Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Proposed Rules 82399 

does not contain policies that have 

substantial direct effects on the States, 

on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. Accordingly, we 

conclude that the rule does not contain 

policies that have federalism 

implications as defined in the Executive 

order and, consequently, a federalism 

summary impact statement is not 

required. 

X. Reference 

The following reference is on display 

at the Dockets Management Staff (see 

ADDRESSES) and is available for viewing 

by interested persons between 9 a.m. 

and 4 p.m., Monday through Friday; it 

is also available electronically at https:// 

www.regulations.gov. FDA has verified 

the website addresses, as of the date this 

document publishes in the Federal 

Register, but websites are subject to 

change over time. 

1. Frozen Cherry Pie; Proposed Revocation of 

a Standard of Identity and a Standard of 

Quality: Preliminary Regulatory Impact 

Analysis, Initial Regulatory Flexibility 

Analysis, Unfunded Mandates Reform 

Act Analysis. Available at: https://

www.fda.gov/AboutFDA/

ReportsManualsForms/Reports/

EconomicAnalyses/default.htm. 

List of Subjects in 21 CFR Part 152 

Bakery products, Food grades and 

standards, Frozen foods, Fruits. 

PART 152—[REMOVED] 

■ Therefore, consistent with our 

authority under 21 U.S.C. 321, 341, 343, 

348, 371, and 379e, under the Federal 

Food, Drug, and Cosmetic Act, it is 

proposed that 21 CFR part 152 be 

removed. 

Dated: December 2, 2020. 

Stephen M. Hahn, 

Commissioner of Food and Drugs. 

Dated: December 14, 2020. 

Alex M. Azar II, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2020–27823 Filed 12–17–20; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 38 

RIN 2900–AR03 

Referral for VA Administrative 

Decision for Character of Discharge 

Determinations 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend title 38 

of the Code of Federal Regulations (CFR) 

to clarify that, when determining 

eligibility for interment or 

memorialization benefits, the National 

Cemetery Administration (NCA) will 

refer cases involving other than 

honorable (OTH) discharges, certain 

other discharges, or potential statutory 

or regulatory bars to benefits, to the 

Veterans Benefits Administration (VBA) 

for character of discharge 

determinations. VA is merely updating 

its regulations to conform with statute 

and current practice. 

DATES: Comments must be received by 

VA on or before February 16, 2021. 

ADDRESSES: Written comments may be 

submitted through www.regulations.gov; 

or by mail to Director, Legislative and 

Regulatory Service (42E), Department of 

Veterans Affairs, 810 Vermont Ave. NW, 

Washington, DC 20420. Comments 

should indicate that they are submitted 

in response to ‘‘RIN 2900–AR03— 

Referral for VA Administrative Decision 

for Character of Discharge 

Determinations.’’ Comments received 

will be available for public inspection at 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: Jerry 

Sowders, Division Chief, Eligibility 

Verification Division, National 

Cemetery Administration (NCA), 

Department of Veterans Affairs, 810 

Vermont Avenue NW, Washington, DC 

20420. Telephone: (314) 416–6369 (this 

is not a toll-free number). 

SUPPLEMENTARY INFORMATION: VA 

proposes to amend § 38.620 to clarify 

that, when determining eligibility for 

interment or memorialization benefits, 

NCA will refer cases involving other 

than honorable (OTH) discharges or 

other character of discharge issues to 

VBA for an administrative decision. 

Eligibility for NCA-administered 

benefits, including interment in national 

cemeteries, is tied to an individual 

establishing veteran status or meeting 

other specified conditions. See, e.g., 38 

U.S.C. 2402(a)(1) (stating any ‘‘veteran’’ 

may be buried in any open national 

cemetery); 112 (allowing VA to provide 

Presidential Memorial Certificates to 

those eligible for national cemetery 

burial); 2306(a) (authorizing VA to 

provide a government-furnished 

headstone or marker to those buried in 

a national cemetery or who meet other 

specified conditions); 2306(b)(2) (tying 

eligibility for memorial headstones or 

markers to ‘‘veteran’’ status); 2306(f) 

(authorizing caskets or urns for burial of 

deceased ‘‘veterans’’). Congress has 

defined a veteran as ‘‘a person who 

served in the active military, naval, or 

air service, and who was discharged or 

released therefrom under conditions 

other than dishonorable.’’ 38 U.S.C. 

101(2). 

Applying the ‘‘veteran’’ definition to 

the sections governing NCAadministered benefits, it is thus clear 

that, unless other specified conditions 

are met, a deceased individual must 

have been discharged or released from 

active service under conditions other 

than dishonorable; and an adjudication 

must sometimes be made as to an 

individual’s ‘‘veteran’’ status in order to 

determine eligibility for NCAadministered benefits. Some 

characterizations of service on a DD–214 

(such as honorable and general under 

honorable conditions) allow for 

relatively straightforward 

determinations that the character of 

discharge was other than dishonorable; 

however, other types of 

characterizations can be somewhat 

complex and require in-depth 

examination. For example, bad conduct 

discharges, OTH discharges, discharges 

upgraded from bad conduct or OTH, 

and uncharacterized administrative 

separations may require more extensive 

character of discharge determinations, 

including a review to determine 

whether any of the statutory bars to 

benefits contained in 38 U.S.C. 5303(a) 

apply. 

In this rulemaking, NCA clarifies that 

cases involving potential character of 

discharge bars will be referred to VBA 

for an administrative decision under 38 

CFR 3.12 (Character of discharge) or 

other applicable sections. NCA makes 

efficient use of VBA’s existing expertise 

and established procedures to 

adjudicate character of discharge and 

other complex eligibility issues when 

needed. Coordination with VBA for 

adjudication on such issues helps to 

ensure consistency in benefits 

determinations and minimizes 

confusion for claimants and 

beneficiaries that would likely result 

from VBA and NCA having differing 

protocols. NCA provides funding 

resources, equivalent to the amount 

necessary for two full time employees, 

to VBA to offset the additional workload 


khammond on DSKJM1Z7X2PROD with PROPOSALS
82400 Federal Register / Vol. 85, No. 244 / Friday, December 18, 2020 / Proposed Rules 

created by case referrals. NCA proposes 

this rule to solidify the continuation of 

this effective partnership and provide 

public information regarding 

adjudication of character of discharge 

determinations involving potential 

statutory and regulatory bars to benefits. 

Paperwork Reduction Act 

Under the provisions of the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3521), no new or proposed 

revised collections of information are 

associated with this proposed rule. 

Regulatory Flexibility Act 

The Secretary hereby certifies that 

this proposed rule would 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. There 

are no small entities involved with the 

process for determining eligibility for 

interment or memorialization benefits. 

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 Regulatory Impact 

Analysis (RIA) 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 proposed rule is not expected to 

be an Executive Order 13771 regulatory 

action because this proposed rule is not 

significant 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 an 

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 proposed rule would 

have no such effect on State, local, and 

tribal governments, or on the private 

sector. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance numbers and titles for the 

programs affected by this document are 

64.201, National Cemeteries; 64.202, 

Procurement of Headstones and Markers 

and/or Presidential Memorial 

Certificates; and 64.203, State Cemetery 

Grants. 

List of Subjects in 38 CFR Part 38 

Administrative practice and 

procedure, Cemeteries, Claims, 

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. 

Brooks D. Tucker, Assistant Secretary 

for Congressional and Legislative 

Affairs, Performing the Delegable Duties 

of the Chief of Staff, Department of 

Veterans Affairs, approved this 

document on December 4, 2020, for 

publication. 

Luvenia Potts, 

Regulation Development Coordinator, Office 

of Regulation Policy & Management, Office 

of the Secretary, Department of Veterans 

Affairs. 

For the reasons set forth in the 

preamble, VA proposes to amend 38 

CFR part 38 as follows: 

PART 38—NATIONAL CEMETERIES 

OF THE DEPARTMENT OF VETERANS 

AFFAIRS 

■ 1. The authority citation for part 38 is 

revised to read as follows: 

Authority: 38 U.S.C. 101, 107, 112, 501, 

512, 2306, 2402, 2403, 2404, 2407, 2408, 

2411, 5303, 7105. 

38.620 [AMENDED] 

■ 2. Amend § 38.620 by adding a Note 

following paragraph (i)(4) to read as 

follows: 

* * * * * 

Note to § 38.620: A benefit request 

pertaining to a decedent whose character of 

discharge may potentially bar eligibility to 

that benefit may be referred to the Veterans 

Benefits Administration for review in 

accordance with 38 CFR 3.12 (Character of 

discharge) or other applicable sections. 

[FR Doc. 2020–27106 Filed 12–17–20; 8:45 am] 

BILLING CODE 8320–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 236 

[Docket No. FRA–2019–0075] 

RIN 2130–AC75 

Positive Train Control Systems 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation (DOT). 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: FRA is proposing to revise its 

regulations governing changes to 

positive train control (PTC) systems and 

reporting on PTC system functioning. 

First, recognizing that the railroad 

industry intends to enhance further 

FRA-certified PTC systems to continue 

improving rail safety and PTC 

technology’s reliability and operability, 

FRA proposes to modify the process by 

which a host railroad must submit a 

request for amendment (RFA) to FRA 

before making certain changes to its PTC 

Safety Plan (PTCSP) and FRA-certified 

PTC system. Second, to enable more 

effective FRA oversight, FRA proposes 

to: Expand an existing reporting 

requirement by increasing the frequency 

from annual to biannual; broaden the 

reporting requirement to encompass 

positive performance-related 

information, not just failure-related 

information; and require host railroads 

to utilize a new, standardized Biannual 

Report of PTC System Performance 

(Form FRA F 6180.152). Overall, the 

proposed amendments would benefit 

the railroad industry, the public, and 

FRA, by reducing unnecessary costs, 

facilitating innovation, and improving 

FRA’s ability to oversee PTC system 

performance and reliability, while not 

negatively affecting rail safety. 

DATES: Written comments must be 

received by February 16, 2021. FRA 

believes a 60-day comment period is 

appropriate to allow the public to 

comment on this proposed rule. FRA 

will consider comments received after 

that date to the extent practicable. 

ADDRESSES: 


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