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Federal Register / Vol. 86, No. 186 / Wednesday, September 29, 2021 / Proposed Rules b Dismissal by the Board for unsuitability. 1 If, upon recommendation by a Copyright Claims Attorney as set forth in paragraph a of this section or at any other time in the proceeding upon the suggestion of a party or on its own initiative, the Board determines that a claim or counterclaim should be dismissed for unsuitability under 17 U.S.C. 1506f3, the Board shall issue an order stating its intention to dismiss the claim without prejudice.
2 Within 30 days following issuance of an order under paragraph b of this section, the claimant or counterclaimant may request that the Board reconsider its determination. The respondent or counterclaim respondent may file a response within 30 days following service of the claimants request.
3 Following the expiration of the time for the respondent or counterclaim respondent to submit a response, the Board shall render its final decision whether to dismiss the claim for unsuitability.
Dated: September 15, 2021.
Kevin R. Amer, Acting General Counsel and Associate Register of Copyrights.
FR Doc. 202120303 Filed 92821; 8:45 am BILLING CODE 141030P

DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 13
RIN 2900AR11

Fiduciary Bond Department of Veterans Affairs.
Proposed rule.

AGENCY:
ACTION:

The Department of Veterans Affairs VA proposes to amend its regulations that govern fiduciary activities. More specifically, the proposed amendments would revise specific procedures to exempt a VAappointed fiduciary who is also serving as a court-appointed fiduciary from posting multiple bonds and to also exempt a VA-appointed fiduciary that is also a State agency with existing, Statemandated liability insurance or a blanket bond from having to obtain an additional bond payable to the Secretary of Veterans Affairs.
DATES: Comments must be received by VA on or before November 29, 2021.
ADDRESSES: Comments may be submitted through www.Regulations.gov. Comments should indicate that they are submitted in response to RIN 2900AR11
Fiduciary Bond. Comments received
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SUMMARY:

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will be available at www.regulations.gov for public viewing, inspection or copies.
FOR FURTHER INFORMATION CONTACT:
David Klusman, Lead Program Analyst, Pension and Fiduciary Service 21PF, Veterans Benefits Administration, Department of Veterans Affairs, 810
Vermont Ave. NW, Washington, DC
20420; 202 6328863. This is not a toll-free number.
SUPPLEMENTARY INFORMATION: VA
administers a fiduciary program for beneficiaries who, as a result of injury, disease, the infirmities of advanced age, or being less than 18 years of age, cannot manage their own VA benefits.
Under this program, VA oversees these vulnerable beneficiaries, and appoints and oversees fiduciaries who manage these beneficiaries benefits. VAs current statutory authority for this program is in 38 U.S.C. chapters 55 and 61.
VA is authorized to issue payments to and supervise fiduciaries acting on behalf of beneficiaries under 38 U.S.C.
5502. In 2004, Congress amended 38
U.S.C. chapters 55 and 61 to add new provisions which, among other things, authorize VA to conduct specific investigations regarding the fitness of individuals to serve as fiduciaries and reissue certain benefits misused by fiduciaries. In relevant part, the law provides that any certification of a person as a fiduciary shall be made on the basis of the furnishing of any bond that may be required by the Secretary.
38 U.S.C. 5507a3. On its face, this statutory language provides VA with authority to decide whether to require a bond.
Under certain circumstances, if a fiduciary misuses benefits, the law requires that the Secretary pay the beneficiary an amount equal to the amount of benefits that were misused.
38 U.S.C. 6107. In 2018, VA amended its fiduciary program regulations to implement current law. Fiduciary Activities, 83 FR 32716 July 13, 2018.
As stated above, in some cases, fiduciaries are required to obtain a surety bond in order to protect the beneficiaries benefits. However, there is conflicting information in VA
regulations pertaining to bond requirements for fiduciaries.
Specifically, 38 CFR 14.709 provides that VAs general policy is to require a surety bond that follows State laws and court rules from a court-appointed individual fiduciary. Further, the regulation indicates approved alternative methods to a corporate surety bond and authorizes the acceptance of a lesser degree of protection of funds under certain
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circumstances. However, 38 CFR
13.230, which was promulgated in 2018
when VA amended its fiduciary program regulations, requires that any bond furnished by a fiduciary contain a statement that the bond is payable to the Secretary of Veterans Affairs. 38
CFR 13.230d3ii. VAs final rule that amended 38 CFR part 13 went into effect on August 13, 2018. 83 FR 32716.
When it was promulgated, VA explicitly stated that we intend to issue uniform rules for all VA-appointed fiduciaries, such as allowable fees, surety bond requirements and appropriate investments, to include fiduciaries who also serve as court-appointed guardians for beneficiaries. Id. at 32727. The rule noted that VAs fiduciary regulations will result in a gradual discontinuance of the current practice of recognizing a court-appointed guardian or fiduciary for purposes of receiving VA benefits on behalf of a VA beneficiary and that, VA will establish a national standard for appointing and overseeing fiduciaries. Id. at 32735. VA noted in the final rule that, based on our experience in administering the program, the risks of not requiring all fiduciaries, with the general exception of spouses, to furnish a surety bond significantly outweigh any burden on a prospective fiduciary. Id. at 32727. VA
set forth a number of factors that weigh in favor of requiring a bond: 1 It serves as a screening tool for VA to use in confirming qualification for appointmentin other words, if a fiduciary cannot obtain a bond because the bonding company considers the risk of fund exploitation too high, VA will not appoint the prospective fiduciary;
2 it is consistent with VAs oversight obligations, which include deterring fiduciary misuse of benefits; and 3 it puts a fiduciary on notice that he or she is liable to a third party for any payment on the bond. Id. With the 2018
amendment, VA also promulgated additional bond requirements under 13.230d in order to protect a beneficiarys interests if a fiduciary misuses funds, including a requirement that the bond be payable to the Secretary. More recently, in January 2021, Congress enacted Public Law 116
315, which amended 38 U.S.C. 6107b, to require VA to reissue misused funds to all beneficiaries, regardless of whether VA negligence was involved.
Under current 13.410c, VA must attempt to recoup any misused benefits, either from the surety company or, if no bond is in place, from the fiduciary directly. VA then must reissue any recouped benefits to the beneficiarys fiduciary successor to the extent they
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