2024-02183. Outer Burial Receptacles

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) proposes to revise its regulation that governs the outer burial receptacle (OBR) monetary allowance for burials in a VA national cemetery when a privately purchased OBR is used in lieu of a Government-furnished graveliner. First, VA proposes to expand applicability of the monetary allowance to burials in VA grant-funded State and Tribal cemeteries when a privately purchased OBR was used, or where an OBR is placed at the time of interment, at the cost of the State or Tribal Organization. Second, VA proposes to reimburse States and Tribal Organizations for OBRs that are pre-placed as part of a new construction or expansion grant project. In addition, VA proposes minor conforming revisions to its regulations governing aid for the establishment, expansion and improvement of veterans cemeteries to clarify that VA will reimburse the cost of preplaced OBRs separately from the grant award. These changes would implement new authorities provided in the Johnny Isakson and David P. Roe, M.D Veterans Health Care and Benefits Improvement Act of 2020. VA also proposes to amend the regulation governing OBRs by removing retroactive provisions no longer needed because the relevant time period has passed.

DATES:

Comments must be received on or before April 8, 2024.

ADDRESSES:

Comments must be submitted through www.regulations.gov. Except as provided below, comments received before the close of the comment period will be available at www.regulations.gov for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on the following website as soon as possible after they have been received: http://www.regulations.gov. VA will not post on Regulations.gov public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm the individual. VA encourages individuals not to submit duplicative comments; however, we will post comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking. In accordance with the Providing Accountability Through Transparency Act of 2023, a 100 word Plain-Language Summary of this proposed rule is available at Regulations.gov, under RIN 2900–AR82.

FOR FURTHER INFORMATION CONTACT:

Michelle Myers, Management and Program Analyst, Policy and Regulatory Service, 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:

Background

Section 2306(e) of title 38, United States Code (U.S.C.), authorizes VA to provide an OBR for each new grave used for casketed remains in an open VA national cemetery. VA has implemented this authority in three ways: providing pre-placed OBRs as part of new construction or expansion of national cemeteries; installing a Government-furnished graveliner at the time of interment; and providing a monetary allowance for burials where the OBR was privately purchased. Pre-placed OBRs are installed in the ground during construction of a cemetery site, then covered with soil and grass. When needed for a burial, the area is unearthed, and the casket is placed. This allows for more efficient use of cemetery space, more efficient operations and improved appearance through the elimination of sunken graves. For gravesites where OBRs were not pre-placed during construction, VA may provide a graveliner at the time of interment. Typically, a Government-furnished graveliner placed at the time of interment is pre-cast concrete and maintains the integrity of the soil around the grave, eliminating sunken graves and improving cemetery appearance.

In some cases, families choose to use a privately purchased OBR in lieu of a Government-furnished graveliner. Section 2306(e)(4) authorizes VA to use a voucher system or other system of reimbursement to pay for OBRs for burials in a VA cemetery, and in December 2000, VA first implemented regulations to administer this authority as a monetary allowance in 38 CFR 38.629 (65 FR 76937).

New Authority

On January 5, 2021, sec. 2203 of Public Law 116–315, the Johnny Isakson and David P. Roe, M.D Veterans Health Care and Benefits Improvement Act of 2020, amended section 2306(e) to expand applicability of the OBR program to burials in cemeteries that are the subject of a grant to a State or Tribal Organization under 38 U.S.C. 2408.

To implement this new authority, VA proposes to revise § 38.629 to include provision of OBRs for gravesites in State or Tribal Organization cemeteries funded through VA grants. Specifically, we propose to redesignate paragraph (b) as paragraph (b)(1) and revise redesignated paragraph (b)(1) by adding language to the existing purpose statement to include payment of a monetary allowance for interments in grant-funded cemeteries where a privately purchased OBR has been used. As well, we propose adding new paragraphs (b)(2) and (3) to explain that the purpose of the section now also provides for payment of a monetary allowance for OBRs placed at the time of interment in grant-funded cemeteries and for reimbursement of the cost for OBRs that are pre-placed as part of construction, expansion, or improvement of a grant-funded cemetery. These amendments establish that VA will use § 38.629 to regulate both the monetary allowance and reimbursements associated with OBRs for burials in VA grantee-cemeteries.

VA proposes minor revisions to the heading and text of paragraph (c) to clarify that the content of the paragraph refers to subsequent interments with privately purchased OBRs. In burials where a casket already exists in a grave with or without an OBR, subsequent placement of a second casket in an OBR would not be permitted in the same grave unless the cemetery director determines that the already interred casket would not be damaged. We propose replacing the current reference to “graveliner” in paragraph (c) with the broader term of “outer burial receptacle” to be more consistent with terminology used throughout the regulatory text. As well, we propose removing the word “national” to make the paragraph applicable to VA grant-funded cemetery directors, who now have responsibilities related to potential use of privately purchased OBRs. These revisions clarify the meaning and applicability of the paragraph.

Monetary Allowance for Privately Purchased OBRs

VA proposes to revise the heading of paragraph (d) to specify that the provision refers to payment of monetary allowance for privately purchased OBRs and to redesignate paragraph (d) as paragraph (d)(1). VA proposes to add a new paragraph (d)(2) to specify provision of a monetary allowance for burials in a grant-funded cemetery where a privately purchased OBR was used. VA would require a request for payment from the person who paid for the OBR along with evidence of such payment. The request must be verified by the cemetery director where the burial occurred. Since this authority is effective, by law, on and after January 5, 2023, the revision would include the effective date.

Monetary Allowance for OBRs Placed at Time of Interment

VA proposes to redesignate paragraph (e) as (f) and add new paragraph (e) to provide for payment of monetary allowance for OBRs placed at time of interment. VA would pay an allowance to a State or Tribal Organization for OBRs placed at the time of interment for burials in a grantee cemetery. Since this authority is effective, by law, on and after January 5, 2023, the revision would include the effective date. VA proposes to issue payment on a quarterly basis for the total number of burials that occurred during the quarter, when requested by the State or Tribal Organization on the approved VA application form. Since the monetary allowance for a single OBR is a relatively small amount, VA proposes a quarterly basis as a reasonable approach to minimize the number of applications for payment that need to be submitted by the States and Tribal Organizations and to allow for efficient management and processing of the requests by VA. Rather than requiring a separate application for each relevant interment, States and Tribal Organizations would submit one application for all OBRs used at time of interment during each quarter. In addition, proposed paragraph (e)(3) would establish that payment may not be made for burials where a fee for the OBR was charged to the decedent's family or other responsible party.

Reimbursement for OBRs Pre-Placed as Part of Construction

VA proposes to add a new paragraph (g) to provide for reimbursement of the cost of OBRs that are pre-placed as part of new construction, expansion or improvement of a grant-funded cemetery. VA proposes to reimburse States and Tribal Organizations for the cost of pre-placed OBRs installed in conjunction with construction and expansion cemetery grants. States and Tribal Organizations would be required to submit a request for reimbursement using Standard Form 271, Outlay Report and Request for Reimbursement for Construction Programs. This approach is standard for requesting reimbursement for construction projects and is already used by the Veterans Cemetery Grants Program (VCGP) as part of the grant award process. The information required for determining the cost and the agency entitled to reimbursement is included in information already being collected as part of the veterans cemetery grant application and award process, so there would be no impact regarding the Paperwork Reduction Act. This provision for reimbursement aligns administration of the OBR benefit for VA grant-funded cemeteries with that of VA national cemeteries.

Audit Provisions

VA proposes to add a new paragraph (h) to establish that a State or Tribal Organization that seeks payment in the form of reimbursement or monetary allowance for OBRs under § 38.629 would be subject to related inspections, audits, and reporting. Grant-funded cemeteries already are subject to inspections, audits, and reporting under § 39.122 to ensure compliance with regulatory provisions governing the VCGP; however, VA wants to ensure that grant-funded cemeteries that are seeking payment for OBRs under § 38.629 are fully advised in regulation that such requests and payments are subject to inspections, audits, and reporting.

Accordingly, VA proposes to also revise § 39.122, which governs inspections, audits, and reports related to the VCGP. VA proposes to revise paragraph (a) to require a State or Tribal Organization to allow VA inspectors and auditors to conduct inspections as necessary to ensure compliance with the provisions of part 39 and with the provisions of § 38.629 regarding OBRs. This would ensure that grant recipients are aware that if they seek payment for OBRs in accordance with § 38.629, they would be subject to inspection, audit, and reporting requirements related to such payments.

Removing Outdated Provisions

VA proposes to amend § 38.629 to remove outdated retroactive provisions by removing references to dates in paragraphs (d) and (e). Current paragraph (d) restricts the monetary allowance to burials where a privately purchased OBR was used on and after October 9, 1996, and includes a specific provision for making payment for burials during the period October 9, 1996, through December 31, 1999. These provisions were included because the OBR allowance authority took effect on October 9, 1996, before the regulations were finalized on December 8, 2000. However, those portions of current paragraph (d) are no longer necessary since the relevant time periods have passed.

Similarly, current paragraphs (e)(1) and (2) each refer to the timeframe for VA's annual publication in a Federal Register notice of the OBR reimbursement amount from “calendar year 2000 and each calendar year thereafter.” The references to calendar year 2000 are no longer necessary, and we propose removing them from the regulation in redesignated paragraphs (f)(1) and (f)(2). Finally, current paragraph (e)(3) (or redesignated paragraph (f)(3)) establishes that the amount of the monetary allowance for calendar year 2000 will be used for payment of any allowances for interments that occurred during the period from October 9, 1996, through December 31, 1999. That paragraph is no longer necessary because the relevant time period has passed. Because the OBR payments would be calculated annually, VA would only pay the current amount for qualifying interments for that calendar year.

Section Title

VA proposes to revise the title of § 38.629 from “Outer Burial Receptacle Allowance” to “Outer Burial Receptacles” to reflect the change in scope of the regulation, which previously only included provision of an allowance for privately purchased OBRs, but would now include reimbursement to grant-funded cemeteries for procurement costs of OBRs.

Clarifying § 39.50

Finally, VA proposes to revise § 39.50 to clarify that VA would reimburse the cost of pre-placed OBRs separately from the grant award. Section 39.50 governs the amount of grants awarded under subpart B—Establishment, Expansion, and Improvement Projects. First, VA proposes to delete the phrase “preplaced liners or crypts,” from § 39.50(b)(2) where it is included as one of the examples of costs that may be included in the total cost of a project. Since VA is now authorized to provide OBRs to grant-funded cemeteries, the cost of those items should not be included in the total cost of the project when determining the amount of a grant. Second, VA proposes to insert a new paragraph (e) to clarify that VA would reimburse the cost of preplaced OBRs separately, in accordance with the new provisions of § 38.629.

Executive Orders 12866, 13563 and 14094

Executive Order 12866 (Regulatory Planning and Review) directs 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. Executive Order 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Orders 12866 and 13563. The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601–612). The Secretary acknowledges that this rule may affect some Tribal governments that may be considered small entities; however, the economic impact would be entirely beneficial. This proposed rule would impose no mandatory requirements or costs on Tribal governments as a whole and would only affect those that are recipients of veterans cemetery grants. To the extent that small entities are affected, the impact of this proposed rule would be entirely beneficial as it would provide reimbursement for costs of OBRs associated with casketed burials in grant-funded cemeteries. 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.

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 would have no such effect on State, local, and Tribal governments, or on the private sector.

Paperwork Reduction Act

This proposed rule includes provisions constituting a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.

OMB assigns control numbers to 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 currently valid OMB control number. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing the collection of information or take such other action as is directed by OMB.

Comments on the new collection of information contained in this rulemaking should be submitted through www.regulations.gov. Comments should be sent within 60 days of publication of this rulemaking. The collection of information associated with this rulemaking can be viewed at: www.reginfo.gov/​public/​do/​PRAMain.

OMB is required to make a decision concerning the collection of information contained in this rulemaking between 30 and 60 days after publication of this rulemaking in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the provisions of this rulemaking.

The Department considers comments by the public on new collection of information in—

• Evaluating whether the new collections of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;
• Evaluating the accuracy of the Department's estimate of the burden of the new collection of information, including the validity of the methodology and assumptions used;
• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

The collection of information associated with this rulemaking contained in 38 CFR 38.629 is described immediately following this paragraph.

Title: Request for Payment of Monetary Allowance for Outer Burial Receptacles.

OMB Control No.: 2900–XXXX.

CFR Provision:38 CFR 38.629.

• Summary of collection of information: The new collection of information in proposed 38 CFR 38.629 would require a State or Tribal Organization to submit a request for payment of monetary allowance for OBRs placed at the time of interment, and it would require individuals to submit a request for payment of monetary allowance for a privately purchased OBR.

• Description of need for information and proposed use of information: The information submitted on the request form would be necessary to initiate payment of entitlement. The information would identify the claimant and the amount claimed and would be necessary to make determinations for payment and for other budget, oversight and compliance purposes associated with administering this benefit for burials in State and Tribal Organization veterans cemeteries. In addition, VCGP would need this data to answer questions that arise during the course of the year to respond to Congressional correspondence.

• Description of likely respondents: Primarily VCGP grantees that are States and Tribal Organizations. A small number of private individuals may be respondents.

• Estimated number of respondents: 110 in FY2024.

• Estimated frequency of responses: Quarterly for States and Tribal Organizations that need to request payment of monetary allowance for burials where OBRs are placed at time of interment. One time occurrence for any individual who needs to claim monetary allowance for a privately purchased OBR.

• Estimated average burden per response:

Estimated Burden Hours

	Estimated number of respondents	(×) times Estimated number of responses	(×) times Average minutes per response	= (Equals) minutes	÷ by 60 =	Actual number of burden hours
Monetary Allowance for Privately Purchased OBR	100	1	15	1,500		25
Monetary Allowance for OBRs Placed at Time of Interment	10	4	15	600		10
Accumulative Total	110					35

• Estimated total annual reporting and recordkeeping burden: VA estimates the total annual reporting and recordkeeping burden to be 35 burden hours. Based on an estimated number of 100 respondents filing one-time claims with an average of 15 minutes for the response, and an estimated number of 10 respondents filing claims quarterly with an average of 15 minutes for the response, the total annual reporting and recordkeeping burden is estimated to be 35 hours.

• Estimated cost to respondents per year: VA estimates the total annual cost for all respondents to be $1041.60. To estimate the total information collection burden cost, VA used the Bureau of Labor Statistics (BLS) mean hourly wage for “all occupations” of $29.76 per hour. This information is available at https://www.bls.gov/​oes/​2022/​may/​oes_​nat.htm#00-0000. Based on the estimated total annual burden of 35 hours, and using a mean hourly wage of $29.76, VA estimates the total information collection burden cost to be $1041.60 per year (35 hours × $29.76 per hour).

Assistance Listing

The Assistance Listing numbers and titles for the programs affected by this document are 64.201, National Cemeteries; 64.203, State Cemetery Grants; and 64.206, VA Outer Burial Receptacle Allowance.

List of Subjects in 38 CFR Parts 38 and 39

38 CFR Part 38

• Administrative practice and procedure
• Cemeteries
• Veterans

38 CFR Part 39

• Cemeteries
• Grant programs—veterans
• Veterans

Signing Authority

Denis McDonough, Secretary of Veterans Affairs, signed and approved this document on January 30, 2024, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

Luvenia Potts,

Regulation Development Coordinator Office of Regulation Policy & Management, Office of General Counsel, Department of Veterans Affairs.

For the reasons stated in the preamble, VA proposes to amend 38 CFR parts 38 and 39 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. 107, 501, 512, 531, 2306, 2400, 2402, 2403, 2404, 2407, 2408, 2411, 7105.

2. Amend § 38.629 as follows:

a. Revise the section heading and paragraphs (b), (c), and (d);

b. Revise the paragraph (d) heading;

c. Redesignate paragraph (e) as paragraph (f);

d. Add new paragraph (e);

e. Revise the heading to newly redesignated paragraph (f) and revise newly redesignated paragraphs (f)(1) introductory text and (f)(2);

f. Remove newly redesignated (f)(3); and

e. Add paragraphs (g) and (h).

The revisions and additions read as follows:

§ 38.629

Outer burial receptacles.

* * * * *

(b) Purpose. (1) This section provides for payment of a monetary allowance for an outer burial receptacle for any interment with casketed remains in a VA national cemetery where a privately purchased outer burial receptacle has been used in lieu of a Government-furnished graveliner and, for any interment on or after January 5, 2023, in a cemetery that is the subject of a grant to a State or Tribal Organization under 38 U.S.C. 2408 where a privately purchased outer burial receptacle has been used.

(2) This section also provides for payment of a monetary allowance for outer burial receptacles placed at the time of interment, for burials on or after January 5, 2023, in a cemetery that is the subject of a grant awarded to a State or Tribal Organization under 38 U.S.C. 2408.

(3) This section also provides for reimbursement of the cost of pre-placed outer burial receptacles that are installed as part of construction or expansion of a cemetery that is the subject of a grant awarded on or after January 5, 2023, to a State or Tribal Organization under 38 U.S.C. 2408.

(c) Subsequent interments. In burials where a casket already exists in a grave with or without an outer burial receptacle, subsequent placement of a second casket in an outer burial receptacle will not be permitted in the same grave unless the cemetery director determines that the already interred casket will not be damaged.

(d) Payment of monetary allowance for privately purchased outer burial receptacles. (1) VA will pay a monetary allowance for each casket burial in a VA national cemetery where a privately purchased outer burial receptacle was used in lieu of a Government-furnished graveliner. Payment will be made to the person identified in records contained in the National Cemetery Administration (NCA) electronic ordering system as the person who paid for the outer burial receptacle. No application is required to receive payment of this monetary allowance as the payment is processed automatically based on entry in the system.

(2) VA will pay a monetary allowance for each casket burial in a cemetery that is the subject of a grant to a State or Tribal Organization under 38 U.S.C. 2408, where a privately purchased outer burial receptacle was used on or after January 5, 2023. The person who paid for the outer burial receptacle must submit a request for payment of the allowance on the appropriate VA form. The request must be verified by the cemetery director where the burial occurred.

(e) Payment of monetary allowance for outer burial receptacles placed at time of interment. (1) VA will pay a monetary allowance for outer burial receptacles placed at the time of interment for burials on or after January 5, 2023, in a cemetery that is the subject of a grant to a State or Tribal Organization under 38 U.S.C. 2408. Such payments may be issued on a quarterly basis and will be paid to the State Agency or Tribal Organization.

(2) VA will pay the allowance only if a State or Tribal Organization submits a request for payment on the appropriate VA form. Requests may be submitted on a quarterly basis for the total number of burials that required an outer burial receptacle in that quarter and for which a fee for the outer burial receptacle was not charged to the decedent's family or other responsible party. Requests for payment under this section must be submitted within one year of interment.

(3) No payment may be made for burials where a fee for the outer burial receptacle was charged to the decedent's family or other responsible party.

(f) Amount of the monetary allowance. (1) The monetary allowance will be the average cost, as determined by VA, of Government-furnished graveliners, less the administrative costs incurred by VA in processing and paying the allowance.

* * * * *

(2) The amount of the allowance for each calendar year will be published in the “Notices” section of the Federal Register . The Federal Register notice will also provide, as information, the determined average cost of Government-furnished graveliners and the determined amount of the administrative costs to be deducted.

(g) Reimbursement for pre-placed outer burial receptacles. (1) VA will reimburse the cost of outer burial receptacles that are pre-placed as part of new construction, expansion, or improvement of a cemetery that is the subject of a grant to a State or Tribal Organization under 38 U.S.C. 2408 if the grant was awarded on or after January 5, 2023. The reimbursement will be paid to the State or Tribal Organization or, if designated by the State or Tribal Organization representative, the State or Tribal veterans cemetery for which such project is being carried out, or to any other State or Tribal Organization agency or instrumentality.

(2) States and Tribal Organizations must submit a request for reimbursement of the cost of pre-placed outer burial receptacles using Standard Form 271, Outlay Report and Request for Reimbursement for Construction Programs, with supporting documentation. The Director of the Veterans Cemetery Grants Program must review and certify the request for payment. Funds paid under this section for pre-placed outer burial receptacles, as part of an approved establishment, expansion, and improvement project, shall be used solely for payment of such outer burial receptacles. As a condition for payment, the representative of the State or Tribal Organization must submit to VA an invoice reporting the cost for purchase and delivery of outer burial receptacles.

(h) Audits. A State or Tribal Organization that seeks reimbursement for the cost of outer burial receptacles under this section will be subject to inspections, audits and reports in accordance with § 39.122.

(Authority: 38 U.S.C. 2306(e))

PART 39—AID FOR THE ESTABLISHMENT, EXPANSION, AND IMPROVEMENT, OR OPERATION AND MAINTENANCE, OF VETERANS CEMETERIES

3. The authority citation for part 39 continues to read as follows:

Authority: 38 U.S.C. 101, 501, 2408, 2411, 3765.

4. Amend § 39.50 as follows:

a. Remove “preplaced liners or crypts,” from paragraph (b)(2); and

b. Add paragraph (e);

The addition reads as follows:

§ 39.50

Amount of grant.

* * * * *

(e) VA will reimburse the cost of preplaced outer burial receptacles separately in accordance with § 38.629.

* * * * *

5. Amend § 39.122 by revising paragraph (a) to read as follows:

§ 39.122

Inspections, audits, and reports.

(a) A State or Tribal Organization will allow VA inspectors and auditors to conduct inspections as necessary to ensure compliance with the provisions of this part and with provisions of § 38.629 regarding outer burial receptacles. The State or Tribal Organization will provide to VA evidence that it has met its responsibilities under the Single Audit Act of 1984.

* * * * *