Naitonal cemeteries: Eligibility for burial of adult and minor children, and certain Filipino veterans,

[Federal Register: April 1, 2003 (Volume 68, Number 62)]

[Rules and Regulations]

[Page 15659-15661]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr01ap03-4]

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part I

RIN 2900-AI95

Eligibility for Burial of Adult Children; Eligibility for Burial of Minor Children; Eligibility for Burial of Certain Filipino Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This final rule amends the Department of Veterans Affairs (VA) regulations to provide a list of those individuals who are eligible for burial in a national cemetery. The final rule specifies that the burial of adult children of eligible persons in national cemeteries with available space is limited to those unmarried adult children of any age who became permanently incapable of self-support because of a physical or mental disability incurred before their reaching the age of 21 years, or before reaching 23 years of age if pursuing a full-time course of instruction at an approved educational institution. The final rule also specifies that the burial of minor children of eligible persons is limited to unmarried children under 21 years of age, or under 23 years of age if pursuing a full-time course of instruction at an approved educational institution. Lastly, this final rule recognizes the eligibility for burial of certain Philippine Commonwealth Army veterans in national cemeteries. This final rule is necessary to conform the regulations to statutory provisions.

DATES: Effective Date: May 1, 2003.

Applicability Date. The provisions of this regulation shall apply to all applications for interment or memorialization of an adult child or minor child received by VA on or after the effective date of this regulation. Pursuant to Public Law 106-419, the provisions of this regulation shall apply to requests for interment or memorialization of certain Filipino veterans whose deaths occurred on or after November 1, 2000.

FOR FURTHER INFORMATION CONTACT: Karen Barber, Program Analyst, Communications and Regulatory Division (402B1), National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; Telephone: (202) 273-5183 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: On May 16, 2002, the National Cemetery Administration (NCA) published in the Federal Register (67 FR 34884) a proposed rule to implement the provisions of 38 U.S.C. 2402. The provisions of 38 U.S.C. 2402 set forth eligibility requirements for burying the remains of persons in national cemeteries with available space under VA's jurisdiction. The final rule, at 38 CFR 1.620, states a list of those individuals who are eligible for burial in a national cemetery pursuant to VA's statutory authority.

VA has discretion under 38 U.S.C. 2402(5) to determine which unmarried adult children of persons listed in paragraphs (1) through (4) and (7) are eligible to be buried in such cemeteries. The provisions of 38 CFR 1.620(c) currently specify only that an unmarried adult child of an eligible person must have been physically or mentally disabled and incapable of self-support to be eligible for burial. The final rule amends Sec. 1.620 to specify that, to be eligible, an unmarried adult child of any age must have become permanently incapable of self-support because of a physical or mental disability that the child incurred before reaching the age of 21 years, or before reaching 23 years of age if pursuing a full-time course of instruction at an approved educational institution. We believe that eligibility for burial of unmarried adult children under 38 U.S.C. 2402(5) should be limited to persons who have been continuously dependent on the person upon whom their eligibility is based.

The final rule amends Sec. 1.620 to clarify that, to be eligible, a minor child of an eligible person must be unmarried and under 21 years of age, or under 23 years of age if pursuing a full-time course of instruction at an approved educational institution.

Additionally, the final rule amends Sec. 1.620 by adding a new paragraph to recognize the eligibility for burial of certain Philippine Commonwealth Army veterans in national cemeteries.

[[Page 15660]]

To be eligible, a person whose death occurred on or after November 1, 2002, must have served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States. At time of death, the veteran must have been a citizen of the United States or an alien lawfully admitted for permanent residence in the United States and have resided in the United States.

Comment on Proposed Rule

We provided a 60-day comment period that ended July 15, 2002. We received one written response by electronic mail during this period. The comment sought to clarify whether a minor child of an eligible person must be ``unmarried'' in order to be eligible for national cemetery burial. Although 38 U.S.C. 2402(5) does not specify that a ``minor child'' must be unmarried, 38 U.S.C. 101(4)(A) defines ``child'' for purposes of title 38, United States Code, as ``a person who is unmarried.'' For purposes of clarity and consistency with the governing statute, the final rule specifically requires that a minor child must be ``unmarried'' and under 21 years of age, or under 23 years of age if pursuing a full-time course of instruction at an approved educational institution.

Based on the rationale set forth in this document and in the proposed rule, we are adopting its provisions as a final rule.

Paperwork Reduction Act

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

Executive Order 12866

This document has been reviewed by the Office of Management and Budget 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. Only individual VA beneficiaries would be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

Unfunded Mandates

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing 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 in any given year. This rule would have no consequential effect on State, local, or tribal governments, nor will it require expenditures by the private sector.

Catalog of Federal Domestic Assistance Program Number

The Catalog of Federal Domestic Assistance program number for this document is 64.201.

List of Subjects in 38 CFR Part 1

Administrative practice and procedure, Cemeteries, Collection of claims, Privacy, Security, Veterans.

Approved: January 28, 2003. Anthony J. Principi, Secretary of Veterans Affairs.

0 For the reasons set out in the preamble, 38 CFR part 1 is amended as set forth below:

PART--GENERAL PROVISIONS

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

Authority: 38 U.S.C. 501(a), unless otherwise noted.

0 2. Section 1.620 is revised to read as follows:

Sec. 1.620 Eligibility for burial.

The following is a list of those individuals who are eligible for burial in a national cemetery:

(a) Any veteran (which for purposes of this section includes a person who died in the active military, naval, or air service).

(b) Any member of a Reserve component of the Armed Forces, and any member of the Army National Guard or the Air National Guard, whose death occurs under honorable conditions while such member is hospitalized or undergoing treatment, at the expense of the United States, for injury or disease contracted or incurred under honorable conditions while such member is performing active duty for training, inactive duty training, or undergoing that hospitalization or treatment at the expense of the United States.

(c) Any Member of the Reserve Officers' Training Corps of the Army, Navy, or Air Force whose death occurs under honorable conditions while such member is--

(1) Attending an authorized training camp or on an authorized practice cruise;

(2) Performing authorized travel to or from that camp or cruise; or

(3) Hospitalized or undergoing treatment, at the expense of the United States, for injury or disease contracted or incurred under honorable conditions while such member is--

(i) Attending that camp or on that cruise;

(ii) Performing that travel; or

(iii) Undergoing that hospitalization or treatment at the expense of the United States.

(d) Any person who, during any war in which the United States is or has been engaged, served in the armed forces of any government allied with the United States during that war, whose last such service terminated honorably, and who was a citizen of the United States at the time of entry on such service and at the time of his or her death.

(e) The spouse, surviving spouse (which for purposes of this section includes an unremarried surviving spouse who had a subsequent remarriage which was terminated by death or divorce), unmarried minor child (which for purposes of this section is limited to a child under 21 years of age, or under 23 years of age if pursuing a full-time course of instruction at an approved educational institution), and unmarried adult child (which for purposes of this section is limited to a child who became permanently physically or mentally disabled and incapable of self-support before reaching 21 years of age, or before reaching 23 years of age if pursuing a full-time course of instruction at an approved educational institution) of a person eligible under paragraph (a), (b), (c), (d), or (g) of this section.

(f) Such other persons or classes of persons as may be designated by the Secretary.

(g) Any person who at the time of death was entitled to retired pay under chapter 1223 of title 10, United States Code, or would have been entitled to retired pay under that chapter but for the fact that the person was under 60 years of age.

(h) Any person, whose death occurred on or after November 1, 2000, with service before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were

[[Page 15661]]

in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including organized guerrilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, if such person at the time of death--

(1) Was a citizen of the United States or an alien lawfully admitted for permanent residence in the United States; and

(2) Resided in the United States.

(Authority: 38 U.S.C. 501, 2402)

[FR Doc. 03-7697 Filed 3-31-03; 8:45 am]

BILLING CODE 8320-01-P