06-4671. Individuals and Groups Considered To Have Performed Active Military, Naval, or Air Service

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending its regulation governing individuals and groups considered to have performed active military, naval, or air service. More specifically, VA is expanding the regulation to include additional groups considered to have served on active military service. The need for this action results from recent decisions by the Secretary of the Air Force, and by Congress in the Department of Defense Appropriations Act, 2001, expanding the categories of people considered to have performed active military service. The effect of these actions is to confer veteran status for VA benefit purposes on former members of these groups discharged under honorable conditions. VA also is amending references to three groups already included in our regulation in order to clarify which persons are members of these groups.

DATES:

Effective Date: This final rule is effective May 19, 2006.

Applicability Dates: See SUPPLEMENTARY INFORMATION section for applicability dates for each new and revised group considered to have performed active military service.

FOR FURTHER INFORMATION CONTACT:

Bill Russo, Chief, Policy and Regulations Staff, Compensation and Pension Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, [phone].

SUPPLEMENTARY INFORMATION:

Section 401 of Public Law 95-202, The GI Bill Improvement Act of 1977, authorized the Secretary of Defense to determine whether the service of members of civilian or contractual groups should be considered active duty for the purposes of all laws administered by VA. In Department of Defense Directive 1000.20, September 11, 1989, the Secretary of Defense delegated this authority to the Secretary of the Air Force. In the Federal Register on October 1, 1999 (64 FR 53364-65), and October 21, 1999 (64 FR 56773-74), the Secretary of the Air Force published notices stating that the service of the members of the following three groups shall be considered “active duty” under the provisions of Public Law 95-202 for the purposes of all laws administered by VA: the group described as the “three scouts/guides,” Miguel Tenorio, Penedicto Taisacan, and Cristino Dela Cruz, who assisted the U.S. Marines in the offensive operations against the Japanese on the Northern Mariana Islands from June 19, 1944, through September 2, 1945; the approximately 50 Chamorro and Carolinian former native policemen, who received military training in the Donnal area of central Saipan and were placed under the command of Lt. Casino of the 6th Provisional Military Police Battalion to accompany United States Marines on active combat-patrol activity from August 19, 1945, to September 2, 1945; and the Operational Analysis Group of the Office of Scientific Research and Development, Office of Emergency Management, which served overseas with the U.S. Army Air Corps from December 7, 1941, through August 15, 1945. We are including these three groups in 38 CFR 3.7(x).

In section 8147 of the Department of Defense Appropriations Act, 2001, Congress determined that service as a member of the Alaska Territorial Guard during World War II of any individual who was honorably discharged shall be considered active duty for the purposes of all laws administered by the Secretary of VA. In 38 CFR 3.7(y), we are including this group to be considered as having performed active military service.

In 38 CFR 3.7(x), we are also including additional information concerning three groups already recognized. The first group is “Civilian Crewmen of the United States Coast and Geodetic Survey (USCGS) vessels, Who Performed Their Service * * * Within a Time Frame of December 7, 1941, to August 15, 1945.” The Secretary of the Air Force has added three previously omitted vessels, Oceanographer, Hydrographer, and Pathfinder, to the list of qualifying vessels upon which members of these groups must have served, 57 FR 24600, June 10, 1992; the revised regulation lists all qualifying vessels. We have amended the title of the group “Engineer Field Clerks” to the more complete “Engineer Field Clerks (WWI).” 44 FR 55622, September 27, 1979. The third group is “U.S. Civilian Flight Crew and Aviation Ground Support Employees of Transcontinental and Western Air (TWA), Inc., Who Served Overseas as a Result of TWA's Contract with the Air Transport Command During the Period December 14, 1941, through August 14, 1945.” On February 21, 2003, the Secretary of the Air Force determined that “Flight Crew” includes pursers. 68 FR 11068, March 7, 2003.

VA will apply the new and revised provisions in determining veteran status for periods on and after (1) the date the Secretary of Defense determined that the service of the group constituted active military service, or (2) the date the public law certifying such service took effect. Accordingly, the applicability date for members of the approximately 50 Chamorro and Carolinian former native policemen is September 30, 1999, the date on which the Secretary of the Air Force determined that such service constituted active duty. The applicability date for the three scouts/guides, Miguel Tenorio, Penedicto Taisacan, and Cristino Dela Cruz, is also September 30, 1999. The applicability date for the Operational Analysis Group of the Office of Scientific Research and Development, Office of Emergency Management is August 27, 1999. The applicability date for members of the Alaska Territorial Guard is August 9, 2000, the date on which Congress enacted The Department of Defense Appropriations Act, 2001. The applicability date for the Civilian Crewmen of the United States Coast and Geodetic Survey vessels is April 8, 1991; the applicability date for the Engineer Field Clerks is August 31, 1979; and the applicability date for the U.S. Civilian Flight Crew and Aviation Ground Support Employees of TWA is May 13, 1992.

Administrative Procedure Act

Because this amendment merely reflects determinations previously announced by the Secretary of the Air Force and by Congress, and establishes no new requirements, publication as a proposal for public notice and comment is unnecessary. Accordingly, there is a basis for dispensing with prior notice and comment and the delayed effective date provisions of 5 U.S.C. 553.

Paperwork Reduction Act

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

Regulatory Flexibility Act

Because no notice of proposed rulemaking is required in connection with the adoption of this final rule, no regulatory flexibility analysis is required under the Regulatory Flexibility Act (5 U.S.C. 601-612). Even so, 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.

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Order classifies a rule as a significant regulatory action requiring review by the Office of Management and Budget if it meets any one of a number of specified conditions, including: Having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. VA has examined the economic, legal, and policy implications of this final rule and has concluded that it is not a significant regulatory action under Executive Order 12866.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

The Catalog of Federal Domestic Assistance program numbers and titles for this proposal are 64.100, Automobiles and Adaptive Equipment for Certain Disabled Veterans and Members of the Armed Forces; 64.101, Burial Expenses Allowance for Veterans; 64.102, Compensation for Service-Connected Deaths for Veterans' Dependents; 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

List of Subjects in 38 CFR Part 3

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

Approved: May 8, 2006.

Gordon H. Mansfield,

Deputy Secretary of Veterans Affairs.

For the reasons set forth in the preamble, 38 CFR part 3 is amended as follows:

PART 3—ADJUDICATION

Subpart A—Pension, Compensation, and Dependency and Indemnity Compensation

1. The authority citation for part 3, subpart A, continues to read as follows:

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

2. Section 3.7 is amended by:

a. Revising paragraphs (x)(3), (x)(20), and (x)(23).

b. Adding paragraphs (x)(31) through (x)(33) immediately after paragraph (x)(30).

c. Removing the second authority citation that appears at the end of paragraph (x).

d. Adding paragraph (y) immediately after the authority citation at the end of paragraph (x).

The revisions and additions read as follows:

§ 3.7

Individuals and groups considered to have performed active military, naval, or air service.

* * * * *

(x) * * *

(3) Engineer Field Clerks (WWI).

* * * * *

(20) Civilian Crewmen of United States Coast and Geodetic Survey (USCGS) Vessels Who Performed Their Service in Areas of Immediate Military Hazard While Conducting Cooperative Operations with and for the United States Armed Forces Within a Time Frame of December 7, 1941, to August 15, 1945 on a qualifying USCGS vessel. Qualifying USCGS vessels are the Derickson, Explorer, Gilbert, Hilgard, E. Lester Jones, Lydonia, Patton, Surveyor, Wainwright, Westdahl, Oceanographer, Hydrographer, and Pathfinder.

* * * * *

(23) U.S. Civilian Flight Crew and Aviation Ground Support Employees of Transcontinental and Western Air (TWA), Inc., Who Served Overseas as a Result of TWA's Contract with the Air Transport Command During the Period December 14, 1941, through August 14, 1945. The “Flight Crew” includes pursers.

* * * * *

(31) The approximately 50 Chamorro and Carolinian former native policemen who received military training in the Donnal area of central Saipan and were placed under the command of Lt. Casino of the 6th Provisional Military Police Battalion to accompany United States Marines on active, combat-patrol activity from August 19, 1945, to September 2, 1945.

(32) Three scouts/guides, Miguel Tenorio, Penedicto Taisacan, and Cristino Dela Cruz, who assisted the United States Marines in the offensive operations against the Japanese on the Northern Mariana Islands from June 19, 1944, through September 2, 1945.

(33) The Operational Analysis Group of the Office of Scientific Research and Development, Office of Emergency Management, which served overseas with the U.S. Army Air Corps from December 7, 1941, through August 15, 1945.

* * * * *

(y) Alaska Territorial Guard: Members of the Alaska Territorial Guard during World War II who were honorably discharged from such service as determined by the Secretary of Defense.

Authority: 38 U.S.C 106(f).