Expanded Burial Benefits, 65641-65646 [2023-20444]
Download as PDF
< is eligible to be buried; (2)
that—(A) is owned by a State; or (B) is
on trust land owned by, or held in trust
for, a tribal organization; and (3) for
which the Secretary has made a grant
under [38 U.S.C. 2408].’’ Thus, these
statutory changes allow for the
transportation benefit authorized under
38 U.S.C. 2308 to include transportation
expenses to grant-funded state and
Tribal Veterans’ cemeteries.
In addition, section 2202 of Public
Law 116–315 transfers subsection (b) of
38 U.S.C. 2302 (2022) to 38 U.S.C. 2303
E:\FR\FM\25SEP1.SGM
25SEP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
65642
Federal Register / Vol. 88, No. 184 / Monday, September 25, 2023 / Proposed Rules
and removes the remaining subsections
of 38 U.S.C. 2302 (2022). These changes
result in 38 U.S.C. 2303 providing a
comprehensive section for non-serviceconnected burial benefits. But, also as a
result of these statutory changes, the
transportation benefit under 38 U.S.C.
2303(a) for transporting the remains of
the Veteran to the place of burial (which
is not limited to national cemeteries or
covered veterans’ cemeteries) not only
includes Veterans who died while
hospitalized by VA, but now also
includes any Veteran who was receiving
service-connected disability
compensation on the date of death (or
but for the receipt of retirement pay
would have been entitled to such
compensation) or was receiving
pension, as well as any Veteran whom
the Secretary determines has no next of
kin or other person claiming the body of
the deceased Veteran and that there are
not available sufficient resources to
cover burial and funeral expenses. 38
U.S.C. 2303(a)(2). However, eligibility
for the transportation benefit under 38
U.S.C. 2303(a) continues to be
conditioned on the death occurring in a
State and continues to be limited to the
transportation of the body ‘‘to the place
of burial in the same or any other State.’’
As a result of the statutory changes
under section 2202 of Public Law 116–
315, individuals eligible for the
transportation benefit under 38 U.S.C.
2308 are now also eligible for the
transportation benefit under section
2303(a), aside from a narrow set of
Veterans who either (1) died from a
service-connected disability but were
not in receipt of disability compensation
or pension at the time of death and do
not otherwise qualify for one of the
other provisions under section 2303(a),
or (2) died outside of a State.
Meanwhile, those individuals eligible
for the transportation benefit under both
38 U.S.C. 2303(a) and 2308 would be
paid under the more advantageous
language of section 2303(a) (see
proposed 38 CFR 3.1709(b)(1)(A)),
because section 2308 would limit the
allowable payment to the cost of
transportation to the national cemetery
nearest the Veteran’s last place of
residence in which burial space is
available.
In order to align VA regulations with
the statutory amendments in 38 U.S.C.
2308 and 38 U.S.C. 2303(a)(2), VA
proposes to amend 38 CFR 3.1700,
3.1704, 3.1705, 3.1706, 3.1708 and
3.1709. First, for Veterans eligible for
the transportation benefit under 38
U.S.C. 2308, the amended regulatory
language would include a covered
Veterans’ cemetery in addition to a
national cemetery. Second, for Veterans
VerDate Sep<11>2014
16:46 Sep 22, 2023
Jkt 259001
now eligible for the transportation
benefit under 38 U.S.C. 2303(a) to cover
transportation to the place of burial, VA
accordingly would amend the
applicable regulatory language. And,
with the understanding that the more
generous provisions in 38 U.S.C. 2303(a)
will govern in most cases, VA proposes
to restructure 38 CFR 3.1709 to focus on
the greater transportation benefit under
38 U.S.C. 2303(a), with conforming
revisions to 38 CFR 3.1704, 3.1705,
3.1706, and 3.1708. The changes to 38
CFR 3.1709(c) would carve out the
exception for the remaining sub-group
of Veterans who either (1) died from a
service-connected disability but were
not in receipt of pension, serviceconnected disability compensation, or
military retired pay in lieu of
compensation at the time of death, or (2)
died outside of a State, and thus would
only be eligible for the transportation
benefit under 38 U.S.C. 2308.
VA’s proposed revisions in 38 CFR
3.1709(c) would also clarify that a
payment authorized under the greater
transportation benefit in 38 U.S.C.
2303(a) shall not duplicate any payment
authorized under the lesser
transportation benefit in 38 U.S.C. 2308,
and vice versa. Because sections 2303(a)
and 2308 both pertain to the cost of
transporting remains for burial,
construing them to require double
payments would result in a logical
contradiction, as VA would be paying
more than the cost of transportation.
And the operative language in 38 U.S.C.
2308(a) states that the Secretary ‘‘may’’
pay, rather than ‘‘shall’’ pay, thus
allowing VA to avoid duplicative
payments. Accordingly, revised 38 CFR
3.1709(c) would make clear that
duplicate payments for the same
transportation cost are not permitted.
As part of VA’s restructuring of 38
CFR 3.1709, VA proposes to remove the
provision in 38 CFR 3.1706(d)(1)(ii),
which addresses scenarios in which a
Veteran dies within a State while
hospitalized by VA and is buried in
Canada or Mexico and authorizes
payment to transport the Veteran’s
remains from the place of death within
a State to the port of embarkation within
a State, or to the border limits of the
United States. The language in 38 U.S.C.
2303(a)(1)(B) limits transportation to the
place of burial in the same or any other
State when the Veteran’s death occurs
in a State; it does not authorize
transportation, either in whole or in
part, when the place of burial is in a
foreign country. Nor did the
transportation amendments to 38 U.S.C.
2303(a) in Public Law 116–315 provide
such authorization. Because the
language in § 3.1706(d)(1)(ii) exceeds
PO 00000
Frm 00015
Fmt 4702
Sfmt 4702
the statutory authorization provided in
plain language of section 2303(a)(1)(B),
VA proposes to remove that regulatory
provision.
Finally, VA is proposing to amend
§§ 3.1702, 3.1703, 3.1704, 3.1705,
3.1706, 3.1708 and 3.1709 to reflect a
nomenclature change from
‘‘transportation reimbursement,’’
‘‘reimbursement for transportation,’’ or
‘‘reimbursement of transportation
expenses’’ to ‘‘transportation benefit’’ or
‘‘payment for transportation expenses’’
and, in § 3.1703(b)(2), to change
‘‘receipt’’ to ‘‘supporting
documentation’’. Claimants do not need
to first pay for transportation expenses
before receiving the benefit; rather, per
the statutory language in 38 U.S.C.
2308(a), claimants are only required to
incur the transportation expense. Thus,
using the term ‘‘transportation benefit’’
is more appropriate than ‘‘transportation
reimbursement,’’ and the term
‘‘supporting documentation’’ is more
appropriate than ‘‘receipt.’’
Increased Non-Service-Connected
Burial Benefit
Prior to enactment of section 2202 of
Public Law 116–315, VA paid two
different non-service-connected burial
monetary allowances that were
dependent on the location of the
Veteran’s death: $300.00 for the basic
non-service-connected burial benefit
and $893.00 if the Veteran met the
eligibility requirements of a VA
hospitalization death. 38 U.S.C. 2302(a)
(2022), 2303(a), (c) (2022). Section 2202
of Public Law 116–315 amended 38
U.S.C. chapter 23 to pay the greater of
the two monetary allowances in effect at
that time for all non-service-connected
burial benefits, regardless of the location
of the Veteran’s death.
Non-service-connected burial benefits
are payable to a qualifying individual
that incurred expenses for an eligible
Veteran’s burial or funeral. Eligibility
for non-service connected burial
benefits is based on a Veteran’s other
than dishonorable discharge, see 38 CFR
3.1701, and at least one of the following
requirements: was receiving VA pension
or disability compensation at the time of
death; would have been receiving
disability compensation but for the
receipt of military retired pay; died with
either a pending original claim, a claim
to reopen a previously denied claim, or
a claim in which a person would be
eligible to substitute for the deceased
Veteran, resulting in the grant of
disability compensation or pension
effective before the date of death; died
while hospitalized by VA (including
circumstances such as receiving care
under VA contract at a non-VA facility,
E:\FR\FM\25SEP1.SGM
25SEP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
Federal Register / Vol. 88, No. 184 / Monday, September 25, 2023 / Proposed Rules
or while a patient at a VA-approved
State nursing home, or traveling under
proper authorization and at VA expense
to or from a specified place for the
purpose of examination, treatment, or
care); or, there is no next of kin or other
person claiming the remains of a
deceased Veteran and there are not
sufficient resources available in the
Veteran’s estate to cover the burial and
funeral expenses. 38 CFR 3.1705,
3.1706, 3.1708; see also 38 U.S.C.
2302(a) (2022), 2303(a) (2022), 2303(a).
Historically, beneficiaries were paid
different non-service-connected burial
allowances, primarily based on the
location of a Veteran’s death. Compare
38 U.S.C. 2302(a) (2022) with 2303(a)
(2022). This led to distinct allowances
for individuals eligible for non-serviceconnected burial benefits. Prior to the
effective date of the statutory changes
under section 2202 of Public Law 116–
315, an eligible claimant was granted a
greater non-service-connected burial
allowance based on a VA
hospitalization death. 38 CFR 3.1706;
see also 38 U.S.C. 2303(a) (2022).
Further, while the non-serviceconnected burial benefit based on
hospitalization death has received
percentage increases based on the
Consumer Price Index, see 38 U.S.C.
2303(a), (c) (2022), Congress last
increased the basic non-serviceconnected burial benefit in 1978 (from
$250.00 to $300.00), see Public Law 95–
479.
The amendments under section 2202
of Public Law 116–315 transferred
subsection (b) of 38 U.S.C. 2302 (2022)
to 38 U.S.C. 2303 and removed the
remaining subsections of 38 U.S.C. 2302
(2022). These changes resulted in 38
U.S.C. 2303 providing a comprehensive
section for non-service-connected burial
benefits and a single payable allowance
to all non-service-connected burial
beneficiaries.
In order to align VA regulations with
the statutory amendments in 38 U.S.C.
2303, and the removal of 38 U.S.C. 2302
(2022), VA proposes to amend 38 CFR
3.1703, 3.1705, 3.1708 and 3.1711.
These regulatory changes would
conform with the amendments included
in Public Law 116–315 and provide a
single payment rate for non-serviceconnected burial benefits, regardless of
the location of a Veteran’s death.
Expanded Plot or Interment Allowance
for Tribal Organizations
Section 102(c) of the Burial Equity for
Guards and Reserves Act (Division CC)
within Public Law 117–103 extended
eligibility for payment of the VA plot or
interment allowance to a Tribal
organization for the interment of an
VerDate Sep<11>2014
16:46 Sep 22, 2023
Jkt 259001
eligible Veteran in a qualifying cemetery
or section of a cemetery that is on trust
land owned by, or held in trust for, a
Tribal organization.
Prior to the enactment of Public Law
117–103, eligibility to claim the VA plot
or interment allowance for an eligible
Veteran buried (without charge for the
cost of a plot or interment) in a
qualifying cemetery, or section of a
cemetery, was limited to those owned
by a State, or agency or political
subdivision of a State. See 38 U.S.C.
2303(b) (2021).
Effective March 15, 2022, the
amendments in Public Law 117–103
now extend eligibility for payment of
the VA plot or interment allowance to
Tribal organizations for the burial of an
eligible Veteran in a qualifying cemetery
or section of a cemetery that is on trust
land owned by, or held in trust for, a
Tribal organization. This change
ultimately provides Tribal organizations
the same eligibility to burial benefits as
state Veterans’ cemeteries.
In order to align VA regulations with
the statutory amendments in 38 U.S.C.
2303, VA proposes to amend 38 CFR
3.1702, 3.1706, and 3.1707. These
regulatory changes would conform with
the amendments included in Public Law
117–103 and extend the VA plot or
interment allowance to a Tribal
organization for the interment of eligible
Veterans.
Executive Orders 12866, 13563, and
14094
Executive Order 12866 (Regulatory
Planning and Review) directs 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
14094 (Executive Order on Modernizing
Regulatory Review) supplements and
reaffirms the principles, structures, and
definitions governing contemporary
regulatory review established in
Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review),
and Executive Order 13563 of January
18, 2011 (Improving Regulation and
Regulatory Review). The Office of
Information and Regulatory Affairs has
determined that this rulemaking is a
significant regulatory action under
Executive Order 12866, as amended by
PO 00000
Frm 00016
Fmt 4702
Sfmt 4702
65643
Executive Order 14094. The Regulatory
Impact Analysis associated with this
rulemaking can be found as a
supporting document at
www.regulations.gov.
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. 601–612). As
this proposed rulemaking would expand
and increase benefits, it would not have
a significant economic impact on a
substantial number of small entities as
the benefits received by the entities
entitled to them were found to be de
minimis. Therefore, pursuant to 5 U.S.C.
605(b), the initial and final regulatory
flexibility analysis requirements of 5
U.S.C. 603 and 604 do not apply.
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
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 includes
provisions constituting a revised
collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3521) that require approval
by the Office of Management and
Budget (OMB). Accordingly, under 44
U.S.C. 3507(d), VA has submitted a
copy of this rulemaking action to OMB
for review and approval. The proposed
rule would not involve a substantive or
material modification of the approved
collection.
OMB assigns control numbers to
collection of information it approves.
VA may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number. If OMB does not approve the
collection of information as requested,
VA will immediately remove the
provisions containing the collection of
information or take such other action as
is directed by OMB.
Comments on the revised collection of
information contained in this
rulemaking should be submitted
through www.regulations.gov.
E:\FR\FM\25SEP1.SGM
25SEP1
ddrumheller on DSK120RN23PROD with PROPOSALS1
65644
Federal Register / Vol. 88, No. 184 / Monday, September 25, 2023 / Proposed Rules
Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
AR69, Expanded Burial Benefits’’ and
should be sent within 60 days of
publication of this rulemaking. The
revised collection of information
associated with this rulemaking can be
viewed at: www.reginfo.gov/public/do/
PRAMain.
OMB is required to make a decision
concerning the revised collection of
information contained in this
rulemaking between 30 and 60 days
after publication of this rulemaking in
the Federal Register. Therefore, a
comment to OMB is best assured of
having its full effect if OMB receives it
within 30 days of publication. This does
not affect the deadline for the public to
comment on the provisions of this
rulemaking.
The Department considers comments
by the public on revised collection of
information in—
• Evaluating whether the revised
collections of information are necessary
for the proper performance of the
functions of the Department, including
whether the information will have
practical utility;
• Evaluating the accuracy of the
Department’s estimate of the burden of
the revised collection of information,
including the validity of the
methodology and assumptions used;
• Enhancing the quality, usefulness,
and clarity of the information to be
collected; and
• Minimizing the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
The revised collection of information
associated with this rulemaking
contained in 38 CFR 3.1700, 3.1701,
3.1702, 3.1703, 3.1704, 3.1705, 3.1706,
3.1707, 3.1708, 3.1709, 3.1711 is
described immediately following this
paragraph, under its respective title.
Title: Application for Burial Benefits
(Under 38 U.S.C. Chapter 23).
VA Form No: 21P–530EZ.
OMB Control No: 2900–0003.
CFR Provisions: 38 CFR 3.1700,
3.1701, 3.1702, 3.1703, 3.1704, 3.1705,
3.1706, 3.1707, 3.1708, 3.1709, 3.1711.
• Summary of revised collection of
information: The revised collection of
information in proposed provisions in
38 CFR 3.1700, 3.1701, 3.1702, 3.1703,
3.1704, 3.1705, 3.1706, 3.1707, 3.1708,
3.1709, and 3.1711 would require the
respondent to provide information
indicating whether the Veteran was
VerDate Sep<11>2014
16:46 Sep 22, 2023
Jkt 259001
buried in a covered Veterans’ cemetery.
VA estimates this proposed expanded
burial transportation benefit, which now
includes covered Veterans’ cemeteries,
would increase the respondent burden
by an additional 3,658 respondents in
fiscal year 2024 subsequently increasing
the estimated total annual reporting and
recordkeeping burden.
• Description of need for information
and proposed use of information: VA,
through the Veterans Benefits
Administration (VBA), administers an
integrated program of benefits and
services, established by law, for
Veterans, service personnel, and their
dependents and/or beneficiaries. Under
the authority of 38 U.S.C. 2302, 2303,
2304, 2307, and 2308, VA will pay
burial benefits upon the death of a
Veteran to certain eligible claimants.
The information would be used by VA
to determine if the claimant is eligible
to receive expanded transportation
benefits due to the Veteran’s burial in a
covered Veterans’ cemetery.
• Description of likely respondents:
The respondent population for VA Form
21P–530EZ would be primarily
composed of survivors of deceased
Veterans establishing eligibility to VA
burial benefits.
• Estimated number of respondents:
Number of respondents is estimated at
132,055 per year. These totals were
derived from a query of our claims
database and represent the actual
number of each form received in an
average year plus an additional
estimated 3,658 respondents based on
the change in section 2201 of Public
Law 116–315.
• Estimated frequency of responses:
One time per year.
• Estimated average burden per
response: 30 minutes.
• Estimated total annual reporting
and recordkeeping burden: 66,027.50
burden hours (132,055 × 30/60). VA
estimates the increased annual reporting
and recordkeeping burden based on the
proposed rule to be 1,829 burden hours
(3,658 × 30/60). This submission does
not involve any record-keeping costs.
• Estimated cost to respondents per
year: VA estimates the annual cost to
respondents to be $1,849,430 (66,027.50
burden hours for respondents × $28.01
per hour). VA estimates that the
proposed rule would increase the
number of respondents in FY24 by
3,658. The increase in cost to
respondents per year based on the
additional 3,658 respondents would
result in an estimated information
collection burden cost increase of
$51,230.29 (1,829 burden hours ×
$28.01 per hour).
PO 00000
Frm 00017
Fmt 4702
Sfmt 4702
* To estimate the total information
collection burden cost, VA used the
Bureau of Labor Statistics (BLS) median
hourly wage for hourly wage for ‘‘all
occupations’’ of $28.01 per hour. This
information is available at https://
www.bls.gov/oes/current/oes_
nat.htm#13-0000.
The revised collection of information
associated with this rulemaking
contained in 38 CFR 3.1700, 3.1701,
3.1702, 3.1703, 3.1704, 3.1705, 3.1706,
3.1707, 3.1708, 3.1709, 3.1711 is
described immediately following this
paragraph, under its respective title.
Title: State or Tribal Organization
Application for Interment Allowance
(Under 38 U.S.C. Chapter 23).
VA Form No: 21P–530a.
OMB Control No: 2900–0565.
CFR Provision: 38 CFR 3.1700, 3.1701,
3.1702, 3.1703, 3.1704, 3.1705, 3.1706,
3.1707, 3.1708, 3.1709, 3.1711.
• Summary of revised collection of
information: The revised collection of
information in proposed provisions 38
CFR 3.1700, 3.1701, 3.1702, 3.1703,
3.1704, 3.1705, 3.1706, 3.1707, 3.1708,
3.1709, and 3.1711 would require the
respondent to provide information to
determine if a Tribal organization is
eligible for interment allowance for an
eligible Veteran buried on trust land
owned by, or held in trust for, a Tribal
organization. VA estimates this
proposed extended plot or interment
allowance benefit, which now includes
Tribal organizations, would increase the
respondent burden by an additional 50
respondents in fiscal year 2024
subsequently increasing the estimated
total annual reporting and
recordkeeping burden.
• Description of need for information
and proposed use of information: VA,
through VBA, administers an integrated
program of benefits and services,
established by law, for Veterans, service
personnel, and their dependents and/or
beneficiaries. Under the authority of 38
U.S.C. 2302, 2303, 2304, 2307, and
2308, VA would pay burial benefits
upon the death of a Veteran to certain
eligible claimants. The information
would be used by VA to determine if a
Tribal organization is eligible to receive
plot or interment benefit due to the
Veteran’s burial on trust land owned by,
or held in trust for, a Tribal
organization.
• Description of likely respondents:
The respondent population for VA Form
21P–530a would be composed of
individuals from State or Tribal
Organizations that are applying for
benefits to establish entitlement to the
plot or internment allowance for eligible
Veterans who have been buried in a
E:\FR\FM\25SEP1.SGM
25SEP1
Federal Register / Vol. 88, No. 184 / Monday, September 25, 2023 / Proposed Rules
State Veterans’ cemetery or on Tribal
Trust land.
• Estimated number of respondents:
Number of respondents is estimated at
33,594 per year. These totals were
derived from a query of our claims
database and represent the actual
number of each form received in an
average year plus an additional
estimated 50 respondents based on the
change in section 102(c) of the Burial
Equity for Guards and Reserves Act
(Division CC) of Public Law 117–103.
• Estimated frequency of responses:
One time per year.
• Estimated average burden per
response: 5 minutes.
• Estimated total annual reporting
and recordkeeping burden: The burden
hours are estimated to be 2,800 (33,594
× 5/60). VA estimates the increased
annual reporting and recordkeeping
burden based on the proposed rule to be
4 burden hours (50 × 5/60). This
submission does not involve any recordkeeping costs.
• Estimated cost to respondents per
year: VA estimates the annual cost to
respondents to be $78,428.00. (2,800
burden hours for respondents × $28.01
per hour). VA estimates that the
proposed rule would increase the
number of respondents in FY24 by 50.
The increase in cost to respondents per
year based on the additional 50
respondents would result in an
estimated annual respondent burden
cost increase of $112.04 (4 burden hours
× $28.01 per hour).
* To estimate the total information
collection burden cost, VA used the
Bureau of Labor Statistics (BLS) median
hourly wage for hourly wage for ‘‘all
occupations’’ of $28.01 per hour. This
information is available at https://
www.bls.gov/oes/current/oes_
nat.htm#13-0000.
Part 3—ADJUDICATION
Subpart B—Burial Benefits
1. The authority citation for part 3,
subpart B is revised to read as follows:
■
Authority: 105 Stat. 386, 38 U.S.C. 501(a),
2303–2308, unless otherwise noted.
2. Amend § 3.1700 by revising
paragraph (b) to read as follows:
■
§ 3.1700
*
*
*
*
(b) Definitions. For the purposes of
this subpart:
(1) Burial means all the legal methods
of disposing of the remains of a
deceased person, including, but not
limited to, cremation, burial at sea, and
medical school donation.
(2) Covered veterans’ cemetery is a
designation for an eligible cemetery
considered in the determination of
transportation benefits under § 3.1709
that meets the following criteria:
(i) A deceased veteran as described in
38 U.S.C. 2308(b) is eligible to be buried
within the cemetery;
(ii) The cemetery is either owned by
a State or is on trust land owned by, or
held in trust for, a Tribal organization;
and
(iii) The cemetery is one for which the
Secretary has made a grant under 38
U.S.C. 2408.
*
*
*
*
*
■ 3. Amend § 3.1701 by:
■ a. Removing the citation ‘‘38 U.S.C
2302’’ and adding in its place ‘‘38 U.S.C
2303’’; and
■ b. Revising the authority citation.
The revision reads as follows:
§ 3.1701 Deceased veterans for whom VA
may provide burial benefits.
*
Administrative practice and
procedure, Claims, Veterans.
■
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy
& Management, Office of General Counsel,
Department of Veterans Affairs.
VerDate Sep<11>2014
16:46 Sep 22, 2023
Jkt 259001
*
*
*
*
(Authority: 38 U.S.C. 101(2), 2303, 2307,
2308)
Denis McDonough, Secretary of
Veterans Affairs, approved and signed
this document on September 14, 2023,
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.
For the reasons stated in the
preamble, the Department of Veterans
Types of VA burial benefits.
*
List of Subjects in 38 CFR Part 3
Signing Authority
ddrumheller on DSK120RN23PROD with PROPOSALS1
Affairs proposes to amend 38 CFR part
3 as set forth below:
4. Amend § 3.1702 by revising
paragraphs (a)(2), (b)(1) introductory
text, (c)(2) introductory text, and the
authority citation to read as follows:
§ 3.1702 Persons who may receive burial
benefits; priority of payments.
*
*
*
*
*
(a) * * *
*
*
*
*
*
(2) VA may grant additional burial
benefits, including the plot or interment
allowance under § 3.1707, the
transportation benefit under § 3.1709,
and the service-connected burial
allowance under § 3.1704, to the
surviving spouse or any other eligible
person in accordance with paragraph (b)
PO 00000
Frm 00018
Fmt 4702
Sfmt 4702
65645
of this section and based on a claim
described in § 3.1703.
(b) * * *
(1) Except for claims a State, an
agency or political subdivision of a
State, or a Tribal organization files
under § 3.1707 or § 3.1708, VA will pay,
upon the death of a veteran, the first
living person to file of those listed
below:
*
*
*
*
*
(c) * * *
*
*
*
*
*
(2) Claims for the plot or interment
allowance (except for claims filed by a
State, an agency or political subdivision
thereof, or a Tribal organization) under
§ 3.1707 may be executed by:
*
*
*
*
*
(Authority: 38 U.S.C. 2303, 2307, 2308)
5. Amend § 3.1703 by revising
paragraphs (a)(1) and (b)(2) to read as
follows:
■
§ 3.1703
Claims for burial benefits.
(a) * * *
(1) General rule. Except as provided
in paragraph (a)(2) of this section, VA
must receive a claim for the non-serviceconnected burial allowance for veterans
described within § 3.1705(b),
§ 3.1706(b), or § 3.1708(b) no later than
2 years after the burial of the veteran.
There are no other time limitations to
file claims for burial benefits under
subpart B of this part.
*
*
*
*
*
(b) * * *
*
*
*
*
*
(2) Payment for transportation
expenses. In order to pay transportation
costs, VA must receive supporting
documentation, preferably on
letterhead, showing who incurred the
costs, the name of the deceased veteran,
the specific transportation expenses
incurred, and the dates of the services
rendered.
*
*
*
*
*
■ 6. Amend § 3.1704 by revising
paragraphs (c)(1) and (2) to read as
follows:
§ 3.1704 Burial allowance based on
service-connected death.
*
*
*
*
*
(c) * * *
(1) VA may pay the transportation
benefit under § 3.1709; and
(2) VA may pay the plot or interment
allowance under § 3.1707.
*
*
*
*
*
■ 7. Amend § 3.1705 by:
■ a. In paragraph (a), removing the
citation ‘‘38 U.S.C 2302’’ and adding in
its place ‘‘38 U.S.C. 2303’’; and
■ b. Revising paragraph (e) and the
authority citation.
E:\FR\FM\25SEP1.SGM
25SEP1
65646
Federal Register / Vol. 88, No. 184 / Monday, September 25, 2023 / Proposed Rules
The revisions read as follows:
§ 3.1705 Burial allowance based on nonservice-connected death.
*
*
*
*
*
(e) Additional benefits available
based on non-service-connected death.
In addition to the non-service-connected
burial allowance authorized by this
section:
(1) VA may pay the transportation
benefit under § 3.1709; and
(2) VA may pay the plot or interment
allowance under § 3.1707.
(Authority: 38 U.S.C. 2303, 2304, 2308)
8. Amend § 3.1706 by revising
paragraphs (d)(1) and (2) and the
authority citation to read as follows:
■
§ 3.1706 Burial allowance for a veteran
who dies while hospitalized by VA.
*
*
*
*
*
(d) * * *
(1) VA may pay the transportation
benefit under § 3.1709; and
(2) VA may pay the plot or interment
allowance under § 3.1707.
(Authority: 38 U.S.C. 2303, 2308)
9. Amend § 3.1707 by revising
paragraph (b) and the paragraph heading
to paragraph (c) to read as follows.
■
§ 3.1707 Plot or interment allowances for
burial in a State veterans cemetery or other
cemetery.
ddrumheller on DSK120RN23PROD with PROPOSALS1
*
*
*
*
*
(b) Plot or interment allowance for
burial in a State or Tribal veterans
cemetery. VA will pay the plot or
interment allowance in the amount
specified in 38 U.S.C. 2303(b)(1)
(without regard to whether any other
burial benefits were provided for that
veteran) to a State, an agency or political
subdivision of a State, or a Tribal
organization that provided a burial plot
or interment for the veteran without
charge if the State, agency or political
subdivision of the State, or Tribal
organization:
(1) Is claiming the plot or interment
allowance for burial of the veteran in a
cemetery, or section of a cemetery,
owned by the State, agency or
subdivision of the State, or on trust land
owned by, or held in trust for, a Tribal
organization;
(2) Did not charge for the expense of
the plot or interment; and
(3) Uses the cemetery or section of a
cemetery solely for the interment of:
(i) Persons eligible for burial in a
national cemetery; and
(ii) In a claim based on a veteran’s
death after October 31, 2000, either:
(A) Deceased members of a reserve
component of the Armed Forces not
otherwise eligible for interment in a
national cemetery;
VerDate Sep<11>2014
16:46 Sep 22, 2023
Jkt 259001
(B) Deceased former members of a
reserve component of the Armed Forces
not otherwise eligible for interment in a
national cemetery who were discharged
or released from service under
conditions other than dishonorable; or
(C) Individuals described in 38 U.S.C.
2408(i)(2).
(c) Plot or interment allowance
payable based on burial in other than a
State or Tribal veterans cemetery.* * *
*
*
*
*
*
■ 10. Amend § 3.1708 by:
■ a. In paragraph (a), removing the
citation ‘‘38 U.S.C. 2302’’ and adding in
its place ‘‘38 U.S.C. 2303’’; and
■ b. Revising paragraph (c) and the
authority citation.
The revisions read as follows:
§ 3.1708 Burial of a veteran whose remains
are unclaimed.
*
*
*
*
*
(c) Additional benefit for
transportation of unclaimed remains. In
addition to the burial allowance
authorized by this section, VA may pay
the transportation benefit under
§ 3.1709.
*
*
*
*
*
(Authority: 38 U.S.C. 2303, 2308)
11. Amend § 3.1709 by:
a. Revising the section heading.
b. Revising paragraphs (a), (b), and (c);
c. In paragraph (d)(1), removing the
word ‘‘reimburse’’ and adding in its
place ‘‘pay’’;
The revisions read as follows:
■
■
■
■
§ 3.1709
burial.
Transportation expenses for
(a) General. VA will pay the
transportation expenses, subject to
paragraph (d) of this section, of a
veteran’s remains to the place of burial
for a veteran described in paragraph (b)
of this section or for burial in a national
cemetery or a covered veterans’
cemetery, as defined in § 3.1700(b)(2),
for a veteran described in paragraph (c)
of this section.
(b) Eligibility for transportation to the
place of burial under 38 U.S.C. 2303(a).
VA will pay the expense incurred to
transport an eligible veteran’s remains
to the place of burial, subject to
paragraph (d) of this section, where the
death occurs within a State and the
place of burial is in the same State or
any other State.
(1) A veteran described in this
paragraph is a deceased veteran who
meets any of the following criteria:
(i) A veteran covered under 38 CFR
3.1705(b), or a veteran who died of a
service-connected disability and who
also satisfies the criteria listed under 38
CFR 3.1705(b)).
PO 00000
Frm 00019
Fmt 4702
Sfmt 9990
(ii) A veteran covered under 38 CFR
3.1706(b).
(iii) A veteran covered under 38 CFR
3.1708(b).
(2) A payment authorized under
paragraph (b) of this section shall not
duplicate any payment authorized
under paragraph (c) of this section.
(c) Eligibility for transportation
benefit under 38 U.S.C. 2308. For a
veteran described below, VA will pay
for the expense incurred, subject to
paragraph (d) of this section, to
transport a veteran’s remains for burial
in a national cemetery or a covered
veterans’ cemetery, as defined in
§ 3.1700(b)(2).
(1) A veteran described in this
paragraph is a deceased veteran who:
(i) Died as the result of a serviceconnected disability and who is not
eligible for the transportation benefit
under paragraph (b) of this section; or
(ii) Died outside of a State.
(2) The amount payable under this
paragraph (c) will not exceed the cost of
transporting the remains to the national
cemetery closest to the veteran’s last
place of residence in which burial space
is available and is subject to the
limitations set forth in paragraph (d) of
this section.
(3) A payment authorized under this
paragraph (c) shall not duplicate any
payment authorized under paragraph (b)
of this section.
*
*
*
*
*
■ 12. Amend § 3.1711 by:
■ a. Revising paragraph (a) introductory
text;
■ b. In paragraph (b)(1), removing the
citation ‘‘38 U.S.C. 2302’’ and adding, in
its place, ‘‘38 U.S.C. 2303’’; and
■ c. Revising the authority citation.
The revisions read as follows:
§ 3.1711 Effect of contributions by
government, public, or private
organizations.
(a) Contributions by government or
employer. With respect to claims for a
plot or interment allowance under
§ 3.1707, if VA has evidence that the
U.S., a State, any agency or political
subdivision of the U.S. or of a State,
Tribal organization, or the employer of
the deceased veteran has paid or
contributed payment to the veteran’s
plot or interment expenses, VA will pay
the claimant up to the lesser of:
*
*
*
*
*
(Authority: 38 U.S.C. 2303)
[FR Doc. 2023–20444 Filed 9–22–23; 8:45 am]
BILLING CODE 8320–01–P
E:\FR\FM\25SEP1.SGM
25SEP1
]]>Agencies
[Federal Register Volume 88, Number 184 (Monday, September 25, 2023)]
[Proposed Rules]
[Pages 65641-65646]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20444]
[[Page 65641]]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 3
RIN 2900-AR69
Expanded Burial Benefits
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
adjudication regulations pertaining to burial benefits to conform to
recent statutory changes enacted by the Johnny Isakson and David P.
Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020 and
the Burial Equity for Guards and Reserves Act of the Consolidated
Appropriations Act, 2022. The conforming regulatory changes would
implement an expansion of the transportation benefit and provision of a
single payment rate for non-service-connected burial allowances
regardless of the location of a qualifying Veteran's death and would
coincide with the effective date for the statutory amendments (January
5, 2023). The conforming regulatory changes would also implement the
extension of the VA plot or interment allowance to Tribal organizations
for interment of eligible Veterans on trust land owned by, or held in
trust for, the Tribal organization and would coincide with the
effective date for the statutory amendments (March 15, 2022). VA also
proposes some additional clarifying changes to its burial benefits
regulations.
DATES: Comments must be received on or before November 24, 2023.
ADDRESSES: Comments must be submitted through www.regulations.gov.
Except as provided below, comments received before the close of the
comment period will be available at www.regulations.gov for public
viewing, inspection, or copying, including any personally identifiable
or confidential business information that is included in a comment. We
post the comments received before the close of the comment period on
www.regulations.gov as soon as possible after they have been received.
VA will not post on Regulations.gov public comments that make threats
to individuals or institutions or suggest that the commenter will take
actions to harm the individual. VA encourages individuals not to submit
duplicative comments. We will post acceptable comments from multiple
unique commenters even if the content is identical or nearly identical
to other comments. Any public comment received after the comment
period's closing date is considered late and will not be considered in
the final rulemaking.
FOR FURTHER INFORMATION CONTACT: Eric Baltimore, Management and Program
Analyst, Pension and Fiduciary Service (21PF), Veterans Benefits
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420; (202) 632-8863. (This is not a toll-free
telephone number.)
SUPPLEMENTARY INFORMATION: Under chapter 23 of title 38, United States
Code, VA has authority to pay benefits to a deceased Veteran's survivor
and certain other persons for a Veteran's burial, including a burial
allowance for a non-service-connected death or a burial allowance for a
service-connected death. Additionally, VA may pay a plot or interment
allowance for a Veteran who was eligible for burial in a national
cemetery under 38 U.S.C. chapter 24 but was not buried there. VA also
provides a transportation benefit for the transportation of remains to
the place of burial following the death of a qualifying Veteran.
Sections 2201 and 2202 of the Johnny Isakson and David P. Roe, M.D.
Veterans Health Care and Benefits Improvement Act of 2020 (Pub. L. 116-
315) amended 38 U.S.C. chapter 23 to expand the transportation benefit
for a qualifying Veteran and to increase the monetary payment rate for
the cost of the burial and funeral of a qualifying Veteran with a non-
service-connected death. Section 2201 became effective on January 5,
2023, and section 2202 applies to deaths that occur on or after January
5, 2023--two years after the date of the enactment of Public Law 116-
315.
Section 102(c) of the Burial Equity for Guards and Reserves Act
(Division CC) of the Consolidated Appropriations Act, 2022 (Pub. L.
117-103), 136 Stat. 1110, amended 38 U.S.C. chapter 23 to extend
eligibility for the VA plot or interment allowance to Tribal
organizations for the interment of an eligible Veteran on trust land
owned by, or held in trust for, a Tribal organization. This change
became effective on March 15, 2022--the date of the enactment of Public
Law 117-103.
Expanded Transportation Benefit
Section 2201 of Public Law 116-315 expanded the transportation
benefit under 38 U.S.C. 2308 to include transporting the remains of a
qualifying Veteran to a ``covered veterans' cemetery,'' defined later
in the preamble, in addition to a national cemetery. Section 2202 of
Public Law 116-315 added additional classes of individuals who are
eligible to receive the transportation benefit under 38 U.S.C. 2303(a).
Previously, in situations where a Veteran (1) died as the result of
a service-connected disability, (2) died while receiving service-
connected disability compensation (or would have been receiving
compensation on the date of death, but for the receipt of retirement
pay or pension), or (3) upon death had no next of kin or other person
claiming the body, a transportation benefit was payable for the cost of
transporting the remains of the Veteran for burial in a national
cemetery, but the benefit was limited to the cost of transportation to
the national cemetery nearest the Veteran's last place of residence in
which burial space was available. 38 U.S.C. 2308 (2022).
Under a separate statutory authority, 38 U.S.C. 2303(a) (2022), a
transportation benefit was also provided when a Veteran died while
hospitalized by VA (i.e., in a VA facility to which the deceased
Veteran was properly admitted for hospital, nursing home, or
domiciliary care under 38 U.S.C. 1710 or 1711(a) or an institution at
which the deceased Veteran was, at the time of death, receiving (a)
hospital care in accordance with 38 U.S.C. 1703A, 8111, and 8153, (b)
nursing home care under 38 U.S.C. 1720, or (c) nursing home care for
which payments are made under 38 U.S.C. 1741). But this transportation
benefit was not limited to transporting the remains of the Veteran for
burial in a national cemetery, as was the case under section 2308
(2022). Rather, section 2303(a) (2022) provided that, where the death
occurs in a State, VA shall ``transport the body to the place of burial
in the same or any other State.''
Under the new statutory changes per Public Law 116-315, the
transportation benefit authorized under 38 U.S.C. 2308 is now payable
for a Veteran buried in a covered Veterans' cemetery in addition to a
national cemetery. Section 2201 of Public Law 116-315 defines a
``covered veterans' cemetery'' as ``a veterans' cemetery--in which (1)
a deceased veteran described in [38 U.S.C. 2308](b) is eligible to be
buried; (2) that--(A) is owned by a State; or (B) is on trust land
owned by, or held in trust for, a tribal organization; and (3) for
which the Secretary has made a grant under [38 U.S.C. 2408].'' Thus,
these statutory changes allow for the transportation benefit authorized
under 38 U.S.C. 2308 to include transportation expenses to grant-funded
state and Tribal Veterans' cemeteries.
In addition, section 2202 of Public Law 116-315 transfers
subsection (b) of 38 U.S.C. 2302 (2022) to 38 U.S.C. 2303
[[Page 65642]]
and removes the remaining subsections of 38 U.S.C. 2302 (2022). These
changes result in 38 U.S.C. 2303 providing a comprehensive section for
non-service-connected burial benefits. But, also as a result of these
statutory changes, the transportation benefit under 38 U.S.C. 2303(a)
for transporting the remains of the Veteran to the place of burial
(which is not limited to national cemeteries or covered veterans'
cemeteries) not only includes Veterans who died while hospitalized by
VA, but now also includes any Veteran who was receiving service-
connected disability compensation on the date of death (or but for the
receipt of retirement pay would have been entitled to such
compensation) or was receiving pension, as well as any Veteran whom the
Secretary determines has no next of kin or other person claiming the
body of the deceased Veteran and that there are not available
sufficient resources to cover burial and funeral expenses. 38 U.S.C.
2303(a)(2). However, eligibility for the transportation benefit under
38 U.S.C. 2303(a) continues to be conditioned on the death occurring in
a State and continues to be limited to the transportation of the body
``to the place of burial in the same or any other State.''
As a result of the statutory changes under section 2202 of Public
Law 116-315, individuals eligible for the transportation benefit under
38 U.S.C. 2308 are now also eligible for the transportation benefit
under section 2303(a), aside from a narrow set of Veterans who either
(1) died from a service-connected disability but were not in receipt of
disability compensation or pension at the time of death and do not
otherwise qualify for one of the other provisions under section
2303(a), or (2) died outside of a State. Meanwhile, those individuals
eligible for the transportation benefit under both 38 U.S.C. 2303(a)
and 2308 would be paid under the more advantageous language of section
2303(a) (see proposed 38 CFR 3.1709(b)(1)(A)), because section 2308
would limit the allowable payment to the cost of transportation to the
national cemetery nearest the Veteran's last place of residence in
which burial space is available.
In order to align VA regulations with the statutory amendments in
38 U.S.C. 2308 and 38 U.S.C. 2303(a)(2), VA proposes to amend 38 CFR
3.1700, 3.1704, 3.1705, 3.1706, 3.1708 and 3.1709. First, for Veterans
eligible for the transportation benefit under 38 U.S.C. 2308, the
amended regulatory language would include a covered Veterans' cemetery
in addition to a national cemetery. Second, for Veterans now eligible
for the transportation benefit under 38 U.S.C. 2303(a) to cover
transportation to the place of burial, VA accordingly would amend the
applicable regulatory language. And, with the understanding that the
more generous provisions in 38 U.S.C. 2303(a) will govern in most
cases, VA proposes to restructure 38 CFR 3.1709 to focus on the greater
transportation benefit under 38 U.S.C. 2303(a), with conforming
revisions to 38 CFR 3.1704, 3.1705, 3.1706, and 3.1708. The changes to
38 CFR 3.1709(c) would carve out the exception for the remaining sub-
group of Veterans who either (1) died from a service-connected
disability but were not in receipt of pension, service-connected
disability compensation, or military retired pay in lieu of
compensation at the time of death, or (2) died outside of a State, and
thus would only be eligible for the transportation benefit under 38
U.S.C. 2308.
VA's proposed revisions in 38 CFR 3.1709(c) would also clarify that
a payment authorized under the greater transportation benefit in 38
U.S.C. 2303(a) shall not duplicate any payment authorized under the
lesser transportation benefit in 38 U.S.C. 2308, and vice versa.
Because sections 2303(a) and 2308 both pertain to the cost of
transporting remains for burial, construing them to require double
payments would result in a logical contradiction, as VA would be paying
more than the cost of transportation. And the operative language in 38
U.S.C. 2308(a) states that the Secretary ``may'' pay, rather than
``shall'' pay, thus allowing VA to avoid duplicative payments.
Accordingly, revised 38 CFR 3.1709(c) would make clear that duplicate
payments for the same transportation cost are not permitted.
As part of VA's restructuring of 38 CFR 3.1709, VA proposes to
remove the provision in 38 CFR 3.1706(d)(1)(ii), which addresses
scenarios in which a Veteran dies within a State while hospitalized by
VA and is buried in Canada or Mexico and authorizes payment to
transport the Veteran's remains from the place of death within a State
to the port of embarkation within a State, or to the border limits of
the United States. The language in 38 U.S.C. 2303(a)(1)(B) limits
transportation to the place of burial in the same or any other State
when the Veteran's death occurs in a State; it does not authorize
transportation, either in whole or in part, when the place of burial is
in a foreign country. Nor did the transportation amendments to 38
U.S.C. 2303(a) in Public Law 116-315 provide such authorization.
Because the language in Sec. 3.1706(d)(1)(ii) exceeds the statutory
authorization provided in plain language of section 2303(a)(1)(B), VA
proposes to remove that regulatory provision.
Finally, VA is proposing to amend Sec. Sec. 3.1702, 3.1703,
3.1704, 3.1705, 3.1706, 3.1708 and 3.1709 to reflect a nomenclature
change from ``transportation reimbursement,'' ``reimbursement for
transportation,'' or ``reimbursement of transportation expenses'' to
``transportation benefit'' or ``payment for transportation expenses''
and, in Sec. 3.1703(b)(2), to change ``receipt'' to ``supporting
documentation''. Claimants do not need to first pay for transportation
expenses before receiving the benefit; rather, per the statutory
language in 38 U.S.C. 2308(a), claimants are only required to incur the
transportation expense. Thus, using the term ``transportation benefit''
is more appropriate than ``transportation reimbursement,'' and the term
``supporting documentation'' is more appropriate than ``receipt.''
Increased Non-Service-Connected Burial Benefit
Prior to enactment of section 2202 of Public Law 116-315, VA paid
two different non-service-connected burial monetary allowances that
were dependent on the location of the Veteran's death: $300.00 for the
basic non-service-connected burial benefit and $893.00 if the Veteran
met the eligibility requirements of a VA hospitalization death. 38
U.S.C. 2302(a) (2022), 2303(a), (c) (2022). Section 2202 of Public Law
116-315 amended 38 U.S.C. chapter 23 to pay the greater of the two
monetary allowances in effect at that time for all non-service-
connected burial benefits, regardless of the location of the Veteran's
death.
Non-service-connected burial benefits are payable to a qualifying
individual that incurred expenses for an eligible Veteran's burial or
funeral. Eligibility for non-service connected burial benefits is based
on a Veteran's other than dishonorable discharge, see 38 CFR 3.1701,
and at least one of the following requirements: was receiving VA
pension or disability compensation at the time of death; would have
been receiving disability compensation but for the receipt of military
retired pay; died with either a pending original claim, a claim to
reopen a previously denied claim, or a claim in which a person would be
eligible to substitute for the deceased Veteran, resulting in the grant
of disability compensation or pension effective before the date of
death; died while hospitalized by VA (including circumstances such as
receiving care under VA contract at a non-VA facility,
[[Page 65643]]
or while a patient at a VA-approved State nursing home, or traveling
under proper authorization and at VA expense to or from a specified
place for the purpose of examination, treatment, or care); or, there is
no next of kin or other person claiming the remains of a deceased
Veteran and there are not sufficient resources available in the
Veteran's estate to cover the burial and funeral expenses. 38 CFR
3.1705, 3.1706, 3.1708; see also 38 U.S.C. 2302(a) (2022), 2303(a)
(2022), 2303(a).
Historically, beneficiaries were paid different non-service-
connected burial allowances, primarily based on the location of a
Veteran's death. Compare 38 U.S.C. 2302(a) (2022) with 2303(a) (2022).
This led to distinct allowances for individuals eligible for non-
service-connected burial benefits. Prior to the effective date of the
statutory changes under section 2202 of Public Law 116-315, an eligible
claimant was granted a greater non-service-connected burial allowance
based on a VA hospitalization death. 38 CFR 3.1706; see also 38 U.S.C.
2303(a) (2022). Further, while the non-service-connected burial benefit
based on hospitalization death has received percentage increases based
on the Consumer Price Index, see 38 U.S.C. 2303(a), (c) (2022),
Congress last increased the basic non-service-connected burial benefit
in 1978 (from $250.00 to $300.00), see Public Law 95-479.
The amendments under section 2202 of Public Law 116-315 transferred
subsection (b) of 38 U.S.C. 2302 (2022) to 38 U.S.C. 2303 and removed
the remaining subsections of 38 U.S.C. 2302 (2022). These changes
resulted in 38 U.S.C. 2303 providing a comprehensive section for non-
service-connected burial benefits and a single payable allowance to all
non-service-connected burial beneficiaries.
In order to align VA regulations with the statutory amendments in
38 U.S.C. 2303, and the removal of 38 U.S.C. 2302 (2022), VA proposes
to amend 38 CFR 3.1703, 3.1705, 3.1708 and 3.1711. These regulatory
changes would conform with the amendments included in Public Law 116-
315 and provide a single payment rate for non-service-connected burial
benefits, regardless of the location of a Veteran's death.
Expanded Plot or Interment Allowance for Tribal Organizations
Section 102(c) of the Burial Equity for Guards and Reserves Act
(Division CC) within Public Law 117-103 extended eligibility for
payment of the VA plot or interment allowance to a Tribal organization
for the interment of an eligible Veteran in a qualifying cemetery or
section of a cemetery that is on trust land owned by, or held in trust
for, a Tribal organization.
Prior to the enactment of Public Law 117-103, eligibility to claim
the VA plot or interment allowance for an eligible Veteran buried
(without charge for the cost of a plot or interment) in a qualifying
cemetery, or section of a cemetery, was limited to those owned by a
State, or agency or political subdivision of a State. See 38 U.S.C.
2303(b) (2021).
Effective March 15, 2022, the amendments in Public Law 117-103 now
extend eligibility for payment of the VA plot or interment allowance to
Tribal organizations for the burial of an eligible Veteran in a
qualifying cemetery or section of a cemetery that is on trust land
owned by, or held in trust for, a Tribal organization. This change
ultimately provides Tribal organizations the same eligibility to burial
benefits as state Veterans' cemeteries.
In order to align VA regulations with the statutory amendments in
38 U.S.C. 2303, VA proposes to amend 38 CFR 3.1702, 3.1706, and 3.1707.
These regulatory changes would conform with the amendments included in
Public Law 117-103 and extend the VA plot or interment allowance to a
Tribal organization for the interment of eligible Veterans.
Executive Orders 12866, 13563, and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
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 14094 (Executive Order on
Modernizing Regulatory Review) supplements and reaffirms the
principles, structures, and definitions governing contemporary
regulatory review established in Executive Order 12866 of September 30,
1993 (Regulatory Planning and Review), and Executive Order 13563 of
January 18, 2011 (Improving Regulation and Regulatory Review). The
Office of Information and Regulatory Affairs has determined that this
rulemaking is a significant regulatory action under Executive Order
12866, as amended by Executive Order 14094. The Regulatory Impact
Analysis associated with this rulemaking can be found as a supporting
document at www.regulations.gov.
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. 601-612). As this proposed rulemaking would expand and increase
benefits, it would not have a significant economic impact on a
substantial number of small entities as the benefits received by the
entities entitled to them were found to be de minimis. Therefore,
pursuant to 5 U.S.C. 605(b), the initial and final regulatory
flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
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 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 includes provisions constituting a revised
collection of information under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501-3521) that require approval by the Office of Management and
Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a
copy of this rulemaking action to OMB for review and approval. The
proposed rule would not involve a substantive or material modification
of the approved collection.
OMB assigns control numbers to collection of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. If OMB does not approve the
collection of information as requested, VA will immediately remove the
provisions containing the collection of information or take such other
action as is directed by OMB.
Comments on the revised collection of information contained in this
rulemaking should be submitted through www.regulations.gov.
[[Page 65644]]
Comments should indicate that they are submitted in response to ``RIN
2900-AR69, Expanded Burial Benefits'' and should be sent within 60 days
of publication of this rulemaking. The revised collection of
information associated with this rulemaking can be viewed at:
www.reginfo.gov/public/do/PRAMain.
OMB is required to make a decision concerning the revised
collection of information contained in this rulemaking between 30 and
60 days after publication of this rulemaking in the Federal Register.
Therefore, a comment to OMB is best assured of having its full effect
if OMB receives it within 30 days of publication. This does not affect
the deadline for the public to comment on the provisions of this
rulemaking.
The Department considers comments by the public on revised
collection of information in--
Evaluating whether the revised collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the revised collection of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collection of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The revised collection of information associated with this
rulemaking contained in 38 CFR 3.1700, 3.1701, 3.1702, 3.1703, 3.1704,
3.1705, 3.1706, 3.1707, 3.1708, 3.1709, 3.1711 is described immediately
following this paragraph, under its respective title.
Title: Application for Burial Benefits (Under 38 U.S.C. Chapter
23).
VA Form No: 21P-530EZ.
OMB Control No: 2900-0003.
CFR Provisions: 38 CFR 3.1700, 3.1701, 3.1702, 3.1703, 3.1704,
3.1705, 3.1706, 3.1707, 3.1708, 3.1709, 3.1711.
Summary of revised collection of information: The revised
collection of information in proposed provisions in 38 CFR 3.1700,
3.1701, 3.1702, 3.1703, 3.1704, 3.1705, 3.1706, 3.1707, 3.1708, 3.1709,
and 3.1711 would require the respondent to provide information
indicating whether the Veteran was buried in a covered Veterans'
cemetery. VA estimates this proposed expanded burial transportation
benefit, which now includes covered Veterans' cemeteries, would
increase the respondent burden by an additional 3,658 respondents in
fiscal year 2024 subsequently increasing the estimated total annual
reporting and recordkeeping burden.
Description of need for information and proposed use of
information: VA, through the Veterans Benefits Administration (VBA),
administers an integrated program of benefits and services, established
by law, for Veterans, service personnel, and their dependents and/or
beneficiaries. Under the authority of 38 U.S.C. 2302, 2303, 2304, 2307,
and 2308, VA will pay burial benefits upon the death of a Veteran to
certain eligible claimants. The information would be used by VA to
determine if the claimant is eligible to receive expanded
transportation benefits due to the Veteran's burial in a covered
Veterans' cemetery.
Description of likely respondents: The respondent
population for VA Form 21P-530EZ would be primarily composed of
survivors of deceased Veterans establishing eligibility to VA burial
benefits.
Estimated number of respondents: Number of respondents is
estimated at 132,055 per year. These totals were derived from a query
of our claims database and represent the actual number of each form
received in an average year plus an additional estimated 3,658
respondents based on the change in section 2201 of Public Law 116-315.
Estimated frequency of responses: One time per year.
Estimated average burden per response: 30 minutes.
Estimated total annual reporting and recordkeeping burden:
66,027.50 burden hours (132,055 x 30/60). VA estimates the increased
annual reporting and recordkeeping burden based on the proposed rule to
be 1,829 burden hours (3,658 x 30/60). This submission does not involve
any record-keeping costs.
Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $1,849,430 (66,027.50 burden hours for
respondents x $28.01 per hour). VA estimates that the proposed rule
would increase the number of respondents in FY24 by 3,658. The increase
in cost to respondents per year based on the additional 3,658
respondents would result in an estimated information collection burden
cost increase of $51,230.29 (1,829 burden hours x $28.01 per hour).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for hourly wage
for ``all occupations'' of $28.01 per hour. This information is
available at https://www.bls.gov/oes/current/oes_nat.htm#13-0000.
The revised collection of information associated with this
rulemaking contained in 38 CFR 3.1700, 3.1701, 3.1702, 3.1703, 3.1704,
3.1705, 3.1706, 3.1707, 3.1708, 3.1709, 3.1711 is described immediately
following this paragraph, under its respective title.
Title: State or Tribal Organization Application for Interment
Allowance (Under 38 U.S.C. Chapter 23).
VA Form No: 21P-530a.
OMB Control No: 2900-0565.
CFR Provision: 38 CFR 3.1700, 3.1701, 3.1702, 3.1703, 3.1704,
3.1705, 3.1706, 3.1707, 3.1708, 3.1709, 3.1711.
Summary of revised collection of information: The revised
collection of information in proposed provisions 38 CFR 3.1700, 3.1701,
3.1702, 3.1703, 3.1704, 3.1705, 3.1706, 3.1707, 3.1708, 3.1709, and
3.1711 would require the respondent to provide information to determine
if a Tribal organization is eligible for interment allowance for an
eligible Veteran buried on trust land owned by, or held in trust for, a
Tribal organization. VA estimates this proposed extended plot or
interment allowance benefit, which now includes Tribal organizations,
would increase the respondent burden by an additional 50 respondents in
fiscal year 2024 subsequently increasing the estimated total annual
reporting and recordkeeping burden.
Description of need for information and proposed use of
information: VA, through VBA, administers an integrated program of
benefits and services, established by law, for Veterans, service
personnel, and their dependents and/or beneficiaries. Under the
authority of 38 U.S.C. 2302, 2303, 2304, 2307, and 2308, VA would pay
burial benefits upon the death of a Veteran to certain eligible
claimants. The information would be used by VA to determine if a Tribal
organization is eligible to receive plot or interment benefit due to
the Veteran's burial on trust land owned by, or held in trust for, a
Tribal organization.
Description of likely respondents: The respondent
population for VA Form 21P-530a would be composed of individuals from
State or Tribal Organizations that are applying for benefits to
establish entitlement to the plot or internment allowance for eligible
Veterans who have been buried in a
[[Page 65645]]
State Veterans' cemetery or on Tribal Trust land.
Estimated number of respondents: Number of respondents is
estimated at 33,594 per year. These totals were derived from a query of
our claims database and represent the actual number of each form
received in an average year plus an additional estimated 50 respondents
based on the change in section 102(c) of the Burial Equity for Guards
and Reserves Act (Division CC) of Public Law 117-103.
Estimated frequency of responses: One time per year.
Estimated average burden per response: 5 minutes.
Estimated total annual reporting and recordkeeping burden:
The burden hours are estimated to be 2,800 (33,594 x 5/60). VA
estimates the increased annual reporting and recordkeeping burden based
on the proposed rule to be 4 burden hours (50 x 5/60). This submission
does not involve any record-keeping costs.
Estimated cost to respondents per year: VA estimates the
annual cost to respondents to be $78,428.00. (2,800 burden hours for
respondents x $28.01 per hour). VA estimates that the proposed rule
would increase the number of respondents in FY24 by 50. The increase in
cost to respondents per year based on the additional 50 respondents
would result in an estimated annual respondent burden cost increase of
$112.04 (4 burden hours x $28.01 per hour).
* To estimate the total information collection burden cost, VA used
the Bureau of Labor Statistics (BLS) median hourly wage for hourly wage
for ``all occupations'' of $28.01 per hour. This information is
available at https://www.bls.gov/oes/current/oes_nat.htm#13-0000.
List of Subjects in 38 CFR Part 3
Administrative practice and procedure, Claims, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on September 14, 2023, 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.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of
General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs proposes to amend 38 CFR part 3 as set forth below:
Part 3--ADJUDICATION
Subpart B--Burial Benefits
0
1. The authority citation for part 3, subpart B is revised to read as
follows:
Authority: 105 Stat. 386, 38 U.S.C. 501(a), 2303-2308, unless
otherwise noted.
0
2. Amend Sec. 3.1700 by revising paragraph (b) to read as follows:
Sec. 3.1700 Types of VA burial benefits.
* * * * *
(b) Definitions. For the purposes of this subpart:
(1) Burial means all the legal methods of disposing of the remains
of a deceased person, including, but not limited to, cremation, burial
at sea, and medical school donation.
(2) Covered veterans' cemetery is a designation for an eligible
cemetery considered in the determination of transportation benefits
under Sec. 3.1709 that meets the following criteria:
(i) A deceased veteran as described in 38 U.S.C. 2308(b) is
eligible to be buried within the cemetery;
(ii) The cemetery is either owned by a State or is on trust land
owned by, or held in trust for, a Tribal organization; and
(iii) The cemetery is one for which the Secretary has made a grant
under 38 U.S.C. 2408.
* * * * *
0
3. Amend Sec. 3.1701 by:
0
a. Removing the citation ``38 U.S.C 2302'' and adding in its place ``38
U.S.C 2303''; and
0
b. Revising the authority citation.
The revision reads as follows:
Sec. 3.1701 Deceased veterans for whom VA may provide burial
benefits.
* * * * *
(Authority: 38 U.S.C. 101(2), 2303, 2307, 2308)
0
4. Amend Sec. 3.1702 by revising paragraphs (a)(2), (b)(1)
introductory text, (c)(2) introductory text, and the authority citation
to read as follows:
Sec. 3.1702 Persons who may receive burial benefits; priority of
payments.
* * * * *
(a) * * *
* * * * *
(2) VA may grant additional burial benefits, including the plot or
interment allowance under Sec. 3.1707, the transportation benefit
under Sec. 3.1709, and the service-connected burial allowance under
Sec. 3.1704, to the surviving spouse or any other eligible person in
accordance with paragraph (b) of this section and based on a claim
described in Sec. 3.1703.
(b) * * *
(1) Except for claims a State, an agency or political subdivision
of a State, or a Tribal organization files under Sec. 3.1707 or Sec.
3.1708, VA will pay, upon the death of a veteran, the first living
person to file of those listed below:
* * * * *
(c) * * *
* * * * *
(2) Claims for the plot or interment allowance (except for claims
filed by a State, an agency or political subdivision thereof, or a
Tribal organization) under Sec. 3.1707 may be executed by:
* * * * *
(Authority: 38 U.S.C. 2303, 2307, 2308)
0
5. Amend Sec. 3.1703 by revising paragraphs (a)(1) and (b)(2) to read
as follows:
Sec. 3.1703 Claims for burial benefits.
(a) * * *
(1) General rule. Except as provided in paragraph (a)(2) of this
section, VA must receive a claim for the non-service-connected burial
allowance for veterans described within Sec. 3.1705(b), Sec.
3.1706(b), or Sec. 3.1708(b) no later than 2 years after the burial of
the veteran. There are no other time limitations to file claims for
burial benefits under subpart B of this part.
* * * * *
(b) * * *
* * * * *
(2) Payment for transportation expenses. In order to pay
transportation costs, VA must receive supporting documentation,
preferably on letterhead, showing who incurred the costs, the name of
the deceased veteran, the specific transportation expenses incurred,
and the dates of the services rendered.
* * * * *
0
6. Amend Sec. 3.1704 by revising paragraphs (c)(1) and (2) to read as
follows:
Sec. 3.1704 Burial allowance based on service-connected death.
* * * * *
(c) * * *
(1) VA may pay the transportation benefit under Sec. 3.1709; and
(2) VA may pay the plot or interment allowance under Sec. 3.1707.
* * * * *
0
7. Amend Sec. 3.1705 by:
0
a. In paragraph (a), removing the citation ``38 U.S.C 2302'' and adding
in its place ``38 U.S.C. 2303''; and
0
b. Revising paragraph (e) and the authority citation.
[[Page 65646]]
The revisions read as follows:
Sec. 3.1705 Burial allowance based on non-service-connected death.
* * * * *
(e) Additional benefits available based on non-service-connected
death. In addition to the non-service-connected burial allowance
authorized by this section:
(1) VA may pay the transportation benefit under Sec. 3.1709; and
(2) VA may pay the plot or interment allowance under Sec. 3.1707.
(Authority: 38 U.S.C. 2303, 2304, 2308)
0
8. Amend Sec. 3.1706 by revising paragraphs (d)(1) and (2) and the
authority citation to read as follows:
Sec. 3.1706 Burial allowance for a veteran who dies while
hospitalized by VA.
* * * * *
(d) * * *
(1) VA may pay the transportation benefit under Sec. 3.1709; and
(2) VA may pay the plot or interment allowance under Sec. 3.1707.
(Authority: 38 U.S.C. 2303, 2308)
0
9. Amend Sec. 3.1707 by revising paragraph (b) and the paragraph
heading to paragraph (c) to read as follows.
Sec. 3.1707 Plot or interment allowances for burial in a State
veterans cemetery or other cemetery.
* * * * *
(b) Plot or interment allowance for burial in a State or Tribal
veterans cemetery. VA will pay the plot or interment allowance in the
amount specified in 38 U.S.C. 2303(b)(1) (without regard to whether any
other burial benefits were provided for that veteran) to a State, an
agency or political subdivision of a State, or a Tribal organization
that provided a burial plot or interment for the veteran without charge
if the State, agency or political subdivision of the State, or Tribal
organization:
(1) Is claiming the plot or interment allowance for burial of the
veteran in a cemetery, or section of a cemetery, owned by the State,
agency or subdivision of the State, or on trust land owned by, or held
in trust for, a Tribal organization;
(2) Did not charge for the expense of the plot or interment; and
(3) Uses the cemetery or section of a cemetery solely for the
interment of:
(i) Persons eligible for burial in a national cemetery; and
(ii) In a claim based on a veteran's death after October 31, 2000,
either:
(A) Deceased members of a reserve component of the Armed Forces not
otherwise eligible for interment in a national cemetery;
(B) Deceased former members of a reserve component of the Armed
Forces not otherwise eligible for interment in a national cemetery who
were discharged or released from service under conditions other than
dishonorable; or
(C) Individuals described in 38 U.S.C. 2408(i)(2).
(c) Plot or interment allowance payable based on burial in other
than a State or Tribal veterans cemetery.* * *
* * * * *
0
10. Amend Sec. 3.1708 by:
0
a. In paragraph (a), removing the citation ``38 U.S.C. 2302'' and
adding in its place ``38 U.S.C. 2303''; and
0
b. Revising paragraph (c) and the authority citation.
The revisions read as follows:
Sec. 3.1708 Burial of a veteran whose remains are unclaimed.
* * * * *
(c) Additional benefit for transportation of unclaimed remains. In
addition to the burial allowance authorized by this section, VA may pay
the transportation benefit under Sec. 3.1709.
* * * * *
(Authority: 38 U.S.C. 2303, 2308)
0
11. Amend Sec. 3.1709 by:
0
a. Revising the section heading.
0
b. Revising paragraphs (a), (b), and (c);
0
c. In paragraph (d)(1), removing the word ``reimburse'' and adding in
its place ``pay'';
The revisions read as follows:
Sec. 3.1709 Transportation expenses for burial.
(a) General. VA will pay the transportation expenses, subject to
paragraph (d) of this section, of a veteran's remains to the place of
burial for a veteran described in paragraph (b) of this section or for
burial in a national cemetery or a covered veterans' cemetery, as
defined in Sec. 3.1700(b)(2), for a veteran described in paragraph (c)
of this section.
(b) Eligibility for transportation to the place of burial under 38
U.S.C. 2303(a). VA will pay the expense incurred to transport an
eligible veteran's remains to the place of burial, subject to paragraph
(d) of this section, where the death occurs within a State and the
place of burial is in the same State or any other State.
(1) A veteran described in this paragraph is a deceased veteran who
meets any of the following criteria:
(i) A veteran covered under 38 CFR 3.1705(b), or a veteran who died
of a service-connected disability and who also satisfies the criteria
listed under 38 CFR 3.1705(b)).
(ii) A veteran covered under 38 CFR 3.1706(b).
(iii) A veteran covered under 38 CFR 3.1708(b).
(2) A payment authorized under paragraph (b) of this section shall
not duplicate any payment authorized under paragraph (c) of this
section.
(c) Eligibility for transportation benefit under 38 U.S.C. 2308.
For a veteran described below, VA will pay for the expense incurred,
subject to paragraph (d) of this section, to transport a veteran's
remains for burial in a national cemetery or a covered veterans'
cemetery, as defined in Sec. 3.1700(b)(2).
(1) A veteran described in this paragraph is a deceased veteran
who:
(i) Died as the result of a service-connected disability and who is
not eligible for the transportation benefit under paragraph (b) of this
section; or
(ii) Died outside of a State.
(2) The amount payable under this paragraph (c) will not exceed the
cost of transporting the remains to the national cemetery closest to
the veteran's last place of residence in which burial space is
available and is subject to the limitations set forth in paragraph (d)
of this section.
(3) A payment authorized under this paragraph (c) shall not
duplicate any payment authorized under paragraph (b) of this section.
* * * * *
0
12. Amend Sec. 3.1711 by:
0
a. Revising paragraph (a) introductory text;
0
b. In paragraph (b)(1), removing the citation ``38 U.S.C. 2302'' and
adding, in its place, ``38 U.S.C. 2303''; and
0
c. Revising the authority citation.
The revisions read as follows:
Sec. 3.1711 Effect of contributions by government, public, or private
organizations.
(a) Contributions by government or employer. With respect to claims
for a plot or interment allowance under Sec. 3.1707, if VA has
evidence that the U.S., a State, any agency or political subdivision of
the U.S. or of a State, Tribal organization, or the employer of the
deceased veteran has paid or contributed payment to the veteran's plot
or interment expenses, VA will pay the claimant up to the lesser of:
* * * * *
(Authority: 38 U.S.C. 2303)
[FR Doc. 2023-20444 Filed 9-22-23; 8:45 am]
BILLING CODE 8320-01-P
