[Federal Register Volume 74, Number 83 (Friday, May 1, 2009)]
[Rules and Regulations]
[Pages 20225-20227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-10022]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AN29


Headstones and Markers

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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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

[[Page 20226]]

Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420. Telephone: (202) 461-6216 (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 Sec.  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.

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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. 501(a), 2306, unless otherwise noted.


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2. Amend Sec.  38.630 by:
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a. Revising paragraphs (c)(1)(ii), (c)(1)(iii) introductory text, and 
(c)(3)(ii).

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b. Removing the authority citation that appears immediately at the end 
of paragraph (c).
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c. Revising the authority citation at the end of the section.
    The revision reads as follows:


Sec.  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)

[FR Doc. E9-10022 Filed 4-30-09; 8:45 am]
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