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environmental, and energy-related
aspects of the proposal.
Communications should identify both
docket numbers (Docket No. FAA–
2021–0820 and Airspace Docket No. 21–
ASO–29) and be submitted in triplicate
to DOT Docket Operations (see
ADDRESSES section for the address and
phone number). You may also submit
comments through the internet at
https://www.regulations.gov.
Persons wishing the FAA to
acknowledge receipt of their comments
on this action must submit with those
comments a self-addressed stamped
postcard on which the following
statement is made: ‘‘Comments to FAA
Docket No. FAA–2021–0820 Docket No.
21–ASO–29.’’ The postcard will be date/
time stamped and returned to the
commenter.
All communications received before
the specified closing date for comments
will be considered before taking action
on the proposed rule. The proposal
contained in this document may be
changed in light of the comments
received. All comments submitted will
be available for examination in the
public docket both before and after the
comment closing date. A report
summarizing each substantive public
contact with FAA personnel concerned
with this rulemaking will be filed in the
docket.
Availability of NPRMs
An electronic copy of this document
may be downloaded through the
internet at https://www.regulations.gov.
Recently published rulemaking
documents can also be accessed through
the FAA’s web page at https://
www.faa.gov/air_traffic/publications/
airspace_amendments/.
You may review the public docket
containing the proposal, any comments
received and any final disposition in
person in the Dockets Office (see the
ADDRESSES section for address and
phone number) between 9:00 a.m. and
5:00 p.m., Monday through Friday,
except federal holidays. An informal
docket may also be examined between
8:00 a.m. and 4:30 p.m., Monday
through Friday, except federal holidays,
at the office of the Eastern Service
Center, Federal Aviation
Administration, Room 350, 1701
Columbia Avenue, College Park, GA
30337.
Availability and Summary of
Documents for Incorporation by
Reference
This document proposes to amend
FAA Order JO 7400.11F, Airspace
Designations and Reporting Points,
dated August 10, 2021, and effective

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September 15, 2021. FAA Order JO
7400.11F is publicly available as listed
in the ADDRESSES section of this
document. FAA Order JO 7400.11F lists
Class A, B, C, D, and E airspace areas,
air traffic service routes and reporting
points.
The Proposal
The FAA proposes an amendment to
14 CFR part 71 to amend Class E
airspace extending upward from 700
feet above the surface at Covington
Municipal Airport, Covington, GA, as
the ACOVY NDB is being
decommissioned. The Class E airspace
extending upward from 700 feet above
the surface would be amended by
increasing the radius from 6.3 miles to
6.5 miles and eliminating the extension
to the east. This action would also
update geographic coordinates of the
airport to coincide with the FAA
database.
Class E airspace designations are
published in Paragraph 6005, of FAA
Order JO 7400.11F, dated August 10,
2021, and effective September 15, 2021,
which is incorporated by reference in 14
CFR 71.1. The Class E airspace
designations listed in this document
will be published subsequently in the
Order.
FAA Order JO 7400.11, Airspace
Designations and Reporting Points, is
published yearly and effective on
September 15.
Regulatory Notices and Analyses
The FAA has determined that this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current. It,
therefore: (1) Is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a Regulatory Evaluation
as the anticipated impact is so minimal.
Since this is a routine matter that will
only affect air traffic procedures and air
navigation, it is certified that this
proposed rule, when promulgated, will
not have a significant economic impact
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
Environmental Review
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1F,
‘‘Environmental Impacts: Policies and
Procedures’’, prior to any FAA final
regulatory action.

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Lists of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
proposes to amend 14 CFR part 71 as
follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:

■

Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1

[Amended]

2. The incorporation by reference in
14 CFR 71.1 of FAA Order JO 7400.11F,
Airspace Designations and Reporting
Points, dated August 10, 2021, and
effective September 15, 2021, is
amended as follows:

■

Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.

*

*

*

*

*

ASO GA E5 Covington, GA [Amended]
Covington Municipal Airport, GA
(Lat. 33°37′56″ N, long. 83°50′48″ W)
That airspace extending upward from 700
feet above the surface within a 6.5 mile
radius of Covington Municipal Airport.
Issued in College Park, Georgia, on October
7, 2021.
Andreese C. Davis,
Manager, Airspace & Procedures Team South,
Eastern Service Center, Air Traffic
Organization.
[FR Doc. 2021–22289 Filed 10–13–21; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Parts 3 and 21
RIN 2900–AP67

Apportionments
Department of Veterans Affairs.
Proposed rule.

AGENCY:
ACTION:

The Department of Veterans
Affairs (VA) proposes to amend its
regulations to limit the circumstances in
which benefits will be apportioned and
to stop apportioning certain benefits.
Currently, in limited situations, VA may
pay a portion of a VA beneficiary’s
monetary benefits directly to the

SUMMARY:

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Federal Register / Vol. 86, No. 196 / Thursday, October 14, 2021 / Proposed Rules
beneficiary’s dependents. This is
referred to as apportionment of benefits.
Most claims for apportionment involve
complex issues of family law, issues
that are best suited to the expertise and
authority of state courts. VA claims
adjudicators have limited ability to
analyze these complex and factintensive claims, to include both
technical expertise as well as an ability
to compel participation in necessary
accounting measures. When VA awards
apportionments, decisions rendered can
disturb state court support awards,
requiring a state court to expend
additional resources to revisit a prior
determination. Finally, due to their
intricacy, a significant amount of
information is needed to properly
adjudicate apportionment claims. While
this information is typically already
available to state courts, VA must
attempt to gather this information from
the VA beneficiary and beneficiary’s
dependent, which is unavoidably a
time-consuming process and often
cannot result in a comprehensive
evidentiary picture. The additional time
and effort needed to gather this
information increases VA workloads
and results in the potential for delays of
all VA claims processes, to include
apportionment awards. Because VA
apportionment awards often conflict
with the awards of better-situated state
family courts and because VA lacks the
authority and expertise to make fullyinformed, accurate, and economically
appropriate awards, VA is proposing to
amend its regulations to discontinue
making apportionment awards in most
circumstances and to stop apportioning
certain benefits.
DATES: Comments must be received on
or before December 13, 2021.
ADDRESSES: Written comments may be
submitted through
www.Regulations.gov. Comments
should indicate that they are submitted
in response to ‘‘RIN 2900–AP67—
Apportionments’’. Comments received
will be available at regulations.gov for
public viewing, inspection or copies.
FOR FURTHER INFORMATION CONTACT:
Korrie Shivers, Policy Analyst, Part 3
Regulations & Forms Staff (211D),
Compensation Service (21C), Veterans
Benefits Administration, Department of
Veterans Affairs, 810 Vermont Avenue
NW, Washington, DC 20420, (202) 461–
9700. (This is not a toll-free telephone
number.)
SUPPLEMENTARY INFORMATION:
General
VA proposes to discontinue awarding
apportionments of the compensation
and pension benefits of veterans and

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surviving spouses in most
circumstances by removing most of its
apportionment-specific regulations and
amending other regulations that have
apportionment provisions. VA intends
to continue making apportionment
awards where a veteran or surviving
spouse is incarcerated or where an
incompetent veteran, who does not have
a fiduciary, is institutionalized at
government expense, without regard to
financial contributions to the claimant.
VA does not intend to discontinue as a
result of this rulemaking any
apportionments currently being paid.
Apportionment Authority
Congress has provided VA broad
discretionary authority under several
statutes to pay apportionments out of a
VA beneficiary’s monetary benefits. In
38 U.S.C. 5307, Apportionment of
benefits, Congress provided that VA
may apportion compensation and
pension benefits, including dependency
and indemnity compensation (DIC) and
rehabilitation subsistence allowances
paid under 38 U.S.C. Chapter 31. This
authority was at the discretion of the
Secretary of Veterans Affairs. In 38
U.S.C. 5313(b)(1), Limitation on
payment of compensation and
dependency and indemnity
compensation to persons incarcerated
for conviction of a felony, Congress
provided that the Secretary may
apportion benefits. Similarly, in 38
U.S.C. 5502(d), Payment to and
supervision of fiduciaries, and 38 U.S.C.
5503(a)(2), Hospitalized veterans and
estates of incompetent institutionalized
veterans, Congress provided that VA
may apportion benefits. Notably, each
apportionment authority in title 38 of
the United States Code is permissive,
but not required, as shown by the use
of the word ‘‘may’’ or the phrase ‘‘may
be apportioned as prescribed by the
Secretary’’.
The statutory authority shows that
Congress has given VA significant
discretion on whether to apportion VA
benefits. After reviewing the
apportionment procedures and the
impact of apportionment on veterans
and surviving spouses, VA has
determined that some types of its
apportionments undermine the
processes established in state courts for
distributing resources when an
individual is not contributing to the
support of his or her dependents. When
viewed alongside the significant
employee work-hours VA expends to
process these requests, VA proposes to
exercise the discretionary authority
Congress gave it by discontinuing
awarding new apportionments in most
situations.

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Current Procedure
When VA receives a claim for an
apportionment from a spouse, child, or
dependent parent, VA must first
determine if the apportionment
claimant is a proper claimant. This
requires VA to request evidence of the
claimed relationship from the VA
beneficiary and the apportionment
claimant, unless the evidence is already
in VA’s possession or the dependent is
already established on the beneficiary’s
award. Concurrently, VA must develop
for evidence of the financial situation of
both the VA beneficiary and the
apportionment claimant. Developing for
this evidence provides both the VA
beneficiary and the apportionment
claimant the opportunity to support
their claims with financial records and
data. In addition, developing for certain
evidence provides the VA beneficiary
with due process, as he or she has a
property interest in the VA
compensation benefit. VA requests this
information from the beneficiary and
the claimant, giving both 65 days to
respond. Frequently, the information
provided is not complete because either
the claimant or the beneficiary does not
submit all the requested information.
Once financial information
development is complete, or the 65-day
development period has lapsed, VA
then determines if the claimant needs
the apportionment and if the beneficiary
can afford an apportionment without
undue hardship. As part of the
determination of whether the claimant
needs the apportionment, VA must
determine if the VA beneficiary is
currently reasonably contributing to the
support of the claimant. If the
beneficiary is already reasonably
contributing to the support of the
claimant, then there is no need to
apportion the VA beneficiary’s
monetary award and the apportionment
claim is denied. However, if the VA
beneficiary is not reasonably
contributing to the claimant’s support,
then an apportionment is justified if it
does not cause undue hardship to the
beneficiary. In the cases where an
apportionment is justified, VA must
determine the amount of apportionment
to be taken from the VA beneficiary’s
award.
To determine the amount of the
apportionment, VA first compares the
relative economic hardship of an
apportionment on the beneficiary with
the economic circumstances of the
claimant. VA then considers factors
such as the amount of compensation or
pension the veteran or surviving spouse
is paid; the number of dependents who
would receive the apportionment; other

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resources, income, and benefits
available to the veteran or surviving
spouse and apportionee; and any special
needs of the veteran or surviving spouse
and apportionee. All of these factors are
weighed against the regulatory limit and
consistency requirements found in 38
CFR 3.451. This section provides that
the amount apportioned ‘‘should be
generally consistent with the total
number of dependents involved.’’ In
addition, § 3.451 provides that,
ordinarily, an apportionment of more
than 50 percent of the veteran’s or
surviving spouse’s compensation or
pension would constitute undue
hardship, while apportionment of less
than 20 percent of the compensation or
pension would not provide a reasonable
amount for the apportionee.
Once the amount of the
apportionment is decided, the
apportionment is processed and the
beneficiary and apportionee are notified
of the decision. Following notification,
both the beneficiary and the apportionee
have the opportunity to appeal the
decision to award an apportionment, the
amount of the apportionment, or the
effective date of the apportionment.
State Judicial Systems
When VA’s apportionment system is
compared to existing state courts, it
highlights the inefficiencies of the VA
apportionment system and shows why
the VA system is redundant and
unnecessary in most apportionment
cases.
State family courts already provide
the same, and arguably better, avenues
for claimants as the VA apportionment
system. For example, each state’s
judicial system already has a procedure
for determining the allocation of
financial resources when a veteran and
veteran’s spouse are estranged; this is
commonly termed ‘‘spousal support.’’ In
addition, each state’s judicial system
also has a procedure for determining the
allocation of financial resources when a
veteran and veteran’s child are not
living in the same household; this is
commonly termed ‘‘child support.’’
We are aware that state courts do not
have the authority to order VA to pay
compensation directly to dependents.
However, state courts can adequately
take account of the interrelationship
between veterans, their dependents, and
VA benefits in other ways. In
determining the level or monetary
amount of support, the state court will
examine the relative financial needs and
abilities of the parties to determine the
amount of child support or spousal
support when the married couple
separates or when the child resides with
someone other than the veteran or

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surviving spouse. To do this, the judge
or magistrate may compel the
production of financial records which
include information concerning the
amount of compensation, pension,
dependency and indemnity
compensation (DIC), or vocational
rehabilitation subsistence allowance the
veteran or surviving spouse receives
from VA. The judge or magistrate makes
a decision based on more complete
information of the available assets and
the needs of the party than is
realistically available to VA.
Usually, by the time VA has received
the information necessary to determine
if an apportionment is appropriate, and
if so, how much should be apportioned,
the state court system has already
determined an allocation of the primary
beneficiary’s assets and the
apportionment claimant’s assets. VA’s
subsequent apportionment
determination, often based on less
complete evidence than is available to
the state court, may disturb the court’s
asset allocation by taking assets
assumed by the state court to be for the
benefit of the primary beneficiary and
allocating those assets to the
apportionment claimant. When this
occurs, the parties must either go back
to court to re-allocate the assets or
appeal VA’s apportionment
determination. These conflicting
systems typically result in inconvenient
and unfair results to the primary
beneficiary and the apportionment
claimant and workload increases for
both the state’s court system and VA.
Furthermore, 42 U.S.C. 666(f) requires
that each state have in effect the
Uniform Interstate Family Support Act
(UIFSA), which establishes a ‘‘oneorder’’ nationwide enforcement model
to preclude conflicting orders in
multiple jurisdictions. See Construction
and Application of Uniform Interstate
Family Support Act, 90 A.L.R. 5th 1,2.
UIFSA, adopted by each state, provides
the mechanisms and procedures for
modifying state support orders. See
Unif. Interstate Fam. Support Act
sections 205, 211, 613; https://www.acf.
hhs.gov/css/parents.
In comparing state family court
support determinations to VA’s
apportionment system, the state court
system provides for a far more accurate
and complete determination. State
courts already make determinations for
the same kinds of claims that the VA
apportionment system does, but state
courts do so with more consistent and
fair results.
Furthermore, a state court’s allocation
of resources is enforceable across state
lines. The Social Security Act, codified
in pertinent part at 42 U.S.C. Chapter 7,

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subchapter IV, sections 651 through
669B, provides for enforcement of
another state’s child and spousal
support payments either through direct
levy of the assets held by a financial
institution or levy through that state’s
enforcement organization (Title IV–D
agencies, named after subchapter IV–D
of the Social Security Act). See also
Direct Imposition of Liens and Levies
Across State Lines, PIQ–99–06, U.S.
Department of Health and Human
Service, Administration for Children
and Families, Office of Child Support
Enforcement, August 16, 1999, http://
www.acf.hhs.gov/programs/css/
resource/direct-imposition-of-liens-andlevies-across-state-lines, last viewed
March 2, 2021. Specifically, 42 U.S.C.
666(f) requires all states to adopt the
UIFSA. The UIFSA establishes a ‘‘oneorder’’ nationwide enforcement model
to preclude conflicting orders in
multiple jurisdictions. See Construction
and Application of Uniform Interstate
Family Support Act, 90 A.L.R.5th 1, 2.
Although 38 U.S.C. 5301(a)(1)
generally exempts VA benefits from any
legal or equitable process, such as
garnishment, Congress created an
exception to section 5301(a) for alimony
and child support obligations by
enacting the Child Support Enforcement
Act under 42 U.S.C. 659. Under section
659, VA disability compensation
payable to a veteran who has waived a
portion of his or her military retired pay
to receive the VA benefit could be
subject to garnishment for alimony or
child support obligations. This means
that section 659 authorizes VA,
pursuant to proper service of a valid
state court order, to withhold, or
garnish, a portion of a veteran’s
disability compensation for alimony or
child support when a veteran has
waived a portion of his or her military
retired or retainer pay to receive the VA
benefit. Additionally, the United States
Supreme Court in Rose v. Rose, 481 U.S.
619 (1987), held that state courts may
consider the availability of VA benefits
in determining the amount of a veteran’s
child support obligation and, in fact,
may set a support award in an amount
that would necessarily require that part
of the support award be paid out of VA
benefits once they have been received
by the veteran. See id. Further, the
majority of courts considering the issue
of spousal support have applied Rose to
hold that ‘‘veterans’ disability benefits
are not exempt from claims for alimony,
spousal support and child support.’’
Case v. Dubaj, C.A. No. 08–347 Erie,
2011 U.S. Dist. LEXIS 96808 at *4 (W.D.
Pa. Aug. 29, 2011) (citing 52 A.L.R.5th
221 section 28[a] (‘‘With few exceptions,

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the cases hold that payments arising
from service in the Armed Forces . . . ,
though exempt as to the claims of
ordinary creditors, are not exempt from
a claim for alimony, support, or
maintenance . . .’’).

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Apportionment Expenditure
As noted previously, many claims for
apportionment involve complex issues
of family law, and are often very factintensive. Due to the complex nature of
these claims, they require significant
adjudicative processing time. For
example, in fiscal year (FY) 2013, the
Veterans Benefits Administration
completed 6,570 apportionment claims.
VA’s Automated Standardized
Performance Elements Nationwide
(ASPEN) work actions credit shows that
it required 13 full-time equivalent (FTE)
employees per year to process those
claims (6,570 claims times 3.26 hours
per claim (per M21–4) divided by 1,645
hours, which VA estimates is the
number of available work hours for a
full-time employee in one year based on
the Office of Personnel Management’s
total hours of 2,087 for a general
schedule employee (5 U.S.C.
5504(b)(1))).
By discontinuing adjudication of most
VA apportionment claims, VA would
avoid possible conflict with state court
determinations and free up existing
employees to process other claim
actions. By only processing
apportionment claims for incarcerated
veterans and incompetent veterans
hospitalized at government expense,
without consideration of financial
contributions to the claimant, these
proposed rules will reduce the number
of FTE needed each year for
apportionment claims from 13 to two.
The time of the additional 11 FTEs
could then be dedicated to processing
other claims.
Alternatives Considered
1. Maintain the current
apportionment provisions unchanged.
VA considered maintaining the
current apportionment provisions
without change. However, in VA’s view,
the expertise of state courts undercuts
the need for a dual VA apportionment
system, and, as discussed above, VA
apportionment actions may create
unnecessary disruption to the decisions
made by state courts. Accordingly, VA
believes that a change is needed in the
115-year old apportionment system.
2. Set the apportionment amount to
be equal to that additional amount
which the veteran receives for the
apportionee as a dependent.
If a veteran furnishes VA with
evidence showing that he/she has a

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dependent (spouse, child, or parent) and
the veteran is in receipt of
compensation at the 30-percent disabled
level or above, the veteran may receive
additional compensation for their
dependents. The additional amount
paid for a dependent is in recognition
that a veteran with an impaired earning
capacity, who also has dependents,
needs additional money to make up the
difference between what the veteran is
earning and what the veteran could earn
without the disability and still care for
his or her dependents.
By automatically limiting
apportionments to the additional
amount paid to the veteran because of
the existence of a dependent, the
veteran would still receive that amount
which Congress intended the veteran to
have. However, the dependent would
receive that additional amount which
was intended for the veteran to use for
the dependent. For those veterans not in
receipt of an additional allowance for
dependent(s) (i.e., a veteran rated 0-,
10-, or 20-percent disabled), VA would
deny any apportionment claim, as an
apportionment would be considered an
undue hardship on the veteran. The
advantage of this option is that it would
make VA apportionments simple and
consistent.
With this option, no consideration
would be given to support orders that
are currently in place in which the
veteran or surviving spouse is making
regular payments. As a result, it would
still be possible for the apportionee to
receive both an apportionment from the
VA and the payments made as a result
of the court order which already
considered the benefits provided by VA
in determining the amount of that courtordered payment.
After considering this option, VA
determined that this option also has the
potential to disturb a state court’s
allocation of resources and also would
require some expenditure of VA assets
in processing the apportionment. An
apportionee would generally receive a
relatively low amount of benefits, set
without regard to an apportionee’s
actual financial need. This option
would still result in the problems
presented by the current regulations,
namely that VA will duplicate and
potentially disturb state court efforts
and unnecessarily occupy FTE that
could be used to serve other claimants.
For these reasons, VA chose not to
propose this option.
3. Eliminate all apportionments.
VA considered eliminating all
apportionments. Despite the advantages,
if VA eliminated all apportionments
there would be some inequitable results.
Specifically, it would have negative

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consequences in two situations where
VA currently pays benefits that are
generally outside the scope of state
courts. These two situations are
incarcerated veterans and veterans
institutionalized at government
expense.
VA beneficiaries who are incarcerated
will have their payment amounts
reduced beginning with the 61st day of
imprisonment for a felony. Due to
imprisonment, the VA beneficiary is
often not able to continue to financially
care for his or her family. VA currently
allows for the family members of an
incarcerated beneficiary to apply for an
apportionment of the beneficiary’s
benefit, ensuring that the incarceration
does not interfere with continuation of
prior financial support. This means that
although the incarcerated beneficiary
will have his or her payments reduced
or terminated while incarcerated, the
family could apply to have the benefits
paid to them instead. To eliminate this
kind of apportionment would hurt the
families of incarcerated beneficiaries. In
addition, very few work-hours (e.g., two
FTE per year) would be saved by not
processing apportionments to an
incarcerated veteran’s or incarcerated
surviving spouse’s dependents.
Additionally, if VA eliminated all
apportionments, the amount of the
benefit not paid to the administrator of
the institution caring for an incompetent
veteran who is institutionalized at
government expense would be
unavailable to assist in supporting the
institution caring for the veteran or the
institutionalized veteran’s dependents.
Since a fiduciary is appointed in almost
all of these situations, the time
expended in processing the few
remaining claims would be minimal.
After carefully considering all
options, VA determined that
elimination of all apportionments is not
the best option and that apportionment
of benefits to the dependents of an
incarcerated beneficiary and to an
incompetent veteran institutionalized at
government expense should be
continued, with slight modification.
Specifically, VA determined it should
remove consideration of financial need
for an apportionment of an incarcerated
beneficiary’s award. In removing the
financial need requirement for claims
for apportionments of an incarcerated
beneficiary’s award, VA remains
consistent with discontinuing needsbased apportionments for the same
reasons set forth above. Additionally,
this amendment to apportionments
involving incarcerated beneficiaries
better aligns with Congressional intent
in establishing statutory authority for

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VA to apportion certain benefits in 38
U.S.C. 5313(b)(1).
These amendments ensure that the
veteran’s or surviving spouse’s benefits
are used to support the veteran’s or
surviving spouse’s dependents in those
two instances where the state court
system does not provide a mechanism to
support a veteran’s or surviving
spouse’s beneficiaries.

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Form for Requesting an Apportionment
In conjunction with this rulemaking,
VA also proposes amendments to
current VA Form 21–0788, Information
Regarding Apportionment of
Beneficiary’s Award. In accordance with
38 CFR 3.155, use of this standard form
is required for all requests for an
apportionment. While apportioned
dollars are ‘‘derivative benefits’’ in the
sense that they deal with the
distribution of money VA already owes
to a claimant rather than a separate
assertion of entitlement to payment for,
e.g., a service-connected disability,
apportionment is also a ‘‘claim’’ in the
sense that it is an assertion of
entitlement to receive funds from the
government. Further, 38 CFR 3.400(e)
explicitly recognizes apportionment as a
‘‘claim.’’ Accordingly, the claim
initiation structure of 38 CFR 3.155
applies to apportionments. VA proposes
to amend the current form by removing
all sections requesting information that
pertain to income, net worth, or
financial contributions, as this
information will no longer be used to
render a decision. VA also proposes to
add a section allowing the claimant to
identify which status qualifies him/her
for an apportionment award. Finally,
VA proposes non-substantive
amendments to the form with regard to
identifying the Veteran, claimant, and
beneficiary.
VA believes the proposed
amendments to this form will assist
beneficiaries in defining what
information is necessary for VA to make
its decision, improve VA’s
administrative efficiency in processing
requests, and help provide timely
decisions to those who request an
apportionment of a beneficiary’s award.
Mechanics of the Amendments
On November 27, 2013, VA published
in the Federal Register (78 FR 71042) a
proposed regulation titled ‘‘VA
Compensation and Pension Regulation
Rewrite Project; Proposed Rule.’’ Among
other things, the rule proposed a
rewritten and reorganized version of
apportionment regulations. VA is using
that proposed rule’s reorganizational
structure and much of the revised
wording of those proposed regulations

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in this new proposed rule. The wording
is changed to reflect the proposed policy
to eliminate all need-based
apportionments and to retain only
apportionments where the primary
beneficiary is incarcerated or where an
incompetent veteran without a fiduciary
is institutionalized at government
expense.
Section 3.31 Commencement of the
Period of Payment
In 38 CFR 3.31(c)(3), VA proposes
removing the words ‘‘original or
increased’’ because with this
amendment there are only original
claims for apportionments. For the
reasons discussed above, no increases in
current or future apportionments will be
allowed under the proposed regulatory
change.
Section 3.210 Child’s Relationship
In 38 CFR 3.210(c)(1)(ii), VA proposes
removing the last sentence of the
paragraph. This amendment proposes to
eliminate apportionment eligibility in
the situation of a child adopted out of
a veteran’s family, so this reference to
apportionment would no longer be
correct.
Section 3.252 Annual Income;
Pension; Mexican Border Period and
Later War Periods
In 38 CFR 3.252(d), VA proposes to
remove the last sentence of 3.252(d) to
reflect the proposed change of the
removal of 38 CFR 3.451.
Section 3.400 General
Section 3.400(e) contains effective
date rules for beginning
apportionments. In revised § 3.400(e),
VA proposes to update this paragraph
by stating, in simpler terminology, the
rules for effective dates for
apportionments. VA intends no
substantive changes from the current
rules, only to reword the provisions to
provide greater detail and clarity. VA
proposes removing the terminology
referencing original and other than
original claims since the proposed rules
only provide for original claims. In
subparagraph (e)(1), VA proposes to
provide the general rule that
apportionments are effective the first
day of the month after the month in
which VA receives an apportionment
claim. Subparagraph (e)(2) provides
three exceptions to the general rule.
Subparagraph (e)(2)(i) proposes to
provide that where a primary
beneficiary’s claim for benefits is
pending, the effective date of any
apportionment will be either the date of
the primary beneficiary’s award or the
date entitlement arose, whichever is

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later. In subparagraph (e)(2)(ii), VA
proposes to provide that if the
apportionment claimant has not yet
been established as a primary
beneficiary’s dependent or as the
veteran’s dependent, the effective date
will be the date of the primary
beneficiary’s award or the date
entitlement arose, whichever is later. In
subparagraph (e)(2)(iii), VA proposes to
refer to §§ 3.665 or 3.666 for the
effective date rules for when the
primary beneficiary is incarcerated.
Sections 3.450 to 3.461
VA proposes to remove and replace
38 CFR 3.450 to 3.461 with revised
sections that change the wording of the
concepts that it intends to keep for
processing apportionments and that
eliminate the need-based apportionment
provisions. In addition to replacing
these sections, VA proposes to
renumber the sections, leaving some
regulation paragraph numbers reserved
so as to be able to insert additional
regulations at a later time, if needed.
The renamed and renumbered
regulations are as follows:
§ 3.450 General apportionment
§ 3.451 Apportionment claims
§ 3.452 Veteran’s benefits apportionable
§ 3.453 Veterans benefits not apportionable
§ 3.454 Apportionment of pension
§ 3.455 Apportionment of a surviving
spouse’s dependency and indemnity
compensation
§§ 3.456–3.461 [Reserved]

Section 3.450 is a new regulation, not
derived from any current regulation. VA
proposes titling this regulation, General
apportionment. VA is proposing to
include two new provisions and to
restate a previous provision concerning
submission of an application that was
implied, but not specifically stated, in
the proposed-to-be-replaced regulations.
In the proposed first paragraph, titled (a)
Applicability, VA states that these
changes to the apportionment
provisions are applicable to all claims
for apportionment received on or after
the effective date of the rule, i.e., 60
days after the date of publication in the
Federal Register. In the proposed
second paragraph, (b) Existing
apportionments, VA states that
apportionments being paid as of the
effective date of the changes will
continue until the circumstances
providing entitlement to the
apportionment no longer exist. In the
third paragraph, (c) Apportionment
application, VA states that claims for
apportionment must be on a form
prescribed by the Secretary.
VA proposes removing current
§ 3.451. This section contains provisions
for determining relative hardship

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between a primary beneficiary and an
apportionment claimant. Because VA
proposes to no longer apportion benefits
in this manner, this section would no
longer be applicable.
VA proposes titling the new § 3.451,
Apportionment claims. In revised
§ 3.451, VA proposes to state the basic
provisions for when a veteran’s pension
or compensation or a surviving spouse’s
DIC or pension may be apportioned.
Proposed § 3.451 will explain that all or
a portion of a pension or disability
compensation award may be
apportioned if the veteran is
incompetent and hospitalized at
government expense or is incarcerated
and meets any of the conditions of
§§ 3.665 or 3.666. Similarly, proposed
§ 3.451 explains that an award to a
surviving spouse may be apportioned if
the surviving spouse is incarcerated and
meets the conditions of § 3.665 or 3.666.
Furthermore, this proposed section will
address when a child enters active duty
and either claims or is in receipt of an
apportionment, how certain death
benefits will be apportioned amongst
surviving children, and apportionment
of death benefits for children not
residing with a surviving spouse. While
the concepts in this section are
generally taken from current §§ 3.450
and 3.452 concerning what benefits may
be apportioned, from whom, and to
whom, VA proposes to remove those
provisions relating to determining
apportionments based on the relative
need of the beneficiary and
apportionment claimant and has
rewritten the rest to improve clarity.
VA proposes removing the provisions
concerning apportionments from a
surviving spouse’s compensation.
Paragraph (a)(2) of current § 3.450 refers
to apportioning the ‘‘compensation . . .
payable to the surviving spouse.’’
Paragraph (d) of current § 3.450 states,
‘‘Any amounts payable for children
under §§ 3.459, 3.460, and 3.461 will be
equally divided among the children.’’
Given that § 3.459 explicitly governs
death compensation, and the reference
to ‘‘compensation . . . payable to the
surviving spouse’’ in § 3.450(a)(2)
appears in a sentence that separately
lists dependency and indemnity
compensation, the reference to
compensation in current § 3.450(a)(2)
and the reference to the current § 3.459
in § 3.450(d) both pertain to the
apportionment of death compensation.
VA is not referring to compensation
payable to a surviving spouse in § 3.451.
VA is also not including an equivalent
to current § 3.459 or any reference
thereto. There are less than 300
beneficiaries currently receiving death
compensation. Except for one small

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group of beneficiaries, death
compensation is payable only if the
veteran died prior to January 1, 1957.
VA has not received a claim for death
compensation in more than 10 years and
does not expect to receive any claims for
apportionment of death compensation.
DIC is a much greater benefit than death
compensation. Because of the small
number of beneficiaries of death
compensation and the unlikelihood of a
claim for apportionment of such
benefits, the provisions concerning
apportionment of death compensation
do not need to be carried forward.
In revised § 3.451(a), VA proposes
retaining from the previous version of
§ 3.450(a) the provision that all or part
of a veteran’s pension or compensation
or all or part of a surviving spouse’s DIC
may be apportioned to the spouse,
child, or dependent parents. VA is also
proposing to specify the two situations
where VA will, on receipt of an
application, apportion a veteran’s or
surviving spouse’s benefits.
VA proposes retaining, in revised
§ 3.451(b), the provision from current
§ 3.450(b) that no apportionment will be
made or changed solely because a child
has entered active duty in the Armed
Forces. VA proposes incorporating the
provisions from current § 3.458(e) into
this section to keep similar issues
together.
VA proposes removing the provision
from § 3.450(c) that no apportionment
will be made when the veteran,
veteran’s spouse (when paid ‘‘as wife’’
or ‘‘as husband’’), surviving spouse, or
fiduciary is providing for the
dependents. Under this proposed rule,
VA would no longer be basing
apportionment determinations on
whether the primary VA beneficiary is
providing for the dependents.
VA proposes retaining the provision
from § 3.450(d) and renumbering it as
§ 3.451(c), concerning division of
apportionments paid to children of the
veteran, but rewording the provision for
clarity and revising the cross-reference
to reference the revised, applicable
regulations.
VA proposes revising the provisions
from § 3.450(e) and renumbering it as
§ 3.451(a)(2). VA proposes removing the
provision that provides that amounts
payable to a surviving spouse for a child
may be apportioned if the child or
children are not residing with the
surviving spouse and the surviving
spouse is not reasonably contributing to
the child’s support. For reasons
previously stated, state court processes
are best suited to assess and address the
surviving spouse’s support obligations
in such situations.

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VA proposes removing current
§ 3.450(f) and not including it in these
revised regulations. This section is
redundant of provisions already found
in the entirety of § 3.250 and does not
need to be repeated.
VA proposes also removing the
provisions of current § 3.450(g), which
provide for apportionment of death
pension by reference, because this
section is no longer needed. VA is
removing all the death pension
provisions for the reasons stated earlier.
VA proposes renaming current § 3.452
from ‘‘Situations when benefits may be
apportioned’’ to ‘‘Veteran’s benefits
apportionable.’’ VA proposes rewording
some of the provisions for clarity,
removing paragraphs (a) and (d), and redesignating the remaining paragraphs.
Current paragraph (a) provides for
apportionment when the veteran is not
residing with the spouse and children,
or not residing with his or her children.
Under this proposed rule, the only two
situations where VA would apportion
benefits are when the primary
beneficiary is incarcerated or when an
incompetent veteran without a fiduciary
is institutionalized at government
expense. Therefore, this paragraph
would no longer be necessary. Section
3.452(d) concerns apportionments to a
dependent parent or parents when the
veteran does not contribute to the
support of the dependent parent or
parents. As discussed above, VA
proposes no longer apportioning
benefits in situations requiring a needbased determination, so this paragraph
is also proposed to be removed.
In § 3.452(a), formerly § 3.452(b), VA
proposes restating without change that
apportionment may be made pending
appointment of a guardian or fiduciary.
In § 3.452(b), formerly § 3.452(c), VA
has rewritten the proposed provisions
for clarity, but retained the principles of
the previous provisions concerning
apportionments when a veteran is
receiving hospital, domiciliary, or
nursing home care, and added a
provision that if a veteran’s dependent
parents are the only relations eligible for
the apportionment, the parent or parents
may receive the apportionment. These
provisions are derived from § 3.454,
which would be replaced.
VA proposes removing current
§ 3.453. This section referred the user to
the previous § 3.451, which is also
proposed to be removed. VA proposes
replacing § 3.453 with a new § 3.453
titled, ‘‘Veterans benefits not
apportionable.’’ The provisions in the
proposed § 3.453 are derived from
current § 3.458. In paragraph (a) VA
proposes stating that no apportionment
will be made unless an application for

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an apportionment is received by VA. In
§ 3.453(c), VA has included a cross
reference to the provisions on forfeiture
for fraud (§ 3.901), treasonable acts
(§ 3.902), and subversive activity
(§ 3.903). Those regulations contain the
complete rules on forfeiture and
apportionments when benefits have
been forfeited. In § 3.453(b) VA
proposes combining the provisions
contained in current §§ 3.458(f)(1),
3.901, and 3.902. Current § 3.458(f)(1)
prohibits an apportionment for
forfeitures declared before September 2,
1959, if a veteran’s dependent ‘‘is
determined by [VA] to have been guilty
of mutiny, treason, sabotage, or
rendering assistance to an enemy of the
United States or its allies.’’ Current
§§ 3.901 (forfeiture for fraud) and 3.902
(forfeiture for treason), both permit
apportionments to a beneficiary’s
dependents under certain circumstances
if the forfeiture was declared prior to
September 2, 1959, but prohibit an
apportionment to any dependent who
themself was guilty of mutiny, treason,
sabotage, or rendering assistance to an
enemy of the United States or its allies.
Accordingly, proposed § 3.453(b) states
that benefits will not be apportioned to
any beneficiary’s dependent who is
determined by VA to have been guilty
of mutiny, treason, sabotage, or
rendering assistance to an enemy of the
United States or its allies. In paragraph
(c), VA proposes providing that after
September 1, 1959, no apportionment
will be made for any dependent of a
veteran or surviving spouse where
benefits were forfeited due to fraud or
a treasonable act, or where there was a
conviction for subversive activity after
September 1, 1959.
VA proposes replacing § 3.454 with a
new section titled, ‘‘Apportionment of
pension.’’ The provisions of this section
are derived from the current § 3.454.
Current § 3.454(a) specifies that if an
incompetent veteran is receiving care in
a government institution and is entitled
to pension, VA will pay $25 per month
as an institutional award and pay the
balance of the pension to the veteran’s
spouse or child or, if the veteran has no
spouse or child but has a dependent
parent, apportion pension to the
dependent parent as a special
apportionment. VA has not included
this specific information in proposed
§ 3.454 because it is outdated. To the
extent that it provides that the balance
of pension will be apportioned to a
veteran’s spouse or child, it is
inconsistent with the approach VA
would adopt through these proposed
rules since it is based on a
determination of hardship. VA is

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eliminating the hardship-based
apportionments, so this provision is no
longer needed. Because the amount of
the institutional award is not fixed by
regulation, VA determines the amount
of the apportionment on a case-by-case
basis.
Finally, VA does not apportion a
veteran’s pension to a dependent parent.
A parent may not be a dependent for
disability pension. Whereas a veteran
receiving disability compensation may
receive an additional allowance for
dependent parents, Congress authorizes
an increased maximum annual pension
rate only for a spouse or child, not for
a dependent parent. See 38 U.S.C. 1542.
VA would also not include
§ 3.454(b)(2). To the extent that
§ 3.454(b)(2) is based on a reduction
under current § 3.551(d) (reducing
Improved Pension for veterans receiving
care before February 1, 1990), it is
unnecessary. To the extent that
§ 3.454(b)(2) is purportedly based on a
reduction under § 3.551(e), it is
obsolete. VA no longer reduces
Improved Pension to $60 under current
§ 3.551(e). The $60 amount was
increased to $90, effective February 1,
1990, by Public Law 101–237, section
111, 103 Stat. 2062, 2064–65 (1989). VA
proposes that § 3.454, in paragraph (a),
would provide that a veteran’s disability
pension will be apportioned to the
veteran’s spouse, child or children, or
dependent parents. In paragraph (b), VA
proposes providing for payment of an
apportionment for the three types of
death pension: Old Law Death Pension,
Section 306 Death Pension, and
Improved Death Pension. These types of
death pension may be apportioned to
the veteran’s child or children.
VA proposes adding § 3.455,
‘‘Apportionment of a surviving spouse’s
dependency and indemnity
compensation.’’ The provisions in this
section are derived from current § 3.461
but have been rewritten for clarity. In
paragraph (a), VA proposes providing
that the surviving spouse’s DIC will
only be apportioned if the surviving
spouse is incarcerated and will only be
apportioned for a child or children
under 18 years of age, unless the child
or children became permanently
incapable of self-support before
reaching the age of 18 years.
In paragraph (b), VA proposes
referring to § 3.665 to determine the
amount of DIC which may be
apportioned.
VA proposes removing and reserving
§§ 3.458–3.461 because these provisions
are either not being carried forward after
this proposed change or the provisions
for those sections have been
incorporated into other sections.

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Current § 3.458 provides situations in
which a veteran’s benefits will not be
apportioned by VA, to include
provisions concerning not apportioning
benefits where each of the apportionees
would not receive a reasonable amount,
where the spouse of the veteran had
been found guilty of conjugal infidelity,
where the spouse of the veteran lived
with or held himself or herself out to be
the spouse of another, and where the
child of a veteran had been adopted,
except for the additional amount the
veteran was paid for the child.
Current § 3.458 also includes a
provision concerning apportionment
when a child enters active duty, which
is included in proposed § 3.451(b).
Additionally, the provision concerning
the prohibition of paying an
apportionment to a claimant where the
apportionment claimant was guilty of
mutiny, treason, sabotage, or rendering
assistance to an enemy of the United
States or its allies has been included in
proposed § 3.453. Current § 3.458 also
includes the provision requiring a
formal claim for apportionment before
any apportionment may be paid, and
this provision is included in proposed
§ 3.450(c).
Current § 3.459 provides for
apportionment of death compensation.
As explained above, VA proposes not
carrying the provisions for death
compensation forward because there are
fewer than 300 beneficiaries and it does
not anticipate receiving any more claims
for this benefit.
Current § 3.460 provides for
apportionment of death pension. VA
proposes to incorporate these provisions
into § 3.454.
Current § 3.461 provides for
apportionment of DIC. These provisions
are proposed to be incorporated into
§ 3.455.
Section 3.556 Adjustment on
Discharge or Release
In 38 CFR 3.556(a)(1), VA proposes
removing the phrase at the end of the
second sentence, ‘‘unless it is
determined that apportionment for a
spouse should be continued.’’ VA
proposes to no longer apportion the
veteran’s benefits if the veteran is
released from the hospital because the
full amount of the benefit will be paid
to the veteran. Once the veteran is
released from the hospital,
apportionments would only be made if
the veteran is readmitted to the hospital
or is incarcerated. Need-based
apportionments would no longer be
adjudicated.
In § 3.556(e), VA proposes amending
the sentence providing for the possible
continuation of an apportionment when

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the veteran is discharged from the
hospital. VA proposes no longer
apportioning the veteran’s benefits if the
veteran is released from the hospital
because the full amount of the benefit
will be paid to the veteran. Once the
veteran is released from the hospital,
apportionments would only be made if
the veteran is readmitted to the hospital
or is incarcerated. Need-based
apportionments would no longer be
adjudicated.
VA also proposes to amend the third
sentence to remove the reference to a
competent veteran and delete the fourth
sentence of paragraph (e) as these refer
to obsolete provisions of former 38 CFR
3.551(b) (as in effect prior to December
27, 2001). See 38 CFR 3.558(b). Finally,
VA proposes to delete the reference to
adjustments in the second-to-last
sentence of paragraph (e) as this
proposed rule would eliminate any
adjustments.

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Section 3.665 Incarcerated
Beneficiaries and Fugitive Felons—
Compensation
In § 3.665(e)(1), VA proposes to
remove the last part of the first sentence
and to strike the remainder of the
paragraph so the paragraph reads,
‘‘Compensation. All of the
compensation not paid to an
incarcerated veteran may be
apportioned to the veteran’s surviving
spouse, child or children (in equal
shares), or dependent parent or parents
(in equal shares).’’ This will remove the
requirement that the person in this
situation requesting an apportionment
demonstrate a need for the funds. In
subparagraph (2), VA proposes
amending the subparagraph to remove
the wording that restricts the amount of
apportionment that may be made based
on the need of the surviving spouse or
the veteran’s child or children.
In paragraph (h), VA proposes to
remove the last sentence which
provides for an apportionee to reapply
for apportionment when the primary
beneficiary is released from
incarceration. VA would no longer
apportion benefits in these situations.
Similarly, in paragraph (i)(1) and (2),
VA is proposing to remove the language
which implies that apportionment may
be continued in some situations where
the primary beneficiary is released from
incarceration. VA would no longer
apportion benefits in these situations
because the full amount of the benefit
will be paid to the primary beneficiary.
Once the veteran is released from
incarceration, apportionments would
only be made if the veteran is again
incarcerated. Need-based

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apportionments will no longer be
adjudicated.
Section 21.330 Apportionment
Section 21.330 concerns the
apportionment of a veteran’s vocational
rehabilitation subsistence allowance.
This section provides that an
apportionment will, if in order, be made
in accordance with the provisions of
part 3. Consistent with 38 U.S.C. 5307
and current regulations, apportionment
of a veteran’s vocational rehabilitation
subsistence allowance is not authorized
if a veteran is incarcerated and
participating in a vocational
rehabilitation program during
incarceration. Because there are no
longer any circumstances where a
veteran’s vocational rehabilitation
subsistence allowance would be
apportioned, VA is removing this entire
section.
VA proposes removing § 21.330 and
reserving the paragraph number. VA
proposes to stop apportioning
vocational rehabilitation subsistence
allowances for the same reasons given
above. Because VA is proposing to
discontinue all apportionments except
in situations specified in 38 U.S.C.
5307(a)(1) and 5313(b), VA is also
proposing to discontinue apportionment
of the vocational rehabilitation
subsistence allowance. The current
regulation prohibits apportioning the
subsistence allowance when a veteran
has been convicted of a felony and is
incarcerated. Because VA is proposing
to discontinue all vocational
rehabilitation subsistence allowance
apportionments, there will not be any
exceptions.
Executive Orders 12866 and 13563
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.
The Regulatory Impact Analysis
associated with this rulemaking can be
found as a supporting document at
www.regulations.gov.

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Regulatory Flexibility Act
The Secretary hereby certifies that
this proposed 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).
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. The certification
is based on the fact that no small
entities or businesses determine
entitlement to VA apportionment
payments.’’
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
one year. This proposed rule will have
no such effect on State, local, and tribal
governments, or on the private sector.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(at 44 U.S.C. 3507) requires that VA
consider the impact of paperwork and
other information collection burdens
imposed on the public. Under 44 U.S.C.
3507(a), an agency may not collect or
sponsor the collection of information,
nor may it impose an information
collection requirement unless it
displays a currently valid Office of
Management and Budget (OMB) control
number. See also 5 CFR 1320.8(b)(3)(vi).
As required by the Paperwork
Reduction Act of 1995 (at 44 U.S.C.
3507(d)), VA has submitted these
information collection amendments to
OMB for its review. Notice of OMB
approval for this information collection
will be published in a future Federal
Register document. This rule will
impose the following amended
information collection requirements:
Description of respondents: The
respondent population is composed of
individuals who are requesting an
apportionment of a beneficiary’s award
amount when that beneficiary is
incarcerated or is deemed incompetent
and hospitalized at government
expense.
Estimated frequency of responses:
Most claimants will use this form one
time. However, the frequency may vary
slightly for apportionees of incarcerated
veterans dependent on the number of
times the primary beneficiary is
incarcerated. For a veteran that is

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incompetent and institutionalized at
government expense, a fiduciary will be
appointed. Therefore, apportionment
claims other than the initial claim will
not be needed.
Estimated number of respondents: VA
anticipates the annual estimated
numbers of respondents for 2900–0666
(VA Form 21–0788) as follows:
2900–0666 (VA Form 21–0788)—In
FY 2014, VA processed just over 800
hospital adjustments for veterans in
receipt of benefits that were
hospitalized or in a nursing home or in
receipt of domiciliary care at VA
expense, or whose payment rates were
adjusted based on such care. Fewer than
800 of these veterans were incompetent
and met the requirements for payment
of an apportionment to a dependent. VA
also completed 15 apportionments for
incarcerated veterans. The
approximately 815 claims completed
each year is considerably fewer than
was estimated in 2005 when VA Form
21–0788 was first approved, as
published in the Federal Register, 70 FR
39866 on July 11, 2005. At that time it
was estimated that VA would receive
approximately 25,000 apportionment
claims per year.
OMB Control Number 2900–0666 (VA
Form 21–0788) is a collection of
information for a particular
apportionment of a benefit which is
currently required by VA in order for
these claims to be processed and
adjudicated. Since VA requires these
forms to be submitted when filing for an
apportionment of a particular benefit,
VA does not expect an increase in the
annual number of respondents; VA
anticipates a decrease in the number of
claims. In addition, VA is reducing the
substance of the collection of
information on this OMB-approved
collection of information and is not
increasing the respondent burden.
Estimated total annual reporting and
recordkeeping burden: 2900–0666 (VA
Form 21–0788)—The annual burden is
reduced from approximately 12,500
hours per year (25,000 claims at 30
minutes per claim form) to about 203
hours per year (815 claims per year at
15 minutes per claim form). The total
estimated cost to respondents is reduced
to $4,843.58 (203 hours × $23.86/hour).
This submission does not involve any
recordkeeping costs.
This rulemaking is proposing to
mandate the use of the VA form in the
processing and adjudication of
apportionment claims. The proposed
amendment to § 3.450 affects the
estimated annual number of
respondents and consequently, the
estimated total annual reporting and
recordkeeping burden, and reduces the

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effect of the existing collection of
information that has already been
approved by OMB. The proposed use of
information and description of likely
respondents will remain unchanged for
this form. The frequency of responses is
less than the previous number
estimated. The estimated average
burden per response is reduced from 30
minutes per response to 15 minutes per
response. VA estimates the total
incremental savings based on this
revised information collection to be
$293,656.42 ($298,500 under the current
form—$4,834.58 for the revised form).
Methodology for Estimated Annual
Number of Respondents for Affected
Forms
VA has formulated the estimated total
number of annual responses for
apportionment claims by using the total
number of apportionment claims
completed in FY 2014.
Catalog of Federal Domestic Assistance
for 38 CFR Part 3
The Catalog of Federal Domestic
Assistance numbers and titles for the
programs affected by this document are
64.102, Compensation for ServiceConnected Deaths for Veterans’
Dependents; 64.104, Pension for NonService-Connected Disability for
Veterans; 64.105, Pension to Veterans
Surviving Spouses, and Children;
64.109, Veterans Compensation for
Service-Connected Disability; 64.110,
Veterans Dependency and Indemnity
Compensation for Service-Connected
Death.
Catalog of Federal Domestic Assistance
for 38 CFR Part 21
The Catalog of Federal Domestic
Assistance numbers and titles for the
programs that will be affected by this
proposed rule are 64.116, Vocational
Rehabilitation for Disabled Veterans,
and 64.128, Vocational Training and
Rehabilitation for Vietnam Veterans’
Children with Spina Bifida or Other
Covered Defects.
List of Subjects
38 CFR Part 3
Administrative practice and
procedure, Claims, Disability benefits,
Pensions, Veterans.
38 CFR Part 21
Administrative practice and
procedure, Claims, Veterans, Vocational
education, Vocational rehabilitation.
Signing Authority
Denis McDonough, Secretary of
Veterans Affairs, approved this
document on September 30, 2021, and

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

For the reasons stated in the
preamble, the Department of Veterans
Affairs proposes to amend 38 CFR parts
3 and 21 as follows:
PART 3—ADJUDICATION
Subpart A—Pension, Compensation,
and Dependency and Indemnity
Compensation
1. The authority citation for part 3,
subpart A continues to read as follows:

■

Authority: 38 U.S.C. 501(a), unless
otherwise noted.
§ 3.31

[Amended]

2. Amend § 3.31(c)(3) introductory
text by removing the words ‘‘original or
increased’’.

■

§ 3.210

[Amended]

3. Amend § 3.210(c)(1)(ii) by:
a. Removing the word ‘‘apportionee,’’
from the first sentence; and
■ b. Removing the last sentence.
■
■

§ 3.252

[Amended]

4. Amend § 3.252 by removing the last
sentence of paragraph (d).
■ 5. Revise § 3.400(e) to read as follows:
■

§ 3.400

General.

*

*
*
*
*
(e) Apportionment. (§§ 3.450–3.455,
3.551). (1) General rule. Except as
provided in paragraph (2) of this
section, the effective date of an
apportionment is the first day of the
month after the month in which VA
receives an apportionment claim.
(2) Exceptions to general rule—(i)
Claim for benefits is pending. If a
veteran or surviving spouse (primary
beneficiary) has a claim for benefits
pending on the date that VA receives an
apportionment claim, the effective date
of the apportionment will be the
effective date of the primary
beneficiary’s award, or the date the
apportionment claimant’s entitlement
arose, whichever is later.
(ii) Apportionment claimant not yet
established as the beneficiary’s
dependent. If VA receives an
apportionment claim within 1 year of
the award of benefits to the primary
beneficiary and the apportionment
claimant has not been established as a
dependent on the primary beneficiary’s

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award, the effective date of the
apportionment will be the effective date
of the primary beneficiary’s award, or
the date the apportionment claimant’s
entitlement arose, whichever is later.
(iii) The primary beneficiary is
incarcerated. The effective date of an
apportionment when the primary
beneficiary is incarcerated is specified
in § 3.665 or 3.666.
*
*
*
*
*
■ 6. Revise § 3.450 to read as follows:
§ 3.450

General apportionment.

(a) Applicability. Sections 3.450
through 3.459 apply to all claims for
apportionment VA receives on or after
[EFFECTIVE DATE OF THE FINAL
RULE].
(b) Existing apportionments. All
apportionments being paid as of
[EFFECTIVE DATE OF THE FINAL
RULE] will continue to be paid until the
circumstances which provided
entitlement to the apportionment no
longer exist, such as divorce of the
veteran and spouse, death of the
primary beneficiary, death of an
apportionee, or other such
circumstances which provided
entitlement to the apportionment.
(c) Apportionment application.
Claims for apportionment must be
submitted to VA on a form prescribed
by the Secretary.
(Authority: 38 U.S.C. 501(a))
■

7. Revise § 3.451 to read as follows:

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§ 3.451

Apportionment claims.

(a) General—(1) Veteran. All or part of
the pension or disability compensation
payable to any veteran may be
apportioned if one of the following
conditions exist:
(i) For his or her spouse, child, or
dependent parents if the veteran is
incompetent and is being furnished
hospital treatment, nursing home, or
domiciliary care by the U.S., or any
political subdivision thereof.
(ii) The veteran is incarcerated and
meets the conditions of § 3.665 or 3.666.
(2) Surviving spouse. Where a child or
children of a deceased veteran is not
living with the veteran’s surviving
spouse because the surviving spouse is
incarcerated and meets the conditions of
§ 3.665 or 3.666, the dependency and
indemnity compensation (DIC) or
pension otherwise payable to the
surviving spouse may be apportioned to
the child or children. No apportionment
shall be payable to a child who did not
reside with the surviving spouse prior to
incarceration.
(b) Apportionment to a child on active
duty. No apportionment of disability or
death benefits will be made or changed

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solely because a child has entered active
duty. If an apportionment is claimed for
a child on active duty on the date the
apportionment claim is received by VA,
no apportionment will be made. If an
apportionment is being paid to the
veteran’s spouse and includes an
amount for a child, and the child enters
active duty, no change in the
apportionment will be made.
(c) Apportionment of death benefits.
Any amounts payable for children
under §§ 3.456, Eligibility for
apportionment of pension, and 3.458,
Eligibility for apportionment of a
surviving spouse’s dependency and
indemnity compensation, will be
equally divided among the children.
(Authority: 38 U.S.C. 5307, 5502(d))
■

8. Revise § 3.452 to read as follows:

§ 3.452

Veteran’s benefits apportionable.

A veteran’s benefits may be
apportioned when the veteran is
receiving hospital treatment, nursing
home, or domiciliary care provided by
the U.S. or a political subdivision, upon
receipt by VA of an application:
(a) Pending appointment of fiduciary.
Pending the appointment of a guardian
or other fiduciary.
(b) Veteran receiving hospital,
domiciliary, or nursing home care—(1)
Incompetent veteran—(i) Spouse or
child. Where an incompetent veteran
without a fiduciary is receiving hospital
treatment, nursing home, or domiciliary
care provided by the U.S. or a political
subdivision, his or her benefit may be
apportioned for a spouse or child.
(ii) Dependent parent. Where an
incompetent veteran without a fiduciary
is receiving hospital treatment, nursing
home, or domiciliary care provided by
the U.S. or a political subdivision, his
or her disability compensation may be
apportioned for a dependent parent.
(2) Competent veteran—(i) Section
306 Pension. Where the amount of
Section 306 Pension payable to a
married veteran is reduced to $50
monthly under § 3.551, Reduction
because of hospitalization, while a
veteran is receiving hospital,
domiciliary, or nursing home care, an
apportionment may be made to such
veteran’s spouse. The amount of the
apportionment generally will be the
difference between $50 and the total
amount of pension payable on
December 31, 1978.
(ii) Improved Pension. Where the
amount of Improved Pension payable to
a married veteran under 38 U.S.C.
1521(b) is reduced to $90 monthly
under § 3.551, Reduction because of
hospitalization, an apportionment may
be made to such veteran’s spouse. The

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amount of the apportionment generally
will be the difference between $90 and
the rate payable if pension were being
paid under 38 U.S.C. 1521(c), including
the additional amount payable under 38
U.S.C. 1521(e) if the veteran is so
entitled.
(Authority: 38 U.S.C. 501(a), 5307, 5502,
5503(a); Pub. L. 95–588, section 306, 92 Stat.
2497)
■

9. Revise § 3.453 to read as follows:

§ 3.453

Benefits not apportionable.

VA will not apportion benefits:
(a) Unless the spouse of a veteran files
a claim for an apportionment. If there is
a child of the veteran, an apportionment
will not be authorized unless a claim for
an apportionment is filed by or for the
child.
(b) To any beneficiary’s dependent
who is determined by VA to have been
guilty of mutiny, treason, sabotage, or
rendering assistance to an enemy of the
U.S. or its allies.
(c) After September 1, 1959, if a
veteran, spouse, child, or dependent
parent: or other primary beneficiary:
(1) Forfeited benefits due to fraud or
a treasonable act; or
(2) Was convicted of subversive
activity.
CROSS REFERENCE: §§ 3.900,
General, 3.901, Fraud, 3.902,
Treasonable acts, and 3.903, Subversive
activity.
(Authority: 38 U.S.C. 5307, 6103(b),
6104(c), 6105(a))
■

10. Revise § 3.454 to read as follows:

§ 3.454

Apportionment of pension.

(a) Disability pension. Disability
pension will be apportioned to the
veteran’s spouse, or child or children, or
dependent parents.
(b) Death pension. Old-Law Death
Pension, Section 306 Death Pension and
Improved Pension will be apportioned
to the veteran’s child or children.
(Authority: 38 U.S.C. 5307)
■

11. Add § 3.455 to read as follows:

§ 3.455 Apportionment of a surviving
spouse’s dependency and indemnity
compensation.

(a) Conditions under which
apportionment may be made. The
surviving spouse’s award of dependency
and indemnity compensation (DIC) will
be apportioned where there is a child
under 18 years of age and the surviving
spouse is incarcerated and meets the
provisions of § 3.665. DIC will not be
apportioned under this paragraph (a) for
a child over age 18 years unless the
child is permanently incapable of selfsupport in accordance with the
provisions of § 3.57.

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(b) Rates payable. The amount of
apportionment of DIC will be
determined in accordance with the
provisions of § 3.665.
(Authority: 101(4)(A), 104(a), 5307)
§§ 3.456 and 3.457

[Added and Reserved]

12. Add and reserve §§ 3.456 and
3.457.

■

§ 3.456

Reserved.

§ 3.457

Reserved.

§§ 3.458 through 3.461
Reserved]

[Removed and

13. Remove and reserve §§ 3.458
through 3.461.

■

§§ 3.458–3.461

[Reserved]

14. Amend § 3.556 as follows:
a. In paragraph (a)(1), remove the
words ‘‘unless it is determined that
apportionment for a spouse should be
continued’’; and
■ b. In paragraph (e):
■ 1. Remove the words ‘‘in the case of
a competent veteran’’ from the second
sentence, and remove the third
sentence; and
■ 2. Revise the fifth sentence.
The revision reads as follows:
■
■

§ 3.556 Adjustment on discharge or
release.

*

*
*
*
*
(e) Regular discharge. * * * Where an
apportionment was made under
§ 3.551(c), the apportionment will be
discontinued effective the day
preceding the date of the veteran’s
release from the hospital, unless an
overpayment would result. In the
excepted cases, the awards to the
veteran and apportionee will be
adjusted as of date of last payment.
* * *
(Authority: 38 U.S.C. 5503)

*

*
*
*
*
15. Amend § 3.665 by revising
paragraphs (e), (h) and (i) to read as
follows:

■

§ 3.665 Incarcerated beneficiaries and
fugitive felons—compensation.

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*

*
*
*
*
(e) Apportionment—(1)
Compensation. All of the compensation
not paid to an incarcerated veteran may
be apportioned to the veteran’s spouse,
child or children (in equal shares), or
dependent parent or parents (in equal
shares).
(2) DIC. All of the DIC not paid to an
incarcerated surviving spouse or other
children not in the surviving spouse’s
custody may be apportioned to another
child or children. All of the DIC not
paid to an incarcerated child may be

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apportioned to the surviving spouse or
other children (in equal shares).
*
*
*
*
*
(h) Notice to dependent for whom
apportionment granted. A dependent
for whom an apportionment is granted
under this section shall be informed that
the apportionment is subject to
immediate discontinuance upon the
incarcerated person’s release or
participation in a work release or
halfway house program.
(i) Resumption upon release—(1) No
apportionment. If there was no
apportionment at the time of release
from incarceration, the released person’s
award shall be resumed the date of
release from incarceration if the
Department of Veterans Affairs receives
notice of release within 1 year following
release; otherwise the award shall be
resumed the date of receipt of notice of
release. If there was an apportionment
award during incarceration, it shall be
discontinued date of last payment to the
apportionee upon receipt of notice of
release of the incarcerated person.
Payment to the released person shall
then be resumed at the full rate from
date of last payment to the apportionee.
Payment to the released person from
date of release to date of last payment
to the apportionee shall be made at the
rate which is the difference between the
released person’s full rate and the sum
of:
(i) The rate that was payable to the
apportionee; and
(ii) The rate payable during
incarceration.
(2) Apportionment to a dependent
parent. An apportionment made to a
dependent parent under this section
cannot be continued beyond the
veteran’s release from incarceration
unless the veteran is incompetent and
the provisions of § 3.452(b)(1) are for
application. When a competent veteran
is released from incarceration, an
apportionment made to a dependent
parent shall be discontinued and the
veteran’s award resumed as provided in
paragraph (i)(1) of this section.
*
*
*
*
*
(Authority: 38 U.S.C. 501(a), 5313, 5313B;
Sec. 506, Pub. L. 107–103, 115 Stat. 996–997)

PART 21—VOCATIONAL
REHABILITATION AND EDUCATION
Subpart A—Vocational Rehabilitation
and Employment Under 38 U.S.C.
Chapter 31
16. The authority citation for part 21,
subpart A continues to read as follows:

■

Authority: 38 U.S.C. 501(a), chs. 18, 31,
and as noted in specific sections.

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§ 21.330
■

[Removed and Reserved]

17. Remove and reserve § 21.330.

§ 21.330

[Reserved]

[FR Doc. 2021–21816 Filed 10–13–21; 8:45 am]
BILLING CODE 8320–01–P

DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AQ89

State Approving Agency Jurisdiction
Rule
Department of Veterans Affairs.
Proposed rule.

AGENCY:
ACTION:

The Department of Veterans
Affairs (VA) proposes to amend existing
regulations to clarify State Approving
Agencies’ (SAA) jurisdiction for
approval of online distance learning
courses and distinguish such courses
from ‘‘traditional classroom’’ resident
training courses and independent studyresident training courses (also known as
‘‘hybrid’’ courses), which are typically a
combination of online and traditional
training. Additionally, VA seeks to
clarify SAA authority and jurisdiction
with regard to approval and disapproval
of any course, or licensing or
certification test, and to clarify the
adjudicatory outcomes available to an
SAA when reviewing an approval
application for any type of course (i.e.,
approval, denial of an application for
approval, suspension of approval, or
withdrawal of approval).
DATES: Comments must be received by
VA on or before December 13, 2021.
ADDRESSES: Comments may be
submitted through
www.Regulations.gov. Comments
should indicate that they are submitted
in response to RIN 2900–AQ89—State
Approving Agency Jurisdiction Rule.
Comments received will be available at
regulations.gov for public viewing,
inspection or copies.
FOR FURTHER INFORMATION CONTACT:
Cheryl Amitay, Chief, Policy and
Regulation Development Staff (225C),
Education Service, Department of
Veterans Affairs, 810 Vermont Avenue
NW, Washington, DC 20420, (202) 461–
9800. (This is not a toll-free telephone
number.)
SUPPLEMENTARY INFORMATION: Currently,
for purposes of determining SAA
jurisdiction, VA’s regulation divides
courses into residential courses offered
in the same state as the state in which
the educational institution is located, 38
CFR 21.4250(a)(1), residential courses
SUMMARY:

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