Phase-In of Full Concurrent Receipt of Military Retired Pay and Veterans Disability Compensation for Certain Military Retirees, 67059-67061 [E6-19603]
Download as PDF
Federal Register / Vol. 71, No. 223 / Monday, November 20, 2006 / Rules and Regulations
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards is inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Environment
We have analyzed this rule under
Commandant Instruction M16475.lD,
which guides the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded that there are no factors
in this case that limit the use of a
categorical exclusion under section
2.B.2 of the Instruction. Therefore,
under figure 2–1, paragraph (34)(g) of
the Commandant Instruction
M16475.1D, this rule is categorically
excluded from further environmental
documentation. An ‘‘Environmental
Analysis Check List’’ and ‘‘Categorical
Exclusion Determination (CED)’’ are
available in the docket where indicated
under ADDRESSES.
sroberts on PROD1PC70 with RULES
Safety zone; Kealakekua
(a) Location. The following area, in
U.S. navigable waters within the
Honolulu Captain of the Port Zone (See
33 CFR 3.70–10), from the surface of the
water to the ocean floor, is a safety zone:
All waters of Kealakekua Bay from the
shore to a line drawn from the Captain
Cook Monument to the Hikiau Heiau
landmark on Napo’opo’o Beach.
(b) Effective dates. This safety zone is
effective from 10 a.m. (HST) on October
25, 2006 until 12 a.m. (HST) on April
18, 2007.
(c) Regulations. The general
regulations governing safety zones
contained in 33 CFR 165.23 apply. Entry
into, transit through, or anchoring
within this zone is prohibited unless
authorized by the Captain of the Port or
a designated representative thereof.
(d) Enforcement. Any Coast Guard
commissioned, warrant, or petty officer,
and any other Captain of the Port
representative permitted by law, may
enforce this temporary safety zone.
(e) Waiver. The Captain of the Port
may waive any of the requirements of
this rule for any person, vessel, or class
of vessel upon finding that application
of the safety zone is unnecessary or
impractical for the purpose of maritime
security.
(f) Penalties. Vessels or persons
violating this rule are subject to the
penalties set forth in 33 U.S.C. 1232.
Dated: October 25, 2006.
V.B. Atkins,
Captain, U.S. Coast Guard, Captain of the
Port, Honolulu.
[FR Doc. E6–19557 Filed 11–17–06; 8:45 am]
BILLING CODE 4910–15–P
RIN 2900–AM13
Phase-In of Full Concurrent Receipt of
Military Retired Pay and Veterans
Disability Compensation for Certain
Military Retirees
1. The authority citation for part 165
continues to read as follows:
Authority: 33 U.S.C. 1226, 1231; 46 U.S.C.
Chapter 701; 50 U.S.C. 191, 195; 33 CFR
1.05–1(g), 6.04–1, 6.04–6, and 160.5; Pub. L.
Department of Veterans Affairs.
Final rule.
AGENCY:
ACTION:
I
Jkt 211001
§ 165.T14–149
Bay, HI.
38 CFR Part 3
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
19:12 Nov 17, 2006
2. Add a new § 165.T14–149 to read
as follows:
I
DEPARTMENT OF VETERANS
AFFAIRS
List of Subjects 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
I For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
VerDate Aug<31>2005
107–295, 116 Stat. 2064; Department of
Homeland Security Delegation No. 0170.1.
SUMMARY: The Department of Veterans
Affairs (VA) is amending its regulations
concerning concurrent receipt of
military retired pay and veterans’
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
67059
disability compensation. This final rule
implements section 641 of the National
Defense Authorization Act for Fiscal
Year 2004 (Pub. L. 108–136). This law
permits certain veterans who are
entitled to military retired pay and are
receiving disability compensation for a
service-connected disability (or a
combination of service-connected
disabilities) rated at 50 percent or higher
to receive disability compensation as
well as their military retired pay. The
intended effect of the regulation is to
clearly state who is eligible for
concurrent receipt of disability
compensation and military retired pay,
who must waive military retired pay to
receive disability compensation, and
how to file such a waiver.
DATES: Effective Date: This amendment
is effective November 20, 2006.
FOR FURTHER INFORMATION CONTACT:
Maya Ferrandino, Consultant,
Regulations Staff (211D), Compensation
and Pension Service, Veterans Benefits
Administration, Department of Veterans
Affairs, 810 Vermont Ave., NW.,
Washington, DC 20420, (202) 273–7211.
SUPPLEMENTARY INFORMATION: On July 7,
2005, VA published in the Federal
Register (70 FR 39213) a proposal to
revise VA’s rules concerning concurrent
receipt of military retired pay and
veterans’ disability compensation.
Interested persons were invited to
submit written comments on or before
September 6, 2005. We received
comments from six members of the
public. Subsequently, on January 6,
2006, Congress further amended section
1414 of title 10, United States Code, by
enacting section 663 of Public Law 109–
163, the National Defense Authorization
Act for Fiscal Year 2006. This Notice
first explains why we have made
changes based on the comments to the
July 7, 2005, notice of proposed
rulemaking, and then explains changes
necessitated by section 663 of Public
Law 109–163.
Comments to July 7, 2005, Notice of
Proposed Rulemaking
Three commenters stated support for
concurrent receipt. These commenters
did not suggest any changes to the
proposed rule, and we make no change
based on these comments.
Two commenters questioned the 20year service requirement for the
program, and why those who are
medically retired from the military, with
less than 20 years of service, have to
give up their retired pay in order to
receive disability compensation. Title
10 U.S.C. 1414(b)(2) clearly precludes
persons medically retired with less than
20 years of service from concurrently
E:\FR\FM\20NOR1.SGM
20NOR1
sroberts on PROD1PC70 with RULES
67060
Federal Register / Vol. 71, No. 223 / Monday, November 20, 2006 / Rules and Regulations
receiving retired pay and VA benefits.
Thus, in this rulemaking, VA is simply
implementing existing law passed by
Congress. VA does not have authority to
change the eligibility requirements
provided by statute regarding the
concurrent receipt of retired pay and VA
benefits for retired veterans. However,
we have removed the general 20-yearservice requirement from proposed
§ 3.750(b)(1) because 10 U.S.C. 1414
contains no such requirement.
Moreover, because we believe that
several of the comments, as well as our
own internal review during the
comment period, suggest a need for
some clarification as to the waivers
required by 10 U.S.C. 1414 of persons
retired under chapter 61 of title 10,
U.S.C., we have slightly modified the
structure and language of § 3.750(b)(2).
Paragraph (b)(2) now clearly states that
persons retired under chapter 61 must
comply with any waivers required by
§ 3.750(c) as well as any waivers
required by 38 U.S.C. 5304 and 5305,
which are explicitly applicable to
chapter 61 retirees under 10 U.S.C.
1414(b)(1). We also clarify in paragraph
(c) the types of waivers applicable to
persons who are eligible for both retired
pay and disability compensation. These
changes directly implement statutory
language, which is not susceptible to a
different interpretation, and simply
clarify the regulation previously
proposed, without changing the rights
and obligations governed by that
regulation.
One commenter stated that the
amendment to 10 U.S.C. 1414 made by
section 641 of Public Law 108–136 will
also affect 10 U.S.C. 1408, The
Uniformed Services Former Spouses
Protection Act, Public Law 97–252, 96
Stat. 730 (1982)), which is administered
by the Department of Defense (DoD).
The commenter asserted that, in
affecting section 1408, the new
provisions will affect State, local or
tribal governments as they
independently adjudicate civil court
marital separation agreements and
divorce decrees, which are required to
address protection of a military service
person’s rights. This comment is outside
of the scope of the proposed regulation.
The commenter suggested no changes to
the regulation; the comment questioned
a statute’s effect on another, tangentially
related statute that is outside VA’s
authority. Therefore, we make no
change based on this comment.
In paragraph (a), we changed, ‘‘For the
purposes of this section,’’ to read, ‘‘For
the purposes of this part,’’ because all
part 3 references to military retired pay
meet this definition. Also in paragraph
(a), we changed ‘‘classified as military
VerDate Aug<31>2005
19:12 Nov 17, 2006
Jkt 211001
retired pay’’ to ‘‘classified as retired
pay’’ to clarify that the service
department need not use the specific
adjective ‘‘military’’ in its classification.
No substantive change is intended by
this clarification.
Changes Necessitated by Section 663 of
Public Law 109–163
On January 6, 2006, section 663 of the
National Defense Authorization Act for
Fiscal Year 2006, Public Law 109–163,
amended section 1414 of title 10, United
States Code. Section 663 permits certain
veterans who are eligible for military
retired pay and for veterans’ disability
compensation for 100-percent disability
based on a determination of individual
unemployability to receive concurrent
payment of both military retired pay
and disability compensation subject to
the phase-in period during the period
beginning on January 1, 2004, and
ending on September 30, 2009. VA
adjudicates individual unemployability
claims under 38 CFR 4.16. Based on this
change in law, we have included
veterans receiving disability
compensation based on a VA
determination of individual
unemployability under 38 CFR 4.16 in
section (b)(1), and added language to
section (c)(ii) concerning the phase-in
period to incorporate this provision into
the rule.
VA appreciates the comments
submitted in response to the proposed
rule. Based on the rationale stated in the
proposed rule and in this document, the
proposed rule is adopted as a final rule
with the changes noted above.
Paperwork Reduction Act
This document contains no provisions
constituting a collection of information
under the Paperwork Reduction Act (44
U.S.C. 3501–3521).
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. The reason for
this certification is that this amendment
would not directly affect any small
entities. Only VA beneficiaries could be
directly affected. 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.
Executive Order 12866
Executive Order 12866 directs
agencies to assess all costs and benefits
of available regulatory alternatives and,
when regulation is necessary, to select
PO 00000
Frm 00030
Fmt 4700
Sfmt 4700
regulatory approaches that maximize
net benefits (including potential
economic, environmental, public health
and safety, and other advantages;
distributive impacts; and equity). The
Order classifies a rule as a significant
regulatory action requiring review by
the Office of Management and Budget if
it meets any one of a number of
specified conditions, including: Having
an annual effect on the economy of $100
million or more, creating a serious
inconsistency or interfering with an
action of another agency, materially
altering the budgetary impact of
entitlements or the rights of entitlement
recipients, or raising novel legal or
policy issues. VA has examined the
economic, legal, and policy implications
of this final rule and has concluded that
it is a significant regulatory action under
Executive Order 12866.
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
year. This final rule would have no such
effect on State, local, and tribal
governments, or on the private sector.
Catalog of Federal Domestic Assistance
Numbers and Titles
The Catalog of Federal Domestic
Assistance program numbers and titles
for this rulemaking are 64.104, Pension
for Non-Service-Connected Disability
for Veterans; 64.105, Pension to
Veterans Surviving Spouses, and
Children; and 64.110, Veterans
Dependency and Indemnity
Compensation for Service-Connected
Death.
List of Subjects in 38 CFR Part 3
Administrative practice and
procedure, Claims, Disability benefits,
Pensions, Veterans.
Approved: August 10, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
For the reasons set out in the
preamble, 38 CFR part 3 is amended as
set forth below:
I
PART 3—ADJUDICATION
Subpart A—Pension, Compensation,
and Dependency and Indemnity
Compensation
1. The authority citation for part 3,
subpart A continues to read as follows:
I
E:\FR\FM\20NOR1.SGM
20NOR1
Federal Register / Vol. 71, No. 223 / Monday, November 20, 2006 / Rules and Regulations
Authority: 38 U.S.C. 501(a), unless
otherwise noted.
I
2. Revise § 3.750 to read as follows:
sroberts on PROD1PC70 with RULES
§ 3.750 Entitlement to concurrent receipt
of military retired pay and disability
compensation.
(a) Definition of military retired pay.
For the purposes of this part, military
retired pay is payment received by a
veteran that is classified as retired pay
by the Service Department, including
retainer pay, based on the recipient’s
service as a member of the Armed
Forces or as a commissioned officer of
the Public Health Service, the Coast and
Geodetic Survey, the Environmental
Science Services Administration, or the
National Oceanic and Atmospheric
Administration.
(b) Payment of both military retired
pay and disability compensation or
improved pension—(1) Compensation.
Subject to paragraphs (b)(2) and (b)(3) of
this section, a veteran who is entitled to
military retired pay and disability
compensation for a service-connected
disability rated 50 percent or more, or
a combination of service-connected
disabilities rated at 50 percent or more,
under the schedule for rating disabilities
(38 CFR part 4, subpart B), or based on
a determination of individual
unemployability under 38 CFR 4.16, is
entitled to receive both payments
subject to the phase-in period described
in paragraph (c) of this section.
(2) Chapter 61 disability retirees
retiring with 20 or more years of service.
Disability retired pay payable under 10
U.S.C. Chapter 61 to a veteran with 20
or more years of creditable service may
be paid concurrently with disability
compensation to a qualifying veteran
subject to the following:
(i) Any waiver required during the
phase-in period under paragraph
(c)(1)(ii) of this section; and
(ii) if the veteran’s disability retired
pay exceeds the amount of retired pay
the veteran would have received had the
veteran retired based on length of
service, the veteran must waive that
excess amount of disability retired pay
in order to receive VA disability
compensation.
(3) Chapter 61 disability retirees
retiring with less than 20 years of
service. Veterans who receive disability
retired pay under 10 U.S.C. Chapter 61
with less than 20 years of creditable
service are not eligible for concurrent
receipt.
(4) Improved Pension. A veteran may
receive improved pension and military
retired pay at the same time without
having to waive military retired pay.
However, in determining entitlement to
improved pension, VA will treat
VerDate Aug<31>2005
19:12 Nov 17, 2006
Jkt 211001
military retired pay in the same manner
as countable income from other sources.
(c) Waiver—(1) When a waiver is
necessary. (i) A waiver of military
retired pay is necessary in order to
receive disability compensation when a
veteran is eligible for both military
retired pay and disability compensation
but is not eligible under paragraphs
(b)(1) or (b)(2) of this section to receive
both benefits at the same time.
(ii) All veterans who are eligible to
receive both military retired pay and
disability compensation at the same
time under paragraphs (b)(1) or (b)(2) of
this section, except those receiving
compensation for a disability rated 100
percent, must file a waiver in order to
receive the maximum allowable amount
of disability compensation during the
phase-in period. For veterans receiving
disability compensation based on a VA
determination of individual
unemployability, the phase-in period
ends on December 30, 2009. For all
other veterans, the phase-in period ends
on December 31, 2013. After the phasein period, veterans retired under 10
U.S.C. chapter 61 who are eligible for
concurrent receipt must still file a
waiver under the circumstances
described in paragraph (b)(2)(ii) of this
section.
(Authority: 10 U.S.C. 1414, 38 U.S.C. 5304,
5305)
(2) How to file a waiver of military
retired pay. A veteran may request a
waiver of military retired pay in any
written, signed statement, including a
VA form, which reflects a desire to
waive all or some military retired pay.
The statement must be submitted to VA
or to the Federal agency that pays the
veteran’s military retired pay. VA will
treat as a waiver an application for VA
compensation filed by a veteran who is
entitled to military retired pay.
(d) Elections and the right to reelect
either benefit. (1) A veteran who has
filed a waiver of military retired pay
under this section has elected to receive
disability compensation. A veteran may
reelect between benefits covered by this
section at any time by submitting a
written, signed statement to VA or to the
Federal agency that pays the veteran’s
military retired pay.
(2) An election filed within 1 year
from the date of notification of
Department of Veterans Affairs
entitlement will be considered as
‘‘timely filed’’ for effective date
purposes. See § 3.401(e)(1). If the
veteran is incompetent, the 1-year
period will begin on the date that
notification is sent to the next friend or
fiduciary. In initial determinations,
elections may be applied retroactively if
PO 00000
Frm 00031
Fmt 4700
Sfmt 4700
67061
the claimant was not advised of his or
her right of election and its effect.
(Authority: 38 U.S.C. 5304(a), 5305)
[FR Doc. E6–19603 Filed 11–17–06; 8:45 am]
BILLING CODE 8320–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 70
[AZ–06–01; FRL–8243–8]
Notice of Resolution of Notice of
Deficiency for Clean Air Operating
Permits Program; Maricopa County, AZ
Environmental Protection
Agency (EPA).
ACTION: Notice of resolution.
AGENCY:
SUMMARY: EPA issued a notice of
deficiency on May 17, 2005, in which
EPA identified problems with Maricopa
County’s Clean Air Act title V operating
permits program and a timeframe for the
County to correct these deficiencies.
The Maricopa County Air Quality
Department submitted corrections to its
permit program in quarterly updates
beginning in February 2006 and in a
final submittal dated October 20, 2006.
This notice announces that, based on
information provided by Maricopa
County Air Quality Department, EPA
concludes that Maricopa County has
resolved all of the issues identified in
the May 17, 2005 Notice of Deficiency.
As a result, EPA will not impose
sanctions set forth under the mandatory
sanctions provisions of the Clean Air
Act. In addition, EPA will not
promulgate, administer, and enforce a
whole or partial operating permit
program pursuant to the title V
regulations of the Clean Air Act within
two years after the date of the finding of
deficiency.
DATES: Effective Date: November 9,
2006. Because this Notice of Deficiency
is an adjudication and not a final rule,
the Administrative Procedure Act’s 30day deferral of the effective date of a
rule does not apply.
FOR FURTHER INFORMATION CONTACT:
Anna Yen, EPA, Region 9, Air Division
(AIR–3), 75 Hawthorne Street, San
Francisco, CA 94105, (415) 972–3976, or
r9airpermits@epa.gov.
SUPPLEMENTARY INFORMATION:
Throughout this document, ’’we,’’ ‘‘us’’
and ‘‘our’’ refer to EPA.
Table of Contents
I. Background
II. Maricopa County’s Submittal and EPA’s
Determination
III. EPA’s Action
E:\FR\FM\20NOR1.SGM
20NOR1
Agencies
[Federal Register Volume 71, Number 223 (Monday, November 20, 2006)]
[Rules and Regulations]
[Pages 67059-67061]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-19603]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AM13
Phase-In of Full Concurrent Receipt of Military Retired Pay and
Veterans Disability Compensation for Certain Military Retirees
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) is amending its
regulations concerning concurrent receipt of military retired pay and
veterans' disability compensation. This final rule implements section
641 of the National Defense Authorization Act for Fiscal Year 2004
(Pub. L. 108-136). This law permits certain veterans who are entitled
to military retired pay and are receiving disability compensation for a
service-connected disability (or a combination of service-connected
disabilities) rated at 50 percent or higher to receive disability
compensation as well as their military retired pay. The intended effect
of the regulation is to clearly state who is eligible for concurrent
receipt of disability compensation and military retired pay, who must
waive military retired pay to receive disability compensation, and how
to file such a waiver.
DATES: Effective Date: This amendment is effective November 20, 2006.
FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Consultant,
Regulations Staff (211D), Compensation and Pension Service, Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Ave., NW., Washington, DC 20420, (202) 273-7211.
SUPPLEMENTARY INFORMATION: On July 7, 2005, VA published in the Federal
Register (70 FR 39213) a proposal to revise VA's rules concerning
concurrent receipt of military retired pay and veterans' disability
compensation. Interested persons were invited to submit written
comments on or before September 6, 2005. We received comments from six
members of the public. Subsequently, on January 6, 2006, Congress
further amended section 1414 of title 10, United States Code, by
enacting section 663 of Public Law 109-163, the National Defense
Authorization Act for Fiscal Year 2006. This Notice first explains why
we have made changes based on the comments to the July 7, 2005, notice
of proposed rulemaking, and then explains changes necessitated by
section 663 of Public Law 109-163.
Comments to July 7, 2005, Notice of Proposed Rulemaking
Three commenters stated support for concurrent receipt. These
commenters did not suggest any changes to the proposed rule, and we
make no change based on these comments.
Two commenters questioned the 20-year service requirement for the
program, and why those who are medically retired from the military,
with less than 20 years of service, have to give up their retired pay
in order to receive disability compensation. Title 10 U.S.C. 1414(b)(2)
clearly precludes persons medically retired with less than 20 years of
service from concurrently
[[Page 67060]]
receiving retired pay and VA benefits. Thus, in this rulemaking, VA is
simply implementing existing law passed by Congress. VA does not have
authority to change the eligibility requirements provided by statute
regarding the concurrent receipt of retired pay and VA benefits for
retired veterans. However, we have removed the general 20-year-service
requirement from proposed Sec. 3.750(b)(1) because 10 U.S.C. 1414
contains no such requirement.
Moreover, because we believe that several of the comments, as well
as our own internal review during the comment period, suggest a need
for some clarification as to the waivers required by 10 U.S.C. 1414 of
persons retired under chapter 61 of title 10, U.S.C., we have slightly
modified the structure and language of Sec. 3.750(b)(2). Paragraph
(b)(2) now clearly states that persons retired under chapter 61 must
comply with any waivers required by Sec. 3.750(c) as well as any
waivers required by 38 U.S.C. 5304 and 5305, which are explicitly
applicable to chapter 61 retirees under 10 U.S.C. 1414(b)(1). We also
clarify in paragraph (c) the types of waivers applicable to persons who
are eligible for both retired pay and disability compensation. These
changes directly implement statutory language, which is not susceptible
to a different interpretation, and simply clarify the regulation
previously proposed, without changing the rights and obligations
governed by that regulation.
One commenter stated that the amendment to 10 U.S.C. 1414 made by
section 641 of Public Law 108-136 will also affect 10 U.S.C. 1408, The
Uniformed Services Former Spouses Protection Act, Public Law 97-252, 96
Stat. 730 (1982)), which is administered by the Department of Defense
(DoD). The commenter asserted that, in affecting section 1408, the new
provisions will affect State, local or tribal governments as they
independently adjudicate civil court marital separation agreements and
divorce decrees, which are required to address protection of a military
service person's rights. This comment is outside of the scope of the
proposed regulation. The commenter suggested no changes to the
regulation; the comment questioned a statute's effect on another,
tangentially related statute that is outside VA's authority. Therefore,
we make no change based on this comment.
In paragraph (a), we changed, ``For the purposes of this section,''
to read, ``For the purposes of this part,'' because all part 3
references to military retired pay meet this definition. Also in
paragraph (a), we changed ``classified as military retired pay'' to
``classified as retired pay'' to clarify that the service department
need not use the specific adjective ``military'' in its classification.
No substantive change is intended by this clarification.
Changes Necessitated by Section 663 of Public Law 109-163
On January 6, 2006, section 663 of the National Defense
Authorization Act for Fiscal Year 2006, Public Law 109-163, amended
section 1414 of title 10, United States Code. Section 663 permits
certain veterans who are eligible for military retired pay and for
veterans' disability compensation for 100-percent disability based on a
determination of individual unemployability to receive concurrent
payment of both military retired pay and disability compensation
subject to the phase-in period during the period beginning on January
1, 2004, and ending on September 30, 2009. VA adjudicates individual
unemployability claims under 38 CFR 4.16. Based on this change in law,
we have included veterans receiving disability compensation based on a
VA determination of individual unemployability under 38 CFR 4.16 in
section (b)(1), and added language to section (c)(ii) concerning the
phase-in period to incorporate this provision into the rule.
VA appreciates the comments submitted in response to the proposed
rule. Based on the rationale stated in the proposed rule and in this
document, the proposed rule is adopted as a final rule with the changes
noted above.
Paperwork Reduction Act
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
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. The reason for this certification is that this amendment would not
directly affect any small entities. Only VA beneficiaries could be
directly affected. 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.
Executive Order 12866
Executive Order 12866 directs agencies to assess all 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,
and other advantages; distributive impacts; and equity). The Order
classifies a rule as a significant regulatory action requiring review
by the Office of Management and Budget if it meets any one of a number
of specified conditions, including: Having an annual effect on the
economy of $100 million or more, creating a serious inconsistency or
interfering with an action of another agency, materially altering the
budgetary impact of entitlements or the rights of entitlement
recipients, or raising novel legal or policy issues. VA has examined
the economic, legal, and policy implications of this final rule and has
concluded that it is a significant regulatory action under Executive
Order 12866.
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 year. This final rule would have no such effect on
State, local, and tribal governments, or on the private sector.
Catalog of Federal Domestic Assistance Numbers and Titles
The Catalog of Federal Domestic Assistance program numbers and
titles for this rulemaking are 64.104, Pension for Non-Service-
Connected Disability for Veterans; 64.105, Pension to Veterans
Surviving Spouses, and Children; and 64.110, Veterans Dependency and
Indemnity Compensation for Service-Connected Death.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Pensions, Veterans.
Approved: August 10, 2006.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.
0
For the reasons set out in the preamble, 38 CFR part 3 is amended as
set forth below:
PART 3--ADJUDICATION
Subpart A--Pension, Compensation, and Dependency and Indemnity
Compensation
0
1. The authority citation for part 3, subpart A continues to read as
follows:
[[Page 67061]]
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
2. Revise Sec. 3.750 to read as follows:
Sec. 3.750 Entitlement to concurrent receipt of military retired pay
and disability compensation.
(a) Definition of military retired pay. For the purposes of this
part, military retired pay is payment received by a veteran that is
classified as retired pay by the Service Department, including retainer
pay, based on the recipient's service as a member of the Armed Forces
or as a commissioned officer of the Public Health Service, the Coast
and Geodetic Survey, the Environmental Science Services Administration,
or the National Oceanic and Atmospheric Administration.
(b) Payment of both military retired pay and disability
compensation or improved pension--(1) Compensation. Subject to
paragraphs (b)(2) and (b)(3) of this section, a veteran who is entitled
to military retired pay and disability compensation for a service-
connected disability rated 50 percent or more, or a combination of
service-connected disabilities rated at 50 percent or more, under the
schedule for rating disabilities (38 CFR part 4, subpart B), or based
on a determination of individual unemployability under 38 CFR 4.16, is
entitled to receive both payments subject to the phase-in period
described in paragraph (c) of this section.
(2) Chapter 61 disability retirees retiring with 20 or more years
of service. Disability retired pay payable under 10 U.S.C. Chapter 61
to a veteran with 20 or more years of creditable service may be paid
concurrently with disability compensation to a qualifying veteran
subject to the following:
(i) Any waiver required during the phase-in period under paragraph
(c)(1)(ii) of this section; and
(ii) if the veteran's disability retired pay exceeds the amount of
retired pay the veteran would have received had the veteran retired
based on length of service, the veteran must waive that excess amount
of disability retired pay in order to receive VA disability
compensation.
(3) Chapter 61 disability retirees retiring with less than 20 years
of service. Veterans who receive disability retired pay under 10 U.S.C.
Chapter 61 with less than 20 years of creditable service are not
eligible for concurrent receipt.
(4) Improved Pension. A veteran may receive improved pension and
military retired pay at the same time without having to waive military
retired pay. However, in determining entitlement to improved pension,
VA will treat military retired pay in the same manner as countable
income from other sources.
(c) Waiver--(1) When a waiver is necessary. (i) A waiver of
military retired pay is necessary in order to receive disability
compensation when a veteran is eligible for both military retired pay
and disability compensation but is not eligible under paragraphs (b)(1)
or (b)(2) of this section to receive both benefits at the same time.
(ii) All veterans who are eligible to receive both military retired
pay and disability compensation at the same time under paragraphs
(b)(1) or (b)(2) of this section, except those receiving compensation
for a disability rated 100 percent, must file a waiver in order to
receive the maximum allowable amount of disability compensation during
the phase-in period. For veterans receiving disability compensation
based on a VA determination of individual unemployability, the phase-in
period ends on December 30, 2009. For all other veterans, the phase-in
period ends on December 31, 2013. After the phase-in period, veterans
retired under 10 U.S.C. chapter 61 who are eligible for concurrent
receipt must still file a waiver under the circumstances described in
paragraph (b)(2)(ii) of this section.
(Authority: 10 U.S.C. 1414, 38 U.S.C. 5304, 5305)
(2) How to file a waiver of military retired pay. A veteran may
request a waiver of military retired pay in any written, signed
statement, including a VA form, which reflects a desire to waive all or
some military retired pay. The statement must be submitted to VA or to
the Federal agency that pays the veteran's military retired pay. VA
will treat as a waiver an application for VA compensation filed by a
veteran who is entitled to military retired pay.
(d) Elections and the right to reelect either benefit. (1) A
veteran who has filed a waiver of military retired pay under this
section has elected to receive disability compensation. A veteran may
reelect between benefits covered by this section at any time by
submitting a written, signed statement to VA or to the Federal agency
that pays the veteran's military retired pay.
(2) An election filed within 1 year from the date of notification
of Department of Veterans Affairs entitlement will be considered as
``timely filed'' for effective date purposes. See Sec. 3.401(e)(1). If
the veteran is incompetent, the 1-year period will begin on the date
that notification is sent to the next friend or fiduciary. In initial
determinations, elections may be applied retroactively if the claimant
was not advised of his or her right of election and its effect.
(Authority: 38 U.S.C. 5304(a), 5305)
[FR Doc. E6-19603 Filed 11-17-06; 8:45 am]
BILLING CODE 8320-01-P