[Federal Register Volume 73, Number 93 (Tuesday, May 13, 2008)]
[Rules and Regulations]
[Pages 27462-27464]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10635]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AM93


Graves Marked With a Private Headstone or Marker

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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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: (202) 501-3060 (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,

[[Page 27463]]

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.

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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

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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.


Sec.  38.631  [Amended]

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2. Amend Sec.  38.631 by:

[[Page 27464]]

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a. In paragraph (b)(1), removing ``September 11, 2001'' and adding, in 
its place, ``November 1, 1990''.
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b. Removing paragraph (g).

 [FR Doc. E8-10635 Filed 5-12-08; 8:45 am]
BILLING CODE 8320-01-P