04-14799. Eligibility for Burial in a National Cemetery for Surviving Spouses Who Remarry and New Philippine Scouts

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Department of Veterans Affairs (VA) regulations to implement sections 212 and 502 of the Veterans Benefits Act of 2003 (Public Law 108-183). Section 502 of the Act extends eligibility for burial in a national cemetery to a remarried surviving spouse who died on or after January 1, 2000, based on his or her prior marriage to an eligible veteran. Additionally, section 212 of the Act extends eligibility for burial in a national cemetery to New Philippine Scouts who lawfully resided in the United States and died on or after December 16, 2003.

DATES:

Effective Date: August 2, 2004.

Applicability Date: Pursuant to the provisions of Public Law 108-183, the Veterans Benefits Act of 2003, the provisions to this regulation shall apply with respect to interment of remarried surviving spouses whose deaths occurred on or after January 1, 2000, and with respect to interment of certain New Philippine Scouts whose deaths occurred on or after December 16, 2003.

FOR FURTHER INFORMATION CONTACT:

Beth Beardsley, Program Analyst, Office of Field Programs (41A), National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420; Telephone: [phone] (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

The provisions of 38 U.S.C. 2402 set forth eligibility requirements for burying the remains of persons in any national cemetery with available space under the jurisdiction of the National Cemetery Administration. This final rule implements provisions of the Veterans Benefits Act of 2003, to extend eligibility for burial in a national cemetery to a remarried surviving spouse whose death occurred on or after January 1, 2000, based on his or her prior marriage to an eligible veteran. This revision acknowledges the importance of the prior marriage and will allow the deceased veteran to be buried with a spouse with whom he or she expected to be buried. It will also allow any children to visit a single gravesite to pay their respects to their parents.

Additionally, this final rule implements provisions of the Veterans Benefits Act of 2003, extending eligibility for burial in a national cemetery to certain New Philippine Scouts. To be eligible, a person must have died on or after December 16, 2003, and must have enlisted in the U.S. Armed Forces with the consent of the Philippine government between October 6, 1945, and June 30, 1947, pursuant to section 14 of the Armed Forces Voluntary Recruitment Act of 1945. At time of death, the person must have been a citizen of the United States or an alien lawfully admitted for permanent residence in the United States, and residing in the United States.

Organization and Clarity

We are making changes to the format of 38 CFR 1.620(e) and (h) to provide better organization and clarity.

Administrative Procedures Act

We are publishing this as a final rule without notice and comment under the provisions of 5 U.S.C. 553 because the changes it makes either are non-substantive or merely reflect statutory changes.

Unfunded Mandates

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

Paperwork Reduction Act

This document does not contain new provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Only individual VA beneficiaries would be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance Program Number

The Catalog of Federal Domestic Assistance program number for this document is 64.201.

List of Subjects in 38 CFR Part 1

• Administrative practice and procedure
• Cemeteries
• Veterans

Approved: May 27, 2004.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR part 1 is amended as set forth below:

PART 1—GENERAL PROVISIONS

1. The authority citation for part 1 continues to read as follows:

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

2. In § 1.620, revise paragraphs (e) and (h) to read as follows:

§ 1.620

Eligibility for burial.

* * * * *

(e) The spouse, surviving spouse, minor child, or unmarried adult child of a person eligible under paragraph (a), (b), (c), (d), or (g) of this section. For purposes of this section—

(1) A surviving spouse includes a surviving spouse who had a subsequent remarriage;

(2) A minor child means an unmarried child under 21 years of age, or under 23 years of age if pursuing a full-time course of instruction at an approved educational institution; and

(3) An unmarried adult child means a child who became permanently physically or mentally disabled and incapable of self-support before reaching 21 years of age, or before reaching 23 years of age if pursuing a full-time course of instruction at an approved educational institution.

* * * * *

(h) Any person who:

(1) Was a citizen of the United States or an alien lawfully admitted for permanent residence in the United States at the time of their death; and

(2) Resided in the United States at the time of their death; and

(3) Either was a—

(i) Commonwealth Army veteran or member of the organized guerillas—a person who served before July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines, while such forces were in the service of the Armed Forces of the United States pursuant to the military order of the President dated July 26, 1941, including organized guerilla forces under commanders appointed, designated, or subsequently recognized by the Commander in Chief, Southwest Pacific Area, or other competent authority in the Army of the United States, and who died on or after November 1, 2000; or

(ii) New Philippine Scout—a person who enlisted between October 6, 1945, and June 30, 1947, with the Armed Forces of the United States with the consent of the Philippine government, pursuant to section 14 of the Armed Forces Voluntary Recruitment Act of 1945, and who died on or after December 16, 2003.

(Authority: 38 U.S.C. 107, 501, 2402)