[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

[[Page 4677]]

``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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