for readability and clarity purposes. The specific proposed edits 
include the removal of the word ``official,'' the addition of ``(s)'' 
to the word ``employee,'' and the addition of the phrase ``Department 
of Veterans Affairs'' after United States. The paragraph (a)(10) is 
proposed to be removed to reflect that claimants do not need to 
indicate the law applicable to a tort claim when they file a claim. As 
a result of the proposed removal of paragraph (a)(10), paragraph (a)(9) 
will now conclude this section.
    Amendments in paragraph (b) of Sec.  14.616 include the proposed 
addition of the phrase ``or submitted directly to the Office of General 
Counsel, Torts Law Group'' at the end of the first sentence to provide 
an additional option for submission of claims as the Torts Law Group 
handles the processing and investigations of tort claims for the 
Department. Paragraph (c)(1) is proposed to be amended by replacing the 
phrase ``the like will, if possible, be obtained from disinterested 
parties'' with the phrase ``documented evidence of the damages must 
accompany the claim.'' This proposed amendment is intended to remove 
the vague phrase ``the like'' and to clarify the specific documents 
that should be submitted for this type of claim. The Office of General 
Counsel also proposes to amend the second and third sentences of 
paragraph (c)(1) for readability and to remove outdated terms that 
reflect procedures related to the processing of paper copies of claims 
that are no longer utilized. Specifically, paragraph (c)(1) is proposed 
to be amended to replace the existing phrases ``All evidence will be 
submitted in duplicate'' and ``Original evidence or certified copies 
shall be attached to the original copy of the claim, and simple copies 
shall be attached to the other copy of the claim'' with the newly 
proposed sentence: ``All evidence and certified copies must be attached 
to the original claim.'' Finally, the last sentence of this section is 
proposed to be amended to replace the word ``will'' with the word 
``must'' to clarify that English translations are required to be 
included with the claim so that there is no dispute regarding the 
language that describes the claim.
    The only proposed amendment in paragraph (c)(2) of Sec.  14.616 is 
the replacement of the phrase ``the like'' with the phrase ``any other 
relevant evidence'' for clarity and nomenclature reasons. The Office of 
General Counsel also proposes to delete paragraph (c)(5) ``Damage to 
crops'' as it is redundant to the prior paragraphs which outline 
procedures related to claims for property damage.
    The Office of General Counsel proposes to amend Sec.  14.617 
``Disposition of Claims'' to clarify the requirements of administrative 
tort claims in the Philippines and in countries other than the 
Philippines. This section provides guidance for how claims in foreign 
countries should be routed when received by employees of the Department 
or other employees of the Federal Government. Paragraph (a) includes a 
proposed amendment to remove the phrases ``including a complete 
investigation report and a brief resume of applicable law'' and 
``together with a recommendation as to disposition'' to clarify that 
the facility does not need to send an investigation report, a summary 
of applicable law, or a recommendation of a disposition of the claim. 
These amendments are proposed to more accurately reflect the current 
process and procedures which describe the Office of General Counsel's 
Torts Law Group as the entity which prepares the investigation report, 
researches the applicable law, and proposes a disposition for the 
claim. The phrase ``Office of General Counsel, Torts Law Group'' is 
proposed to be included after the existing phrase ``will be forwarded 
directly by the Director to the'' to clarify the central role of the 
Torts Law Group in this process.
    Further amendments are proposed for paragraph (b) to include the 
removal of the phrase ``including a resume of applicable law and a 
recommendation regarding allowance or disallowance of the claim'' as 
this language is outdated and does not reflect current procedures or 
practice. As stated previously, current practice does not involve the 
submission of a review of applicable law and a recommendation regarding 
the disposition of the claim by staff at the relevant American Embassy 
or Consulate. Finally, this section is amended to include ``Torts Law 
Group, Office of'' prior to ``General Counsel, Department of Veterans 
Affairs, Washington, DC'' as the Torts Law Group is the group within 
the Office of General Counsel that coordinates administrative tort 
claims from foreign countries other than the Philippines.

Claims for Damage to or Loss of Government Property

    The Office of General Counsel proposes multiple amendments to the 
section of regulations that govern claims for damage to or loss of 
government property. Specifically, Sec.  14.618 ``Collection action'' 
includes proposed amendments to reflect nomenclature changes and other 
minor edits. Proposed amendments to paragraph (a) include replacement 
of the phrase ``Regional Counsel'' with ``Office of General Counsel'' 
and inclusion of the phrase ``or appropriate VA designee'' before the 
phrase ``will request payment in full.'' This proposed amendment is 
intended to reflect that individuals other than those employed by the 
Office of General Counsel may request payment or other appropriate 
relief from the individual responsible for the damage to or loss of 
Government property. An additional proposed amendment includes the 
replacement of the phrases ``amount of'' and ``liable

[[Page 88199]]

therefore or such person's insurer'' with new language to clarify 
available relief. Specifically, the proposed new language after the 
comma would read: ``the Office of General Counsel or appropriate VA 
designee will request payment in full or other appropriate relief for 
the damage or loss from the responsible person or entity.'' The 
proposed language is intended to clearly describe in plain terms that 
the Office of General Counsel or designee will seek reimbursement or 
other relief from the person responsible for damage to or loss of 
Government property.
    Paragraph (b) of Sec.  14.618 includes additional proposed 
amendments. The proposed edits include the replacement of ``Regional'' 
with ``Office of General'' and the addition of the phrase ``or 
designee'' after Counsel to indicate individuals other than those in 
the Office of General Counsel may collect, compromise, suspend, or 
terminate a collection action. This sentence is further proposed to be 
amended to update outdated citations and specifically, replace ``Sec.  
2.6(e)(4)(ii)'' with ``Sec.  2.6(e)(4)'' and replace ``Sec.  1.900 
series'' with ``Sec.  1.900 et seq.'' The second sentence is proposed 
to be amended to replace the phrase ``and does not exceed $100,000, 
will be referred by the Regional Counsel'' with the language ``may be 
referred'' to reflect that not all of these cases are automatically 
referred to the United States Attorney's Office. The phrase ``U.S. 
attorney along with the information required by Sec. Sec.  1.951'' is 
proposed to be replaced with ``United States Attorney's Office, in 
accordance with Sec. Sec.  1.950'' to spell out the abbreviation for 
United States and to correct an outdated citation. Finally, the last 
sentence in paragraph (b) that begins with ``Any claim in excess of 
$100,000'' and the entirety of paragraphs (c) and (d) are proposed to 
be removed. This language is proposed to be removed as it is redundant 
with existing language in Sec.  2.6 and Sec.  14.619 and does not 
reflect current practices or procedures.

Claims for the Costs of Medical Care and Services

    This rule proposes to revise Sec.  14.619, ``Collection Action'' to 
update references to other offices, remove obsolete material and 
references, and clarify and streamline policies and procedures. The 
Federal Medical Care Recovery Act (``FMCRA''), 42 U.S.C. 2651 et seq., 
and 38 U.S.C. 1729 authorize the Department to recover from third 
parties the costs of medical care or services furnished or to be 
furnished to an individual by the Department or paid for or to be paid 
for on behalf of an individual by the Department. In the proposed rule, 
the Office of General Counsel would revise Sec.  14.619, which 
establishes the Office of General Counsel's ability to assert a claim, 
and authorize the Office of the General Counsel to collect, compromise 
suspend, or terminate collection activity as well as to refer cases to 
the Department of Justice to protect the government's interest. This 
rulemaking proposes to amend Sec.  14.619 to clarify VA's right of 
recovery under 42 U.S.C. 2651 and 38 U.S.C. 1729, as well as to further 
clarify individual's duty to notify and cooperate with VA, and to 
describe legal remedies to effect recovery. Paragraph (a) is proposed 
to be amended to include definitions of the terms ``Responsible 
Official'', ``third party'' and ``individual'' as well as to define 
medical care or services for which the Department may recover.
    Paragraph (b) is proposed to be amended to clarify the duty of 
Veterans, Veteran beneficiaries and those individuals acting on their 
behalf to furnish requested information, notify VA of settlements and 
offers of settlement and cooperate with prosecution of all claims and 
actions by the United States against third persons under the authority 
delegated by the Secretary to the Office of General Counsel. See, 38 
CFR 2.6(e)(3) and (9) as well as the authority under 28 CFR 43.1 and 
43.2. A new paragraph (c) is proposed to be added to clarify assertion 
of claims on behalf of the United States, and the calculation of 
charges in accordance with Federal law and the implementing regulations 
cited. A new paragraph (d) is proposed to be added to clarify the 
authority to collect, compromise, settle, or waive any claim, and 
defines the information necessary for a request to compromise or waive 
a claim. This new paragraph (d) also clarifies that claims cannot be 
compromised in consideration of private attorneys' fees. Finally, a new 
paragraph (e) is proposed to provide a non-exhaustive list of legal 
remedies to effect recovery of a claim asserted under this section.

Personnel Claims

    Additional amendments are proposed for the regulations in the 
``Personnel Claims'' section to reflect nomenclature changes and 
substantive updates. These regulations describe procedures for managing 
claims made by Department employees for damage to or loss of employees' 
personal property incident to their employment. The language in Sec.  
14.664 ``Scope of authority and effective date'' is proposed to be 
amended to replace the reference to ``Pub L. 88 558 (78 Stat. 767), 
approved August 31, 1964, as amended'' with the updated citation of 
``The Military Personnel and Civilian Employees' Claims Act (MPCECA) of 
1964, 31 U.S.C. 3721''. The phrase ``for not more than'' is proposed to 
be replaced with ``not to exceed'' for clarity and the phrase 
``civilian officer or'' is proposed to be removed as the 
differentiation between civilian and non-civilian officers is not 
applicable to VA. This section is also proposed to be amended to 
replace the phrase ``Deputy General Counsel, Assistant General Counsel 
(Professional Staff Group III), and the Deputy Assistant General 
Counsel, of said staff group and the Regional Counsel'' with the new 
phrase ``the Principal Deputy General Counsel, the Deputy General 
Counsel for Legal Operations, and the Chief Counsel, Torts Law Group.'' 
This amendment is proposed to reflect the updated names of positions in 
the Office of General Counsel and to clarify where these claims should 
be investigated. Additionally, this proposed amendment is intended to 
reflect that OGC's Torts Law Group handles MPCECA claims as a result of 
a recent reorganization. Similar amendments are proposed throughout 
this section to reflect that change, including elimination of the 
reference to ``appropriate Regional Counsel'' in what was 14.665(c), 
and substitution of the phrase ``Torts Law Group'' for ``Regional 
Counsel having jurisdiction'' in 14.666(a) and in other references to 
``Regional Counsel'' in the Title and paragraphs (a) and (b) in 14.666.
    In Sec.  14.665 ``Claims,'' the phrase ``in writing'' is proposed 
to be removed from the first sentence as it is outdated. Additionally, 
the phrase ``or VA Form 4629, Claim for Reimbursement for Damaged or 
Destroyed Personal Property for property destroyed or damaged by a 
patient while the employee was engaged in the performance of official 
duties'' is proposed to be added to the first sentence to explain that 
an additional form can be used to submit a claim under MPCECA. The 
second sentence is proposed to be revised to state that ``The form will 
be submitted to the facility Director or designee of the VA facility 
where the claim originates within 2 years after the incident that 
caused the loss or damage, or after the employee discovers the loss or 
damage.'' These revisions are intended to remove an outdated reference 
to ``personnel'' and to remove reference to language regarding armed 
conflicts and other

[[Page 88200]]

military-related language that is not applicable to VA. This section 
includes further proposed revisions to remove reference to officer in 
the third sentence and to replace the phrases ``the surviving spouse, 
children, father or mother or both, or brothers or sisters or both'' 
with the phrase ``the employee's survivors in the following order of 
precedence: spouse, child, parent, or sibling'' for clarity. As a 
result of this revision, the sentence ``Claims of survivors shall be 
settled and paid in the order named'' is proposed to be removed as it 
is redundant to the prior phrase ``order of precedence.''
    Paragraphs (b) and (c) are proposed to be combined into one new 
paragraph (b), which would include multiple proposed revisions to 
explain responsibility for investigation and evaluation of the merits 
of these claims. The newly combined paragraph (b) includes edits to the 
first sentence which is proposed to begin with the following phrase: 
``The VA facility Director or designee receiving the claim will 
ascertain if such claim is complete.'' The last sentence in the newly 
combined paragraph (b) starting with the phrase ``The completed 
investigation'' is proposed to be removed as it describes an outdated 
process that does not reflect current procedures. Finally, this section 
is proposed to be revised to update the citation to 38 U.S.C. 703(e) in 
paragraph (a)(4).
    Significant revisions are proposed in Sec.  14.666 to reflect that 
Torts Law Group is the OGC office which now handles or may be consulted 
regarding these claims. The first paragraph is revised to include the 
new language of: ``Torts Law Group is available for consultation if 
requested and as needed by the facility's human resources office.'' The 
second sentence is proposed to be revised to explain when additional 
investigation by Torts Law Group may be necessary by including the 
following proposed additional language at the beginning of the second 
sentence: ``If, after consultation from the investigating facility or 
with the Torts Law Group, it is determined by the Torts Law Group that 
the facts or amount in controversy requires further input or 
investigation from the Torts Law Group.'' The sentence beginning with 
the phrase ``If the claimant has a potential claim for 
indemnification'' is proposed to be removed as the description of the 
potential claims against ``other than the United States'' appears to 
relate to military personnel and is not applicable to VA. The last 
sentence is proposed to be revised to include the phrase ``Torts Law 
Group may be consulted to'' before the phrase ``ascertain that the 
claimant has filed a timely proper claim'' to clarify that Torts Law 
Group's involvement is not required unless requested by the relevant 
facility.
    Finally, the language in paragraph (b) is proposed to be removed as 
not all MPCECA claims are sent to Torts Law Group for review and thus, 
input regarding payments of claims is not needed.
    In Sec.  14.667 ``Claims payable,'' the phrase ``and does not 
exceed $40,000'' is proposed to be added to the end of the sentence in 
paragraph (a)(1) to reflect the maximum amount that can be paid for an 
MPCECA claim per the statutory language in 31 U.S.C. 3721. The language 
in paragraph (a)(3) ``Did not occur at quarters occupied within the 50 
States or the District of Columbia that were not assigned to the 
claimant or otherwise provided in kind by the United States'' is 
proposed to be removed as this language is applicable to military 
quarters and is not relevant to VA. New replacement language in 
paragraph (a)(3) is proposed to state ``The claim is substantiated by 
proper and convincing evidence'' as this language is specifically 
mentioned in the current policy on MPCECA claims. Paragraph (a)(4) 
includes nomenclature changes for clarity and consistency including 
adding the phrase ``or wrongful'' before the phrase ``act of the 
claimant'' and deleting ``or employee.'' Finally, reference to 38 
U.S.C. 703(a)(5) (Sec.  17.78 of this chapter) is proposed to be 
replaced with 38 U.S.C. 703(e) to reflect the accurate citation.
    Amendments are proposed for Sec.  14.668 ``Disposition of claims,'' 
including in paragraph (b)(1) to add the phrase ``(where applicable)'' 
after the ``Reimbursement in kind'' as Torts Law Group is not 
authorized to process or permit ``in kind'' reimbursements. This 
paragraph is further proposed to be revised to replace the phrase 
``request the Director, Supply Service, Veterans Health Services and 
Research Administration, to procure'' with the phrase ``facilitate the 
procurement of'' as the position references in the current regulation 
are outdated. Paragraph (b)(2) is proposed to be revised to replace 
outdated phrases and terms including substituting the word ``payment'' 
for the word ``check,'' the phrase ``Fiscal office'' for ``Finance 
activity,'' and the phrase ``facility'' for ``installation.'' 
Similarly, the phrases ``on SF 1166, Voucher and Schedule of Payments'' 
and ``Regional Disbursing Office'' are proposed to be removed from 
paragraph (b)(2) as these terms are outdated and do not reflect current 
processes. The last phrase of the section is proposed to read 
``forwarded to the appropriate office for payment'' to concisely 
describe this part of the process.
    The language in Sec.  14.669 ``Fees of agents or attorneys; 
penalty'' is proposed to include significant revisions including a new 
phrase at the beginning of the section which states, ``Notwithstanding 
a contract, the representative of a claimant may not receive more 
than'' to replace the prior redundant phrasing starting with ``The 
Military Personnel and Civilian Employees' Claims Act of 1964.'' 
Additional nomenclature changes are proposed in this sentence for 
clarity and readability to include replacement of the phrase ``amount 
paid in settlement'' with the word ``payment,'' and removal of the 
phrases ``each individual'' and ``and settled.'' Further, the phrase 
starting with ``the Act shall be paid'' is proposed to be replaced with 
the citation for the Act ``31 U.S.C. 3721'' and the phrase ``rendered 
in connection with that claim'' is proposed to be replaced with the 
phrase ``related to the claim.'' Finally, the last sentence is proposed 
to be replaced with the following sentence ``A person violating this 
provision shall be fined not more than $1,000'' for readability and 
clarity.

Testimony of Department Personnel and Production of Department Records 
in Legal Proceedings

    The Office of General Counsel also proposes amendments to the set 
of regulations which govern the testimony of Department employees and 
production of Department records in certain legal proceedings as 
defined in the regulations.
    In Sec.  14.801 ``Applicability,'' the regulation which defines who 
these procedures apply to and in which situations, multiple changes are 
proposed to improve readability. Specifically, the following changes 
are proposed: (1) in paragraph (b)(2)(i), the word ``or'' is replaced 
with ``and''; (2) in paragraph (b)(3), the word ``personnel's'' is 
replaced with the word ``individual's;'' (3) in paragraph (c)(2), the 
phrase ``in appropriate cases'' is removed as it is vague and undefined 
language; and (4) in paragraph (c)(3), the phrase ``as to them'' is 
deleted in the parenthetical to remove extraneous and confusing 
language.
    Additional amendments are proposed to Sec.  14.802 ``Definitions,'' 
which defines terms that are used throughout this regulation. 
Specifically, in paragraph (c), the phrase ``official of the VA'' is 
proposed to be replaced with ``VA official'' to reduce extraneous 
language. The proposed change to paragraph (f) will update the 
reference to ``televised

[[Page 88201]]

or videotaped testimony'' to ``video or video recorded testimony.'' 
Additionally, the Office of General Counsel proposes to include a new 
definition in paragraph (h) to define ``Designated VA Official.'' The 
new language is proposed to state: ``(h) Designated VA Official. VA 
official authorized to make the determinations provided in Sec.  
14.807. Other than for personnel in the Office of the Inspector General 
(OIG), the General Counsel or their designee is the Designated VA 
Official. For personnel in the OIG, the Counselor to the Inspector 
General or an attorney designated by the Counselor to the Inspector 
General, is the Designated VA Official authorized to make the 
determinations provided in Sec.  14.807, and that official will keep 
the General Counsel informed of such determinations for purposes of 
litigation or claims of privilege.'' The proposed addition of this 
definition in paragraph (h) is intended to ensure that the official 
authorized to make determinations provided in Sec.  14.807 is 
specifically named and described. The use of this specific title of 
``Designated VA Official'' is intended to promote uniformity and 
consistency throughout this set of regulations.
    The Office of General Counsel proposes to amend Sec.  14.803 
``Policy'' for readability, coherence, and consistency. This regulation 
establishes the Department's policy regarding requests for documents 
and testimony. That policy is to comply with the requests as authorized 
in accordance with these regulations and not otherwise inhibit 
employees' access to the courts as citizens or in their private 
capacities or to deny Veterans' access to the courts. Specifically, in 
paragraph (a), the phrase ``the determining official'' is proposed to 
be replaced with ``Designated VA Official'' as this is the individual 
defined and referred to in Sec.  14.802(h). This paragraph includes 
additional proposed amendments including modifying and moving the 
phrase ``testifying or producing records will have on the ability of 
the agency or VA personnel to perform their official duties'' from the 
end of the sentence to the middle of the sentence. As a result of this 
proposed amendment, the sentence will now end with the phrase ``as well 
as in future cases generally, based on the factors set forth in Sec.  
14.804.''
    The language in Sec.  14.804, ``Factors to consider'' includes one 
proposed nomenclature amendment for consistency purposes. This 
regulation lists the specific factors that the Designated VA Official 
uses when determining whether to approve or deny a request for 
documents or testimony made under these regulations. The first sentence 
is proposed to be amended to replace the phrase ``VA personnel 
responsible for making the decision'' with ``the Designated VA 
Official'' for consistency with the rest of the regulations in this 
section.
    Additional proposed amendments are included in Sec.  14.805 
``Contents of a demand or request,'' a regulation which addresses the 
information that should be included in any demand or request for 
testimony or documents sent to the Department under these regulations. 
Specifically, the phrase ``if that is not feasible, in, or accompanied 
by'' is proposed to be removed as it is extraneous language and the 
phrase ``a summary'' is proposed to be replaced with the word 
``summarizing.'' This section is proposed to be further amended to 
insert a period after the phrase ``legal proceedings'' and the new 
proposed sentence after the period will start with the phrase ``The 
affidavit or written statement shall contain.'' These proposed changes 
are intended to improve readability and coherence.
    The language in Sec.  14.807 ``Procedure when demand or request is 
made'' is proposed to be amended for readability, coherence, and 
nomenclature. This section describes the procedures that VA employees 
should follow when a demand or request for testimony or records is 
received and includes instructions for notifying leadership, the 
Designated VA Official, and the Department of Justice, and guidelines 
for interacting with a court of competent jurisdiction or other 
appropriate authority. In paragraph (a), the phrase ``is made'' is 
proposed to be moved to before ``in connection with legal proceedings'' 
for readability. The second sentence proposes to replace ``responsible 
VA official designated in Sec.  14.807(b)'' with ``Office of General 
Counsel'' to reflect current procedures that involve the Office of 
General Counsel as the central point of contact responsible for 
managing these types of requests and demands.
    In paragraph (b) of Sec.  14.807, the phrase beginning with ``In 
response to a demand or request for the production of records or the 
testimony of VA personnel, other than personnel in the Office of the 
Inspector General (OIG)'' is proposed to be replaced with ``The 
Designated VA Official shall'' as that is the individual specifically 
designated in Sec.  14.802(h) to make the determinations regarding 
testimony provided or documents produced in these matters. The second 
sentence beginning with ``For personnel in the OIG'' is proposed to be 
removed as this information is now addressed in the proposed definition 
for ``Designated VA Official'' in Sec.  14.802(h).
    Additional changes are proposed in Sec.  14.807(f). The last 
sentence in paragraph (e) is proposed to be amended to begin with the 
phrase ``However, if directed by the Designated VA Official.'' As a 
result of this new language, the word ``however'' is proposed to be 
deleted before the phase ``the affected VA personnel'' to avoid 
redundancy. The word ``however'' in paragraph (f)(1) and the word 
``then'' in paragraph (f)(2) are proposed to be removed for 
readability.
    The language in Sec.  14.808 is proposed to be amended for 
nomenclature, clarity, and consistency purposes. This regulation 
provides procedures for the approval of testimony, the management of 
court orders for testimony, and the appropriate responses for expert or 
opinion testimony about official VA information, subjects, or 
activities, when such testimony was not previously approved. The 
specific proposed amendments include changing the title of Sec.  14.808 
to include the phrase ``or fact'' so that the new title would read 
``Expert, opinion, or fact testimony.'' This amendment is intended to 
describe the contents of this section more accurately. In the second 
sentence in paragraph (a), the phrase ``responsible VA official 
designated in Sec.  14.807(b)'' is proposed to be replaced with the 
term ``Designated VA Official'' as that is the individual defined in 
the proposed Sec.  14.802(h) who authorizes testimony or the production 
of documents under this regulation. The word ``however'' is proposed to 
be moved from the middle of the last sentence to the beginning of the 
sentence such that the last sentence would start with the phrase: 
``However, if directed by.''
    A new paragraph (e) is proposed to be included in Sec.  14.808 to 
address fact testimony and it would state: ``If an employee is 
authorized to give fact witness testimony in a legal proceeding not 
involving the United States, the testimony, if otherwise proper, shall 
be limited to facts within the personal knowledge of the employee that 
are not classified, privileged, or protected from disclosure under 
applicable law or regulation. If asked to provide factual testimony 
that the employee believes may be classified, privileged, or protected 
from disclosure under applicable law or regulation, then the witness 
shall: (1) Respectfully decline to answer on the grounds that such 
testimony is prohibited; and (2) Request an opportunity to consult with 
the Designated VA Official.'' This proposed

[[Page 88202]]

language is intended to provide more specific guidance regarding the 
scope of fact testimony that VA employees are authorized to provide and 
instructions on how to handle questions that may solicit fact testimony 
that is unauthorized due to an applicable law or regulation.
    The Office of General Counsel proposes to amend the language in 
Sec.  14.810, ``Fees,'' which provides guidance regarding the fees VA 
may charge when testimony is authorized and provided under these 
regulations. In paragraph (a), the phrase ``particularly as expert 
witnesses'' is proposed to be removed from the first sentence to reduce 
confusion regarding the applicability of this section as it applies to 
all testimony and not just expert testimony. The third sentence is 
proposed to be amended to remove the extraneous phrasing of ``establish 
a'' and ``for providing.'' The newly proposed sentence states: 
``Consequently, these are the sort of services for which VA may charge 
under 31 U.S.C. 9701.''
    The next sentence in Sec.  14.810(a) is also proposed to be re-
written to remove extraneous words and improve clarity by referencing 
fees associated with the Department's FOIA regulation at 38 CFR 1.561. 
Specifically, the existing sentence ``The responsible VA official will 
determine all fees associated with Sec. Sec.  14.800 through 14.810, 
and shall timely notify the requester of the fees, particularly those 
which are to be paid in advance'' is proposed to be replaced with: 
``Where a determination is made to comply with the demand, order or 
request pursuant 38 CFR 14.807(e) or 14.808, the Designated VA Official 
will calculate fees consistent with 38 CFR 1.561(d), (f) through (l) 
and shall timely notify the requester of the fees, particularly those 
which are to be paid in advance.'' An additional new sentence is 
proposed in this paragraph to provide specific guidance for how fees 
should be calculated for requesters in the context of the FOIA and the 
Department's corresponding regulations. That proposed new sentence 
would state: ``For purposes of calculating fees all requesters under 
Sec. Sec.  14.800 through 14.810 will be considered Commercial Use 
Requesters as defined by 38 CFR 1.561(c)(1).''
    Additional amendments are proposed for paragraph (b)(1) which 
specifically outlines the types of costs that may be included in the 
fees charged to the requester under these regulations. Specifically, 
paragraph (b)(1) is proposed to be amended to delete the phrase ``in 
whole or in part as to expert, opinion or policy matters'' as this 
language is now redundant to language in prior sections. More language 
is proposed to be added in this paragraph to clarify that fees may be 
assessed for preparing the witness for testimony. Specifically, the 
phrase ``preparing and'' and the phrase ``for testimony'' are proposed 
to be added so that the proposed new sentence now reads: ``When a 
request is granted under Sec.  14.808 to permit VA personnel to 
testify, the requester shall pay to the government a fee calculated to 
reimburse the cost of preparing and providing the witness for 
testimony.''
    Additional amendments are proposed for the lower-level paragraphs 
within paragraph (b)(1). One proposed amendment, in paragraph 
(b)(1)(i), is the addition of the word ``order'' after ``demand'' to 
reference the potential for court orders for testimony which may be 
managed in accordance with these regulations. Paragraph (b)(1)(ii) is 
proposed to be removed in its entirety as its description of charges 
for attorney time expended in reviewing the demand or request is 
redundant to the information provided in paragraph (b)(1)(i). The 
existing language in paragraph (b)(1)(iii) regarding expenses generated 
by materials and equipment used to search for and copy responsive 
information is also proposed to be removed as it is redundant to the 
information provided in paragraph (b)(1)(i) and is also covered in the 
newly proposed language in paragraph (a) regarding the calculation of 
fees in accordance with Sec.  1.561. Due to the proposed removal of the 
existing language in paragraphs (b)(1)(ii) and (iii), amended language 
from the existing paragraph (b)(1)(iv) is proposed to be moved to 
(b)(1)(ii) so that the new paragraph (b)(1)(ii) now reads ``the cost of 
the time expended to prepare the witness to testify.'' The existing 
language in paragraph (b)(1)(v) is also proposed to be amended to 
change sentence structure and be moved to paragraph (b)(1)(iii). The 
language in paragraph (b)(1)(iii) is proposed to read: ``Travel costs 
for VA personnel associated with providing testimony.''
    In paragraph (b)(2), the phrase ``necessary for such expert 
testimony'' is proposed to be removed as the scope of this section 
applies to all requested testimony and not just expert testimony. 
Paragraph (f)(3) is proposed to be amended to add the phrase ``in 
accordance with General Services Administration (GSA) policy'' to 
clarify that GSA policy must be followed with regard to the rates for 
travel and per diem that will be funded by the requesting party.
    Finally, the phrase ``responsible VA official'' has been replaced 
with ``Designated VA Official'' throughout Sec. Sec.  14.805 through 
14.810. In Sec. Sec.  14.802, 14.807, and 14.810, the word ``the'' is 
proposed to be deleted before ``VA'' for consistency. In Sec. Sec.  
14.800 through 14.810, the phrase ``this part'' has been replaced with 
``Sec. Sec.  14.800 through 14.810'' for specificity.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

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). The factual basis for this certification is because 
this proposed rulemaking is merely internal to VA and does not involve 
any actions and/or processing by small entities. 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.

Executive Orders 12866, 13563 and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
agencies to assess the costs and benefits of available regulatory 
alternatives and, when regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, and other advantages; 
distributive impacts; and equity). Executive Order 13563 (Improving 
Regulation and Regulatory Review) emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. Executive Order 14094 (Executive Order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 of September 30, 
1993 (Regulatory Planning and Review), and Executive Order 13563 of 
January 18, 2011 (Improving Regulation and Regulatory Review). The 
Office of Information and Regulatory Affairs has determined that this 
rulemaking is not a significant regulatory action under Executive Order 
12866, as amended by Executive Order 14094. The Regulatory Impact 
Analysis associated with this rulemaking can be found as a

[[Page 88203]]

supporting document at www.regulations.gov.

Assistance Listing

    There are no Assistance Listing numbers and titles for the programs 
affected by this document.

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 will have no such effect 
on State, local, and Tribal governments, or on the private sector.

List of Subjects

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.

38 CFR Part 36

    Condominiums, Housing, Individuals with disabilities, Loan 
programs--housing and community development, Loan programs--Indians, 
Loan programs--veterans, Manufactured homes, Mortgage insurance, 
Veterans.

Signing Authority:

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on October 8, 2024, 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 set out in the preamble, the Department of Veterans 
Affairs proposes to amend 38 CFR parts 14 and 36 as follows:

PART 14--LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS

0
1. The authority citation for part 14 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a), 
512, 515, 3730, 5502, 5901-5905; 28 CFR part 14, appendix to part 
14, unless otherwise noted.

0
2. Revise and republish Sec. Sec.  14.500 through 14.502 to read as 
follows:


Sec.  14.500  Functions and responsibilities of the General Counsel.

    The General Counsel is responsible to the Secretary for the 
following:
    (a) All litigation arising in, or out of, the activities of the 
Department of Veterans Affairs or involving any employee thereof in 
their official capacity.
    (b) All interpretative legal advice involving construction or 
application of laws, including statutes, regulations, and decisional as 
well as common law.
    (c) All legal services, advice and assistance required to implement 
any law administered by the Department of Veterans Affairs.
    (d) All delegations of authority and professional guidance required 
to meet these responsibilities.
    (e) Maintenance of a system of offices capable of providing legal 
advice and assistance to all Department of Veterans Affairs 
organizations and acting for the General Counsel as provided by 
Department of Veterans Affairs Regulations and instructions, or as 
directed by the General Counsel in special cases. This includes 
cooperation with U.S. Attorneys in all civil and criminal cases 
pertaining to the Department of Veterans Affairs and reporting to the 
U.S. Attorneys, as authorized, or to the General Counsel, or both, 
criminal matters coming to the attention of a Chief Counsel.
    (f) Other matters as assigned.


Sec.  14.501  Functions and responsibilities of Chief Counsels.

    (a) Functions and responsibilities of the Chief Counsels are those 
set forth in this part and all other matters assigned by the General 
Counsel.
    (b) In any matter within the jurisdiction of the General Counsel, 
delegated or otherwise assigned, the Chief Counsel, Deputy Chief 
Counsels, and designated staff attorneys are authorized to conduct 
investigations, examine witnesses, take affidavits, administer oaths 
and affirmations, and certify copies of public or private documents.
    (c) The Chief Counsel is authorized to, and shall, under the 
guidance of the General Counsel, provide legal services, advice, and 
assistance to Department of Veterans Affairs organizations within their 
geographic area of responsibility and/or legal practice area of 
responsibility. In any area of regulatory, assigned, or delegated 
responsibility, the Chief Counsel may delegate to staff members or 
other Department of Veterans Affairs attorneys authorized to perform, 
to the extent specified, any legal function under the professional 
direction of the Chief Counsel. Conversely, the Chief Counsel may 
modify, suspend, or rescind any authority delegated hereunder.
    (d) The Chief Counsel is authorized to cooperate with affiliated 
organizations, legislative committees, and with local and State bar 
associations to the end that any State law deficiencies relating to 
Department of Veterans Affairs operations may be removed. No commitment 
as to proposed legislation will be made without the approval of the 
General Counsel.
    (e) In any case wherein the Chief Counsel is authorized to take 
legal action and payment of costs and necessary expenses incident 
thereto are involved, the administration requesting such action will 
pay such cost and expenses.
    (f) Chief Counsels whose responsibilities are defined by the 
geographic area served by their offices are ``District Chief 
Counsels''. The locations and jurisdictions of the District Chief 
Counsels can be found here: https://www.va.gov/OGC/DistrictOffices.asp.


Sec.  14.502  Requests for legal opinions from Central Office.

    A request for formal legal advice, including interpretation of law 
or regulations, shall be made only by the Secretary, the Deputy 
Secretary, an Under Secretary, an Assistant Secretary, a Deputy 
Assistant Secretary, or the official having jurisdiction over the 
particular subject matter, or by a subordinate acting for any such 
official.


Sec. Sec.  14.503 and 14.504  [Removed]

0
3. Remove Sec. Sec.  14.503 and 14.504.
0
4. Revise and republish Sec. Sec.  14.505 to read as follows:


Sec.  14.505  Submissions.

    All submissions for formal legal advice described in Sec.  14.502 
will set forth the question of law underlying the opinion requested, 
together with a complete and accurate summary of relevant facts. Files, 
correspondence, and other relevant documents should be attached as 
exhibits to the submission.
0
5. Revise and republish Sec.  14.507 to read as follows:


Sec.  14.507  Opinions.

    (a) General. When requested under Sec.  14.502 or when determined 
necessary or appropriate, the General Counsel, another official so 
authorized by the General Counsel, or the Principal Deputy General 
Counsel when acting as

[[Page 88204]]

or performing the duties of the General Counsel, may issue a written 
legal opinion designated as a ``precedent opinion,'' a ``conclusory 
opinion,'' or an ``advisory opinion'' regarding any issue of law 
affecting programs or operations of the Department of Veterans Affairs.
    (b) Precedent opinions. A written legal opinion of the General 
Counsel involving Veterans' benefits under laws administered by the 
Department of Veterans Affairs which, in the judgment of the General 
Counsel or the Principal Deputy General Counsel acting as or for the 
General Counsel, necessitates regulatory change, interprets a statute 
or regulation as a matter of first impression, clarifies or modifies a 
prior opinion, or is otherwise of significance beyond the matter at 
issue, may be designated a ``precedent opinion'' for purposes of such 
benefits. The designated holdings in written legal opinions designated 
as precedent opinions under this section shall be considered by the 
Department of Veterans Affairs to be subject to the provisions of 5 
U.S.C. 552(a)(1). The holdings in an opinion designated as a precedent 
opinion are binding on Department officials and employees in subsequent 
matters involving a legal issue decided in the precedent opinion, 
unless there has been a material change in a controlling statute or 
regulation, the opinion has been overruled or modified by a subsequent 
precedent opinion or judicial decision, or the opinion has been 
withdrawn.
    (c) Conclusive opinions. The designated holdings in written legal 
opinions designated as conclusive opinions under this section shall be 
considered by the Department of Veterans Affairs to be subject to the 
provisions of 5 U.S.C. 552(a)(2). The holdings in an opinion designated 
as a conclusive opinion are binding as to all Department officials and 
employees with respect to the particular matter at issue, unless there 
has been a material change in controlling statute or regulation; the 
opinion has been overruled or modified by a subsequent precedent 
opinion, applicable conclusive opinion, or judicial decision; or the 
opinion has been withdrawn.
    (d) Advisory opinions. An advisory opinion is not binding on 
Department personnel, but generally is issued to provide legal guidance 
or recommendations to Department officials.
    (e) Scope of this section. This section pertains only to opinions 
issued by the General Counsel or designee as described in paragraphs 
(a) through (d) of this section. Nothing in this section is intended to 
preclude the Office of General Counsel or any employees thereof from 
issuing informal legal opinions or providing legal guidance within the 
Department in any appropriate format.
    (f) Other matters. Written legal opinions described in paragraphs 
(a) through (d) of this section that are executed by the General 
Counsel will be maintained by the Office of General Counsel. Where such 
opinions involve Veterans' benefits under laws administered by the 
Department of Veterans Affairs and pertain to a particular individual's 
claim, such opinions will be filed in the individual claim folder in 
addition to being maintained by the Office of General Counsel.

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


0
6. Revise and republish Sec.  14.514 through 14.518 to read as follows:


Sec.  14.514  Suits by or against United States or Department of 
Veterans Affairs officials; indemnification of Department of Veterans 
Affairs employees.

    (a) Suits against United States or Department of Veterans Affairs 
officials. When a suit involving any activities of the Department of 
Veterans Affairs is filed against the United States or the Secretary or 
a suit is filed against any employee of the Department of Veterans 
Affairs in which is involved any official action of the employee, not 
covered by the provisions of Sec. Sec.  14.600 through 14.617, a copy 
of the complaint will be forwarded to the General Counsel, who will 
take necessary action to obtain the pertinent facts, cooperate with or 
receive the cooperation of the Department of Justice and, where 
indicated, advise the Chief Counsel of any further action required.
    (b) Counsel and representation of employees. The Department of 
Justice may afford counsel and representation to Government employees 
who are sued individually as a result of the performance of their 
official duties. A civil action commenced in a State court against an 
employee, as the result of an action under color of their office, may 
be removed to the applicable Federal District Court. If a suit is filed 
against an employee as the result of the performance of their official 
duties, where the provisions of either 28 U.S.C. 2679 or 38 U.S.C. 7316 
are not applicable (see Sec.  14.610), and the employee desires to be 
represented by the U.S. Attorney, the Chief Counsel will obtain a 
written request to this effect from the employee and will also obtain 
an affidavit of the facility Director (or equivalent position) 
describing the incident in sufficient detail to enable a determination 
to be made as to whether the employee was in the scope of their 
employment at the time. These statements, together with a copy of the 
complaint and a summary of pertinent facts, will be sent to the General 
Counsel, who will transmit copies thereof to the Department of Justice 
for appropriate action.
    (c) Indemnification. (1) The Department of Veterans Affairs may 
indemnify a Department of Veterans Affairs employee who is personally 
named as a defendant in any civil suit in State or Federal court or an 
arbitration proceeding or other proceeding seeking damages against the 
employee personally, where either 28 U.S.C. 2679 or 38 U.S.C. 7316 is 
not applicable, for any verdict, judgment, or other monetary award 
which is rendered against such employee; provided that: the alleged 
conduct giving rise to the verdict, judgment, or award was taken within 
the scope of their employment and that such indemnification is in the 
interest of the Department of Veterans Affairs, as determined by the 
Secretary or their designee.
    (2) The Department of Veterans Affairs may settle or compromise a 
personal damage claim against a Department of Veterans Affairs 
employee, in cases where the provisions of either 28 U.S.C. 2679 or 38 
U.S.C. 7316 are not applicable, by the payment of available funds, at 
any time; provided that: the alleged conduct giving rise to the 
personal damage claim was taken within the employee's scope of 
employment and that such settlement or compromise is in the interest of 
the Department of Veterans Affairs, as determined by the Secretary or 
their designee.
    (3) Absent exceptional circumstances as determined by the Secretary 
or their designee, the Agency will not entertain a request either to 
agree to indemnify or to settle a personal damage claim before entry of 
an adverse verdict, judgment, or award.
    (4) A Department of Veterans Affairs employee may request 
indemnification to satisfy a verdict, judgment, or award entered 
against that employee. The employee shall submit a written request, 
with appropriate documentation including copies of the verdict, 
judgment, award, or settlement proposal, in a timely manner to the 
Department of Veterans Affairs General Counsel, who shall make a 
recommended disposition of the request. Where the Department of 
Veterans Affairs determines it appropriate, the Agency shall seek the 
advice of the Department of Justice. The

[[Page 88205]]

General Counsel shall forward the employee request for indemnification, 
and the accompanying documentation, with the General Counsel's 
recommendation to the Secretary for decision.
    (5) Any payment under this section either to indemnify a Department 
of Veterans Affairs employee or to settle or compromise a personal 
damage claim shall be contingent upon the availability of appropriated 
funds of the Department of Veterans Affairs.
    (d) Attorney-client privilege. Attorneys employed by the Department 
of Veterans Affairs who participate in any process utilized for the 
purpose of determining whether the Agency should request the Department 
of Justice to provide representation to a Department employee sued, 
subpoenaed or charged in his individual capacity, or whether attorneys 
employed by the Department of Veterans Affairs should provide 
assistance in the representation of such a Department employee, 
undertake a full and traditional attorney-client relationship with the 
employee with respect to application of the attorney-client privilege. 
If representation is authorized, Department of Veterans Affairs 
attorneys who assist in the representation of an employee also 
undertake a full and traditional attorney-client relationship with the 
employee with respect to the attorney-client privilege. Any adverse 
information communicated by the client-employee to an attorney during 
the course of such attorney-client relationship shall not be disclosed 
to anyone, either inside or outside the Department of Veterans Affairs, 
other than attorneys responsible for representation of the employee, 
unless such disclosure is authorized by the employee.
    (e) Suits by the United States. In any instance wherein direct 
submission to a U.S. Attorney for institution of civil action has been 
authorized by the Department of Justice, the Chief Counsel will furnish 
the U.S. Attorney a complete report of the facts and applicable law, 
documentary evidence, names and addresses of witnesses and, in cases 
wherein Department of Veterans Affairs action has been taken, a copy of 
any pertinent decision rendered. The Chief Counsel will forward a copy 
of such report and of any proposed pleading to the Deputy General 
Counsel to whom the Chief Counsel reports and will render any 
practicable assistance requested by the U.S. Attorney.


Sec.  14.515  Suits involving loan guaranty matters (where the 
Secretary is a party to the action).

    (a) Attorneys employed in the Office of General Counsel may 
exercise the right of the United States to bring suit in any court of 
competent jurisdiction to--
    (1) Foreclose a loan made or acquired by the Secretary under any 
home loan program administered by the Veterans Benefits Administration, 
or
    (2) Recover possession of any property conveyed to the Secretary 
after the foreclosure of a home loan described in paragraph (a)(1) of 
this section.
    (b) To carry out the activities described in paragraph (a) of this 
section, the Office of General Counsel may acquire, or oversee the 
acquisition and performance of, legal services provided by attorneys 
other than those who are employees of the Department of Veterans 
Affairs.
    (c) For the purpose of this section, the authority to bring suit 
also means representation in bankruptcy proceedings, as well as other 
activities necessary to preserve the Secretary's interest in a loan 
guaranteed, insured, or made under 38 U.S.C. chapter 37, or in a 
property acquired under such chapter.
    (d) The activities described in this section are subject to the 
direction and supervision of the United States Attorney General and to 
such terms and conditions as the United States Attorney General may 
prescribe.
    (e) In any legal or equitable proceeding to which the Secretary is 
a party (including probate and bankruptcy proceedings) related to any 
home loan program administered by the Veterans Benefits Administration, 
original process and any other process prior to appearance that may be 
served on the Secretary must be delivered to the Office of General 
Counsel, 810 Vermont Ave. NW (02), Washington, DC 20420. Copies of such 
process must also be served on the United States Attorney General and 
the United States Attorney having jurisdiction over that area. Failure 
to comply with the requirements of this paragraph (e) renders the 
service improper.

(Authority: 38 U.S.C. 3730)

Sec.  14.516  Escheat and post fund cases.

    In any case in which the Department of Veterans Affairs is entitled 
to possession of assets or property under the escheat provisions of 38 
U.S.C. 5502(e), the gifts provisions of 38 U.S.C. chapter 83 or the 
General Post Fund provisions of 38 U.S.C. chapter 85, where the assets 
or property are not surrendered upon entitlement, the Chief Counsel 
will endeavor to obtain possession of such assets or property in any 
manner appropriate under local procedure and practice, other than 
litigation. This procedure would include exploratory inquiry of the 
person or entity having custody or possession of the assets or property 
for the purpose of determining whether the person or entity would be 
willing to turn over the property to the Department of Veterans Affairs 
without litigation. If unsuccessful in this effort, a complete report 
will be submitted by the Chief Counsel to the Deputy General Counsel to 
whom the Chief Counsel reports so that appropriate action may be taken 
to obtain the assistance of the Department of Justice in the matter.


Sec.  14.517  Cases affecting the Department of Veterans Affairs 
generally.

    District Chief Counsels will establish and maintain such close 
liaison with the State and Federal courts and related State and Federal 
agencies as to ensure that notice will be afforded the Department of 
Veterans Affairs on all cases affecting the Department of Veterans 
Affairs. Cases affecting substantial interest of the Department of 
Veterans Affairs will be forwarded to the Deputy General Counsel to 
whom the Chief Counsel Reports promptly in every case.


Sec.  14.518  Litigation involving beneficiaries in custody of 
Department of Veterans Affairs employees acting in official capacity.

    (a) Service of process generally. An employee, at a Department of 
Veterans Affairs medical facility, served with a writ of habeas corpus 
involving a beneficiary of the Department of Veterans Affairs in the 
employee's custody will immediately notify the District Chief Counsel 
of the region in addition to taking such steps as in their judgment are 
necessary for self-protection.
    (b) Habeas corpus writs. (1) If a Director of a Department of 
Veterans Affairs medical facility concerned advises that, according, to 
current medical opinion, hospitalization is necessary for the Veteran's 
safety or the safety of others, the District Chief Counsel will 
vigorously oppose the writ at the trial court level. If the writ is 
granted, no further action will be taken unless so instructed by the 
General Counsel.
    (2) If the medical opinion is that hospitalization is not required 
for the Veteran's safety or the safety of others but continued 
treatment is clearly indicated in the Veteran's interest, the District 
Chief Counsel will assure that

[[Page 88206]]

the court issuing the writ is so informed and will abide by the court's 
decision.
    (3) If the medical opinion is that there is no danger of self-
injury to the Veteran or others and the need for continued treatment is 
not clearly demonstrated, the District Chief Counsel will advise the 
Director of the medical facility concerned that the Veteran should be 
released and will notify the Veteran's attorney or other representative 
of the planned discharge, subject to existence of an appropriate 
release authority. These cases will be handled informally to the extent 
practicable.
    (4) Involuntary confinement of mentally ill patients in Department 
of Veterans Affairs facilities is predicated upon the law of the State 
in which the facility is located. In the event the writ is filed in 
Federal Court, the District Chief Counsel will cooperate with the U.S. 
Attorney to the end that the case is removed to the appropriate State 
court.
0
7. Revise and republish Sec.  14.560 to read as follows:


Sec.  14.560  Procedure where violation of penal statutes is involved 
including those offenses coming within the purview of the Assimilative 
Crimes Act.

    The Department of Justice, or the U.S. Attorneys, are charged with 
the duty and responsibility of interpreting and enforcing criminal 
statutes, and the final determination as to whether the evidence in any 
case is sufficient to warrant prosecution is a matter solely for their 
determination. If the Department of Justice or U.S. Attorney decides to 
initiate action, the Chief Counsel will cooperate as may be requested. 
The Chief Counsel will promptly bring to the attention of the Deputy 
General Counsel to whom the Chief Counsel Reports any case wherein the 
Chief Counsel is of the opinion that criminal or civil action should be 
initiated notwithstanding a decision by the U.S. Attorney not to bring 
such action; any case where action has been inordinately delayed; and 
any case which would cause significant publicity or notoriety.

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


0
8. Revise and republish Sec.  14.562 to read as follows:


Sec.  14.562  Collections or adjustments.

    When it is determined that a submission is to be made to the U.S. 
Attorney, no demand for payment or adjustment will be made without the 
advice of the U.S. Attorney. However, if, before or after submission, 
the potential defendant or other person tenders payment of the 
liability to the United States, payment will be accepted if the U.S. 
Attorney has no objection. If the U.S. Attorney determines that 
prosecution is not indicated, or when prosecution has ended, the file 
will be returned to the appropriate office with a report as to the 
action taken.
0
9. Revise and republish Sec. Sec.  14.600 through 14.605 to read as 
follows:


Sec.  14.600  Federal Tort Claims Act generally.

    (a) Federal Tort Claims Act--overview. The Federal Tort Claims Act 
(28 U.S.C. 1291, 1346, 1402, 2401(b), and 2671 through 2680) prescribes 
a uniform procedure for handling of claims against the United States, 
for money only, on account of damage to or loss of property, or on 
account of personal injury or death, caused by the negligent or 
wrongful act or omission of a Government employee while acting within 
the scope of their office or employment, under circumstances where the 
United States, if a private person, would be liable in accordance with 
the law of the place where the act or omission occurred.
    (b) Applicable regulations. The regulations issued by the 
Department of Justice at 28 CFR part 14 are applicable to claims 
asserted under the Federal Tort Claims Act, including such claims that 
are filed with VA. The regulations in Sec. Sec.  14.600 through 14.605 
supplement the regulations at 28 CFR part 14.
    (c) Delegations of authority concerning claims. Subject to the 
limitations in 28 CFR 14.6(c) through (e), authority to consider, 
ascertain, adjust, determine, compromise, and settle claims asserted 
under the Federal Tort Claims Act (including the authority to execute 
an appropriate voucher or stipulation for settlement) is delegated as 
follows:
    (1) To the Under Secretary for Health, the Deputy Under Secretary 
for Health, Veterans Integrated Service Network (VISN) Directors, and 
VA Medical Facility Directors; with respect to any non-medical 
malpractice claim for $5,000 or less that arises out of the operations 
of the Veterans Health Administration.
    (2) To the General Counsel, Principal Deputy General Counsel, 
Deputy General Counsel for Legal Operations, and Chief Counsel, Torts 
Law Group or those authorized to act for them with respect to any 
claim; provided that any award, compromise, or settlement in excess of 
$500,000 shall be effected only with the prior written approval of the 
Attorney General or their designee; provided further that whenever a 
settlement is effected in an amount in excess of $200,000 a memorandum 
fully explaining the basis for the action taken shall be sent to the 
Department of Justice.
    (3) To the Deputy Chief Counsels, Torts Law Group or those 
authorized to act for them with respect to any claim, provided that:
    (i) Any award, compromise, or settlement in excess of $300,000 
shall be effected only with the prior written approval of the General 
Counsel, Principal Deputy General Counsel, Deputy General Counsel for 
Legal Operations, or Chief Counsel, Torts Law Group; provided further 
that whenever a settlement is effected in an amount in excess of 
$200,000, a memorandum fully explaining the basis for the action taken 
shall be sent to the Department of Justice; and
    (ii) Any award where, for any reason, the compromise of a 
particular claim, as a practical matter, will, or may control the 
disposition of a related claim in which the amount to be paid exceeds 
$300,000 shall be effected only with the prior written approval of the 
General Counsel, Principal Deputy General Counsel, Deputy General 
Counsel for Legal Operations, or Chief Counsel, Torts Law Group; and
    (iii) Any award, compromise, or settlement in excess of $500,000 
shall be effected only with the prior written approval of the General 
Counsel, Principal Deputy General Counsel, Deputy General Counsel for 
Legal Operations, or Chief Counsel, Torts Law Group; and with the prior 
written approval of the Attorney General or their designee.
    (d) Delegations of authority to reconsider final denial of a claim. 
Subject to the limitations in 28 CFR 14.6(c) through (e), authority 
under 28 CFR 14.9 to reconsider final denials of claims under the 
Federal Tort Claims Act is delegated as follows:
    (1) To the Torts Law Group, with respect to any claim for $5,000 or 
less that arises out of the operations of the Veterans Health 
Administration.
    (2) To the General Counsel, Principal Deputy General Counsel, 
Deputy General Counsel for Legal Operations, and Chief Counsel, Torts 
Law Group with respect to any claim; provided that any award, 
compromise, or settlement in excess of $500,000 shall be effected only 
with the prior written approval of the Attorney General or their 
designee; provided further that whenever a settlement is effected in an 
amount in excess of $200,000, a memorandum fully explaining the basis 
for the action taken shall be sent to the Department of Justice.

(Authority: 28 U.S.C. 1291, 1346, 1402, 2401, 2402, 2671-80; 38 
U.S.C. 512, 515; 28 CFR part 14, appendix to part 14)


[[Page 88207]]




Sec.  14.601  Investigation and development.

    (a) Development of general tort claims--(1) A report of any 
collision involving a Department of Veterans Affairs Government-owned 
vehicle which results in property damage or personal injury or death 
will be made by the operator of the Government vehicle immediately 
following the accident, on SF 91, Operator's Report of Motor Vehicle 
Accident. A copy of the report, accompanied by an executed copy of VA 
Form 2162, Report of Accident, will be promptly submitted to the 
Director of the facility involved. Forms required by other agencies 
will continue to be used in addition to VA Form 2162.
    (2) Any non-medical malpractice incident resulting in damage to, or 
loss of, property, including personal effects of a patient in a 
Department of Veterans Affairs facility, or in personal injury or 
death, due to alleged negligent or wrongful act or omission of a VA 
employee acting within the scope of their employment, will be 
immediately reported to the facility Director or designee. If a claim 
is filed seeking damages of $5,000 or less, it will be adjudicated by 
the facility. If the claim seeks damages in excess of $5,000, the 
Director of the facility where such occurrence took place will promptly 
transmit a copy of the report to the Office of General Counsel, Torts 
Law Group for investigation and adjudication. Non-medical malpractice 
claims brought against the Veterans Benefits Administration (VBA) or 
the National Cemetery Administration (NCA) will also be referred to the 
Office of General Counsel, Torts Law Group, for investigation and 
adjudication.
    (b) Development of medical malpractice claims. All medical 
malpractice claims will be referred to the Office of General Counsel, 
Torts Law Group for investigation and adjudication.

(Authority: 28 U.S.C. 2671-2680; 38 U.S.C. 512, 515; 28 CFR part 14, 
appendix to part 14)

Sec.  14.602  Requests for medical information.

    Request for medical records, documents, reports, or other 
information shall be handled in accordance with the provisions of 38 
CFR 1.511(a)(2).


Sec.  14.603  Disposition of claims.

    Setoff for cost of unauthorized medical treatment. In any tort 
claim administratively settled or compromised where the claimant owes 
the Department of Veterans Affairs for unauthorized medical treatment, 
there will be included in the tort claim award the amount of the 
claimant's indebtedness to the Government.


Sec.  14.604  Filing a claim.

    (a) Each person who inquires as to the procedure for filing a claim 
against the United States, predicated on an alleged negligent or 
wrongful act or omission of an employee of the Department of Veterans 
Affairs acting within the scope of their employment, will be furnished 
a copy of a Standard Form 95 (SF 95), Claim for Damage, Injury, or 
Death. The claimant will be advised to submit the executed claim 
directly to the Office of General Counsel, Torts Law Group using the 
instructions located here: https://www.va.gov/OGC/FTCA.asp. The 
claimant will also be advised to submit the information prescribed by 
28 CFR 14.4 to the extent applicable. If a claim is presented to VA 
which involves the actions of employees or officers of other agencies, 
the Office of General Counsel will immediately transfer the claim to 
the appropriate agency in accord with 28 CFR 14.2(b)(1).
    (b) A claim shall be deemed to have been presented when the 
Department of Veterans Affairs receives from a claimant, or their duly 
authorized agent or legal representative, a signed SF 95, or other 
detailed written statement of the facts and circumstances giving rise 
to the claim, including the time, place, and date of the accident or 
incident, together with a claim for money damages, in a sum certain, 
for damage to or loss of property or personal injury or death.
    (c) A claim presented in compliance with paragraphs (a) and (b) of 
this section may be amended by the claimant at any time prior to final 
Department of Veterans Affairs action or prior to the exercise of the 
claimant's option under 28 U.S.C. 2675(a). Amendments shall be 
submitted in writing and signed by the claimant or their duly 
authorized agent or legal representative. Upon the timely filing of an 
amendment to a pending claim, the Department of Veterans Affairs shall 
have 6 months in which to make a final disposition of the claim as 
amended and the claimant's option under 28 U.S.C. 2675(a) shall not 
accrue until 6 months after the filing of the amendment.

 (Authority: 28 U.S.C. 1346(b)(1), 2401(b), 2671-2680; 38 U.S.C. 
512, 515; 28 CFR part 14, appendix to part 14)

Sec.  14.605   Suits against Department of Veterans Affairs employees 
arising out of a wrongful act or omission or based upon medical care 
and treatment furnished in or for the Veterans Health Administration.

    (a)(1) Section 2679 of title 28 of the U.S. Code., provides that no 
suit will lie against a Federal employee, or the employee's estate, for 
damage to property, personal injury, or death resulting from their 
wrongful act or omission while acting within the scope of their office 
or employment with the Federal Government. An action against the United 
States under 28 U.S.C. 2671-2680 is the exclusive remedy under these 
circumstances.
    (2) Section 7316 of title 38 of the U.S. Code, provides that:
    (i) Where there is remedy against the United States under 28 U.S.C. 
2671-2680; or
    (ii) Where proceedings for compensation or other benefits from the 
United States are provided by law, and the availability of such 
benefits precludes a remedy under 28 U.S.C. 2671-2680 (as is the case, 
for example, in the Federal Employees' Compensation Act, 5 U.S.C. 8101, 
et seq.), such recourse is the exclusive remedy for personal injury or 
death allegedly occurring as a result of malpractice or negligence 
committed by a physician, dentist, nurse, physician's assistant, 
dentist's assistant, pharmacist or paramedical (for example, medical 
and dental technicians, nursing assistants, and therapists), or other 
supporting personnel, while furnishing medical care and treatment in 
the exercise of duties in or for the Veterans Health Administration. 
Accordingly, a malpractice or negligence suit for personal injury or 
death will not lie against such personnel under the circumstances set 
forth in this paragraph (a)(2)(ii).
    (b) The Department of Justice will defend any civil action or 
proceeding brought in any court against persons referred to in 
paragraph (a)(1) or (2) of this section under the circumstances set 
forth therein. Accordingly, when a suit is filed against any employee 
of the Department of Veterans Affairs as a result of a wrongful act or 
omission arising out of employment with the Government, or as a result 
of furnishing medical or dental care and treatment in or for the 
Veterans Health Administration, the employee shall immediately forward 
a copy of all papers served on them to the District Chief Counsel 
having jurisdiction over the area in which the employee works or to the 
Office of General Counsel, Torts Law Group. The employee will also 
promptly forward to the appropriate District Chief Counsel or the 
Office of General Counsel, Torts Law Group, a signed statement 
indicating whether the employee desires the Department of Justice to 
protect their interests as provided for by law. Even though there may 
not have been service,

[[Page 88208]]

if an employee learns that a suit arising from either of the above-
described circumstances has been filed against them, the employee shall 
immediately so advise the appropriate District Chief Counsel or the 
Office of General Counsel, Torts Law Group, provide a brief description 
of the facts involved, and state whether the employee desires Federal 
intervention.
    (c) Upon receipt of notice that suit has been filed against an 
employee of the Department of Veterans Affairs who is entitled to 
immunity under 28 U.S.C. 2679 or 38 U.S.C. 7316, the Office of General 
Counsel, Torts Law Group, will conduct a preliminary investigation, 
which will include an affidavit by the employee's supervisor as to 
whether the defendant-employee was acting in the scope of their 
employment at the time of the incident, and a request from the 
defendant-employee for representation. The affidavit will contain a 
factual description of the employee's duties and responsibilities at 
the time of the incident and should describe the incident in question. 
Upon receipt of such information, the Torts Law Group will make a 
preliminary determination as to whether such suit comes within the 
provisions of either 28 U.S.C. 2679 or 38 U.S.C. 7316. The Torts Law 
Group will refer the matter to the appropriate U.S. Attorney with a 
recommendation as to whether the employee is eligible for immunity 
under 28 U.S.C. 2679 or 38 U.S.C. 7316. The U.S. Attorney will decide 
whether the Department of Veterans Affairs employee is eligible for the 
immunity. The General Counsel, through the Torts Law Group, will keep 
the employee advised of the action being taken concerning the suit. In 
the event that the U.S. Attorney or the Department of Justice 
determines that the employee is not eligible for immunity pursuant to 
one of the aforementioned provisions, the General Counsel's office, 
through the Torts Law Group, will advise the employee and will call to 
their attention the discretionary conditional indemnification 
provisions of 38 U.S.C 7316(e).
    (d) Where a civil action is commenced in a State court against a 
Department of Veterans Affairs employee, and the matter is within the 
purview of either 28 U.S.C. 2679, or 38 U.S.C. 7316, the Department of 
Justice will be asked to remove such suit to the appropriate Federal 
District Court before trial, where it will be deemed an action against 
the United States. The defendant employee will be dismissed from the 
suit.
    After such removal, the United States has available all defenses to 
which it would have been entitled if the action had originally been 
commenced against the United States in the proper Federal District 
Court. Should a Federal District Court determine that the Department of 
Veterans Affairs employee whose acts or omissions gave rise to the suit 
was not acting within the scope of their office or employment, and 
therefore not eligible for immunity as provided for in the 
aforementioned section, the case will be remanded to the State court 
from which it was removed, the employee will be reinstated as the 
defendant, and the United States will be dismissed from the suit. Where 
the employee has been reinstated as the defendant under such 
circumstances, in order to protect any rights which they may have under 
38 U.S.C. 7316(e), they shall immediately notify the Office of General 
Counsel, Torts Law Group, which will call the employee's attention to 
the discretionary conditional indemnification provisions of section 
7316(e).
    (e) Under the authority of 38 U.S.C. 7316(e), the Secretary of 
Veterans Affairs may pay for monetary damages sustained by or assessed 
against an individual (or their estate) described in paragraph (a)(2) 
of this section, as the result of any suit instituted against such 
individual which is not cognizable under the provisions of 28 U.S.C. 
2671-2680 because the individual was assigned to a foreign country, the 
said individual was detailed to a State or political division thereof, 
or the cause of action was otherwise not actionable under the Federal 
Tort Claims Act; Provided, That the amount of damages sustained is 
reasonable when compared with similar cases, litigated or settled, and 
the United States was given a reasonable opportunity to defend such 
individual and to participate in settlement negotiations.

 (Authority: 28 U.S.C 2671-2680; 38 U.S.C. 512, 515, 7316; 28 CFR 
part 14, appendix to part 14)


0
10. Revise and republish Sec. Sec.  14.615 through 14.619 to read as 
follows:


Sec.  14.615   General.

    (a) Authority. Section 515(b) of title 38 of the U.S. Code., 
provides that the Secretary of Veterans Affairs may pay tort claims, in 
the manner authorized in the first paragraph of 28 U.S.C. 2672, when 
such claims arise in foreign countries in connection with Department of 
Veterans Affairs operations.
    (b) Action by claimant. Claims for property loss or damage may be 
filed by the owner of the property or their duly authorized agent or 
legal representative. If the property was insured and the insurer is 
subrogated, in whole or in part, and if both the owner and the insurer 
desire to file a claim for their respective losses they should join in 
one claim. Claims for personal injury may be filed by the injured 
person or their agent or legal representative. Claims for death may be 
filed by the personal representative of the decedent or any other 
legally qualified person. When filed by an agent or legal 
representative, the claim must show the title or capacity of the person 
representing the claimant and be accompanied by evidence of the 
appointment of such person as agent, legal representative, executor/
executrix, administrator/administratrix, guardian, or other fiduciary.
    (c) Time for filing. A claim may not be allowed under 38 U.S.C. 
515(b) unless it is presented to the Secretary or their designee within 
2 years after the claim accrues.

 (Authority: 28 U.S.C 2671-2680; 38 U.S.C. 512, 515, 7316; 28 CFR 
part 14, appendix to part 14)

Sec.  14.616   Form and place of filing claim.

    (a) Form of claim. Claims arising under 38 U.S.C. 515(b) will be 
submitted on a Standard Form 95 or prepared in the form of a statement 
sworn to or affirmed before an official with authority to administer 
oaths or affirmations and will contain the following information:
    (1) The name and address of claimant;
    (2) The amount claimed for injury or death, and for property loss 
or damage;
    (3) If property was lost or damaged, the amount paid or payable by 
the insurer together with the name of the insurer;
    (4) A detailed statement of the facts and circumstances giving rise 
to the claim, including the time, place, and date of the accident or 
incident;
    (5) If property was involved, a description of the property and the 
nature and extent of the damage and the cost of repair or replacement 
based upon at least two impartial estimates;
    (6) If personal injury was involved, the nature of the injury, the 
cost of medical and/or hospital services, and time and income lost due 
to the injury;
    (7) If death is involved, the names and ages of claimants and their 
relationship to decedent;
    (8) The name and position of the employee(s) of the United States 
Department of Veterans Affairs allegedly responsible for the accident 
or injury, or loss or damage of property; and
    (9) The names and addresses of any witnesses to accident or 
incident.
    (b) Place of filing claim. Claims arising in the Philippines under 
38

[[Page 88209]]

U.S.C. 515(b) will be filed with the Director, Department of Veterans 
Affairs Regional Office, Manila, Republic of the Philippines or 
submitted directly to the Office of General Counsel, Torts Law Group 
using the instructions located here: https://www.va.gov/OGC/FTCA.asp. 
Claims arising in other foreign countries will be filed with the 
American Embassy or Consulate nearest the place where the incident 
giving rise to the claim took place.
    (c) Evidence to be submitted by claimant--(1) General. The amount 
claimed on account of damage to or loss of property or on account of 
personal injury or death shall, so far as possible, be substantiated by 
competent evidence. Supporting statements, estimates and documented 
evidence of the damages must accompany the claim. All evidence and 
certified copies must be attached to the original claim. All documents 
in other than the English language must be accompanied by English 
translations.
    (2) Personal injury or death. In support of claims for personal 
injury or death, the claimant will submit, as may be appropriate, 
itemized bills for medical, hospital, or burial expenses actually 
incurred; a statement from the claimant's or decedent's employer as to 
time and income lost from work; and a written report by the attending 
physician with respect to the nature and extent of the injury, the 
nature and extent of treatment, the degree of disability, the period of 
hospitalization or incapacitation, and the prognosis as to future 
treatment, hospitalization and any other relevant evidence.
    (3) Damage to personal property. In support of claims for damage to 
personal property which has been repaired, the claimant will submit an 
itemized receipt, or, if not repaired, itemized estimates of the cost 
of repairs by two reliable parties who specialize in such work. If the 
property is not economically repairable, the claimant will submit 
corroborative statements of two reliable, qualified persons with 
respect to cost, age of the property and salvage value.
    (4) Damage to real property. In support of claims for damage to 
land, trees, buildings, fences, or other improvements to real property, 
the claimant will submit an itemized receipt if repairs have been made, 
or, if repairs have not been made, itemized estimates of the cost of 
repairs by two reliable persons who specialize in such work. If the 
property is not economically repairable, the claimant will submit 
corroborative statements of two reliable, qualified persons with 
respect to the value of the improvements both before and after the 
accident or incident and the cost of replacements.


(Approved by the Office of Management and Budget under control number 
2900-0437)


Sec.  14.617   Disposition of claims.

    (a) Disposition of claims arising in Philippines. All claims 
arising under 38 U.S.C. 515(b) in the Philippines, will be forwarded 
directly by the Director to the Office of General Counsel, Torts Law 
Group.
    (b) Disposition of claims arising in foreign countries other than 
the Philippines. When a claim is received in an American Embassy or 
Consulate, the Embassy or Consulate receiving such claim shall make 
such investigation as may be necessary or appropriate for a 
determination of the validity of the claim and thereafter shall forward 
the claim, together with all pertinent material, through regular 
channels of the Department of State to the Torts Law Group, Office of 
General Counsel, Department of Veterans Affairs, Washington, DC.
    (c) Payment of claims. Upon determining that there is liability on 
the part of the United States under 38 U.S.C. 515(b), the General 
Counsel, or such other personnel as may be designated by the Secretary, 
will take the necessary action to effect payment.


Sec.  14.618   Collection action.

    (a) In a case where the Office of General Counsel determines that 
damage to or loss of Government property under the jurisdiction of the 
Department of Veterans Affairs resulted from the negligence or other 
legal wrong of a person other than an employee of the United States, 
while acting within the scope of their employment, the Office of 
General Counsel or appropriate VA designee will request payment in full 
or other appropriate relief for the damage or loss from the responsible 
person or entity.
    (b) The Office of General Counsel or VA designee may collect, 
compromise, suspend, or terminate collection action on any such claim 
as is authorized under 38 CFR 2.6(e)(4), in conformity with the 
standards in 38 CFR 1.900 et seq. Any such claim that has not been 
collected in full and which has not been compromised, suspended, or 
terminated may be referred to the appropriate United States Attorney's 
Office, in accordance with 38 CFR 1.950 through 1.953.


Sec.  14.619   Collection action.

    (a) The Federal Medical Care Recovery Act (``FMCRA''), 42 U.S.C. 
2651, et seq., and 38 U.S.C. 1729 authorize the Department to recover 
from third parties the costs of medical care or services furnished or 
to be furnished to an individual by the Department, or paid for or to 
be paid for on behalf of an individual by the Department.
    (1) The Chief Counsel, Revenue Law Group, or their designee 
(``Responsible Official'') shall have the responsibility for taking 
action with respect to the rights described in this paragraph (a).
    (2) For purposes of this section, the term ``third party'' refers 
to those from whom the United States may recover pursuant to the FMCRA 
and 38 U.S.C. 1729.
    (3) For purposes of this section, the term ``individual'' refers to 
the person to whom the Department furnished, or will furnish, medical 
care or services or on whose behalf the Department paid, or will pay 
for, medical care or services. The term also includes those acting on 
behalf of such person.
    (4) For purposes of this section, medical care, or services for 
which the Department may recover shall include medical care or services 
provided, paid for, to be provided, or to be paid for resulting from 
aggravation or exacerbation of a service-connected disability.
    (b) Where the circumstances of the medical care or services may 
support a claim under the authorities described in paragraph (a) of 
this section, the individual is obligated to notify the Department of 
the circumstances underlying the medical care or services and to 
cooperate with the Department's efforts to pursue recovery incident to 
that treatment.
    (1) The initial duty to notify is satisfied by fully completing a 
billing request and submitting the same to the Responsible Official. 
The form and instructions for completing and submitting this request 
are available at the Department's revenue recovery website. This 
constitutes the minimum information necessary for the Department to 
investigate a potential claim.
    (2) There is a continuing duty to notify the Department of all 
significant developments regarding any claim or demand made by the 
individual against a third party, including but not limited to:
    (i) The presentation of any formal or informal claim or demand 
against the third party;
    (ii) The commencement and progress of any legal proceedings against 
the third party;

[[Page 88210]]

    (iii) Any settlement or offer of settlement with the third party 
and the details of any such settlement or offer; and
    (iv) Such other information as requested by the Responsible 
Official.
    (3) The individual must cooperate with the Department's recovery 
efforts.
    (i) The amounts specified in any claim asserted under this section 
constitute an asset of the United States. Accordingly, any assertion by 
the individual of the costs of medical care or services furnished or 
paid for by the Department is authorized only for the sole use and 
benefit of the United States, and the individual must ensure that the 
Department's interests are protected. Individuals who refuse to assert 
the Department's interests are not authorized to present the 
Department's treatment or billing information in support of any claim 
of the individual and must promptly notify the Responsible Official in 
writing of the refusal. Absent timely notice of refusal, assertion of 
the Department's interests is assumed and will be relied upon by the 
Department.
    (ii) The Department's claim can be resolved only as described in 
this section. The Department's rights cannot be extinguished by an 
individual's settlement and release with the third party. Accordingly, 
individuals must contact the Responsible Official prior to the 
distribution of any settlement proceeds to confirm the amount of the 
Department's claim and to discuss the resolution of that claim.
    (iii) Third parties must, when demanded by the Responsible 
Official, pay the Department separately and directly in satisfaction of 
the Department's interest and must do so contemporaneously with 
distribution to other stakeholders, including attorneys and 
beneficiaries.
    (iv) Should any portion of the Department's claim reasonably be 
disputed, the Responsible Official must be notified, in writing, of the 
dispute and the reasons for it within 30 days of receipt of funds from 
the third party. Amounts not in dispute must be remitted to the 
Department, and the amounts in dispute must be held in trust, pending 
resolution of the dispute.
    (4) Failure to meet the notification and cooperation duties 
associated with the Department's recovery interests may result in 
referral to the Department of Justice, as described in paragraph (e) of 
this section.
    (c) Where the Responsible Official determines that a claim to 
recover the costs of medical care or services is appropriate under any 
of the authorities described in paragraph (a) of this section, the 
Responsible Official will assert a claim against the third party, or 
the third party's insurer, to recover such costs.
    (1) The claim shall consist of a Notice of Claim describing the 
legal basis of the claim, together with an explanation of the charges. 
This serves as notice that proceeds from the individual's claim/case 
must not be distributed without first satisfying the Department's 
claim.
    (2) The charges sought shall be calculated and communicated 
pursuant to Federal law.
    (i) The Department is not obligated to provide itemized billing.
    (ii) The Department is not obligated to provide billing in any 
particular format.
    (iii) The costs of medical care or services furnished by the 
Department shall be calculated according to the framework of 38 CFR 
17.101.
    (iv) The costs of medical care or services provided by non-Federal 
providers at Departmental expense shall be calculated consistent with 
the actual amounts that the Department paid for such care.
    (v) The costs of medical care or services provided by the 
Department on a humanitarian basis pursuant to 38 U.S.C. 1784 shall be 
calculated according to the framework of 38 CFR 17.102.
    (vi) No other authorities that purport to value the medical care or 
services for which the Department may recover, to include State fee 
schedules, are applicable, absent express agreement to that effect from 
the Responsible Official.
    (3) The individual or other stakeholder must forward requests for 
medical records directly to the Release of Information Office of the 
treating facility. The provision of medical records is not a 
prerequisite to the Department's recovery.
    (d) Subject to the limitations of this paragraph (d), the 
Responsible Official is authorized to resolve a claim pursuant to this 
section.
    (1) The Responsible Official may collect, compromise, settle, or 
waive any claim asserted pursuant to this section, as is authorized 
under 38 CFR 2.6(e)(3) and (9). However, the Responsible Official is 
not authorized to resolve a claim arising under the FMCRA without 
approval of the Department of Justice, other than by payment in full, 
if such claim is in excess of the amount specified by the Department of 
Justice.
    (2) The Responsible Official may suspend or terminate collection 
activity on any claim asserted pursuant to this section, as is 
authorized by 38 CFR 2.6(e)(4)(iii). However, the Responsible Official 
is not authorized to suspend or terminate collection activity on such a 
claim arising under the FMCRA without approval of the Department of 
Justice if such claim is in excess of the amount specified by the 
Department of Justice.
    (3) Requests for compromises and waivers should be in writing and 
should include:
    (i) Copies of all settlement agreements, judgments, or offers of 
resolution,
    reflecting the amount of settlement;
    (ii) Amounts received from all sources;
    (iii) A confirmation from the individual that no additional assets 
are available to satisfy the claim;
    (iv) A draft distribution plan, which accounts for all amounts 
received under the settlement;
    (v) The amount(s), if any, by which any non-Departmental 
stakeholders have agreed to reduce their claims against the settlement;
    (vi) The amount of the proposed distribution to the Department; and
    (vii) Any additional information that indicates a need for 
reasonableness and moderation in the exercise of the Department's 
rights.
    (4) Pursuant to 5 U.S.C. 3106, the Responsible Official shall not 
compromise a claim in consideration of private attorney fees.
    (e) The Department may pursue all available legal remedies to 
effect recovery of a claim asserted under this section. These remedies 
include, but are not limited to the following.
    (1) The Responsible Official may refer any such claim to the 
appropriate United States Attorney's Office for enforcement action.
    (i) The United States may, at its discretion, file suit in an 
appropriate United States District Court, intervene in a State court 
action, or pursue removal of a State action to an appropriate United 
States District Court.
    (ii) The amounts specified in any claim asserted under this section 
constitute an asset of the United States. Consequently, in the event 
that a party other than the United States comes into possession of any 
funds conveyed in contemplation of such a claim, such funds may not be 
distributed other than as authorized by the Responsible Official. 
Distribution of funds without such authorization may be referred to the 
Department of Justice for action under 31 U.S.C. 3729(a)(1)(D), which 
may result in treble damages and civil penalties against the party 
undertaking such unauthorized distribution.
    (iii) Unless expressly authorized, claims asserted under this 
section cannot be satisfied other than by payment in full. Unauthorized 
payment

[[Page 88211]]

of less than the amounts asserted may be referred to the Department of 
Justice for action under 31 U.S.C. 3729(a)(1)(G), which may result in 
treble damages and civil penalties.
    (2) The Responsible Official may refer any such claim to the 
Department of Treasury for debt collection.

(Authority: 38 U.S.C. 1729; 42 U.S.C. 2651 et seq.; 28 CFR 43.2)


0
11. Revise and republish Sec. Sec.  14.664 through 14.669 to read as 
follows:


Sec.  14.664   Scope of authority and effective date.

    The Military Personnel and Civilian Employees' Claims Act (MPCECA) 
of 1964, 31 U.S.C. 3721, authorizes the Secretary or the Secretary's 
designee to settle and pay a claim not to exceed $40,000 made by an 
employee of the Department of Veterans Affairs for damage to, or loss 
of personal property incident to such person's service.
    Authority is delegated by 38 CFR 2.6(e)(5) to the General Counsel, 
the Principal Deputy General Counsel, the Deputy General Counsel for 
Legal Operations, and the Chief Counsel, Torts Law Group, and those 
acting for them to settle and pay such claims on behalf of the 
Secretary, and such settlement shall be final and conclusive.

 (Authority: 31 U.S.C. 3721(b))

Sec.  14.665   Claims.

    (a) The claim must be presented on VA Form 4760, Employee's Claim 
for Reimbursement for Personal Property Damaged or Lost Incident to 
Employment or VA Form 4629, Claim for Reimbursement for Damaged or 
Destroyed Personal Property for property destroyed or damaged by a 
patient while the employee was engaged in the performance of official 
duties. The form will be submitted to the facility Director or designee 
of the VA facility where the claim originates within 2 years after the 
incident that caused the loss or damage or within 2 years after the 
employee discovers the loss or damage. The claim must be executed and 
certified by the employee suffering the loss or damage, or in the event 
of their death, by the employee's survivors in the following order of 
precedence: Spouse, Child, Parent, or Sibling. All claims must contain 
the following:
    (1) The date, time, and place the loss or damage occurred and the 
circumstances surrounding such loss or damage, together with the 
supporting statements of any witnesses who can verify such facts.
    (2) In the event of damage, the date of acquisition, original cost, 
condition before damage, and at least two estimates of the cost of 
repair or replacement. In the event of loss, the date of acquisition, 
the original cost, the condition, and an estimate of the reasonable 
market value of the article or articles.
    (3) A statement as to any claim or potential claim they may have 
for indemnification of the loss or damage against other than the United 
States and whether they will assign such to the United States and 
cooperate in its prosecution. Where such claim or potential claim is 
against a carrier or insurer, evidence that a timely claim has been 
properly made. Where a recovery from the carrier or their insurer has 
been obtained or offered, such information shall be included.
    (4) In cases involving damage or destruction of personal property 
by patients or domiciliary members, a statement as to whether a claim 
was filed pursuant to 38 U.S.C. 703(e) and whether such claim has been 
finally denied.
    (b) The VA facility Director or designee receiving the claim will 
ascertain if such claim is complete in all respects and conduct such 
investigation as is necessary to establish all facts required to 
properly evaluate the claim both as to merit and the reasonable amount 
payable for the loss or damage or will refer the claim to the Office of 
General Counsel Torts Law Group for investigation if the claim seeks 
damages in excess of $5,000. Where it is indicated that the claimant 
may have a potential claim against other than the United States, the 
employee designated will secure a suitable assignment of all right and 
title to such claim, to the extent the United States makes 
reimbursement, and the agreement of the claimant to furnish such 
evidence as may be necessary to pursue such claim. If the potential 
claim is against a carrier or insurer, the employee designated will 
ascertain that the claimant has filed a timely proper claim and procure 
evidence thereof. The employee designated will also include information 
concerning any offer of settlement the carrier may have made.


Sec.  14.666   Torts Law Group responsibility.

    Torts Law Group is available for consultation if requested and as 
needed by the facility's human resources office. If, after consultation 
from the investigating facility or with the Torts Law Group, it is 
determined by the Torts Law Group that the facts or amount in 
controversy requires further input or investigation from the Torts Law 
Group, the Torts Law Group will conduct such additional investigation 
as it deems necessary to establish all facts required. If such 
potential claim is against a carrier or insurer, the Torts Law Group 
may be consulted to help to ascertain that the claimant has filed a 
timely proper claim against the carrier or insurer and review same for 
legal sufficiency.


Sec.  14.667   Claims payable.

    (a) No claim shall be paid unless timely filed in proper form as 
provided in Sec.  14.665 and the preponderance of the evidence 
establishes that the loss or damage:
    (1) Actually occurred and the amount claimed is reasonable and does 
not exceed $40,000;
    (2) Was incident to the employee's service and their possession of 
the property was reasonable, useful, or proper under the circumstances;
    (3) The claim is substantiated by proper and convincing evidence;
    (4) Was not caused wholly or in part by the negligent or wrongful 
act of the claimant or the claimant's agent, and that the claimant has 
no right to indemnification for the loss or damage from other than the 
United States, except to the extent that the claimant assigns such 
right to the United States and agrees to furnish evidence required to 
enable the United States to enforce such right. In the event there is a 
right to recovery for the loss or damage from a carrier or insurer the 
claimant will be required to file a timely claim for such recovery 
before consideration of the claim against the United States.
    (b) No claim for the cost of repair or replacement of personal 
property of employees damaged or destroyed by patients or domiciliary 
members while such employees are engaged in the performance of official 
duties shall be entertained under Sec. Sec.  14.664 through 14.667, 
unless claim filed pursuant to 38 U.S.C. 703(e) has been finally denied 
for the reason that such claim did not meet the criteria established by 
that law.


Sec.  14.668   Disposition of claims.

    (a) Disallowed claims. Claimants will be promptly notified of the 
disallowance of a claim and the reasons therefor.
    (b) Allowed claims--(1) Reimbursement in kind (where applicable). 
Where a claim is allowed and it is determined to be advantageous to the 
Government, reimbursement will be made in kind. The official 
authorizing settlement will facilitate the procurement of the necessary 
article or articles and deliver same to the claimant.
    (2) Reimbursement by payment. The official authorizing settlement 
will

[[Page 88212]]

forward allowed claims, other than those requiring reimbursement in 
kind, to the Fiscal office at the Department of Veterans Affairs 
facility where the claim arose. That activity will audit the claim, 
which if found proper for payment, will be scheduled and forwarded to 
the appropriate office for payment.


Sec.  14.669   Fees of agents or attorneys; penalty.

    Notwithstanding a contract, the representative of a claimant may 
not receive more than 10 percent of the payment of a claim submitted 
under the authority of 31 U.S.C. 3721 for services related to the 
claim. A person violating this provision shall be fined not more than 
$1,000.
0
12. Revise and republish Sec. Sec.  14.800 through 14.810 to read as 
follows:


Sec.  14.800   Purpose.

    Sections 14.800 through 14.810 establish policy, assign 
responsibilities, and prescribe procedures with respect to:
    (a) The production or disclosure of official information or records 
of the Department of Veterans Affairs (VA); and
    (b) The testimony of present or former VA personnel relating to any 
official information acquired by any individual as part of that 
individual's performance of official duties, or by virtue of that 
individual's official status, in Federal, state, or other legal 
proceedings covered by Sec. Sec.  14.800 through 14.810.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.801  Applicability.

    (a) Sections 14.800 through 14.810 apply to:
    (1) Contractors and subcontractors which undertake a VA activity or 
maintain VA records when the contract covering their actions provides 
that Sec. Sec.  14.800 through 14.810 apply, as well as the personnel 
of contractors and subcontractors.
    (2) All components of the Department, including Canteen Service, 
the Office of Inspector General, and all staff offices, services and 
administrations, and their personnel.
    (b) Sections 14.800 through 14.810 do not apply to:
    (1) Testimony or records provided in accordance with Office of 
Personnel Management regulations implementing 5 U.S.C. 6322.
    (2)(i) Legal proceedings in which the Department of Veterans 
Affairs, the Secretary of Veterans Affairs, or the United States is a 
party, is represented, and has a direct and substantial interest; or
    (ii) Legal proceedings in which an individual or entity is a party 
for whom the United States is providing representation.
    (3) Legal proceedings in which VA personnel are to testify while in 
leave or off-duty status as to matters which are purely personal and 
that do not arise out of, or relate in any way to, the individual's 
official duties or to the functions and activities of VA or the United 
States.
    (4) Official comments on matters in legal proceedings, where 
appropriate.
    (5) Disclosures, in the absence of a request or demand, of 
information or records by VA components, particularly the Office of 
Inspector General, to Federal, state, local and foreign law enforcement 
or regulatory agencies.
    (6) Congressional demands or requests for testimony or documents.
    (7) Requests for, and release of, records under the Freedom of 
Information Act, 5 U.S.C. 552, and the Privacy Act, 5 U.S.C. 552a.
    (8) Disclosures in child support and alimony proceedings under the 
authority of 42 U.S.C. 659 and regulations promulgated by the Office of 
Personnel Management implementing that section.
    (9) Legal proceedings before or involving VA concerning a claim or 
dispute as to the rights of a beneficiary or obligations or liabilities 
of the United States under any law or program administered by the 
Department of Veterans Affairs.
    (10) Requests by a Veteran or that Veteran's representative for 
access to the Veteran's records for use in an administrative or 
judicial claim for benefits administered by the Department of Veterans 
Affairs.
    (11) Foreign legal proceedings covered by Department of State 
procedures governing the production of records or witnesses in response 
to requests or demands in connection with foreign legal proceedings.
    (c) Sections 14.800 through 14.810 are not intended to, and do not:
    (1) Waive the sovereign immunity of the United States;
    (2) Infringe upon or displace the responsibilities committed to the 
Department of Justice in conducting litigation on behalf of the United 
States;
    (3) Remove the need for the Department to comply with any 
applicable legal confidentiality provisions, such as the Privacy Act, 
before having the legal authority to make any disclosure or providing 
any testimony under Sec. Sec.  14.800 through 14.810. (Sections 14.800 
through 14.810 do not give VA disclosure authority under applicable 
confidentiality statutes; absent disclosure authority granted by those 
statutes, information, and records subject to those laws may not be 
disclosed, or testimony given under the procedures established in 
Sec. Sec.  14.800 through 14.810); or
    (4) Preclude treating any written request for agency records that 
is not in the nature of a request or demand related to legal 
proceedings as a request under the Freedom of Information or Privacy 
Acts.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.802  Definitions.

    (a) Demand. Order, subpoena, or other demand of a court of 
competent jurisdiction, or other specific authority or under color of 
law, for the production, disclosure, or release of VA information or 
records or for the appearance and testimony of VA personnel as 
witnesses.
    (b) Request. Any informal request, by whatever method, from a 
party, a party's attorney, or any person acting on behalf of a party, 
for the production of VA records or information or for the testimony of 
VA personnel as witnesses, which has not been ordered by a court of 
competent jurisdiction or other specific authority or under color of 
law.
    (c) VA personnel. All present and former officers and employees of 
VA and any other individuals who are or have been appointed by, or 
subject to the supervision, jurisdiction, or control of the Secretary 
of Veterans Affairs or another VA official, including nonappropriated 
fund activity employees, and other individuals hired through 
contractual agreements by or on behalf of VA, or performing services 
under such agreements for VA, such as consultants, contractors, 
subcontractors, their employees and personnel. This phrase also 
includes individuals who served or are serving on any advisory 
committee or in any advisory capacity, whether formal or informal.
    (d) Legal proceedings. All pretrial, trial, and post-trial stages 
of all existing or reasonably anticipated judicial or administrative 
actions, hearings, investigations, or similar proceedings before 
courts, commissions, boards, or other tribunals, foreign or domestic 
that are not specified in Sec.  14.801(b). This phrase includes 
depositions and other pretrial proceedings, as well as responses to 
formal or informal requests by attorneys or others in situations 
involving legal proceedings not specified in Sec.  14.801(b).
    (e) Official VA information. All information of any kind, however 
stored, that is in the custody and control of VA or was acquired by VA 
personnel

[[Page 88213]]

as part of their official duties or because of their official status.
    (f) Testimony. Testimony in any form, including personal 
appearances in court, depositions, recorded interviews, telephonic, 
video or video recorded testimony or any response during discovery or 
similar proceedings, which response would involve more than the 
production of records.
    (g) VA records. All documents which are records of the Department 
of Veterans Affairs for purposes of the Freedom of Information Act, 5 
U.S.C. 552, regardless of storage media, including the term ``record'' 
as defined in 44 U.S.C. 3301, and implementing regulations.
    (h) Designated VA Official. VA official authorized to make the 
determinations provided in Sec.  14.807. Other than for personnel in 
the Office of the Inspector General (OIG), the General Counsel or the 
General Counsel's designee is the Designated VA Official. For personnel 
in the OIG, the Counselor to the Inspector General or an attorney 
designated by the Counselor to the Inspector General, is the Designated 
VA Official authorized to make the determinations provided in Sec.  
14.807, and that official will keep the General Counsel informed of 
such determinations for purposes of litigation or claims of privilege.

(Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.803  Policy.

    (a) VA personnel may provide testimony or produce VA records in 
legal proceedings covered by Sec. Sec.  14.800 through 14.810 only as 
authorized in accordance with Sec. Sec.  14.800 through 14.810. In 
determining whether to authorize testimony or the production of 
records, the Designated VA Official will consider the effect testifying 
or producing records will have on the ability of the agency or VA 
personnel to perform their official duties in this case, as well as in 
future cases generally, based on the factors set forth in Sec.  14.804.
    (b) The Department of Veterans Affairs does not seek to deny its 
employees access to the courts as citizens, or in the employees' 
private capacities on off-duty time.
    (c) The Department of Veterans Affairs does not seek to deny the 
Nation's Veterans access to the courts.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.804  Factors to consider.

    In deciding whether to authorize the disclosure of VA records or 
information or the testimony of VA personnel, the Designated VA 
Official should consider the following types of factors:
    (a) The need to avoid spending the time and money of the United 
States for private purposes and to conserve the time of VA personnel 
for conducting their official duties concerning servicing the Nation's 
Veteran population;
    (b) How the testimony or production of records would assist VA in 
performing its statutory duties;
    (c) Whether the disclosure of the records or presentation of 
testimony is necessary to prevent the perpetration of fraud or other 
injustice in the matter in question;
    (d) Whether the demand or request is unduly burdensome or otherwise 
inappropriate under the applicable court or administrative rules;
    (e) Whether the testimony or production of records, including 
release in camera, is appropriate or necessary under the rules of 
procedure governing the case or matter in which the demand or request 
arose, or under the relevant substantive law concerning privilege;
    (f) Whether the testimony or production of records would violate a 
statute, executive order, regulation, or directive. (Where the 
production of a record or testimony as to the content of a record or 
about information contained in a record would violate a confidentiality 
statute's prohibition against disclosure, disclosure will not be made. 
Examples of such statutes are the Privacy Act, 5 U.S.C. 552a, and 38 
U.S.C. 5701, 5705 and 7332;
    (g) Whether the testimony or production of records, except when in 
camera and necessary to assert a claim of privilege, would reveal 
information properly classified pursuant to applicable statutes or 
Executive orders;
    (h) Whether the testimony would interfere with ongoing law 
enforcement proceedings, compromise constitutional rights, compromise 
national security interests, hamper VA or private health care research 
activities, reveal sensitive patient or beneficiary information, 
interfere with patient care, disclose trade secrets or similarly 
confidential commercial or financial information, or otherwise be 
inappropriate under the circumstances;
    (i) Whether such release or testimony reasonably could be expected 
to result in the appearance of VA or the Federal Government favoring 
one litigant over another;
    (j) Whether such release or testimony reasonably could be expected 
to result in the appearance of VA or the Federal Government endorsing 
or supporting a position advocated by a party to the proceeding;
    (k) The need to prevent the public's possible misconstruction of 
variances between personal opinions of VA personnel and VA or Federal 
policy;
    (l) The need to minimize VA's possible involvement in issues 
unrelated to its mission;
    (m) Whether the demand or request is within the authority of the 
party making it;
    (n) Whether the demand or request is sufficiently specific to be 
answered; and
    (o) Other matters or concerns presented for consideration in making 
the decision.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.805  Contents of a demand or request.

    The request or demand for testimony or production of documents 
shall set forth in, or be accompanied by, an affidavit or a written 
statement by the party seeking the testimony or records, or by the 
party's attorney, summarizing of the nature and relevance of the 
testimony or records sought in the legal proceedings. The affidavit or 
written statement shall contain sufficient information for the 
Designated VA Official to determine whether VA personnel should be 
allowed to testify or records should be produced. Where the materials 
are considered insufficient to make the determination as described in 
Sec.  14.807, the Designated VA Official may ask the requester to 
provide additional information.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.806  Scope of testimony or production.

    VA personnel shall not, in response to a request or demand for 
testimony or production of records in legal proceedings, comment or 
testify or produce records without the prior written approval of the 
Designated VA Official. VA personnel may only testify concerning or 
comment upon official VA information, subjects, or activities, or 
produce records, that were specified in writing, submitted to and 
properly approved by the Designated VA Official.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.807  Procedure when demand or request is made.

    (a) VA personnel upon whom a demand or request for testimony or the 
production of records is made in connection with legal proceedings as 
defined in Sec.  14.802(d) shall notify the head of their field 
station, or if in Central Office, the head of the component for which 
they work. The field station or Central Office

[[Page 88214]]

component shall notify the Office of General Counsel.
    (b) The Designated VA Official shall determine whether VA personnel 
may be interviewed, contacted, or used as witnesses, including used as 
expert witnesses, and whether VA records may be produced; and what, if 
any, conditions will be imposed upon such interview, contact, 
testimony, or production of records.
    (c) In appropriate cases, the Designated VA Official shall promptly 
notify the Department of Justice of the demand or request. After 
consultation and coordination with the Department of Justice, as 
required, and after any necessary consultation with VA component which 
employs or employed VA personnel whose testimony is sought or which is 
responsible for the maintenance of the records sought, the Designated 
VA Official shall determine in writing whether the individual is 
required to comply with the demand or request and shall notify the 
requester or the court or other authority of the determination reached 
where the determination is that VA will not comply fully with the 
request or demand. The Designated VA Official shall give notice of the 
decision to other persons as circumstances may warrant. Oral approval 
may be granted, and a record of such approval made and retained in 
accordance with the procedures in Sec.  14.807(f) concerning oral 
requests or demands.
    (d) If, after VA personnel have received a request or demand in a 
legal proceeding and have notified the Designated VA Official in 
accordance with this section, a response to the request or demand is 
required before instructions from the Designated VA Official are 
received, the Designated VA Official shall furnish the requester or the 
court or other authority with a copy of Sec. Sec.  14.800 through 
14.810 and any other relevant documentation, inform the requester or 
the court or other authority that the request or demand is being 
reviewed, and seek a stay of the request or demand pending a final 
determination by the Designated VA Official.
    (e) If a court of competent jurisdiction or other appropriate 
authority declines to stay the effect of the demand or request in 
response to action taken pursuant to paragraph (d) of this section, or 
if such court or other authority orders that the demand or request be 
complied with notwithstanding the final decision of the Designated VA 
Official, VA personnel upon whom the demand or request was made shall 
notify the Designated VA Official of such ruling or order. If the 
Designated VA Official determines that no further legal review of or 
challenge to the ruling or order will be sought, the affected VA 
personnel shall comply with the demand, order, or request. However, if 
directed by the Designated VA Official, after consultation with the 
appropriate United States Attorney's office, the affected VA personnel 
shall respectfully decline to comply with the demand, request, or 
order. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (f) Normally, written demands or requests allowing reasonable lead 
time for evaluation and processing are required. However, in emergency 
situations where response time is limited and a written demand or 
request is impractical, the following procedures should be followed:
    (1) The Designated VA Official has the authority to waive the 
requirement of a written demand or request and may expedite a response 
in the event of an emergency under conditions which could not be 
anticipated in the course of proper planning or which demonstrate a 
good faith attempt to comply with Sec. Sec.  14.800 through 14.810. 
Determinations on oral demands or requests should be reserved for 
instances where insistence on compliance with the requirements of a 
proper written request would result in the effective denial of the 
request and cause an injustice in the outcome of the legal proceeding 
for which the testimony or records are sought. No requester has a right 
to make an oral demand or request and receive a determination. Whether 
to permit such an exceptional procedure is a decision within the sole 
discretion of the Designated VA Official.
    (2) If the Designated VA Official concludes that the demand or 
request, or any portion of it, should be granted (after considering the 
factors listed in Sec.  14.804), the Designated VA Official will orally 
advise the requester of the determination in accordance with the 
procedures provided in paragraph (c) of this section, including any 
limitations on such testimony or production of records, and seek a 
written confirmation of the oral demand or request. The Designated VA 
Official will make a written record of the determination made 
concerning the oral demand or request, including the grant or denial, 
the circumstances requiring the procedure, and the conditions to which 
the requester agreed.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.808  Expert, opinion, or fact testimony.

    (a) VA personnel shall not provide, with or without compensation, 
opinion or expert testimony in any legal proceedings concerning 
official VA information, subjects, or activities, except on behalf of 
the United States or a party represented by the United States 
Department of Justice. Upon a showing by the requester or court or 
other appropriate authority that, in light of the factors listed in 
Sec.  14.804, there are exceptional circumstances and that the 
anticipated testimony will not be adverse to the interests of the 
Department of Veterans Affairs or to the United States, the Designated 
VA Official may, in writing, grant special authorization for VA 
personnel to appear and testify. If, despite the final determination of 
the Designated VA Official, a court of competent jurisdiction or other 
appropriate authority, orders the expert or opinion testimony of VA 
personnel, the personnel shall notify the Designated VA Official of 
such order. If the Designated VA Official determines that no further 
legal review of or challenge to the order will be sought, the affected 
VA personnel shall comply with the order. However, if directed by the 
Designated VA Official after consultation with the appropriate United 
States Attorney's office, the affected VA personnel shall respectfully 
decline to comply with the demand, request, or order. See United States 
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (b)(1) If, while testifying in any legal proceeding, VA personnel 
are asked for expert or opinion testimony concerning official VA 
information, subjects or activities, which testimony has not been 
approved in advance in accordance with Sec. Sec.  14.800 through 
14.810, the witness shall:
    (i) Respectfully decline to answer on the grounds that such expert 
or opinion testimony is forbidden by Sec. Sec.  14.800 through 14.810;
    (ii) Request an opportunity to consult with the Designated VA 
Official mentioned in Sec.  14.807(b) before giving such testimony;
    (iii) Explain that, upon such consultation, approval for such 
testimony may be provided; and
    (iv) Explain that providing such testimony absent such approval may 
expose the individual to criminal liability under 18 U.S.C. 201-209 and 
to disciplinary or other adverse personnel action.
    (2) If the witness is then ordered by the body conducting the 
proceeding to provide expert or opinion testimony concerning official 
VA information,

[[Page 88215]]

subjects, or activities without the opportunity to consult with the 
appropriate VA official, the witness respectfully shall refuse to do 
so. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    (c) Upon notification by the witness of a request for opinion or 
expert testimony concerning official VA information, subjects, or 
activities during Sec.  14.802(d) legal proceedings, the Designated VA 
Official shall follow the procedures contained in this section to 
determine whether such testimony shall be approved.
    (d) If VA personnel who are unaware of Sec. Sec.  14.800 through 
14.810 provide expert or opinion testimony concerning official VA 
information, subjects or activities in any legal proceeding, including 
one mentioned in Sec.  14.802(d) in which the United States is not 
already represented, without consulting with the Designated VA 
Official, the witness, as soon after testifying as possible, shall 
inform the Designated VA official of the fact that such testimony was 
given and provide a summary of the expert or opinion testimony given.
    (e) If an employee is authorized to give fact witness testimony in 
a legal proceeding not involving the United States, the testimony, if 
otherwise proper, shall be limited to facts within the personal 
knowledge of the employee that are not classified, privileged, or 
protected from disclosure under applicable law or regulation. If asked 
to provide factual testimony that the employee believes may be 
classified, privileged, or protected from disclosure under applicable 
law or regulation, then the witness shall:
    (1) Respectfully decline to answer on the grounds that such 
testimony is prohibited; and
    (2) Request an opportunity to consult with the Designated VA 
Official.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.809  Demands or requests in legal proceedings for records 
protected by confidentiality statutes.

    In addition to complying with the requirements of Sec. Sec.  14.800 
through 14.810, requests or demands in legal proceedings for the 
production of records, or for testimony of VA employees concerning 
information, protected by the Privacy Act, 5 U.S.C. 552a, or other 
confidentiality statutes, such as 38 U.S.C. 5701, 5705 and 7332, must 
satisfy the requirements for disclosure imposed by those statutes, and 
implementing regulations, such as 38 CFR 1.511, before the records may 
be provided or testimony given. Accordingly, the Designated VA Official 
may first determine whether there is legal authority to provide the 
testimony or records sought under applicable confidentiality statutes 
before applying Sec. Sec.  14.800 through 14.810. Where an applicable 
confidentiality statute mandates disclosure, Sec. Sec.  14.800 through 
14.810 will not apply.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

Sec.  14.810  Fees.

    (a) The testimony of VA personnel as witnesses and the production 
of VA records in legal proceedings subject to Sec. Sec.  14.800 through 
14.810 are services which convey special benefits to the individuals or 
entities seeking such testimony or production of records above and 
beyond those accruing to the general public. These services are not 
regularly received by or available without charge to the public at 
large. Consequently, these are the sort of services for which VA may 
charge under 31 U.S.C. 9701. Where a determination is made to comply 
with the demand, order or request pursuant to Sec.  14.807(e) or 
14.808, the Designated VA Official will calculate fees consistent with 
38 CFR 1.561(d) and (f) through (l) and shall timely notify the 
requester of the fees, particularly those which are to be paid in 
advance. For purposes of calculating fees all requesters under 
Sec. Sec.  14.800 through 14.810 will be considered Commercial Use 
Requesters as defined by 38 CFR 1.561(c)(1).
    (b)(1) When a request is granted under Sec.  14.808 to permit VA 
personnel to testify, the requester shall pay to the government a fee 
calculated to reimburse the cost of preparing and providing the witness 
for testimony. The fee shall include:
    (i) Costs of the time expended by VA personnel to process and 
respond to the demand, order, or request;
    (ii) The cost of the time expended to prepare the witness to 
testify; and
    (iii) Travel costs for VA personnel associated with providing 
testimony.
    (2) All costs for documents shall be calculated as provided in VA 
regulations implementing the fee provisions of the Freedom of 
Information Act, 5 U.S.C. 552.
    (c) When an individual testifies in legal proceedings covered by 
Sec. Sec.  14.800 through 14.810in any capacity other than as an expert 
witness, the requester shall pay to the witness the fee and expenses 
prescribed for attendance by the applicable rule of court. If no such 
fee is prescribed, the applicable Federal rule, such as a local Federal 
District Court rule, will apply. No additional fee will be prescribed 
for the time spent while testifying or in attendance to do so.
    (d) When a requester wishes to interview VA personnel as part of 
legal proceedings covered by Sec. Sec.  14.800 through 14.810, and such 
interview has been approved in accordance with Sec. Sec.  14.800 
through 14.810, the requester shall pay a fee calculated upon the total 
hourly pay of the individual interviewed.
    (e) When VA produces records in legal proceedings pursuant to 
Sec. Sec.  14.800 through 14.810, the fees to be charged and paid prior 
to production of the records shall be the fees charged by VA under its 
regulations implementing the fee provisions of the Freedom of 
Information Act, 5 U.S.C. 552.
    (f) Fees shall be paid as follows:
    (1) Fees for copies of documents, blueprints, electronic tapes, or 
other VA records will be paid to the VA office or station providing the 
records, and covered to the General Fund of the Department of the 
Treasury.
    (2) Witness fees for testimony shall be paid to the witness, who 
shall endorse the check ``pay to the United States,'' and surrender it 
to their supervisor. It shall thereafter be deposited in the General 
Fund.
    (3) The private party requesting a VA witness shall forward in 
advance necessary round trip tickets and all requisite travel and per 
diem funds in accordance with General Services Administration (GSA) 
policy.
    (g) A waiver of any fees in connection with the testimony of an 
expert witness may be granted by the Designated VA Official at the 
official's discretion provided that the waiver is in the interest of 
the United States. Fee waivers shall not be routinely granted, nor 
shall they be granted under circumstances which might create the 
appearance that VA or the United States favors one party or a position 
advocated by a party to the legal proceeding.

 (Authority: 38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

PART 36--LOAN GUARANTY

0
13. The authority citation for part 36 continues to read as follows:

    Authority:  38 U.S.C. 501 and 3720.


Sec.  36.4321  [Removed]

0
14. Remove Sec.  36.4321.

[FR Doc. 2024-23840 Filed 11-6-24; 8:45 am]
BILLING CODE 8320-01-P