Federal Register / Vol. 74, No. 151 / Friday, August 7, 2009 / Proposed Rules 39589 

(4) Upon being hailed by U.S. Navy or 

U.S. Coast Guard patrol personnel by 

siren, radio, flashing light, or other 

means, the operator of a vessel must 

proceed as directed. 

(5) The U.S. Coast Guard may be 

assisted in the patrol and enforcement 

of the safety zone described in 

paragraph (a) of this section by the U.S. 

Navy and local law enforcement 

agencies. 

Dated: June 15, 2009. 

T.H. Farris, 

Captain, U.S. Coast Guard, Captain of the 

Port San Diego. 

[FR Doc. E9–18760 Filed 8–6–09; 8:45 am] 

BILLING CODE 4910–15–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 1 

RIN 2900–AN14 

Deceased Indebted Servicemembers 

and Veterans: Authority Concerning 

Certain Indebtedness 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: This document proposes to 

amend Department of Veterans Affairs 

(VA) regulations to implement certain 

provisions of the Combat Veterans Debt 

Elimination Act of 2008 and of the 

Veterans’ Benefits Improvement Act of 

2008. The proposed rule would 

implement the first statute’s provisions 

granting limited authority to the 

Secretary of Veterans Affairs (Secretary) 

to terminate collection action on certain 

debts arising from a VA benefit program 

when the indebted individual is a 

member of the Armed Forces or a 

veteran who dies as a result of injury 

incurred or aggravated in the line of 

duty while serving in a theater of 

combat operations in a war or in combat 

against a hostile force during a period of 

hostilities after September 11, 2001, and 

to refund amounts collected after the 

individual’s death. The proposed rule 

would also implement the second 

statute’s provisions that similarly grants 

the Secretary discretionary authority to 

suspend or terminate collection of debts 

owed to VA by individuals who died 

while serving on active duty as a 

member of the Army, Navy, Air Force, 

Marine Corps, or Coast Guard during a 

period when the Coast Guard is 

operating as a service in the Navy, and 

to refund amounts collected after the 

individual’s death. 

DATES: Comments must be received on 

or before October 6, 2009. 

ADDRESSES: Written comments may be 

submitted through http:// 

www.Regulations.gov; by mail or handdelivery to Director, Regulations 

Management (02REG), Department of 

Veterans Affairs, 810 Vermont Ave., 

NW., Room 1068, Washington, DC 

20420; or by fax to (202) 273–9026. 

Comments should indicate that they are 

submitted in response to ‘‘RIN 2900– 

AN14 Deceased Indebted 

Servicemembers and Veterans.’’ Copies 

of comments received will be available 

for public inspection in the Office of 

Regulation Policy and Management, 

Room 1063B, between the hours of 8 

a.m. and 4:30 p.m., Monday through 

Friday (except holidays). Please call 

(202) 461–4902 (this is not a toll-free 

number) for an appointment. In 

addition, during the comment period, 

comments may be viewed online 

through the Federal Docket Management 

System (FDMS) at http:// 

www.Regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Peter Mulhern, Office of Financial 

Policy (047G), Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Washington, DC 20420. Telephone: 

(202) 461–6487 (this is not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: Prior to 

the enactment of section 1303 of the 

Combat Veterans Debt Elimination Act 

of 2008 (Pub. L. 110–252) and section 

801 of the Veterans’ Benefits 

Improvement Act of 2008 (Pub. L. 110– 

389), VA could terminate collection of 

an indebtedness owed by a deceased 

servicemember or veteran only after 

determining that the servicemember or 

veteran left no estate or an insufficient 

estate from which to collect the debt. 

VA would contact the decedent’s family 

or next-of-kin regarding collection of the 

debt to obtain information needed to 

make a decision on terminating 

collection. No matter how 

compassionate the language of the 

demand for repayment, VA’s attempt to 

collect a debt at such time and under 

such circumstances has a huge 

emotional impact on the decedent’s 

family. The Government’s attempt to 

collect such a debt in these cases is 

often viewed as a callous action, which 

demonstrates a complete disregard and 

lack of gratitude for the servicemember’s 

sacrifice, and insensitivity to the 

family’s loss of their loved one. 

Section 1303 of Public Law 110–252 

amends chapter 53 of title 38, United 

States Code, to add a new section (38 

U.S.C. 5302A) granting limited authority 

to the Secretary to terminate collection 

action on certain debts arising from an 

individual’s indebtedness from a VA 

benefit program. The individual must be 

a member of the Armed Forces or a 

veteran who dies as a result of injury 

incurred or aggravated in the line of 

duty while serving in a theater of 

combat operations, as determined by the 

Secretary in consultation with the 

Secretary of Defense, in a war or in 

combat against a hostile force during a 

period of hostilities after September 11, 

2001. This authority may be exercised 

in the Secretary’s discretion when 

determined to be in the best interest of 

the United States. This authority does 

not apply to any amounts owed the 

United States under any program 

carried out under the authority of 38 

U.S.C. chapter 37 relating to housing 

and small business loans. This 

legislation eliminates the need to 

contact family members and avoids 

further hardship on them. Instead, it 

demonstrates appreciation for the 

decedent’s sacrifice on behalf of a 

grateful Nation. 

Section 1303 of Public Law 110–252 

also states that in any case where all or 

any part of a debt of a covered 

individual, as described in 38 U.S.C. 

5302A(a), was collected after September 

11, 2001, but before the date of Public 

Law 110–252, enacted on June 30, 2008, 

the Secretary may refund the amount 

collected if, in the Secretary’s 

determination, collection of the 

indebtedness would have been 

terminated had section 5302A been in 

effect at the time and the individual is 

equitably entitled to such a refund. 

Noting the problems associated with 

contacting grieving survivors for 

purposes of collecting the debts owed to 

VA described above, see S. Rep. No. 

110–449, at 43–44 (2008) (discussing the 

predecessor bill), Congress enacted 

section 801 of Public Law 110–389, 

which amended 31 U.S.C. 3711(f) and 

granted limited authority to the 

Secretary to suspend or terminate action 

to collect a claim against the estate of a 

person who died while serving on active 

duty as a member of the Army, Navy, 

Air Force, Marine Corps, or Coast Guard 

during a period when the Coast Guard 

is operating as a service in the Navy. 

The Secretary must determine that, 

under circumstances applicable with 

respect to the deceased person, it is 

appropriate to do so. Section 801 of 

Public Law 110–389 also grants the 

Secretary the authority to refund to the 

estate of the deceased member any 

amount collected by the Secretary from 

a member who died while serving on 

active duty as a member of the Armed 

Forces if the Secretary determines that, 

under the circumstances applicable 

with respect to the deceased person, it 

is appropriate to do so, whether 


pwalker on DSK8KYBLC1PROD with PROPOSALS
39590 Federal Register / Vol. 74, No. 151 / Friday, August 7, 2009 / Proposed Rules 

collected before, on, or after October 10, 

2008. 

In preparing this proposed rule, we 

determined that the refund of any 

monies would be made to the estate of 

the decedent or, if there is no estate, to 

the decedent’s next-of-kin. Public Law 

110–252 does not specify how the 

refunded monies are to be distributed. 

Public Law 110–389 only describes a 

refund to the estate of the decedent. 

However, in many instances the 

servicemember or veteran may not have 

left an estate or, if he or she did leave 

an estate, it has been closed by the time 

a refund may be distributed. Without a 

rule to fill this gap left by Congress, 

there is a strong possibility that the 

family of a deceased servicemember or 

veteran may suffer further by having, for 

example, to reopen a closed estate to 

accommodate Congress’ instruction to 

pay refunds to decedents’ estates. 

Therefore, to implement the legislation 

consistent with our interpretation of its 

purpose, it is necessary to address the 

distribution of a refund when an estate 

does not exist. 

We note that the refunds are for the 

express purpose of providing relief to 

the families of certain indebted 

servicemembers or veterans. See S. Rep. 

No. 110–449, at 43–44. Further, VA’s 

authority under title 38, United States 

Code, is generally limited to providing 

benefits for veterans and their survivors. 

Accordingly, we interpret Congress’ 

intent to be that VA should, in 

appropriate cases, refund previously 

collected funds to the decedent’s estate 

or, if there is no estate, to the decedent’s 

surviving family members in the order 

that VA would pay accrued benefits to 

survivors under 38 U.S.C. 5121(a)(2). 

Although refunds under this proposed 

rule would not be accrued benefits for 

purposes of section 5121, they would be 

VA funds owed to deceased individuals 

and paid to surviving family members 

in lieu of the decedent. Accordingly, 

section 5121(a)(2) is sufficiently 

analogous to be useful for implementing 

our interpretation of Congress’ intent 

with respect to the refunds. We propose 

to refund previous debt collections to 

the decedent’s estate or, absent an 

estate, to the decedent’s next-of-kin in 

the following order: The decedent’s 

spouse, the decedent’s children (in 

equal shares), or the decedent’s parents 

(in equal shares). We are specifically 

interested in comments concerning our 

proposed distribution of refunds in the 

absence of an estate. 

In drafting this proposed rule, we 

have attempted to incorporate the 

provisions of both Public Laws 110–252 

and 110–389 into a single, consistent 

rule. One obstacle is the fact that the 

termination and refund provisions of 

Public Law 110–252 apply to a 

servicemember or a veteran who dies as 

a result of injury incurred or aggravated 

in the line of duty after September 11, 

2001. Public Law 110–389 applies to a 

person who died while serving on active 

duty and states only that money 

collected before, on, or after the date of 

enactment of that law may be refunded. 

In S. Rep. No. 110–449, at 44, the Senate 

Committee on Veterans’ Affairs noted 

that the predecessor bill, S. 3023, 

includes a freestanding provision that 

would permit VA to provide an 

equitable refund to any estate from 

which it collected a debt that it would 

have otherwise waived had the 

provision been in effect at the time. The 

report goes on to state that VA would 

have discretion to determine in which 

cases, if any, the use of the discretionary 

authority would be appropriate. Based 

upon our interpretation of the authority 

granted by Congress, we propose to 

limit refunds to the estate or next-of-kin 

of servicemembers or veterans who 

served on active duty after September 

11, 2001. This would ensure 

consistency in the refund of money 

under the proposed rule. 

We also propose to add a new section, 

38 CFR 1.945, in order to implement 38 

U.S.C. 5302A and 31 U.S.C. 3711(f). The 

new section would provide that the 

authority exercised by the Secretary to 

suspend or terminate collection action 

and/or refund amounts previously 

collected on certain indebtedness will 

not be delegated. It would provide that 

requests for suspension, termination of 

collection action and/or for refund of 

amounts previously collected would be 

submitted by certain VA officials to the 

Office of the Secretary through the VA 

Office of the General Counsel. 

Paperwork Reduction Act 

This document contains no provisions 

constituting a collection of information 

under the Paperwork Reduction Act (44 

U.S.C. 3501–3521). 

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 

the Office of Management and Budget 

(OMB) 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 proposed rule have 

been examined and it has been 

determined not to be a significant 

regulatory action under the Executive 

Order. 

Regulatory Flexibility Act 

The Secretary of Veterans Affairs 

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. Only individual survivors and 

estates of certain VA beneficiaries could 

be directly affected. Therefore, pursuant 

to 5 U.S.C. 605(b), this proposed rule is 

exempt from the regulatory flexibility 

analysis requirements of sections 603 

and 604. 

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 issuing any 

rule that may result in an expenditure 

by State, local, or tribal governments, in 

the aggregate, or by the private sector, of 

$100 million or more (adjusted annually 

for inflation) in any year. This proposed 

rule would have no such effect on State, 

local, or tribal governments, or the 

private sector. 

Catalog of Federal Domestic Assistance 

There is no Catalog of Federal 

Domestic Assistance program number 

applicable to this proposed rule. 

List of Subjects in 38 CFR Part 1 

Claims, Administrative practice and 

procedure, Veterans. 

Approved: June 29, 2009. 

John R. Gingrich, 

Chief of Staff, Department of Veterans Affairs. 

For the reasons stated in the 

preamble, the Department of Veterans 


pwalker on DSK8KYBLC1PROD with PROPOSALS
Federal Register / Vol. 74, No. 151 / Friday, August 7, 2009 / Proposed Rules 39591 

Affairs proposes to amend 38 CFR part 

1 as follows: 

PART 1—GENERAL PROVISIONS 

1. The authority citation for part 1 

continues to read as follows: 

Authority: 38 U.S.C. 501(a), and as noted 

in specific sections. 

2. The authority citation preceding 

§ 1.900 is revised to read as follows: 

Authority: Sections 1.900 through 1.953 

are issued under the authority of 31 U.S.C. 

3711 through 3720E; 38 U.S.C. 501, 5302, 

5302A, 5314 and as noted in specific 

sections. 

3. Amend § 1.940 by adding 

introductory text, to read as follows: 

§ 1.940 Scope and application. 

Except as otherwise provided in 

§ 1.945: 

* * * * * 

4. Add § 1.945 to read as follows: 

§ 1.945 Authority to suspend or terminate 

collection action on certain benefit 

indebtedness; authority for refunds. 

(a) The Secretary of Veterans Affairs 

(Secretary) may suspend or terminate 

collection action on all or any part of an 

indebtedness owed to VA by a member 

of the Armed Forces who dies while on 

active duty, if the Secretary determines 

that such suspension or termination of 

collection is appropriate and in the best 

interest of the United States. 

(b) The Secretary may terminate 

collection action on all or any part of an 

amount owed to the United States for an 

indebtedness resulting from an 

individual’s participation in a benefits 

program administered by the Secretary, 

other than a program as described in 

paragraph (h) of this section, if the 

Secretary determines that such 

termination of collection is in the best 

interest of the United States. For 

purposes of this paragraph, an 

individual is any member of the Armed 

Forces or veteran who dies as a result 

of an injury incurred or aggravated in 

the line of duty while serving in a 

theater of combat operations in a war or 

in combat against a hostile force during 

a period of hostilities after September 

11, 2001. 

(c) For purposes of this section: 

(1) Theater of combat operations 

means the geographic area of operations 

where the Secretary in consultation 

with the Secretary of Defense 

determines that combat occurred. 

(2) Period of hostilities means an 

armed conflict in which members of the 

United States Armed Forces are 

subjected to danger comparable to 

danger to which members of the Armed 

Forces have been subjected in combat 

with enemy armed forces during a 

period of war, as determined by the 

Secretary in consultation with the 

Secretary of Defense. 

(d) The Secretary may refund amounts 

collected after the death of a member of 

the Armed Forces or veteran in 

accordance with this paragraph and 

paragraph (e) of this section. 

(1) In any case where all or any part 

of a debt of a member of the Armed 

Forces, as described under paragraph (a) 

of this section, was collected, the 

Secretary may refund the amount 

collected if, in the Secretary’s 

determination, the indebtedness would 

have been suspended or terminated 

under authority of 31 U.S.C. 3711(f). 

The member of the Armed Services 

must have been serving on active duty 

after September 11, 2001. In any case 

where all or any part of a debt of a 

covered member of the Armed Forces 

was collected, the Secretary may refund 

the amount collected, but only if the 

Secretary determines that, under the 

circumstances applicable with respect 

to the deceased member of the Armed 

Forces, it is appropriate to do so. 

(2) In any case where all or any part 

of a debt of a covered member of the 

Armed Forces or veteran, as described 

under paragraph (b) of this section, was 

collected after September 11, 2001, the 

Secretary may refund the amount 

collected if, in the Secretary’s 

determination, the indebtedness would 

have been terminated under authority of 

38 U.S.C. 5302A. In addition, the 

Secretary may refund the amount only 

if he or she determines that the 

deceased individual is equitably 

entitled to the refund. 

(e) Refunds under paragraph (d) of 

this section will be made to the estate 

of the decedent or, in its absence, to the 

decedent’s next-of-kin first listed below. 

(1) The decedent’s spouse. 

(2) The decedent’s children (in equal 

shares). 

(3) The decedent’s parents (in equal 

shares). 

(f) The authority exercised by the 

Secretary to suspend or terminate 

collection action and/or refund amounts 

collected on certain indebtedness is 

reserved to the Secretary and will not be 

delegated. 

(g) Requests for a determination to 

suspend or terminate collection action 

and/or refund amounts previously 

collected as described in this section 

will be submitted to the Office of the 

Secretary through the Office of the 

General Counsel. Such requests for 

suspension or termination and/or 

refund may be initiated by the head of 

the VA administration having 

responsibility for the program that gave 

rise to the indebtedness, or any 

concerned staff office, or by the 

Chairman of the Board of Veterans 

Appeals. When a recommendation for 

refund under this section is initiated by 

the head of a staff office, or by the 

Chairman, Board of Veterans Appeals, 

the views of the head of the 

administration that administers the 

program that gave rise to the 

indebtedness will be obtained and 

transmitted with the recommendation of 

the initiating office. 

(h) The provisions of this section 

concerning suspension or termination of 

collection actions and the refunding of 

moneys previously collected do not 

apply to any amounts owed the United 

States under any program carried out 

under 38 U.S.C. chapter 37. 

(Authority: 38 U.S.C. 501, 5302A; 31 U.S.C. 

3711(f)) 

[FR Doc. E9–18939 Filed 8–6–09; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 4 

RIN 2900–AM70 

Grants to States for Construction or 

Acquisition of State Home Facilities— 

Update of Authorized Beds; Correction 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule; Correction. 

SUMMARY: The Department of Veterans 

Affairs (VA) published a proposed rule 

in the Federal Register July 10, 2009, to 

amend its regulations regarding grants 

to States for construction or acquisition 

of State homes to update the maximum 

number of nursing home and 

domiciliary beds designated for each 

State and to amend the definition of 

‘‘State’’ for purposes of these grants to 

include Guam, the Northern Mariana 

Islands, and American Samoa. In the 

preamble, the table showing the changes 

in the maximum number of beds for 

each State contained an error for the 

number of beds for Vermont. This 

document corrects that error. 

DATES: Comments must be received on 

or before September 8, 2009. 

ADDRESSES: Written comments may be 

submitted by: Mail or hand-delivery to 

Director, Regulations Management 

(02REG), Department of Veterans 

Affairs, 810 Vermont Avenue, NW., 

Room 1068, Washington, DC 20420; fax 

to (202) 273–9026; or e-mail at http:// 

www.regulations.gov. For further 

information concerning submission 


pwalker on DSK8KYBLC1PROD with PROPOSALS