[Federal Register Volume 85, Number 51 (Monday, March 16, 2020)]
[Rules and Regulations]
[Pages 14800-14802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05042]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 9

RIN 2900-AQ49


Servicemembers' Group Life Insurance--Definition of Member's 
Stillborn Child for Purposes of Coverage

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending the 
definition of ``member's stillborn child'' for purposes of 
Servicemembers' Group Life Insurance (SGLI) to mean a fetus whose fetal 
weight is 350 grams or more or whose duration in utero is 20 completed 
weeks of gestation. As a result, a fetus whose duration in utero is 20 
completed weeks of gestation but who weighs less than 350 grams 
qualifies as a ``member's stillborn child.''

DATES: Effective Date: This rule is effective March 16, 2020.
    Applicability Date: VA will apply this rule to stillbirths 
occurring on or after March 16, 2020.

FOR FURTHER INFORMATION CONTACT: Ruth Berkheimer, Department of 
Veterans Affairs Insurance Center (310/290B), 5000 Wissahickon Avenue, 
Philadelphia, PA 19144, (215) 842-2000, ext. 4275. (This is not a toll-
free number.)

SUPPLEMENTARY INFORMATION: On June 26, 2019, VA published a proposed 
rule in the Federal Register (84 FR 30060), which would amend the 
Family SGLI definition of the term ``member's stillborn child.'' VA 
provided a 60-day comment period on the proposed rule, which ended on 
August 26, 2019. VA received more than 300 comments, all of which 
supported the rulemaking. However, forty-two of the comments, while 
supporting the proposed rule, included suggestions to revise the 
proposed rule. VA has organized the issues raised by these commenters 
by topic.

A. Eliminate Weight/Gestation Requirements

    Some commenters stated that the final rule should eliminate weight 
and gestation requirements and cover all stillbirths, while other 
commenters suggested eliminating the weight requirement in the rule. 
When section 402 of the Veterans' Benefits Improvement Act of 2008, 
Public Law 110-389, 122 Stat. 4145, 4174, was enacted, authorizing 
Family SGLI for a ``member's stillborn child,'' Congress indicated that 
Family SGLI coverage is not intended to cover all stillborn children. 
Rather, S. Rep. No. 110-449, at 41 (2008), stated that the Senate 
``Committee [on Veterans' Affairs] expects VA to . . . define the term 
[``member's stillborn child''] . . . consistent with the 1992 
recommended reporting requirements'' of fetal deaths of the Model State 
Vital Statistics Act and Regulations as drafted by the Centers for 
Disease Control and Prevention's National Center for Health Statistics. 
The Model Act recommends a state reporting requirement of fetal deaths 
involving fetuses weighing 350 grams or more, or if weight is unknown, 
of 20 completed weeks or more of gestation, calculated from the date 
the last normal menstrual period began to the date of delivery. Model 
Act section 15. A regulatory definition of ``member's stillborn child'' 
that contains no weight and/or gestational requirements would be 
inconsistent with Congressional intent. VA therefore will not make any 
changes based on these comments.

B. Retroactive Family SGLI Coverage

    Ten commenters stated that the final rule should provide insurance 
coverage for stillbirths occurring before promulgation of this 
regulation. The Administrative Procedure Act generally contemplates 
rulemaking to apply prospectively, and the term ``rule'' is defined at 
5 U.S.C. 551(4) to mean, in pertinent part, ``an agency statement of 
general or particular applicability and future effect.'' It is well-
settled that agencies generally lack authority to issue retroactive 
regulations to implement a new policy absent an express statutory grant 
of such authority. Although agencies must be free to make and change 
policies within the boundaries established by Congress, Chevron, 
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 
863-64 (1984), the Supreme Court has held that ``[r]etroactivity is not 
favored in the law. Thus, congressional enactments and administrative 
rules will not be construed to have retroactive effect unless their 
language requires this result.'' Bowen v. Georgetown Univ. Hosp., 488 
U.S. 204, 208 (1988).
    Further, ``a statutory grant of legislative rulemaking authority 
will not, as a general matter, be understood to encompass the power to 
promulgate retroactive rules unless the power is conveyed by Congress 
in express terms.'' Id. ``'The standard for finding such unambiguous 
direction is a demanding one.''' Bernklau v. Principi, 291 F.3d 795, 
805 (Fed. Cir. 2002) (quoting Immigration & Naturalization Serv. v. St. 
Cyr, 533 U.S. 289, 316-317 (2001)). For example, in Liesegang v. 
Secretary of Veterans Affairs, 312 F.3d 1368, 1377 n.1 (Fed. Cir. 
2002), the U.S. Court of Appeals for the Federal Circuit stated that 
``settled and binding precedent'' precluded the court from giving 
retroactive effect to a VA regulation creating a presumption of service 
connection for type-2 diabetes for Vietnam veterans exposed to 
herbicides. The court stated that 38 U.S.C. 1116, which authorized the 
regulation at issue, did not contain ``express and unambiguous 
permission'' for VA to promulgate a retroactive regulation. Id.
    VA declines to make this amendment to section 9.1(k)(1) retroactive 
for the following reasons. VA promulgated 38 CFR 9.1(k)(1) pursuant to 
38 U.S.C. 501(a), which provides the Secretary of Veterans Affairs with 
the authority to prescribe all ``necessary'' and ``appropriate'' rules, 
including interpretative rules, to carry out the laws administered by 
the VA. That

[[Page 14801]]

statute contains no express and unambiguous permission to issue 
retroactive regulations or policies.
    Assuming arguendo that VA's rulemaking authority under section 
501(a) extends to assigning a retroactive effective date in the 
abstract, doing so would be inconsistent with VA's usual and 
longstanding practice to make substantive regulations effective 
prospectively. E.g. 83 FR 53179 (Oct. 22, 2018); McKinney v. McDonald, 
796 F.3d 1377, 1384-85 (Fed. Cir. 2015) (VA did not act unreasonably in 
using prospective effective date for liberalization regulation). This 
policy ``helps ensure that all new liberalizing regulations are applied 
in a fair and consistent manner'' and ``serves the interests of orderly 
administration and clarity in the law.'' 83 FR 53179. A retroactive 
effective date for this regulation would also be inconsistent with 
Congress' approach in enacting title-38 statutes, including statutes 
authorizing Family SGLI and providing Family SGLI coverage for 
stillborn children. Veterans' Survivor Benefits Improvements Act of 
2001, Public Law 107-14, 4(g), 115 Stat. 25, 30 (making Family SGLI 
effective on first day of first month that begins more than 120 days 
after enactment of Act); Public Law 110-389, 402, 122 Stat. 4174. VA 
will therefore make the amendment to section 9.1(k)(1) effective on the 
date of publication of this final-rule notice, and the rule will be 
applicable to stillbirths occurring on or after that date.

C. Family SGLI Coverage for Medical Expenses Related to Pregnancy or 
Delivery

    One commenter suggested that the final rule should cover medical 
expenses related to any type of pregnancy or delivery. Section 
1967(a)(1) of title 38, United States Code, provides automatic SGLI 
coverage on the life of an insured's dependent spouse or children. The 
statute does not authorize reimbursement of medical expenses, including 
those related to pregnancy or delivery. Therefore, VA will not make any 
changes based on this comment.

D. Coverage for Abortions

    One commenter expressed support and appreciation for the proposal 
to extend coverage to situations where fetal weight is less than 350 
grams. The comment seems to suggest that an aborted fetus could qualify 
as a ``stillborn child'' absent the change caused by this final rule. 
We note that when VA promulgated 38 CFR 9.1(k) in 2009 to define 
``member's stillborn child,'' we specifically excluded, in paragraph 
(k)(2), a fetus or child extracted for purposes of an abortion from the 
definition. VA explained that this exclusion was consistent with 
Congressional intent that VA issue implementing regulations that define 
the term ``stillborn child'' consistent with the 1992 recommended 
reporting requirements of the Model State Vital Statistics Act and 
Regulations. 74 FR 59748 (Nov. 18, 2009). The Model Act recommends a 
state reporting requirement of fetal deaths involving fetuses weighing 
350 grams or more, or if weight is unknown, of 20 completed weeks or 
more of gestation, calculated from the date the last normal menstrual 
period began to the date of delivery. Id.; Model Act section 15. In 
addition, the Model Act defines ``fetal death'' to mean ``death prior 
to the complete expulsion or extraction from its mother of a product of 
human conception, irrespective of the duration of pregnancy and which 
is not an induced termination of pregnancy.'' Id.; Model Act section 
(1)(b). VA has not proposed amending current 38 CFR 9.1(k)(2), which 
provides that the term ``member's stillborn child'' does not include 
any fetus or child extracted for purposes of an abortion. Therefore, VA 
will not make changes based on this comment.
    Based on the rationale set forth in the Supplementary Information 
to the proposed rule and in this final rule, VA adopts the proposed 
rule, without change, as a final rule.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds that there is good cause 
under 5 U.S.C. 553(d)(1) and (d)(3) to publish this rule with an 
immediate effective date rather than 30 days after publication. This 
rule relieves a restriction on coverage for a member's stillborn child. 
The rule will be beneficial to servicemembers and their families and 
was uniformly supported by the public comments we received. Making the 
rule effective immediately will allow Family SGLI to be paid to 
servicemembers for stillbirths that qualify under the liberalizing 
amendment to Sec.  9.1(k) and may occur within the 30-day period 
following publication.

Paperwork Reduction Act

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of 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. Family SGLI is part of the SGLI policy purchased by the 
Secretary of Veterans Affairs from Prudential Insurance Company of 
America. 38 U.S.C. 1966(a). Premiums for Family SGLI are deducted from 
servicemembers' basic pay or other pay by the Secretary of each 
uniformed service. 38 U.S.C. 1969(a). The Office of Servicemembers' 
Group Life Insurance, the administrative office established by 
Prudential pursuant to 38 U.S.C. 1966(b), administers Family SGLI, 
decides claims, and pays out proceeds. As a result, this rulemaking 
will not directly affect small entities. 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.

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct 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. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. VA's impact analysis can be found as a supporting document at 
http://www.regulations.gov, usually within 48 hours after the 
rulemaking document is published. Additionally, a copy of the 
rulemaking and its impact analysis are available on VA's website at 
http://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 Through Fiscal Year to Date.
    This rule is not an E.O. 13771 regulatory action because this rule 
is not significant under E.O. 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

[[Page 14802]]

1 year. This final rule will have no such effect on State, local, and 
tribal governments, or on the private sector.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs has determined that 
this rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program affected by this document is 64.103, Life Insurance for 
Veterans.

List of Subjects in Part 9

    Life insurance, Military personnel, Veterans.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document 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. Pamela 
Powers, Chief of Staff, Department of Veterans Affairs, approved this 
document on February 25, 2020, for publication.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.

    For the reasons set forth in the preamble VA amends 38 CFR part 9 
as follows:

PART 9--SERVICEMEMBERS' GROUP LIFE INSURANCE AND VETERANS' GROUP 
LIFE INSURANCE

0
1. The authority citation for part 9 continues to read as follows:

    Authority:  38 U.S.C. 501, 1965-1980A, unless otherwise noted.


0
2. Amend Sec.  9.1 by revising paragraph (k)(1) to read as follows:


Sec.  9.1   Definitions.

* * * * *
    (k)(1) The term member's stillborn child means a member's 
biological child--
    (i) Whose death occurs before expulsion, extraction, or delivery; 
and
    (ii) Whose--
    (A) Fetal weight is 350 grams or more; or
    (B) Duration in utero is 20 completed weeks of gestation or more, 
calculated from the date the last normal menstrual period began to the 
date of expulsion, extraction, or delivery.
* * * * *
[FR Doc. 2020-05042 Filed 3-13-20; 8:45 am]
 BILLING CODE 8320-01-P