E8-10635. Graves Marked With a Private Headstone or Marker

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending its regulations regarding the authority to provide a Government-furnished headstone or marker for placement on already marked graves of eligible veterans in private cemeteries. Pursuant to section 203 of the Dr. James Allen Veteran Vision Equity Act of 2007, Congress has authorized VA to make this provision permanent and retroactive to November 1, 1990. This final rule is necessary to incorporate a statutory amendment into VA regulations.

DATES:

Effective Date: May 13, 2008.

Applicability Date: The amendment to 38 CFR 38.631 applies to eligible veteran deaths occurring on or after November 1, 1990.

FOR FURTHER INFORMATION CONTACT:

Lindee Lenox (41A1), Director of Memorial Programs Service (MPS), 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. Since the transfer of the program to VA from the Department of the Army in 1973, VA has furnished more than 9.8 million headstones and markers. In fiscal year 2007, NCA furnished 361,115 markers for eligible veterans' graves located around the world. The original purpose of the program, which began during the Civil War, was based on the principle that no veteran should lie in an unmarked grave. From October 18, 1978, until October 31, 1990, VA paid a headstone or marker allowance to those families who purchased a private headstone or marker in lieu of obtaining a Government-furnished headstone or marker for placement on veterans' graves in private cemeteries. Families would typically use this allowance to offset the costs of installation. The allowance was eliminated November 1, 1990, with enactment of the Omnibus Budget and Reconciliation Act of 1990.

Prior to passage of the Veterans Education and Benefits Expansion Act of 2001, Public Law 107-103, VA was restricted by statute from furnishing a marker for an already marked grave. Section 502 of the Act established a 5-year pilot program that directed VA to furnish an appropriate headstone or marker for the graves of eligible veterans buried in private cemeteries, regardless of whether the grave was already-marked with a privately purchased marker. Public Law 107-103 granted this authority for graves of veterans who died on or after the date of the law's enactment, December 27, 2001. Public Law 107-330, the Veterans Benefits Act of 2002, expanded VA authority to issue a second marker for privately marked graves of eligible veterans interred in private cemeteries whose death occurred on or after September 11, 2001.

The second marker authority under Public Law 107-103 expired on December 31, 2006; however, Public Law 109-461 extended this authority through December 31, 2007. Public Law 110-157, the Dr. James Allen Veteran Vision Equity Act of 2007, rescinds the expiration date of December 31, 2007, and makes the authority permanent. It also makes the second marker benefit retroactive to November 1, 1990, and allows VA to provide a headstone or marker for the graves of individuals dying on or after that date, regardless of whether the grave is marked with a privately-purchased headstone or marker.

VA does not pay the cost to install a Government headstone or marker in a private cemetery, nor does VA have jurisdiction over policies established by private cemeteries. Therefore, the applicant must obtain certification on VA Form 40-1330 from a cemetery representative that the type and placement of the Government-furnished headstone or marker requested adheres to the policies and guidelines of the private cemetery where the grave is located.

This final rule amends 38 CFR 38.631 to make it consistent with the amended statute.

Administrative Procedure Act

Because this amendment merely reflects a statutory change, 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 new provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). The Office of Management and Budget (OMB) previously approved all collections of information referenced in this final rule under control number 2900-0222. We cannot estimate at this time the additional number of claims that would be generated by the retroactive applicability date, but we will consider this based on experience when the control number comes up for renewal on October 31, 2010.

Executive Order 12866

Executive Order 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). The Executive Order classifies a “significant regulatory action,” requiring review by the Office of Management and Budget 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.

The economic, interagency, budgetary, legal, and policy implications of this final rule have been examined and it has been determined not to be a significant regulatory action under the Executive Order because it is unlikely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in 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. This final rule would not affect any small entities. Only individual VA beneficiaries would be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is also exempt from the 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, or 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, or tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers

The Catalog of Federal Domestic Assistance program number and title for this final rule is 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: May 2, 2008.

Gordon H. Mansfield,

Deputy Secretary 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. 107, 501, 512, chapter 24, 7105, and as noted in specific sections.

§ 38.631

[Amended]

2. Amend § 38.631 by:

a. In paragraph (b)(1), removing “September 11, 2001” and adding, in its place, “November 1, 1990”.

b. Removing paragraph (g).