[Federal Register Volume 68, Number 186 (Thursday, September 25, 2003)]
[Rules and Regulations]
[Pages 55317-55319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24214]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 1

RIN 2900-AL40


Eligibility for an Appropriate Government Marker for a Grave 
Already Marked at Private Expense

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
regulations to reflect changes made by the Veterans Education and 
Benefits

[[Page 55318]]

Expansion Act of 2001 and the Veterans Benefits Act of 2002. Those 
changes allow VA to furnish an appropriate Government marker for the 
grave of an eligible veteran buried in a private cemetery, regardless 
of whether the grave is already marked with a privately purchased 
marker. Pursuant to the Veterans Benefits Act of 2002, the provisions 
of this interim final rule shall apply to requests to mark graves or 
memorialize eligible veterans whose deaths occurred on or after 
September 11, 2001.

DATES: Effective Date: September 25, 2003.
    Comment Date: VA must receive comments on or before November 24, 
2003.
    Applicability Date: The provisions of 38 CFR 1.631 apply to deaths 
occurring on or after September 11, 2001.

ADDRESSES: Mail or hand-deliver written comments to: Director, 
Regulations Management (00REG1), Department of Veterans Affairs, 810 
Vermont Avenue, NW., Room, 1068, Washington, DC 20420; or fax comments 
to (202) 273-9026; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AL40.'' All comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday 
(except holidays).

FOR FURTHER INFORMATION CONTACT: David K. Schettler, Director of 
Memorial Programs Service (MPS), National Cemetery Administration, 
Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 
20420. Telephone: (202) 501-3100 (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. In 
fiscal year 2002, NCA furnished 348,866 markers for eligible veterans' 
graves located around the world.
    The original purpose of the program, which began over 140 years 
ago, during the Civil War, was based on the principle that no veteran 
should lie in an unmarked grave. Before the Veterans Education and 
Benefits Expansion Act of 2001, Public Law 107-103, was passed, VA was 
restricted by statute from furnishing a marker for an already marked 
grave. VA considers a grave marked if there is a marker on the site 
that displays the decedent's name and dates of birth and death. Under 
prior law, families had to choose between ordering a Government or a 
private marker. As amended by Public Law 107-103, the statute now 
allows VA to furnish an appropriate Government marker to commemorate an 
individual's military service, regardless of whether the grave is 
already marked with a non-Government marker. Pursuant to the Veterans 
Benefits Act of 2002, Public Law 107-330, this expanded authority 
applies to markers for the graves of individuals who die on or after 
September 11, 2001.
    Although the statute specifies that an appropriate marker furnished 
under this authority must be placed on the veteran's grave, VA is 
interpreting this requirement broadly to accommodate ``burials'' that 
do not leave room for a second marker. For instance, when cremated 
remains are inurned in the ground or placed within a columbarium or 
similar structure, there often is no space for the placement of more 
than one marker. The current trend in burials is that cremation rates 
are rising--the Cremation Association of North America estimates that 
the cremation rate in the United States was 26 percent in 2000. This is 
an increase from 21 percent in 1996, and the Association projects that 
the cremation rate will rise to almost 40 percent by 2010.
    VA believes that Congress did not intend VA to deny a request for a 
Government marker for an eligible veteran who was cremated. Therefore, 
for those gravesites that cannot physically accommodate an additional 
marker, VA will furnish a marker under the condition that it is placed 
as close to the grave as possible within the grounds of the private 
cemetery where the grave is located.
    The law also specifies that any marker furnished under this 
authority shall be delivered directly to the cemetery where the 
veteran's grave is located. When an applicant completes an application 
(VA Form 40-1330), he or she must indicate the location of the cemetery 
where the deceased is interred, as well as the name and address of the 
person, cemetery representative or official (consignee) who will accept 
prepaid delivery of the marker. In many cases, particularly at smaller 
private cemeteries, no one is available to receive the marker. 
Currently, in these cases, the marker is delivered to a funeral home or 
mortuary, the town hall, a veterans' service office or, in some cases, 
a family member. VA will continue this practice for markers furnished 
under the new authority if delivery directly to a private cemetery is 
not possible or practicable.
    VA does not pay the cost to install a Government marker. VA has no 
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 
marker requested adheres to the policies and guidelines of the selected 
private cemetery. Lastly, VA will offer its full product line of 
marble, granite, and bronze markers to eligible applicants requesting 
benefits under this amendment.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing 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 in any given year. This rule would have no such 
effect on State, local, or tribal governments, or the private sector.

Paperwork Reduction Act

    This document does not contain new provisions constituting a 
collection of information under the Paperwork Reduction Act (44 U.S.C. 
3501-3521). The Office of Management and Budget has approved the 
existing information collection under control number 2900-0222.

Administrative Procedure Act Provisions

    Under the Veterans Education and Benefits Expansion Act of 2001 
(Pub. L. 107-103) Congress created a 5-year pilot program requiring the 
VA Secretary to furnish, under specific conditions, an appropriate 
Government marker to those families who request one for a privately 
marked grave in a private cemetery. The Veterans Benefits Act of 2002 
(Pub. L. 107-330) extended eligibility to veterans whose deaths 
occurred on or after September 11, 2001. The authority to furnish a 
marker under this statute expires on December 31, 2006. Congress 
mandated VA to submit a report not later than February 1, 2006, to the 
Senate and House Committees on Veterans' Affairs on the use of this 
authority. The report will provide the number of Government markers, by 
fiscal year, that were provided; and an assessment of markers delivered 
to cemeteries and placed on grave sites during this 5-year pilot 
program. The determination to extend or repeal this program will be 
based on the data gathered during this period. Under these 
circumstances, we have concluded that there is good cause for 
dispersing with prior notice and comment and a delayed effective date 
based on the conclusion that such procedure is impracticable,

[[Page 55319]]

unnecessary, and contrary to public interest.

Executive Order 12866

    This document has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim 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. Only individual VA beneficiaries could be directly 
affected. Therefore, pursuant to 5 U.S.C. 605(b), this interim final 
rule is exempt from the initial and final regulatory flexibility 
analyses requirements of sections 603 and 604.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program number for this 
document is 64.202.

List of Subjects in 38 CFR Part 1

    Administrative practice and procedure, Cemeteries, Veterans.

    Approved: August 4, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.


0
For the reasons set out in the preamble, 38 CFR part 1 is amended as 
set forth below:

PART 1--GENERAL PROVISIONS

0
1. The authority citation for part 1 continues to read as follows:

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


0
2. Add a new Sec.  1.631 to read as follows:


Sec.  1.631  Appropriate markers for graves already marked at private 
expense.

    (a) VA will furnish an appropriate Government marker for the grave 
of a decedent described in paragraph (b) of this section, but only if 
the individual requesting the marker certifies on VA Form 40-1330 that 
it will be placed on the grave for which it is requested or, if 
placement on the grave is impossible or impracticable, as close to the 
grave as possible within the grounds of the private cemetery where the 
grave is located.
    (b) The decedent referred to in paragraph (a) of this section is 
one who:
    (1) Died on or after September 11, 2001;
    (2) Is buried in a private cemetery; and
    (3) Was eligible for burial in a national cemetery, but is not an 
individual described in 38 U.S.C. 2402(4), (5), or (6).
    (c) VA will deliver the marker directly to the cemetery where the 
grave is located or to a receiving agent for delivery to the cemetery.
    (d) VA will not pay the cost of installing a Government marker in a 
private cemetery.
    (e) The applicant must obtain certification on VA Form 40-1330 from 
a cemetery representative that the type and placement of the marker 
requested adheres to the policies and guidelines of the selected 
private cemetery.
    (f) VA will furnish its full product line of Government markers for 
private cemeteries.
    (g) The authority to furnish a marker under this section expires on 
December 31, 2006.

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


(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
0222.)
[FR Doc. 03-24214 Filed 9-24-03; 8:45 am]
BILLING CODE 8320-01-P