[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Rules and Regulations]
[Pages 4676-4678]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-2043]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 38
RIN 2900-AO12
Parents Eligible for Burial
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) amends existing
regulations to reflect a new statutory authority to extend eligibility
for burial in a national cemetery to include parents of certain
veterans, as authorized by the Veterans' Benefits Act of 2010 (the
Act), enacted on October 13, 2010. The Act authorizes the Secretary of
Veterans Affairs to inter the biological or legally adoptive parents of
a deceased veteran if the deceased veteran is a hostile casualty or
dies from a training-related injury, is interred in a VA national
cemetery in a gravesite with available space, and has no spouse or
child who is buried, or surviving spouse or child who, upon death, may
be eligible for burial, in a national cemetery.
DATES: Effective Date: This rule is effective January 31, 2012.
Applicability Date: In accordance with section 502(e) of the Act,
this amendment applies to parents who die on or after October 13, 2010,
of veterans who die on or after October 7, 2001.
FOR FURTHER INFORMATION CONTACT: For eligibility issues, contact Robert
Morris, Office of Field Programs (41A), National Cemetery
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW.,
Washington DC 20420. Telephone: (202) 461-6365 (this is not a toll-free
number). For regulatory issues, contact Jane Kang, Program Analyst,
Legislative and Regulatory Service, National Cemetery Administration,
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC
20420. Telephone: (202) 461-6216 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION: The goal of the National Cemetery
Administration is to ensure that the burial needs of veterans and
eligible family members are met by providing burial and memorialization
in VA national cemeteries.
Subsection (a)(9) of 38 U.S.C. 2402, as added by section 502 of the
Veterans' Benefits Act of 2010, authorizes the interment of parents of
certain deceased veterans interred in VA national cemeteries, if the
Secretary determines there is available space at the gravesite where
the deceased veteran is interred. 38 U.S.C. 2402(a)(9); Public Law 111-
275, sec. 502(b), 124 Stat. 2864, 2882 (Oct. 13, 2010). Authority to
inter is limited to the biological or legally adoptive parents of a
veteran who: (1) Is a ``hostile casualty'' or died from a ``training-
related injury''; (2) is interred in a VA national cemetery in a
gravesite with available space; and (3) at the time of the parent's
death has no spouse or child who is buried, or surviving spouse or
child who, upon death, may be eligible for burial, in a VA national
cemetery as the spouse, surviving spouse, or minor child of the
veteran. For purposes of eligibility for burial in a national cemetery,
the term ``veteran'' includes a person who died while in the active
military, naval, or air service. 38 U.S.C. 2402(a)(1). Revision of 38
CFR 38.620 is necessary to reflect the new statutory authority for VA
to inter qualifying parents of certain veterans in VA national
cemeteries.
Under prior law, parents of veterans were not eligible for burial
at a VA national cemetery unless they had attained eligibility through
military service or marriage. However, recognizing the unique burden on
the surviving parents of fallen servicemembers, the Act provides burial
eligibility to those parents whose unmarried veteran son or daughter
dies due to combat or training-related injuries. The Act also
recognizes that national cemeteries are national shrines to honor
eligible veterans and that gravesites should not be taken from those
who have earned the right to burial in a national cemetery by serving
their country. The Act accomplishes both goals by limiting the
circumstances under which a parent is eligible for burial.
First, burial eligibility is limited to the biological or legally
adoptive parents of a deceased veteran. The Act defines a
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``parent'' as ``a biological father or a biological mother or, in the
case of adoption, a father through adoption or a mother through
adoption.'' 38 U.S.C. 2402(b)(1). This definition is intended not only
to limit the type of parents who may be buried within the gravesite,
but also to limit the number of parents who may be eligible for this
benefit. See H. Rpt. No. 111-324, at 9 (2009) (``The [House Committee
on Veterans' Affairs] also intends that no more than two parents may be
eligible for this benefit.''). A veteran can have only two biological
parents who may be eligible for interment. In the case of adoption, an
adoptive parent may be eligible for interment in the place of a
biological parent but not in addition to a biological parent. Thus, we
interpret the statute to limit eligibility for parental interment to no
more than two qualifying deceased parents within the gravesite of their
deceased veteran child.
Second, at the time of the parent's death, the deceased veteran
must not have a spouse or child who is buried, or a surviving spouse or
child who, upon death, may be eligible for burial, in a VA national
cemetery based on that individual's relationship to the veteran.
Third, under the Act, the Secretary must determine that space is
available at the veteran's gravesite for a parent of that veteran to be
eligible for burial. The Act itself provides a parent with eligibility
for burial only ``if the Secretary determines that there is available
space at the gravesite.'' 38 U.S.C. 2402(a)(9)(A). Accordingly, the Act
requires the Secretary to determine whether there is sufficient room at
the particular gravesite to accommodate the burial of a parent. If
space is available, then a parent may be eligible for burial, but if
space is not available, then a parent is not eligible for burial.
Finally, for a parent of a deceased veteran to be eligible for
burial in a national cemetery, the deceased veteran must meet the
statutory definition of a ``hostile casualty'' or have died from a
``training-related injury.'' The Act defines the term ``hostile
casualty'' as ``a member of the Armed Forces [who] dies as the direct
result of hostile action with the enemy, while in combat, while going
to or returning from a combat mission if the cause of death was
directly related to hostile action, or while hospitalized or undergoing
treatment at the expense of the United States for injury incurred
during combat, and includes a person killed mistakenly or accidentally
by friendly fire directed at a hostile force or what is thought to be a
hostile force.'' 38 U.S.C. 2402(b)(2). The term ``hostile casualty''
does not include ``a person who dies due to the elements, a self-
inflicted wound, combat fatigue, or a friendly force while the person
was in an absent-without-leave, deserter, or dropped-from-rolls status
or was voluntarily absent from a place of duty.'' Id. The Act defines
the term ``training-related injury'' as ``an injury incurred by a
member of the Armed Forces while performing authorized training
activities in preparation for a combat mission.'' 38 U.S.C. 2402(b)(3).
The provisions of section 502 of the Act apply only to a qualifying
parent who dies on or after October 13, 2010, and whose veteran child
is a ``hostile casualty'' or dies from a ``training-related injury'' on
or after October 7, 2001. Public Law 111-275, sec. 502(e), 124 Stat. at
2883. The above-mentioned definitions have been incorporated into the
regulatory text of this rule.
Administrative Procedure Act
The changes made by this final rule merely reflect statutory
provisions or VA's interpretation of statutory requirements. The
primary purpose of the amendment is to conform Sec. 38.620 to the
statute and implement VA's interpretation of 38 U.S.C. 2402(a)(9) and
(b). Section 553(b) of title 5, U.S. Code, does not apply to
restatement of statutory terms, nor to interpretive rules. Accordingly,
there is a basis for dispensing with prior notice and opportunity to
comment. Moreover, under section 553(d), such rules do not require 30
days prior notice before they may become effective. Therefore, there is
a basis for dispensing with the delayed effective date provisions of 5
U.S.C. 553(d).
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563 direct agencies to assess the
costs and benefits of available regulatory alternatives and, when
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, and other advantages; distributive impacts;
and equity). 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 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), as ``any regulatory action that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or safety, or State, local, or tribal
governments or communities; (2) Create a serious inconsistency or
otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this final rule have been examined, and it has been
determined not to be a significant regulatory action under Executive
Order 12866.
Regulatory Flexibility Act
The Secretary hereby certifies that this final rule will not have a
significant economic impact on a substantial number of small entities
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule will directly affect only individual beneficiaries
and will not directly affect small entities. Therefore, pursuant to 5
U.S.C. 605(b), this final rule is exempt from the initial and final
regulatory flexibility analysis requirements of sections 603 and 604.
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 an expenditure by
State, local, or tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This final rule would have no such effect on
State, local, and tribal governments, or on the private sector.
Paperwork Reduction Act
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).
Catalog of Federal Domestic Assistance Program Number
The Catalog of Federal Domestic Assistance program number for this
document is 64.201, National Cemeteries.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and
[[Page 4678]]
submit the document to the Office of the Federal Register for
publication electronically as an official document of the Department of
Veterans Affairs. John R. Gingrich, Chief of Staff, Department of
Veterans Affairs, approved this document on January 4, 2012, for
publication.
List of Subjects in 38 CFR Part 38
Administrative practice and procedure, Cemeteries, Veterans
cemeteries.
Dated: January 26, 2012.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set out in the preamble, 38 CFR part 38 is amended
as follows:
PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS
0
1. The authority citation for part 38 is revised to read as follows:
Authority: 38 U.S.C. 107, 501, 512, 2306, 2402, 2403, 2404,
2408, 2411, 7105.
0
2. Amend Sec. 38.620 to add paragraph (i) to read as follows:
Sec. 38.620 Persons eligible for burial.
* * * * *
(i)(1) Any biological or legally adoptive parent who dies on or
after October 13, 2010, and whose deceased child:
(i) Is a veteran who dies on or after October 7, 2001, and
(A) Except as provided in paragraph (i)(2) of this section, dies as
the direct result of hostile action with the enemy, while in combat,
while in transit to or from a combat mission if the cause of death is
directly related to hostile action, or while hospitalized or undergoing
treatment at the expense of the United States for injury incurred
during combat; or
(B) Is killed mistakenly or accidentally by friendly fire that was
directed at a hostile force or what was thought to be a hostile force;
or
(C) Died from a training-related injury while performing authorized
training activities in preparation for a combat mission;
(ii) Is interred in a national cemetery; and
(iii) Has no spouse or child who is buried, or surviving spouse or
child who, upon death, may be eligible for burial, in a national
cemetery under paragraph (e) of this section.
(2) A parent is not eligible for burial if the veteran dies due to
the elements, a self-inflicted wound, combat fatigue, or a friendly
force while the veteran was in an absent-without-leave, deserter, or
dropped-from-rolls status or was voluntarily absent from a place of
duty.
(3)(i) A parent may be buried only within the veteran child's
gravesite.
(ii) No more than two parents are eligible for burial per deceased
veteran child.
(4) Parent burial eligibility is subject to a determination by the
Secretary that there is available space within the veteran's gravesite.
[FR Doc. 2012-2043 Filed 1-30-12; 8:45 am]
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