Expanded Burial Benefits

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) amends its adjudication regulations pertaining to burial benefits to conform to 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 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 coincide with the effective date for the statutory amendments (January 5, 2023). The conforming regulatory changes 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 coincide with the effective date for the statutory amendments (March 15, 2022). VA also provides additional clarifying changes to its burial benefits regulations.

DATES:

This rule is effective October 25, 2024.

SUPPLEMENTARY INFORMATION:

In a document published in the Federal Register on September 25, 2023, at 88 FR 65641, VA proposed to amend its adjudication regulations pertaining to burial benefits to conform to recent statutory changes enacted by 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), and section 102(c) of Division CC (Burial Equity for Guards and Reserves Act) of the Consolidated Appropriations Act, 2022 (Pub. L. 117-103).

VA provided a 60-day public comment period, which ended on November 24, 2023, and received six comments in response to the notice of proposed rulemaking. All comments generally agreed with the amendments in the proposed rulemaking. One commenter stated: “I support the Department of Veterans Affairs proposed rule expanding burial benefits for veterans and their families. I urge the VA to finalize this rule as soon as possible.” Another commenter explained that “[t]his rule change makes sense and is the least we can do to honor our Veterans at the end of life.” VA appreciates these responses and will not make any changes based upon those comments.

One commenter provided support for the proposed rule but addressed an area of improvement for non-service-connected burial benefits. This commenter highlighted the two-year time limit to submit a claim for non-service-connected burial benefits provided in proposed 38 CFR 3.1703(a)(1), which stated that “VA must receive a claim for the non-service-connected 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.” This commenter further explained that “due to the relatively low numbers concerning veterans who currently take advantage of these benefits, the time limit on claims should be removed to ensure that more veterans' families receive this benefit and do not have to pay for the services themselves.”

VA appreciates the commenter's concern; however, the time limit referenced in 38 CFR 3.1703 must adhere to the statutory limitations provided within 38 U.S.C. 2304. Section 2304 states that applications for payments under 38 U.S.C. 2303(a)(2)(B) and (C) must be filed within two years after the burial of the Veteran. Section 2303(a)(2)(B) refers to deceased Veterans who, at the time of non-service-connected death, were in receipt of service-connected disability compensation (or but for the receipt of retirement pay would have been entitled to such compensation) or were in receipt of pension. Section 2303(a)(2)(C) refers to deceased Veterans for whom the Secretary determines there is no next of kin or other person claiming the body and that there are not sufficient resources available to cover burial and funeral expenses. Aside from this two-year statutory time limit as implemented in 38 CFR 3.1703(a)(1), there are no other time limitations to file claims for burial benefits under 38 CFR part 3, subpart B. No substantive changes were made pursuant to this comment, as legislative action would be required to amend the two-year time limit. But in reviewing this comment, VA did discover a technical error in the proposed changes to 38 CFR 3.1703(a)(1), which VA corrects in this final rule by removing an erroneous cross-reference to 38 CFR 3.1706(b), as described below.

Per 38 U.S.C. 2304, the two-year time limit to submit a claim for non-service-connected burial benefits applies to applications for payments under 38 U.S.C. 2303(a)(2)(B) and (C). This time limit does not apply to 38 U.S.C. 2303(a)(2)(A), which pertains to Veterans who die of a non-service-connected disability while hospitalized by VA ( i.e., in a VA facility as defined in 38 U.S.C. 1701(3) 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 in an institution at which the deceased Veteran was, at the time of death, receiving hospital care in accordance with 38 U.S.C. 1703A, 8111, and 8153, nursing home care under 38 U.S.C. 1720, or nursing home care for which payments are made under 38 U.S.C. 1741).

VA's proposed changes to 38 CFR 3.1703(a)(1) included cross-references to 38 CFR 3.1705(b) and § 3.1708(b)—the implementing regulatory provisions for 38 U.S.C. 2303(a)(2)(B) and (C), respectively, for which 38 U.S.C. 2304's two-year time limit applies. However, VA erroneously proposed to also include a cross-reference to 38 CFR 3.1706(b), the implementing regulatory provision for 38 U.S.C. 2303(a)(2)(A), pertaining to Veterans who die of a non-service-connected disability while hospitalized by VA. Because 38 U.S.C. 2304's two-year time limit does not apply to 38 U.S.C. 2303(a)(2)(A), VA erred by proposing to include the corresponding regulatory provision, 38 CFR 3.1706(b), in 38 CFR 3.1703(a)(1)'s description of the circumstances in which the statutory two-year time limit applies. Accordingly, VA has removed the reference to 38 CFR 3.1706 in 38 CFR 3.1703(a)(1), as no time limit applies to a claim for the non-service-connected burial allowance for a Veteran who died while hospitalized by VA.

Finally, VA makes one clarifying change to 38 CFR 3.1704 (Burial allowance based on service-connected death). VA revises paragraph (c)(2)'s reference to 38 CFR 3.1707 to specifically reference 38 CFR 3.1707(b), because a claim for the plot or interment allowance for service-connected death is payable under 38 CFR 3.1707(b) but is not payable under 38 CFR 3.1707(c). Under § 3.1707(c)(1), the plot or interment allowance payable based on burial in other than a State or Tribal veterans cemetery requires a veteran to be eligible for a burial allowance based on non-service-connected death under § 3.1705.

In summary, VA adopts the proposed rule as final, except for the technical amendments to 38 CFR 3.1703 and 3.1704 as described above.

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 final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). As this final rulemaking will expand and increase benefits, it will 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 final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

This final rule includes provisions constituting revisions to a couple of current/valid collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The revisions also 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.

OMB has received the revised collections of information. OMB's receipt of the revised collections of information is not an approval to conduct or sponsor an information collection under the Paperwork Reduction Act of 1995. In accordance with 5 CFR 1320, the revised collections of information associated with this rulemaking are not approved by OMB at this time. OMB's approval of the revised collections of information will occur within 30 days after the Final rulemaking publishes. If OMB does not approve the revised collections of information as requested, VA will immediately remove the provision containing a revised collection of information or take such other action as is directed by OMB.

The revised collections of information 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 are 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 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 will require the respondent to provide information indicating whether the Veteran was buried in a covered Veterans' cemetery.
• Description of need for information and 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 will 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 will be primarily composed of survivors of deceased Veterans establishing eligibility to VA burial benefits.
• Estimated number of respondents: 132,055 per year.
• Estimated frequency of responses: One time per year.
• Estimated average burden per response: 30 minutes.
• Estimated total annual reporting and recordkeeping burden: 66,028 burden hours (132,055 × 30/60).
• Estimated cost to respondents per year: VA estimates the annual cost to respondents to be $2,078,561.44 (66,028 burden hours × $31.48 per hour).

* To estimate the total information collection burden cost, VA used the 2023 Bureau of Labor Statistics (BLS) mean hourly wage for hourly wage for “all occupations” of $31.48 per hour. This information is available at https://www.bls.gov/oes/current/oes_nat.htm#13-0000.

The revised collection of information 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 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 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 will 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.
• 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 will pay burial benefits upon the death of a Veteran to certain eligible claimants. The information will 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 will 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 State Veterans' cemetery or on Tribal Trust land.
• Estimated number of respondents: 33,594 per year.
• 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).
• Estimated cost to respondents per year: VA estimates the annual cost to respondents to be $88,144 (2,800 burden hours for respondents × $31.48 per hour).

* To estimate the total information collection burden cost, VA used the 2023 Bureau of Labor Statistics (BLS) mean hourly wage for hourly wage for “all occupations” of $31.48 per hour. This information is available at https://www.bls.gov/oes/current/oes_nat.htm#13-0000.

Congressional Review Act

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not satisfying the criteria under 5 U.S.C. 804(2).

Signing Authority

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on September 19, 2024, 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 Affairs amends 38 CFR part 3 as set forth below:

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. 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 at the end of the section.

The revision reads as follows:

4. Amend § 3.1702 by revising paragraphs (a)(2), (b)(1) introductory text, (c)(2) introductory text, and the authority citation at the end of the section to read as follows:

5. Amend § 3.1703 by revising paragraphs (a)(1) and (b)(2) to read as follows:

6. Amend § 3.1704 by revising paragraphs (c)(1) and (2) to read as follows:

7. Amend § 3.1705:

a. In paragraph (a), by removing the citation “ 38 U.S.C. 2302” and adding in its place “38 U.S.C. 2303”; and

b. By revising paragraph (e) and the authority citation at the end of the section.

The revisions read as follows:

8. Amend § 3.1706 by revising paragraphs (d)(1) and (2) and the authority citation at the end of the section to read as follows:

9. Amend § 3.1707 by revising paragraph (b) and the paragraph heading to paragraph (c) to read as follows:

10. Amend § 3.1708:

a. In paragraph (a), by removing the citation “ 38 U.S.C. 2302” and adding in its place “38 U.S.C. 2303”; and

b. By revising paragraph (c) and the authority citation at the end of the section.

The revisions read as follows:

11. Amend § 3.1709 by:

a. Revising the section heading and paragraphs (a), (b), and (c); and

b. Removing the word “reimburse” and adding in its place “pay” In paragraph (d)(1);

The revisions read as follows:

12. Amend § 3.1711 by:

a. Revising paragraph (a) introductory text;

b. Removing the citation “ 38 U.S.C. 2302” and adding in its place “38 U.S.C. 2303” In paragraph (b)(1); and

c. Revising the authority citation at the end of the section.

The revisions read as follows:

[FR Doc. 2024-21864 Filed 9-24-24; 8:45 am]

BILLING CODE 8320-01-P