Additional Compensation on Account of Children Adopted Out of Veteran's Family, 71366-71369 [2014-28374]

Download as PDF 71366 Federal Register / Vol. 79, No. 231 / Tuesday, December 2, 2014 / Proposed Rules established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (1) is not a ‘‘significant regulatory action’’ under Executive Order 12866; (2) is not a ‘‘significant rule’’ under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. The FAA’s authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency’s authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish controlled airspace at Clark County Airport, Clark, SD. § 71.1 Environmental Review SUMMARY: This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1E, ‘‘Environmental Impacts: Policies and Procedures’’ prior to any FAA final regulatory action. List of Subjects in 14 CFR Part 71 Airspace, Incorporation by reference, Navigation (air). The Proposed Amendment mstockstill on DSK4VPTVN1PROD with PROPOSALS In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows: PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: ■ Authority: 49 U.S.C. 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– 1963 Comp., p. 389. VerDate Sep<11>2014 16:20 Dec 01, 2014 Jkt 235001 [Amended] 2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014 and effective September 15, 2014, is amended as follows: ■ Paragraph 6005 Class E Airspace areas extending upward from 700 feet or more above the surface of the earth. * * * * * AGL SD E5 Clark, SD [New] Clark County Airport, ND (Lat. 48°28′48″ N., long. 099°14′11″ W.) That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Clark County Airport. Issued in Fort Worth, TX, on November 24, 2014. Humberto Melendez, Manager, Operations Support Group, ATO Central Service Center. [FR Doc. 2014–28363 Filed 12–1–14; 8:45 am] BILLING CODE 4901–14–P DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 3 RIN 2900–AP18 Additional Compensation on Account of Children Adopted Out of Veteran’s Family Department of Veterans Affairs. Proposed rule. AGENCY: ACTION: The Department of Veterans Affairs (VA) proposes to amend its adjudication regulations to clarify that a veteran will not receive the dependent rate of disability compensation for a child who is adopted out of the veteran’s family. This action is necessary because applicable VA adjudication regulations are currently construed as permitting a veteran, whose former child was adopted out of the veteran’s family, to receive the dependent rate of disability compensation for the adopted-out child, which constitutes an unwarranted award of benefits not supported by the applicable statute and legislative history. DATES: Comments must be received on or before February 2, 2015. ADDRESSES: Written comments may be submitted through www.Regulations.gov; by mail or handdelivery to Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273–9026. PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 Comments should indicate that they are submitted in response to ‘‘RIN 2900– AP18—Additional Compensation on Account of Children Adopted Out of Veteran’s Family.’’ Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461–4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov. FOR FURTHER INFORMATION CONTACT: Stephanie Li, Section Chief, Regulations Staff (211D), Compensation Service, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461–9700. (This is not a toll-free telephone number.) SUPPLEMENTARY INFORMATION: Pursuant to 38 U.S.C. 1115, a veteran entitled to compensation based on a serviceconnected disability rated not less than 30 percent is entitled to an additional rate of disability compensation for each of his or her children. Section 101(4)(A) of title 38, United States Code, defines ‘‘child’’ to include an unmarried person under the age of 18 years who is a legitimate child, a legally adopted child, a stepchild who is a member of the veteran’s household or was a member of the veteran’s household at the time of the veteran’s death, or an illegitimate child. See also 38 CFR 3.57. The statute also provides some exceptions for individuals who are permanently incapable of self-support and individuals who are pursuing an education. See 38 U.S.C. 101(4)(A); see also 38 CFR 3.57. Additionally, 38 CFR 3.58 provides that ‘‘[a] child of a veteran adopted out of the family of the veteran . . . is nevertheless a child within the meaning of that term as defined by § 3.57 and is eligible for benefits payable under all laws administered by the Department of Veterans Affairs.’’ See VA Op. Gen. Couns. Prec. 16–94 (1994) (‘‘pursuant to [§ 3.58] a child adopted out of a veteran’s family may remain a child of the veteran for VA purposes’’). Therefore, under current regulations, VA is required to pay a veteran additional disability compensation for a child who otherwise meets the requirements under § 3.57 but has been adopted out of the veteran’s family. However, VA believes its longstanding interpretation in § 3.58 as it applies to 38 U.S.C. 1115 is inconsistent with the statute’s clear purpose to provide for payments to a E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 79, No. 231 / Tuesday, December 2, 2014 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS veteran that are based primarily upon the veteran’s needs for purposes of supporting his or her dependent family members. This purpose is evident from the statute’s language, structure, and legislative history. VA believes Congress did not intend for section 1115 to provide additional disability compensation to a veteran on account of a child who is adopted out of the veteran’s family. In such cases, it is clear that any payment to the veteran on account of the adopted-out child would rarely, if ever, fulfill the clear purpose of section 1115 to provide for the expense of supporting that child. As such, VA proposes to amend its regulations, particularly 38 CFR 3.57, 3.58, and 3.458, to eliminate this additional compensation paid to veterans for such children. I. History of 38 U.S.C. 1115 and Bases for Rulemaking The definition of ‘‘child’’ in 38 U.S.C. 101(4)(A), which refers to legitimate, illegitimate, adopted, and certain stepchildren, is ambiguous as to whether it encompasses a biological child who has been legally adopted out of the veteran’s family. As noted above, VA historically has concluded that an adopted-out child will be considered the veteran’s child for purposes of all benefits administered by VA. However, providing payments to a veteran under 38 U.S.C. 1115 on the basis of an adopted-out child creates an anomaly that undermines the clear purpose of that statute. Section 1115 provides that certain veterans entitled to disability compensation ‘‘shall be entitled to additional compensation for dependents in the following monthly amounts.’’ (Emphasis added.) The term ‘‘dependent’’ is not defined for purposes of title 38 generally or section 1115 specifically, but is commonly understood to refer to a person who is legally or factually reliant upon the veteran for support. Although a veteran ordinarily will have a legal and moral obligation to support his or her biological child, that is not the case when the child has been adopted out of the veteran’s family. A child-parent relationship typically ‘‘does not exist between an [adopted-out child] and the [adopted-out child’s] genetic parents.’’ See Astrue v. Capato ex rel. B.N.C., 132 S. Ct. 2021, 2030 (2012) (quoting Unif. Probate Code § 2–119(a), 8 U.L.A. 55 (Supp. 2011)). Accordingly, we believe an adopted-out child generally would not be a ‘‘dependent’’ within the meaning of 38 U.S.C. 1115. Further, section 1115(1) provides that the dependents’ allowance will be paid, VerDate Sep<11>2014 16:20 Dec 01, 2014 Jkt 235001 in monthly amounts, ‘‘[i]f and while [the veteran] . . . has . . . one or more children.’’ The statute thus clearly refers to the present existence of a parentchild relationship. Even if the child’s biological relationship or pre-adoption legal relationship to the veteran may provide a basis for certain types of VA benefits, it would not provide a basis for payment under section 1115 if the parent-child relationship has been severed at the time relevant to current payments. The payments authorized by 38 U.S.C. 1115 are paid in addition to payments authorized by 38 U.S.C. 1114 as payment for the level of impairment caused by the veteran’s serviceconnected disability. Because payments under section 1115 are in addition to payments for impairment due to disability and because they are paid ‘‘for dependents,’’ the clear purpose of section 1115 is to provide payments to the disabled veteran because of the economic burden associated with providing for dependents. See Rose v. Rose, 481 U.S. 619, 630–31 (1987) (citing 38 U.S.C. 315 (now codified as 38 U.S.C. 1115) and concluding that ‘‘Congress clearly intended veterans’ disability benefits to be used, in part, for the support of veterans’ dependents’’). We do not believe that Congress intended to authorize payment to the veteran of a dependents’ allowance in cases where the veteran does not have a present parent-child relationship with the adopted-out child and thus would not incur the economic burdens the statute is designed to address. The legislative history of the statute further supports this interpretation. The current version of 38 U.S.C. 1115 originated in 1958 under Public Law 85–857, 72 Stat. 1121. However, ‘‘[t]he additional compensation for dependents was first authorized by Public Law 877, 80th Congress, approved July 2, 1948.’’ Letter from Bradford Morse, Dep. Adm. U.S. Vet. Adm., to Rep. Olin E. Teague, Chair, H. Comm. on Veterans Affairs, contained in H.R. Rep. No. 86–1541, at 3 (1960). By enacting this statute, Congress intended that a veteran entitled to compensation based on a service-connected disability rated not less than a designated level would receive additional compensation on account of his or her children. Additionally, ‘‘the legislative history [of Public Law 80–877] indicates that one of the reasons for limiting the benefits provided by the act to persons 60 percent or more disabled was based on the fact that this group of veterans because of the serious nature of their disabilities are not generally in a position to supplement their PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 71367 compensation payments by income from steady employment’’ and ‘‘veterans with disabilities rated less than 50 percent are generally able to supplement their compensation payments with other income.’’ See H.R. Rep. No. 86–1541, at 3–4. In view of section 1115’s legislative history, VA believes Congress intended the section 1115 allowance to only supplement a veteran’s income, that is, to provide additional budgetary support within the veteran’s household expense framework. Section 101(13) of title 38, U.S.C., in part, defines the term ‘‘compensation’’ as a ‘‘monthly payment made by the Secretary to a veteran because of service-connected disability’’ (emphasis added), which may be supplemented by ‘‘other income’’ to support the veteran’s family, see H.R. Rep. No. 1541, at 4. Compare with 38 U.S.C. 101(14) (defining the term ‘‘dependency and indemnity compensation’’ as ‘‘a monthly payment made by the Secretary to a . . . child’’) (emphasis added). Thus, the section 1115 allowance was provided for those veterans who likely were unable to supplement their compensation payments to support their family with ‘‘other income’’ due to their serviceconnected disabilities. The Secretary, however, does not interpret the legislative history to support, nor intend this rulemaking, to restrict to any degree a child’s right to receive VA benefits in the child’s own right, such as dependency and indemnity compensation (DIC), which is not necessarily dependent upon a continuing, legally based parent-child relationship. See 38 CFR 3.5 (referring to a child’s entitlement to DIC); 38 U.S.C. 101(14) (defining DIC as ‘‘a monthly payment made by the Secretary to a . . . child’’) (emphasis added). The U.S. Court of Appeals for the Federal Circuit has held that the dependent’s allowance, or child’s allowance under section 1115, is provided to the veteran, not to the veteran’s children (or other dependents). See Sharp v. Nicholson, 403 F.3d 1324, 1327 (Fed. Cir. 2005) (‘‘[T]he reference [in 38 U.S.C. 1115] to ‘additional compensation’ . . . indicates that the veteran, who is already entitled to some degree of compensation for his service-connected disability, is also entitled to a supplementary amount because he or she has dependents.’’). See also H.R. Rep. No. 1541, at 3–4. We find it significant that payments under section 1115 are payments to the veteran based on the veteran’s relationship to the purported child, whereas DIC and certain other benefits are paid to the child in his or her own right. E:\FR\FM\02DEP1.SGM 02DEP1 mstockstill on DSK4VPTVN1PROD with PROPOSALS 71368 Federal Register / Vol. 79, No. 231 / Tuesday, December 2, 2014 / Proposed Rules VA’s current regulation at 38 CFR 3.58 derives from a line of VA legal opinions consistently holding that a child’s adoption out of a veteran’s family does not affect the child’s right to receive DIC or similar benefits payable to the child in his or her own right. One of the earliest of these opinions, which was relied upon in part to support VA’s current policy in § 3.58, was issued by the Bureau of War Risk Insurance, a predecessor agency to VA, in 1919 and prior to enactment of section 1115. This opinion stated, ‘‘An adopted child, is in a legal sense, the child both of its natural and of its adopting parents, and is not, because of the adoption, deprived of its rights of inheritance from its natural parents, unless the statute of the state of its domicile expressly so provides.’’ See Memorandum, Bureau of War Risk Insurance, General Counsel (Apr. 5, 1919). The Secretary notes that, similar to DIC and unlike additional compensation under section 1115, inheritance rights of a child who is adopted from the biological parents are not contingent on an existing childparent relationship or financial dependency on the biological parents and may survive a legal adoption, depending upon the laws of individual states. See Child Welfare Information Gateway, U.S. Dept. of Health & Human Services, Interstate Inheritance Rights for Adopted Persons 2 (2012), available at https://www.childwelfare.gov/ systemwide/laws_policies/statutes/ inheritance.pdf. Because the additional compensation payable to a veteran for a child under 38 U.S.C. 1115 is the benefit of the veteran, not the child, the logic of the prior VA opinions and the analogy to the child’s right to inherit from the veteran who is the child’s biological parent are not relevant to section 1115. We recognize that this interpretation may be viewed as treating an adoptedout child’s status as the veteran’s ‘‘child’’ differently for purposes of section 1115 in comparison to other benefits. However, we believe our interpretation is warranted by the specific requirements and clear purpose of section 1115, which distinguish that statute from statutes governing DIC and other benefits, and by the rationale in prior VA opinions for finding that adoption out of the veteran’s family does not terminate the child’s right to receive benefits in his or her own right. We believe our interpretation is reasonable and logically comports with the intent of Congress. VerDate Sep<11>2014 16:20 Dec 01, 2014 Jkt 235001 II. Proposed Regulatory Amendments For the reasons discussed above, VA proposes to implement this interpretation of section 1115 by modifying 38 CFR 3.57, 3.58, and 3.458. The proposed amendment to § 3.57 would add a third exception to the definition of child in § 3.57(a) to provide that the definition of child does not include a child who is adopted out of a veteran’s family in connection with any benefits that are provided to a veteran pursuant to 38 U.S.C. 1115. The amended regulation would state that this limitation would not apply to any VA benefit payable directly to a child in the child’s own right, such as DIC under 38 CFR 3.5. The same limitation would be added to § 3.58, the regulation governing a child adopted out of a family. Both proposed amendments would be consistent with the legislative intent of section 1115 to provide supplemental income to a veteran to enhance the veteran’s efforts to provide financial support to the veteran’s then constituted family. Congress recognized that this supplemental income was necessary because the veteran’s serviceconnected disability or disabilities would hinder the veteran’s ability to generate earned income. Once a child is no longer a member of the veteran’s family, the veteran’s corresponding family-related expenses would presumably and proportionately decrease, so the veteran should no longer receive increased compensation due to the child, who would no longer be financially dependent on the veteran. Consistent with the intent of Congress, specifically that the additional benefits that are provided under section 1115 are intended to supplement the veteran’s income, VA also proposes to amend 38 CFR 3.458, which sets forth limitations on the apportionment of a veteran’s benefits. VA proposes to amend § 3.458 to exclude the apportionment of section 1115 benefits in the case of an adoptedout child because section 1115 benefits would no longer be payable in the case of an adopted-out child. 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) PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 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’’ requiring review by the Office of Management and Budget (OMB), unless OMB waives such review 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 regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA’s impact analysis can be found as a supporting document at https:// www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA’s Web site at https:// www.va.gov/orpm/, by following the link for ‘‘VA Regulations Published From FY 2004 Through Fiscal Year to Date.’’ Regulatory Flexibility Act The Secretary hereby certifies that this proposed rule would 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. 601–12). This proposed rule would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking 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 the expenditure by State, local, and tribal E:\FR\FM\02DEP1.SGM 02DEP1 Federal Register / Vol. 79, No. 231 / Tuesday, December 2, 2014 / Proposed Rules governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector. Paperwork Reduction Act This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 21). Catalog of Federal Domestic Assistance The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.102, Compensation for ServiceConnected Deaths for Veterans’ Dependents; 64.105, Pension to Veterans, Surviving Spouses, and Children; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death. Signing Authority The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jose D. Riojas, Chief of Staff, Department of Veterans Affairs, approved this document on November 21, 2014, for publication. List of Subjects in 38 CFR Part 3 Administrative practice and procedure, Claims, Disability benefits, Health care, Pensions, Radioactive materials, Veterans, Vietnam. Dated: November 26, 2014. William F. Russo, Acting Director, Office of Regulation Policy & Management, Office of the General Counsel, U.S. Department of Veterans Affairs. For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 3 as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS PART 3—ADJUDICATION 1. The authority citation for part 3, subpart A continues to read as follows: ■ Authority: 38 U.S.C. 501(a), unless otherwise noted. 16:20 Dec 01, 2014 Jkt 235001 The addition reads as follows: ■ ■ § 3.57 Child. (a) * * * (4) For purposes of any benefits provided under 38 U.S.C. 1115, Additional compensation for dependents, the term child does not include a child of a veteran who is adopted out of the family of the veteran. This limitation does not apply to any benefit administered by the Secretary that is payable directly to a child in the child’s own right, such as dependency and indemnity compensation under 38 CFR 3.5. (Authority: 38 U.S.C. 101(4), 501, 1115) * * * * * Improved pension rates. See § 3.23. Improved pension rates; surviving children. See § 3.24. Child adopted out of family. See § 3.58. Child’s relationship. See § 3.210. Helplessness. See § 3.403(a)(1). Helplessness. See § 3.503(a)(3). Veteran’s benefits not apportionable. See § 3.458. School attendance. See § 3.667. Helpless children—SpanishAmerican and prior wars. See § 3.950. ■ 3. Revise § 3.58 to read as follows: CROSS REFERENCES: § 3.58 Child adopted out of family. (a) Except as provided in paragraph (b) of this section, a child of a veteran adopted out of the family of the veteran either prior or subsequent to the veteran’s death is nevertheless a child within the meaning of that term as defined by § 3.57 and is eligible for benefits payable under all laws administered by the Department of Veterans Affairs. (b) A child of a veteran adopted out of the family of the veteran is not a child within the meaning of § 3.57 for purposes of any benefits provided under 38 U.S.C. 1115, Additional compensation for dependents. (Authority: 38 U.S.C. 101(4)(A), 1115) Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation VerDate Sep<11>2014 2. Amend § 3.57 by: a. In paragraph (a)(1) introductory text, removing the phrase ‘‘paragraphs (a)(2) and (3)’’ and adding in its place ‘‘paragraphs (a)(2) through (4)’’; ■ b. Adding paragraph (a)(4). ■ c. Adding an authority citation immediately following paragraph (a)(4). ■ d. Revising the Cross References at the end of the section. The revisions and additions read as follows: CROSS REFERENCES: Child. See § 3.57. Veteran’s benefits not apportionable. See § 3.458. ■ 4. Amend § 3.458 by: ■ (a) In paragraph (d) removing the phrase ‘‘, except the additional compensation payable for the child’’. ■ (b) Adding Cross References at the end of the section. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 71369 § 3.458 Veterans benefits not apportionable. * * * * * Child. See § 3.57. Child adopted out of family. See § 3.58. CROSS REFERENCES: [FR Doc. 2014–28374 Filed 12–1–14; 8:45 am] BILLING CODE 8320–01–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R08–OAR–2012–0352; FRL–9919–97– OAR] Approval and Promulgation of Air Quality Implementation Plans; State of Montana Second 10-Year Carbon Monoxide Maintenance Plan for Billings Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: EPA is proposing approval of a State Implementation Plan (SIP) revision submitted by the State of Montana. On July 13, 2011, the Governor of Montana’s designee submitted to EPA a second 10-year maintenance plan for the Billings area for the carbon monoxide (CO) National Ambient Air Quality Standard (NAAQS). This maintenance plan addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation. EPA is also proposing approval of an alternative monitoring strategy for the Billings CO maintenance area, which was submitted by the Governor’s designee on June 22, 2012. DATES: Comments must be received on or before January 2, 2015. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–R08– OAR–2012–0352, by one of the following methods: • https://www.regulations.gov. Follow the on-line instructions for submitting comments. • Email: clark.adam@epa.gov • Fax: (303) 312–6064 (please alert the individual listed in the FOR FURTHER INFORMATION CONTACT if you are faxing comments). • Mail: Director, Air Program, Environmental Protection Agency (EPA), Region 8, Mail Code 8P–AR, 1595 Wynkoop Street, Denver, Colorado 80202–1129. • Hand Delivery: Director, Air Program, EPA, Region 8, Mail Code 8P– AR, 1595 Wynkoop, Denver, Colorado SUMMARY: E:\FR\FM\02DEP1.SGM 02DEP1

Agencies

DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 79, Number 231 (Tuesday, December 2, 2014)]
[Proposed Rules]
[Pages 71366-71369]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-28374]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AP18

Additional Compensation on Account of Children Adopted Out of
Veteran's Family

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
adjudication regulations to clarify that a veteran will not receive the
dependent rate of disability compensation for a child who is adopted
out of the veteran's family. This action is necessary because
applicable VA adjudication regulations are currently construed as
permitting a veteran, whose former child was adopted out of the
veteran's family, to receive the dependent rate of disability
compensation for the adopted-out child, which constitutes an
unwarranted award of benefits not supported by the applicable statute
and legislative history.

DATES: Comments must be received on or before February 2, 2015.

ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Regulation
Policy and Management (02REG), Department of Veterans Affairs, 810
Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202)
273-9026. Comments should indicate that they are submitted in response
to ``RIN 2900-AP18--Additional Compensation on Account of Children
Adopted Out of Veteran's Family.'' Copies of comments received will be
available for public inspection in the Office of Regulation Policy and
Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m.,
Monday through Friday (except holidays). Please call (202) 461-4902 for
an appointment. (This is not a toll-free number.) In addition, during
the comment period, comments may be viewed online through the Federal
Docket Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Stephanie Li, Section Chief,
Regulations Staff (211D), Compensation Service, Department of Veterans
Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700.
(This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: Pursuant to 38 U.S.C. 1115, a veteran
entitled to compensation based on a service-connected disability rated
not less than 30 percent is entitled to an additional rate of
disability compensation for each of his or her children. Section
101(4)(A) of title 38, United States Code, defines ``child'' to include
an unmarried person under the age of 18 years who is a legitimate
child, a legally adopted child, a stepchild who is a member of the
veteran's household or was a member of the veteran's household at the
time of the veteran's death, or an illegitimate child. See also 38 CFR
3.57. The statute also provides some exceptions for individuals who are
permanently incapable of self-support and individuals who are pursuing
an education. See 38 U.S.C. 101(4)(A); see also 38 CFR 3.57.
Additionally, 38 CFR 3.58 provides that ``[a] child of a veteran
adopted out of the family of the veteran . . . is nevertheless a child
within the meaning of that term as defined by Sec. 3.57 and is
eligible for benefits payable under all laws administered by the
Department of Veterans Affairs.'' See VA Op. Gen. Couns. Prec. 16-94
(1994) (``pursuant to [Sec. 3.58] a child adopted out of a veteran's
family may remain a child of the veteran for VA purposes''). Therefore,
under current regulations, VA is required to pay a veteran additional
disability compensation for a child who otherwise meets the
requirements under Sec. 3.57 but has been adopted out of the veteran's
family.
However, VA believes its longstanding interpretation in Sec. 3.58
as it applies to 38 U.S.C. 1115 is inconsistent with the statute's
clear purpose to provide for payments to a

[[Page 71367]]

veteran that are based primarily upon the veteran's needs for purposes
of supporting his or her dependent family members. This purpose is
evident from the statute's language, structure, and legislative
history. VA believes Congress did not intend for section 1115 to
provide additional disability compensation to a veteran on account of a
child who is adopted out of the veteran's family. In such cases, it is
clear that any payment to the veteran on account of the adopted-out
child would rarely, if ever, fulfill the clear purpose of section 1115
to provide for the expense of supporting that child. As such, VA
proposes to amend its regulations, particularly 38 CFR 3.57, 3.58, and
3.458, to eliminate this additional compensation paid to veterans for
such children.

I. History of 38 U.S.C. 1115 and Bases for Rulemaking

The definition of ``child'' in 38 U.S.C. 101(4)(A), which refers to
legitimate, illegitimate, adopted, and certain stepchildren, is
ambiguous as to whether it encompasses a biological child who has been
legally adopted out of the veteran's family. As noted above, VA
historically has concluded that an adopted-out child will be considered
the veteran's child for purposes of all benefits administered by VA.
However, providing payments to a veteran under 38 U.S.C. 1115 on the
basis of an adopted-out child creates an anomaly that undermines the
clear purpose of that statute.
Section 1115 provides that certain veterans entitled to disability
compensation ``shall be entitled to additional compensation for
dependents in the following monthly amounts.'' (Emphasis added.) The
term ``dependent'' is not defined for purposes of title 38 generally or
section 1115 specifically, but is commonly understood to refer to a
person who is legally or factually reliant upon the veteran for
support. Although a veteran ordinarily will have a legal and moral
obligation to support his or her biological child, that is not the case
when the child has been adopted out of the veteran's family. A child-
parent relationship typically ``does not exist between an [adopted-out
child] and the [adopted-out child's] genetic parents.'' See Astrue v.
Capato ex rel. B.N.C., 132 S. Ct. 2021, 2030 (2012) (quoting Unif.
Probate Code Sec. 2-119(a), 8 U.L.A. 55 (Supp. 2011)). Accordingly, we
believe an adopted-out child generally would not be a ``dependent''
within the meaning of 38 U.S.C. 1115.
Further, section 1115(1) provides that the dependents' allowance
will be paid, in monthly amounts, ``[i]f and while [the veteran] . . .
has . . . one or more children.'' The statute thus clearly refers to
the present existence of a parent-child relationship. Even if the
child's biological relationship or pre-adoption legal relationship to
the veteran may provide a basis for certain types of VA benefits, it
would not provide a basis for payment under section 1115 if the parent-
child relationship has been severed at the time relevant to current
payments.
The payments authorized by 38 U.S.C. 1115 are paid in addition to
payments authorized by 38 U.S.C. 1114 as payment for the level of
impairment caused by the veteran's service-connected disability.
Because payments under section 1115 are in addition to payments for
impairment due to disability and because they are paid ``for
dependents,'' the clear purpose of section 1115 is to provide payments
to the disabled veteran because of the economic burden associated with
providing for dependents. See Rose v. Rose, 481 U.S. 619, 630-31 (1987)
(citing 38 U.S.C. 315 (now codified as 38 U.S.C. 1115) and concluding
that ``Congress clearly intended veterans' disability benefits to be
used, in part, for the support of veterans' dependents''). We do not
believe that Congress intended to authorize payment to the veteran of a
dependents' allowance in cases where the veteran does not have a
present parent-child relationship with the adopted-out child and thus
would not incur the economic burdens the statute is designed to
address.
The legislative history of the statute further supports this
interpretation. The current version of 38 U.S.C. 1115 originated in
1958 under Public Law 85-857, 72 Stat. 1121. However, ``[t]he
additional compensation for dependents was first authorized by Public
Law 877, 80th Congress, approved July 2, 1948.'' Letter from Bradford
Morse, Dep. Adm. U.S. Vet. Adm., to Rep. Olin E. Teague, Chair, H.
Comm. on Veterans Affairs, contained in H.R. Rep. No. 86-1541, at 3
(1960). By enacting this statute, Congress intended that a veteran
entitled to compensation based on a service-connected disability rated
not less than a designated level would receive additional compensation
on account of his or her children.
Additionally, ``the legislative history [of Public Law 80-877]
indicates that one of the reasons for limiting the benefits provided by
the act to persons 60 percent or more disabled was based on the fact
that this group of veterans because of the serious nature of their
disabilities are not generally in a position to supplement their
compensation payments by income from steady employment'' and ``veterans
with disabilities rated less than 50 percent are generally able to
supplement their compensation payments with other income.'' See H.R.
Rep. No. 86-1541, at 3-4. In view of section 1115's legislative
history, VA believes Congress intended the section 1115 allowance to
only supplement a veteran's income, that is, to provide additional
budgetary support within the veteran's household expense framework.
Section 101(13) of title 38, U.S.C., in part, defines the term
``compensation'' as a ``monthly payment made by the Secretary to a
veteran because of service-connected disability'' (emphasis added),
which may be supplemented by ``other income'' to support the veteran's
family, see H.R. Rep. No. 1541, at 4. Compare with 38 U.S.C. 101(14)
(defining the term ``dependency and indemnity compensation'' as ``a
monthly payment made by the Secretary to a . . . child'') (emphasis
added). Thus, the section 1115 allowance was provided for those
veterans who likely were unable to supplement their compensation
payments to support their family with ``other income'' due to their
service-connected disabilities.
The Secretary, however, does not interpret the legislative history
to support, nor intend this rulemaking, to restrict to any degree a
child's right to receive VA benefits in the child's own right, such as
dependency and indemnity compensation (DIC), which is not necessarily
dependent upon a continuing, legally based parent-child relationship.
See 38 CFR 3.5 (referring to a child's entitlement to DIC); 38 U.S.C.
101(14) (defining DIC as ``a monthly payment made by the Secretary to a
. . . child'') (emphasis added). The U.S. Court of Appeals for the
Federal Circuit has held that the dependent's allowance, or child's
allowance under section 1115, is provided to the veteran, not to the
veteran's children (or other dependents). See Sharp v. Nicholson, 403
F.3d 1324, 1327 (Fed. Cir. 2005) (``[T]he reference [in 38 U.S.C. 1115]
to `additional compensation' . . . indicates that the veteran, who is
already entitled to some degree of compensation for his service-
connected disability, is also entitled to a supplementary amount
because he or she has dependents.''). See also H.R. Rep. No. 1541, at
3-4. We find it significant that payments under section 1115 are
payments to the veteran based on the veteran's relationship to the
purported child, whereas DIC and certain other benefits are paid to the
child in his or her own right.

[[Page 71368]]

VA's current regulation at 38 CFR 3.58 derives from a line of VA
legal opinions consistently holding that a child's adoption out of a
veteran's family does not affect the child's right to receive DIC or
similar benefits payable to the child in his or her own right. One of
the earliest of these opinions, which was relied upon in part to
support VA's current policy in Sec. 3.58, was issued by the Bureau of
War Risk Insurance, a predecessor agency to VA, in 1919 and prior to
enactment of section 1115. This opinion stated, ``An adopted child, is
in a legal sense, the child both of its natural and of its adopting
parents, and is not, because of the adoption, deprived of its rights of
inheritance from its natural parents, unless the statute of the state
of its domicile expressly so provides.'' See Memorandum, Bureau of War
Risk Insurance, General Counsel (Apr. 5, 1919). The Secretary notes
that, similar to DIC and unlike additional compensation under section
1115, inheritance rights of a child who is adopted from the biological
parents are not contingent on an existing child-parent relationship or
financial dependency on the biological parents and may survive a legal
adoption, depending upon the laws of individual states. See Child
Welfare Information Gateway, U.S. Dept. of Health & Human Services,
Interstate Inheritance Rights for Adopted Persons 2 (2012), available
at https://www.childwelfare.gov/systemwide/laws_policies/statutes/inheritance.pdf. Because the additional compensation payable to a
veteran for a child under 38 U.S.C. 1115 is the benefit of the veteran,
not the child, the logic of the prior VA opinions and the analogy to
the child's right to inherit from the veteran who is the child's
biological parent are not relevant to section 1115.
We recognize that this interpretation may be viewed as treating an
adopted-out child's status as the veteran's ``child'' differently for
purposes of section 1115 in comparison to other benefits. However, we
believe our interpretation is warranted by the specific requirements
and clear purpose of section 1115, which distinguish that statute from
statutes governing DIC and other benefits, and by the rationale in
prior VA opinions for finding that adoption out of the veteran's family
does not terminate the child's right to receive benefits in his or her
own right. We believe our interpretation is reasonable and logically
comports with the intent of Congress.

II. Proposed Regulatory Amendments

For the reasons discussed above, VA proposes to implement this
interpretation of section 1115 by modifying 38 CFR 3.57, 3.58, and
3.458.
The proposed amendment to Sec. 3.57 would add a third exception to
the definition of child in Sec. 3.57(a) to provide that the definition
of child does not include a child who is adopted out of a veteran's
family in connection with any benefits that are provided to a veteran
pursuant to 38 U.S.C. 1115. The amended regulation would state that
this limitation would not apply to any VA benefit payable directly to a
child in the child's own right, such as DIC under 38 CFR 3.5. The same
limitation would be added to Sec. 3.58, the regulation governing a
child adopted out of a family. Both proposed amendments would be
consistent with the legislative intent of section 1115 to provide
supplemental income to a veteran to enhance the veteran's efforts to
provide financial support to the veteran's then constituted family.
Congress recognized that this supplemental income was necessary because
the veteran's service-connected disability or disabilities would hinder
the veteran's ability to generate earned income. Once a child is no
longer a member of the veteran's family, the veteran's corresponding
family-related expenses would presumably and proportionately decrease,
so the veteran should no longer receive increased compensation due to
the child, who would no longer be financially dependent on the veteran.
Consistent with the intent of Congress, specifically that the
additional benefits that are provided under section 1115 are intended
to supplement the veteran's income, VA also proposes to amend 38 CFR
3.458, which sets forth limitations on the apportionment of a veteran's
benefits. VA proposes to amend Sec. 3.458 to exclude the apportionment
of section 1115 benefits in the case of an adopted-out child because
section 1115 benefits would no longer be payable in the case of an
adopted-out child.

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'' requiring review by the Office of
Management and Budget (OMB), unless OMB waives such review 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 regulatory action have been examined, and it has
been determined not to be a significant regulatory action under
Executive Order 12866.
VA's impact analysis can be found as a supporting document at
https://www.regulations.gov, usually within 48 hours after the
rulemaking document is published. Additionally, a copy of the
rulemaking and its impact analysis are available on VA's Web site at
https://www.va.gov/orpm/, by following the link for ``VA Regulations
Published From FY 2004 Through Fiscal Year to Date.''

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed rule would 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. 601-12). This proposed rule would not directly affect small
entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking 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 the expenditure by
State, local, and tribal

[[Page 71369]]

governments, in the aggregate, or by the private sector, of $100
million or more (adjusted annually for inflation) in any one year. This
proposed rule would have no such effect on State, local, and tribal
governments, or on the private sector.

Paperwork Reduction Act

This proposed rule contains no provisions constituting a collection
of information under the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-21).

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.102, Compensation for
Service-Connected Deaths for Veterans' Dependents; 64.105, Pension to
Veterans, Surviving Spouses, and Children; 64.109, Veterans
Compensation for Service-Connected Disability; and 64.110, Veterans
Dependency and Indemnity Compensation for Service-Connected Death.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this
document and authorized the undersigned to sign and submit the document
to the Office of the Federal Register for publication electronically as
an official document of the Department of Veterans Affairs. Jose D.
Riojas, Chief of Staff, Department of Veterans Affairs, approved this
document on November 21, 2014, for publication.

List of Subjects in 38 CFR Part 3

Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

Dated: November 26, 2014.
William F. Russo,
Acting Director, Office of Regulation Policy & Management, Office of
the General Counsel, U.S. Department of Veterans Affairs.

For the reasons set out in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 3 as follows:

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:

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

0
2. Amend Sec. 3.57 by:
0
a. In paragraph (a)(1) introductory text, removing the phrase
``paragraphs (a)(2) and (3)'' and adding in its place ``paragraphs
(a)(2) through (4)'';
0
b. Adding paragraph (a)(4).
0
c. Adding an authority citation immediately following paragraph (a)(4).
0
d. Revising the Cross References at the end of the section.
The revisions and additions read as follows:

Sec. 3.57 Child.

(a) * * *
(4) For purposes of any benefits provided under 38 U.S.C. 1115,
Additional compensation for dependents, the term child does not include
a child of a veteran who is adopted out of the family of the veteran.
This limitation does not apply to any benefit administered by the
Secretary that is payable directly to a child in the child's own right,
such as dependency and indemnity compensation under 38 CFR 3.5.

(Authority: 38 U.S.C. 101(4), 501, 1115)

* * * * *
Cross References: Improved pension rates. See Sec. 3.23. Improved
pension rates; surviving children. See Sec. 3.24. Child adopted out of
family. See Sec. 3.58. Child's relationship. See Sec. 3.210.
Helplessness. See Sec. 3.403(a)(1). Helplessness. See Sec.
3.503(a)(3). Veteran's benefits not apportionable. See Sec. 3.458.
School attendance. See Sec. 3.667. Helpless children--Spanish-American
and prior wars. See Sec. 3.950.
0
3. Revise Sec. 3.58 to read as follows:

Sec. 3.58 Child adopted out of family.

(a) Except as provided in paragraph (b) of this section, a child of
a veteran adopted out of the family of the veteran either prior or
subsequent to the veteran's death is nevertheless a child within the
meaning of that term as defined by Sec. 3.57 and is eligible for
benefits payable under all laws administered by the Department of
Veterans Affairs.
(b) A child of a veteran adopted out of the family of the veteran
is not a child within the meaning of Sec. 3.57 for purposes of any
benefits provided under 38 U.S.C. 1115, Additional compensation for
dependents.

(Authority: 38 U.S.C. 101(4)(A), 1115)

Cross References: Child. See Sec. 3.57. Veteran's benefits not
apportionable. See Sec. 3.458.
0
4. Amend Sec. 3.458 by:
0
(a) In paragraph (d) removing the phrase ``, except the additional
compensation payable for the child''.
0
(b) Adding Cross References at the end of the section.
The addition reads as follows:

Sec. 3.458 Veterans benefits not apportionable.

* * * * *
Cross References: Child. See Sec. 3.57. Child adopted out of
family. See Sec. 3.58.

[FR Doc. 2014-28374 Filed 12-1-14; 8:45 am]
BILLING CODE 8320-01-P

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