[Federal Register Volume 73, Number 136 (Tuesday, July 15, 2008)]
[Rules and Regulations]
[Pages 40465-40467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-15996]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM89


Eligibility Reporting Requirements

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the Department of Veterans Affairs (VA) 
adjudication regulations regarding eligibility verification reports for 
certain parents receiving dependency and indemnity compensation. This 
amendment is necessary to conform the regulation to statutory 
provisions.

EFFECTIVE DATE: This amendment is effective July 15, 2008.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff 
(211D), Compensation and Pension Service, Veterans Benefits

[[Page 40466]]

Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (727) 319-5847. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: VA has two income-based benefit programs: 
pension and parents' dependency and indemnity compensation (DIC). VA 
may require a beneficiary of these programs to submit an eligibility 
verification report (EVR) in order to determine or verify entitlement 
under these programs. See 38 U.S.C. 1315, 1506; 38 CFR 3.256, 3.277, 
3.661. The authorizing statute for allowing VA to require an EVR from a 
parents' DIC beneficiary, section 1315(e), provides an exception for 
parents who have attained 72 years of age and have been paid DIC during 
two consecutive calendar years.
    In the past, VA has interpreted section 1315(e) as allowing VA the 
discretion to continue requiring EVRs from this category of parents' 
DIC beneficiaries. See 60 FR 25877, 25877-78 (May 15, 1995). However, 
on current review, we have determined that the statute does not allow 
VA to require EVRs from this group, and we are, therefore, amending the 
implementing regulation, Sec.  3.256(b)(3), to state that VA will not 
request an EVR from these beneficiaries. This regulatory amendment does 
not change the requirement that parents' DIC beneficiaries who have 
attained 72 years of age and have been paid DIC during two consecutive 
calendar years must report material changes in income to VA. See 38 
U.S.C. 1315(e) and 38 CFR 3.256(a).

Administrative Procedures Act

    This final rule is an interpretative rule and the changes made by 
this rule merely reflect VA's interpretation of statutory requirements. 
The primary purpose of the amendment is to implement VA's statutory 
interpretation of 38 U.S.C. 1315 and to align Sec.  3.256 to the 
statute. Section 553(b) of title 5, U.S. Code, does not apply to 
interpretive rules. Accordingly, there is a basis for dispensing with 
prior notice and opportunity to comment. Moreover, under section 
553(d), interpretive rules do not require 30 days prior notice before 
they may become effective. Therefore, because the amendment to Sec.  
3.256 is an interpretive rule, the amendment may have an immediate 
effect. Accordingly, there is a basis for dispensing with the delayed 
effective date provisions of 5 U.S.C. 553(d).

Paperwork Reduction Act

    This document contains no provisions constituting a new collection 
of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). 
The Office of Management and Budget (OMB) assigns a control number for 
each collection of information it approves. VA may not sponsor, and a 
person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number. Control number 
2900-0101 has been assigned for the collection of information under 
Sec.  3.256.
    The amendments to Sec.  3.256 in this final rule remain within the 
scope of the approved collections of information. This document will 
not increase the information burden, nor is it a complete 
discontinuance because VA will continue to request EVRs from 
individuals who do not meet the exception requirements under section 
1315(e). The amendments are a slight modification that applies to the 
narrow group of people who meet the exception. Any reduction in the 
burdens imposed by this approved collection will be identified and 
addressed in the extension request that VA must submit to OMB before 
July 31, 2008.

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. This final rule would not affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this final rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

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 Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by OMB unless OMB waives such review, as any regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined not to be 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 64.102, Compensation for Service-Connected 
Deaths for Veterans' Dependents 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: June 12, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
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

0
1. The authority citation for part 3, subpart A, continues to read as 
follows:

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


0
2. Revise Sec.  3.256(b)(3) introductory text to read as follows:


Sec.  3.256  Eligibility reporting requirements.

* * * * *
    (b) * * *
    (3) Except for a parent who has attained 72 years of age and has 
been

[[Page 40467]]

paid dependency and indemnity compensation during two consecutive 
calendar years, the Secretary shall require an eligibility verification 
report from individuals receiving parents' dependency and indemnity 
compensation under the following circumstances:
* * * * *
[FR Doc. E8-15996 Filed 7-14-08; 8:45 am]
BILLING CODE 8320-01-P