E9-10022. Headstones and Markers

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending existing regulations regarding the authority to provide Government-furnished memorial headstones and markers. Memorial headstones or markers are provided in certain circumstances to memorialize eligible veterans and certain family members whose remains are not available for interment. Pursuant to Sec. 810 of Public Law 110-389, the Veterans' Benefits Improvement Act of 2008, eligibility for a memorial headstone or marker for placement in a national or State veterans cemetery has been extended to a veteran's surviving spouse who had a subsequent remarriage and whose remains are unavailable for interment. Previously, a memorial headstone or marker could be provided for a veteran's surviving spouse who had a subsequent remarriage only if that remarriage was terminated by death or divorce. This final rule is necessary to incorporate a statutory amendment into VA regulations.

DATES:

Effective Date: May 1, 2009.

Applicability Date: The amendment to 38 CFR 38.630 applies to eligible surviving spouse deaths occurring on or after October 10, 2008.

FOR FURTHER INFORMATION CONTACT:

Joe Sturm, Legislative and Regulatory Division, National Cemetery Administration, Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420. Telephone: [phone] (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

VA's National Cemetery Administration (NCA) is responsible for administering VA's headstone and marker program. The original purpose of the program, which began during the Civil War, was that no veteran should lie in an unmarked grave. Over time the program has expanded to include provision of headstones or markers for certain eligible family members.

Memorial headstones and markers are inscribed with “In Memory of” on the first line, and are furnished for eligible veterans whose remains are not recovered or identified, are buried at sea, are donated to science, or are cremated and scattered. VA may also provide a memorial headstone or marker for certain eligible family members whose remains are unavailable for burial in a national or State veterans cemetery. Memorial headstones and markers for eligible family members are not available for placement in private cemeteries.

Section 810 of Public Law 110-389, the Veterans' Benefits Improvement Act of 2008, enacted on October 10, 2008, amended the definition of a surviving spouse in 38 U.S.C. 2306(b)(4)(B). The change allows VA to provide a memorial headstone or marker for an eligible surviving spouse who remarried a non-veteran after the veteran's death, who died on or after October 10, 2008, and whose remains are unavailable, without regard to whether the remarriage was terminated. Prior to passage of Public Law 110-389, remarried surviving spouses were eligible for a memorial marker only if their subsequent remarriage to a non-veteran was terminated by death or divorce. Spouses who divorce a veteran remain ineligible for VA burial or memorialization benefits based on the marriage to that veteran.

This final rule amends 38 CFR 38.630 to make it consistent with the amended statute. We are also moving some information from paragraph (c)(3)(ii) to paragraphs (c)(1)(ii) and (iii), non-substantive changes to improve the organization and clarity of the rule.

Administrative Procedure Act

Because this amendment merely reflects a statutory change and makes other non-substantive changes, this rule-making is exempt from the prior notice-and-comment and delayed-effective-date requirements of 5 U.S.C. 553.

Paperwork Reduction Act

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

The Office of Management and Budget (OMB) assigns a control number for each collection of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a current valid OMB control number.

In § 38.630(c), this final rule amends provisions concerning information collection requirements that are currently approved by OMB under the following OMB control number: 2900-0222 (Application for Standard Government Headstone or Marker for Installation in Private or State Veterans Cemetery). The amended provisions remain within the scope of the approved collection of information because VA estimates that fewer than 10 requests for a memorial headstone or marker will be received under this expanded eligibility within any 12-month period.

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by OMB unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. VA has examined the economic, interagency, budgetary, legal, and policy implications of this final rule and has concluded that it does not constitute a significant regulatory action under the Executive Order.

Regulatory Flexibility Act

The initial and final regulatory flexibility analysis requirements of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 601-612, are not applicable to this rule because a notice of proposed rulemaking is not required for this rule. Even so, the Secretary of Veterans Affairs hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule will affect only individual VA beneficiaries and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in an expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers

The Catalog of Federal Domestic Assistance program numbers and titles for this final rule are 64.201, National Cemeteries; and 64.202, Procurement of Headstones and Markers and/or Presidential Memorial Certificates.

List of Subjects in 38 CFR Part 38

• Administrative practice and procedure
• Cemeteries
• Veterans

Approved: April 24, 2009.

John R. Gingrich,

Chief of Staff, Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 38 as set forth below:

PART 38—NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

1. The authority citation for part 38 continues to read as follows:

Authority: 38 U.S.C. 501(a), 2306, unless otherwise noted.

2. Amend § 38.630 by:

a. Revising paragraphs (c)(1)(ii), (c)(1)(iii) introductory text, and (c)(3)(ii).

b. Removing the authority citation that appears immediately at the end of paragraph (c).

c. Revising the authority citation at the end of the section.

The revision reads as follows:

§ 38.630

Headstones and markers.

* * * * *

(c) * * *

(1) * * *

(ii) A veteran's spouse or surviving spouse, including a surviving spouse who had a subsequent remarriage terminated by death or divorce, who died after November 11, 1998, or a surviving spouse who had a subsequent remarriage and died on or after October 10, 2008; or

(iii) A veteran's eligible dependent child who died after December 22, 2006.

* * * * *

(3) * * *

(ii) Other eligible individuals. A Government memorial headstone or marker to commemorate a veteran's eligible spouse, surviving spouse, or dependent child may be placed only in a national cemetery or in a State veterans cemetery.

(Authority: 38 U.S.C. 501, 2306)