Federal Register, Volume 77 Issue 19 (Monday, January 30, 2012)

[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Rules and Regulations]
[Pages 4471-4479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1874]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 39

RIN 2900-AN90

Tribal Veterans Cemetery Grants

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule amends the Department of Veterans Affairs (VA)
regulations governing Federal grants for the establishment, expansion,
and improvement of veterans cemeteries. This final rule implements
through regulation new statutory authority to provide grants for the
establishment, expansion, and improvement of Tribal Organization
veterans cemeteries, as authorized by Section 403 of the ``Veterans
Benefits, Health Care, and Information Technology Act of 2006'' (the
Act). The Act requires VA to administer grants to Tribal Organizations
in the same manner and under the same conditions as grants to States.
This final rule makes non-substantive changes to the part heading of
Part 39 and the name of the State Cemetery Grants Service to more
accurately reflect that VA awards veteran cemetery grants to States and
Tribal Organizations. The final rule establishes criteria to guide VA's
decisions on granting Tribal Organization requests to obtain grants for
establishing, expanding, and improving veterans cemeteries that are or
will be owned and operated by a Tribal Organization. The final rule
also expands VA's preapplication requirement to all veterans cemetery
grants as a means to promote consistency and communication in the grant
application process. Further, the final rule revises VA regulations to
address structural differences between Tribal Organizations and States.

DATES: Effective Date: February 29, 2012. The incorporation by
reference of certain publications listed in the rule was approved by
the Director of the Federal Register as of July 16, 2010.

FOR FURTHER INFORMATION CONTACT: Contact Frank Salvas, Director of
Veterans Cemetery Grants Service, National Cemetery Administration
(41E), Department of Veterans Affairs, 810 Vermont Avenue NW.,
Washington, DC 20420. Telephone: (202) 249-7396 (this is not a toll-
free number).

SUPPLEMENTARY INFORMATION: On May 19, 2011, VA published a notice of
proposed rulemaking in the Federal Register (76 FR 28925), that
proposed to amend regulations in 38 CFR part 39 governing Federal
grants for the establishment, expansion, and improvement of veterans
cemeteries and to implement through regulation new statutory authority
to award grants to Tribal Organizations in the same manner and under
the same conditions as awarded to States, as authorized by the Act
(Pub. L. 109-461), enacted December 22, 2006. VA provided a 60-day
comment period for the proposed rule that ended on July 18, 2011.
We received one comment which supported providing cemetery grants
to Tribal Organizations in the same manner VA currently provides grants
to States. The comment indicated that the process for Tribal
Organizations to qualify for a grant should be no different than the
process that States are currently required to follow. No change is
required in the final rule to address this comment. As specified in the
Act, grants to Tribal Organizations ``shall be made in the same manner,
and under the same conditions, as grants to States.'' Public Law 109-
461, Sec. 403. Accordingly, Tribal Organization grants will be awarded
in the same manner as VA currently provides grants to the States. The
final rule adheres as closely as possible to the procedures and
requirements for States to apply for cemetery grants. The final rule
does not change the existing grant prioritization process and retains
the same four priority groups as the current Part 39. Thus, in
accordance with 38 U.S.C. 2408, Tribal Organizations will compete with
States in the prioritization process. We note that since the
publication of the proposed rule, the Veterans Cemetery Grants Service
(VCGS) has awarded its first Veterans cemetery grant to a Tribal
Organization for the establishment of a Tribal veterans cemetery.
Based on the rationale set forth in the proposed rule, and upon
consideration of the public comment submission, we adopt the provisions
of the proposed rule as a final rule, with minor non-substantive edits
to the rule text to accurately reflect the wording and punctuation in
the current 38 CFR part 39.

Executive Orders 12866 and 13563

Executive Orders 12866 and 13563 direct 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 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by the Office
of Management and Budget (OMB), 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

[[Page 4472]]

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 this Executive Order.''
The economic, interagency, budgetary, legal, and policy
implications of this regulatory action have been examined and it has
been determined not to be a significant regulatory action under
Executive Order 12866.

Executive Order 13175

Executive Order 13175 provides that Federal agencies may not issue
a regulation that has Tribal implications, that imposes substantial
direct compliance costs on Tribal governments, and that is not required
by statute, unless the Federal government provides the funds necessary
to pay the direct compliance costs incurred by the Tribal Organizations
or the Federal agency consults with Tribal officials early in the
process of developing the proposed regulation and develops a Tribal
summary impact statement. VA's cemetery grant program for Tribal
Organizations is required by statute, which specifically provides that
the grants shall be ``made in the same manner, and under the same
conditions, as grants to States are made''. In addition, participation
is voluntary and 100 percent of the development costs for an approved
project are provided by VA. Thus, Executive Order 13175 requirements
are not applicable. However, in the spirit of the Executive Order, VA
has communicated with the Tribal Organizations regarding the proposed
regulatory grant application process. On January 28, 2008, an
informational letter was sent to each of the Federally-recognized
Indian Tribes informing them that ``American Indian Tribal grants will
be considered in the same manner as State veterans cemetery grants
under the authority of title 38 Code of Federal Regulations (CFR) Part
39.'' Further, on February 22, 2008, a conference call took place
between senior VA officials and representatives designated by Tribal
leadership of Federally-recognized Tribes to discuss the grant
application process. Senior NCA officials and representatives continue
to meet with and communicate with Tribal Organizations that are
interested in the grant program.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule has no
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 final rule may affect some
Tribal governments that may be considered small entities; however, the
economic impact is not significant. This final rule imposes no
mandatory requirements or costs on Tribal governments as a whole and
only affects those that choose to apply for veterans cemetery grants.
To the extent that small entities are affected, the impact of this
amendment is both minimal and entirely beneficial. Therefore, pursuant
to 5 U.S.C. 605(b), this final rule is exempt from 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, or Tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any year. This final rule would have no such effect on
State and local governments, or on the private sector. While the final
rule may result in some expenditure by Tribal governments, the
aggregate amount of such expenditures is estimated to be significantly
less than $100 million.

Paperwork Reduction Act

This final rule requires Tribal Organizations to submit information
to obtain grants under VA's Veterans Cemetery Grants Service. The
collections of information referenced in this final rule have been
approved by OMB and have been assigned OMB control numbers 0348-0002,
4040-0004, 4040-0008, 4040-0009, and 2900-0559 in accordance with the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Catalog of Federal Domestic Assistance Number and Title

The Catalog of Federal Domestic Assistance program number and title
for this final rule is 64.203, State Cemetery Grants.

Signing Authority

The Secretary of Veterans Affairs, or designee, approved this
document 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. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on December 20, 2011, for publication.

List of Subjects in 38 CFR Part 39

Cemeteries, Incorporation by reference, Grants programs--Veterans,
Veterans.

Dated: January 24, 2012.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.

For the reasons set out in the preamble, VA amends 38 CFR part 39
as follows:

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

0
1. The authority citation for part 39 is revised to read as follows:

Authority: 25 U.S.C. 450b(l); 38 U.S.C. 101, 501, 2408, 2411,
3765.

0
2. Revise part 39 heading as shown above.

0
3. Revise Sec. 39.1 to read as follows:

Sec. 39.1 Purpose.

This part sets forth the mechanism for a State or Tribal
Organization to obtain a grant to establish, expand, or improve a
veterans cemetery that meets VA's national shrine standards of
appearance that is or will be owned by the State, or operated by a
Tribal Organization on trust land, or to obtain a grant to operate or
maintain a State or Tribal veterans cemetery to meet VA's national
shrine standards of appearance.

(Authority: 38 U.S.C. 501, 2408)

0
4. Revise Sec. 39.2 to read as follows:

Sec. 39.2 Definitions.

For the purpose of this part:
Establishment means the process of site selection, land
acquisition, design and planning, earth moving, landscaping,
construction, and provision of initial operating equipment necessary to
convert a tract of land to an operational veterans cemetery.
Establishment, Expansion, and Improvement Project means an
undertaking to establish, expand, or improve a site for use as a State
or Tribal veterans cemetery.
Expansion means an increase in the burial capacity or acreage of an
existing cemetery through the addition of gravesites and other
facilities, such as committal service shelters, crypts (preplaced grave
liners), and columbaria, necessary for the functioning of a cemetery.
Improvement means the enhancement of a cemetery through
landscaping, construction, or renovation of cemetery

[[Page 4473]]

infrastructure, such as building expansion and upgrades to roads and
irrigation systems that is not directly related to the development of
new gravesites: nonrecurring maintenance; and the addition of other
features appropriate to cemeteries.
Indian Tribe means any Indian tribe, band, nation, or other
organized group or community, including any Alaska Native village or
Regional or Village Corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act, which is recognized as
eligible for the special programs and services provided by the United
States to Indians because of their status as Indians.
Operation and Maintenance Project means a project that assists a
State or Tribal Organization to achieve VA's national shrine standards
of appearance in the key cemetery operational areas of cleanliness,
height and alignment of headstones and markers, leveling of gravesites,
and turf conditions.
Secretary means the Secretary of the United States Department of
Veterans Affairs.
State means each of the States, Territories, and possessions of the
United States, the District of Columbia, and the Commonwealth of Puerto
Rico.
Tribal Organization means:
(1) The recognized governing body of any Indian Tribe;
(2) Any legally established organization of Indians that is
controlled, sanctioned, or chartered by such governing body or is
democratically elected by the adult members of the Indian community to
be served by such organization and which includes the maximum
participation of Indians in all phases of its activities;
(3) The Department of Hawaiian Homelands; and
(4) Such other organizations as the Secretary may prescribe.
Trust land means any land that:
(1) Is held in trust by the United States for Native Americans;
(2) Is subject to restrictions on alienation imposed by the United
States on Indian lands, including native Hawaiian homelands;
(3) Is owned by a Regional Corporation or a Village Corporation as
defined in 43 U.S.C. 1602(g) and (j); or
(4) Is on any island in the Pacific Ocean if such land is, by
cultural tradition, communally-owned land, as determined by the
Secretary.
VA means the United States Department of Veterans Affairs or the
Veterans Cemetery Grants Service.
Veteran means a person who served in the active military, naval, or
air service who died in line of duty while in service or was discharged
or released under conditions other than dishonorable.
Veterans Cemetery Grants Service (VCGS) means the Veterans Cemetery
Grants Service within VA's National Cemetery Administration.

(Authority: 25 U.S.C. 450b(l), 38 U.S.C. 101, 501, 2408, 3765)

0
5. Revise Sec. 39.4 to read as follows:

Sec. 39.4 Decision makers, notifications, and additional information.

Decisions required under this part will be made by the VA Director,
Veterans Cemetery Grants Service (VCGS), National Cemetery
Administration, unless otherwise specified in this part. The VA
decisionmaker will provide to affected States and Tribal Organizations
written notice of approvals, denials, or requests for additional
information under this part.

(Authority: 38 U.S.C. 501, 2408)

0
6. Revise Sec. 39.5 to read as follows:

Sec. 39.5 Submission of information and documents to VA.

All information and documents required to be submitted to VA must
be submitted to the Director of the Veterans Cemetery Grants Service,
National Cemetery Administration, Department of Veterans Affairs, 810
Vermont Avenue NW., Washington, DC 20420. All forms cited in this part
are available at http://www.cem.va.gov/cem/scg_grants.asp.

(Authority: 38 U.S.C. 501, 2408)

0
7. Revise Sec. 39.6 to read as follows:

Sec. 39.6 Amendments to grant application.

A State or Tribal Organization seeking to amend a grant application
must submit revised Standard Forms 424 (Application for Federal
Assistance) and 424C (Budget Information) with a narrative description
of, and justification for, the amendment. Any amendment of an
application that changes the scope of the application or increases the
amount of the grant requested, whether or not the application has
already been approved, shall be subject to approval by VA in the same
manner as an original application.

(Authority: 38 U.S.C. 501, 2408)

(The Office of Management and Budget has approved the
information collection requirements in this section under control
numbers 4040-0004 and 4040-0008.)

0
8. Revise Sec. 39.7 to read as follows:

Sec. 39.7 Line item adjustment to grants.

After a grant has been awarded, upon request from the State or
Tribal Organization representative, VA may approve a change in one or
more line items (line items are identified in Standard Form 424C) of up
to 10 percent (increase or decrease) of the cost of each line item if
the change would be within the scope or objective of the project and
the aggregate adjustments would not increase the total amount of the
grant.

(Authority: 38 U.S.C. 501, 2408)

0
9. Revise Sec. 39.8 to read as follows:

Sec. 39.8 Withdrawal of grant application.

A State or Tribal Organization representative may withdraw an
application by submitting to VA a written document requesting
withdrawal.

(Authority: 38 U.S.C. 501, 2408)

0
10. Amend Sec. 39.10 by:
0
a. Revising paragraph (a).
0
b. Revising paragraph (b) introductory text.
0
c. Revising paragraphs (c) and (d).
The revisions read as follows:

Sec. 39.10 Cemetery requirements and prohibitions and recapture
provisions.

(a) In order to qualify for a grant, a State or Tribal veterans
cemetery must be operated solely for the interment of veterans, their
spouses, surviving spouses, minor children, unmarried adult children
who were physically or mentally disabled and incapable of self-support,
and eligible parents of certain deceased service members.
(b) Any grant under this part made on or after November 21, 1997,
is made on the condition that, after the date of receipt of the grant,
the State or Tribal Organization receiving the grant, subject to
requirements for receipt of notice in 38 U.S.C. 2408 and 2411, will
prohibit in the cemetery for which the grant is awarded the interment
of the remains or the memorialization of any person:
* * * * *
(c) If a State or Tribal Organization which has received a grant
under this part ceases to own the cemetery for which the grant was
made, ceases to operate such cemetery as a veterans cemetery in
accordance with paragraph (a) of this section, violates the prohibition
in paragraph (b) of this section, or uses any part of the funds
provided through such grant for a purpose other than that for which the
grant was made, the United States shall be entitled to recover from the
State or Tribal Organization the total of all grants made to the State
or Tribal Organization under this part in connection with such
cemetery.
(d) If, within 3 years after VA has certified to the Department of
the Treasury an approved grant application,

[[Page 4474]]

not all funds from the grant have been used by the State or Tribal
Organization for the purpose for which the grant was made, the United
States shall be entitled to recover any unused grant funds from the
State or Tribal Organization.
* * * * *

0
11. Revise Sec. 39.11 to read as follows:

Sec. 39.11 State or Tribal Organization to retain control of
operations.

Neither the Secretary nor any employee of VA shall exercise any
supervision or control over the administration, personnel, maintenance,
or operation of any State or Tribal veterans cemetery that receives a
grant under this program except as prescribed in this part.

(Authority: 38 U.S.C. 501, 2408)

Sec. Sec. 39.12 through 39.29 [Reserved]

0
12. Add and reserve Sec. Sec. 39.12 through 39.29 in subpart A.

0
13. In Sec. 39.30, revise paragraphs (a) introductory text and (a)(4)
to read as follows:

Sec. 39.30 General requirements for a grant.

(a) For a State or Tribal Organization to obtain a grant for the
establishment, expansion, or improvement of a State or Tribal veterans
cemetery:
* * * * *
(4) The State or Tribal Organization must meet the application
requirements in Sec. 39.34; and
* * * * *

0
14. Amend Sec. 39.31 by:
0
a. Revising paragraph (a).
0
b. Revising paragraphs (b) introductory text, (b)(5), (6), and (8).
0
c. Revising paragraphs (c) introductory text and (c)(2) through (7).

0
d. Revising paragraphs (d) and (e).
0
e. Revising the authority citation at the end of the section.
The revisions read as follows:

Sec. 39.31 Preapplication requirements.

(a) A State or Tribal Organization seeking a grant for the
establishment, expansion, or improvement of a State or Tribal veterans
cemetery must submit a preapplication to the Director, Veterans
Cemetery Grants Service, through http://www.cem.va.gov/cem/scg_grants.asp.
(b) No detailed drawings, plans, or specifications are required
with the preapplication. As a part of the preapplication, the State or
Tribal Organization must submit each of the following:
* * * * *
(5) Any comments or recommendations made by the State's or Tribal
Organization's ``Single Point of Contact'' reviewing agency.
(6) VA Form 40-0895-2 (Certification of Compliance with Provisions
of the Davis-Bacon Act) to certify that the State or Tribal
Organization has obtained the latest prevailing wage rates for
Federally funded projects. Any construction project fully or partially
funded with Federal dollars must comply with those rates for specific
work by trade employees (e.g., electricians, carpenters).
* * * * *
(8) VA Form 40-0895-6 (Certification of State or Tribal Government
Matching Architectural and Engineering Funds to Qualify for Group 1 on
the Priority List) to provide documentation that the State or Tribal
Organization has authority to support the project and the resources
necessary to initially fund the architectural and engineering portion
of the project development. Once the grant is awarded, VA will
reimburse the applicant for all allowable architectural and engineering
costs.
* * * * *
(c) In addition, the State or Tribal Organization must submit
written assurance of each of the following conditions:
* * * * *
(2) Title to the site is or will be vested solely in the State or
held in trust for the Tribal Organization on trust land.
(3) The State or Tribal Organization possesses legal authority to
apply for the grant and to finance and construct the proposed
facilities; i.e., legislation or similar action has been duly adopted
or passed as an official act of the applicant's governing body,
authorizing the filing of the application, including all understandings
and assurances contained therein, and directing and authorizing the
person identified as the official representative of the State or Tribal
Organization to act in connection with the application and to provide
such additional information as may be required.

Note to paragraph (c)(3): In any case where a Tribal
Organization is applying for a grant for a cemetery on land held in
trust for more than one Indian Tribe, written assurance that the
Tribal Organization possesses legal authority to apply for the grant
includes certification that the Tribal Organization has obtained the
approval of each such Indian Tribe.

(4) The State or Tribal Organization will assist VA in assuring
that the grant complies with section 106 of the National Historic
Preservation Act of 1966, as amended (16 U.S.C. 470), Executive Order
11593 (identification and protection of historic properties), and the
Archaeological and Historic Preservation Act of 1974 (16 U.S.C. 469a-1
et seq.).
(5) The State or Tribal Organization will obtain approval by VA of
the final construction drawings and specifications before the project
is advertised or placed on the market for bidding; it will construct
the project, or cause the project to be constructed, to completion in
accordance with the application and approved plans and specifications;
it will submit to the Director of the Veterans Cemetery Grants Service,
for prior approval, changes that alter any cost of the project, use of
space, or functional layout; and it will not enter into a construction
contract for the project or undertake other activities until the
requirements of the grant program have been met.
(6) The State or Tribal Organization will comply with the Federal
requirements in 2 CFR parts 180 and 801 and 38 CFR part 43 and submit
Standard Form 424D (Assurances--Construction Programs).
(7) The State or Tribal Organization will prepare an Environmental
Assessment to determine whether an Environmental Impact Statement is
necessary, and certify that funds are available to finance any costs
related to preparation of the Environmental Assessment.
(d) The State or Tribal Organization must submit a copy of the
State or Tribal Organization action authorizing the establishment,
maintenance, and operation of the facility as a veterans cemetery in
accordance with 38 CFR 39.10(a). If the State or Tribal Organization
action is based on legislation, enacted into law, then the legislation
must be submitted.
(e) Upon receipt of a complete preapplication for a grant,
including all necessary assurances and all required supporting
documentation, VA will determine whether the preapplication conforms to
all requirements listed in paragraphs (a) through (d) of this section,
including whether it contains sufficient information necessary to
establish the project's priority. VA will notify the State or Tribal
Organization of any nonconformity. If the preapplication does conform,
VA shall notify the State or Tribal Organization that the
preapplication has been found to meet the preapplication requirements,
and the proposed project will be included in the next scheduled ranking
of projects, as indicated in Sec. 39.3(d).

[[Page 4475]]

(Authority: 25 U.S.C. 450b(l); 38 U.S.C. 501, 2408, 2411)

* * * * *

0
15. Amend Sec. 39.32 by:
0
a. Revising the introductory text.
0
b. Revising paragraph (a).
0
c. Revising paragraphs (b) introductory text, (b)(1) introductory text,
and (b)(2) introductory text.
0
d. Revising paragraph (c).
0
e. Revising paragraph (d) introductory text.
0
f. Revising paragraphs (e) introductory text, (e)(1) through (3),
(e)(4) introductory text, (e)(5), (e)(6) introductory text, (e)(7)
introductory text, and (e)(9).
The revisions read as follows:

Sec. 39.32 Plan preparation.

The State or Tribal Organization must prepare Establishment,
Expansion, and Improvement Project plans and specifications in
accordance with the requirements of this section for review by the
VCGS. The plans and specifications must be approved by the VCGS prior
to the State's or Tribal Organization's solicitation for construction
bids. Once the VCGS approves the plans and specifications, the State or
Tribal Organization must obtain construction bids and determine the
successful bidder prior to submission of the application. The State or
Tribal Organization must establish procedures for determining that
costs are reasonable and necessary and can be allocated in accordance
with the provisions of Office of Management and Budget (OMB) Circular
No. A-87. Once the Establishment, Expansion, and Improvement Project
preapplication and the project's plans and specifications have been
approved, an application for assistance must be submitted in compliance
with the uniform requirements for grants-in-aid to State and local
governments prescribed by OMB Circular No. A-102, Revised.
(a) General. These requirements have been established for the
guidance of the State or Tribal Organization and the design team to
provide a standard for preparation of drawings, specifications, and
estimates.
(b) Technical requirements. The State or Tribal Organization should
meet these technical requirements as soon as possible after VA approves
the Establishment, Expansion, and Improvement Project preapplication.
(1) Boundary and site survey. The State or Tribal Organization
shall provide a survey of the site and furnish a legal description of
the site. A boundary and site survey need not be submitted if one was
submitted for a previously approved project and there have been no
changes. Relevant information may then be shown on the site plan. If
required, the site survey shall show each of the following items:
* * * * *
(2) Soil investigation. The State or Tribal Organization shall
provide a soil investigation of the scope necessary to ascertain site
characteristics for construction and burial or to determine foundation
requirements and utility service connections. A new soil investigation
is not required if one was done for a previously approved project on
the same site and information from the previous investigation is
adequate and unchanged. Soil investigation, when done, shall be
documented in a signed report. The investigation shall be adequate to
determine the subsoil conditions. The investigation shall include a
sufficient number of test pits or test borings as will determine, in
the judgment of the architect, the true conditions. The following
information will be covered in the report:
* * * * *
(c) Master plan. A master plan showing the proposed layout of all
facilities--including buildings, roadways, and burial sections--on the
selected site shall be prepared for all new cemetery establishment
projects for approval by the VCGS. If the project is to be phased into
different year programs, the phasing shall be indicated. The master
plan shall analyze all factors affecting the design, including climate,
soil conditions, site boundaries, topography, views, hydrology,
environmental constraints, transportation access, etc. It should
provide a discussion of alternate designs that were considered. In the
case of an expansion project or improvement project, the work
contemplated should be consistent with the VA-approved master plan or a
justification for the deviation should be provided.
(d) Preliminary or ``design development'' drawings. Following VA
approval of the master plan, the State or Tribal Organization must
submit design development drawings that show all current phase
construction elements to be funded by the grant. The drawings must
comply with the following requirements:
* * * * *
(e) Final construction drawings and specifications. Funds for the
construction of any project being assisted under this program will not
be released until VA approves the final construction drawings and
specifications. If VA approves them, VA shall send the State or Tribal
Organization a written letter of approval indicating that the project's
plans and specifications comply with the terms and conditions as
prescribed by VA. This does not constitute approval of the contract
documents. It is the responsibility of the State or Tribal Organization
to ascertain that all State and Federal requirements have been met and
that the drawings and specifications are acceptable for bid purposes.
(1) General. The State or Tribal Organization shall prepare final
working drawings so that clear and distinct prints may be obtained.
These drawings must be accurately dimensioned to include all necessary
explanatory notes, schedules, and legends. Working drawings shall be
complete and adequate for VA review and comment. The State or Tribal
Organization shall prepare separate drawings for each of the following
types of work: Architectural, equipment, layout, structural, heating
and ventilating, plumbing, and electrical.
(2) Architectural drawings. The State or Tribal Organization shall
submit drawings which include: All structures and other work to be
removed; all floor plans if any new work is involved; all elevations
which are affected by the alterations; building sections; demolition
drawings; all details to complete the proposed work and finish
schedules; and fully dimensioned floor plans at \1/8\'' or \1/4\''
scale.
(3) Equipment drawings. The State or Tribal Organization shall
submit a list of all equipment to be provided under terms of the grant
in the case of an Establishment Project. Large-scale drawings of
typical special rooms indicating all fixed equipment and major items of
furniture and moveable equipment shall be included.
(4) Layout drawings. The State or Tribal Organization shall submit
a layout plan that shows:
* * * * *
(5) Structural drawings. The State or Tribal Organization shall
submit complete foundation and framing plans and details, with general
notes to include: Governing code, material strengths, live loads, wind
loads, foundation design values, and seismic zone.
(6) Mechanical drawings. The State or Tribal Organization shall
submit:
* * * * *
(7) Electrical drawings. The State or Tribal Organization shall
submit separate drawings for lighting and power, including drawings of:
* * * * *
(9) Cost estimates. The State or Tribal Organization shall show in
convenient form and detail the estimated total cost

[[Page 4476]]

of the work to be performed under the contract, including provisions of
fixed equipment shown by the plans and specifications, if applicable,
to reflect the changes of the approved financial plan. Estimates shall
be summarized and totaled under each trade or type of work. Estimates
shall also be provided for each building structure and other important
features such as the assembly area and shall include burial facilities.
* * * * *

0
16. Revise Sec. 39.33 to read as follows:

Sec. 39.33 Conferences.

(a) Predesign conference. A predesign conference is required for
all Establishment, Expansion, and Improvement Projects requiring major
construction, primarily to ensure that the State or Tribal Organization
becomes oriented to VA procedures, requirements, and any technical
comments pertaining to the project. This conference will take place at
an appropriate location near the proposed site and should include a
site visit to ensure that all parties to the process, including NCA
staff, are familiar with the site and its characteristics.
(b) Additional conferences. At any time, VA may recommend an
additional conference (such as a design development conference) be held
in VA Central Office in Washington, DC, to provide an opportunity for
the State or Tribal Organization and its architects to discuss with VA
officials the requirements for a grant.

(Authority: 38 U.S.C. 501, 2408)

0
17. In Sec. 39.34, revise paragraphs (a) introductory text, (b)
introductory text, and (c) to read as follows:

Sec. 39.34 Application requirements.

(a) For an Establishment, Expansion, and Improvement Project to be
considered for grant funding under this subpart, the State or Tribal
Organization must submit an application (as opposed to a
preapplication) consisting of the following:
* * * * *
(b) Prior to submission of the application, the State or Tribal
Organization must submit a copy of an Environmental Assessment to
determine if an Environmental Impact Statement is necessary for
compliance with section 102(2)(C) of the National Environmental Policy
Act of 1969, as amended (42 U.S.C. 4332). The Environmental Assessment
must briefly describe the project's possible beneficial and harmful
effects on the following impact categories:
* * * * *
(c) If an adverse environmental impact is anticipated, the State or
Tribal Organization must explain what action will be taken to minimize
the impact. The assessment shall comply with the requirements of the
National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
et seq.).
* * * * *

Sec. Sec. 39.36 through 39.49 [Reserved]

0
18. Add and reserve Sec. Sec. 39.36 through 39.49 in subpart B.
0
19. In Sec. 39.50, revise paragraphs (b)(3) and (b)(4) introductory
text to read as follows:

Sec. 39.50 Amount of grant.

* * * * *
(b) * * *
(3) In the case of an establishment grant, the cost of equipment
necessary for the operation of the State or Tribal veterans cemetery.
This may include the cost of non-fixed equipment such as grounds
maintenance equipment, burial equipment, and office equipment.
(4) In the case of an improvement or expansion grant, the cost of
equipment necessary for operation of the State or Tribal veterans
cemetery, but only if such equipment:
* * * * *

0
20. In Sec. 39.51, revise the introductory text and paragraph (d) to
read as follows:

Sec. 39.51 Payment of grant award.

The amount of an Establishment, Expansion, and Improvement Project
grant award 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. Such amount shall be paid by way of reimbursement and
in installments that are consistent with the progress of the project,
as the Director of the Veterans Cemetery Grants Service may determine
and certify for payment to the appropriate Federal institution. Funds
paid under this section for an approved Establishment, Expansion, and
Improvement Project shall be used solely for carrying out such project
as approved. As a condition for the final payment, the representative
of the State or Tribal Organization must submit to VA the following:
* * * * *
(d) Evidence that the State or Tribal Organization has met its
responsibility for an audit under the Single Audit Act of 1984 (31
U.S.C. 7501 et seq.) and Sec. 39.122, if applicable.
* * * * *

Sec. Sec. 39.52 through 39.59 [Reserved]

0
21. Add and reserve Sec. Sec. 39.52 through 39.59 in subpart B.
0
22. Revise Sec. 39.60(a) to read as follows:

Sec. 39.60 General requirements for site selection and construction
of veterans cemeteries.

(a) The various codes, requirements, and recommendations of State
or Tribal Organization and local authorities or technical and
professional organizations, to the extent and manner in which those
codes, requirements, and recommendations are referenced in this
subpart, are applicable to grants involving construction of veterans
cemeteries. Additional information concerning these codes,
requirements, and recommendations may be obtained from VA, National
Cemetery Administration, 810 Vermont Avenue NW., Washington, DC 20420.
* * * * *

0
23. Revise Sec. 39.63 introductory text to read as follows:

Sec. 39.63 Architectural design standards.

The publications listed in this section are incorporated by
reference. The Director of the Federal Register approves this
incorporation by reference in accordance with 5 U.S.C. 522(a) and 1 CFR
part 51. Copies of these publications may be inspected at the office of
the Veterans Cemetery Grants Service, National Cemetery Administration,
Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC
20420 or at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call
(202) 741-6030 or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Copies of the 2003
edition of the National Fire Protection Association Life Safety Code
and Errata (NFPA 101), the 2003 edition of the NFPA 5000, Building
Construction and Safety Code, and the 2002 edition of the National
Electrical Code, NFPA 70, may be obtained from the National Fire
Protection Association, Inc. (NFPA), 1 Batterymarch Park, P.O. Box
9101, Quincy, MA 02269-9101, (800) 844-6058 (toll free). Copies of the
2003 edition of the Uniform Mechanical Code and the 2003 edition of the
Uniform Plumbing Code may be obtained from the International
Association of Plumbing and Mechanical Officials,

[[Page 4477]]

5001 E. Philadelphia Street, Ontario, CA 91761-2816. (909) 472-4100
(this is not a toll-free number). The 2002 and 2003 NFPA and IAPMO code
publications can be inspected at VA by calling (202) 461-4902 for an
appointment.
* * * * *

Sec. Sec. 39.64 through 39.79 [Reserved]

0
24. Add and reserve Sec. Sec. 39.64 through 39.79 in subpart B.

0
25. In Sec. 39.80, revise paragraphs (a) introductory text and (a)(4)
to read as follows:

Sec. 39.80 General requirements for a grant.

(a) For a State or Tribal Organization to obtain a grant for the
operation or maintenance of a State or Tribal veterans cemetery:
* * * * *
(4) The State or Tribal Organization must meet the application
requirements in Sec. 39.84; and
* * * * *

0
26. Amend Sec. 39.81 by:
0
a. Revising paragraph (a).
0
b. Revising paragraphs (b) introductory text, (b)(1) through (3),
(b)(9), (b)(10) introductory text, and (b)(11).
0
c. Revising paragraph (c).
0
d. Revising paragraph (d) introductory text.
0
e. Revising paragraph (e).
0
f. Revising the authority citation at the end of the section.
The revisions read as follows:

Sec. 39.81 Preapplication requirements.

(a) A State or Tribal Organization seeking a grant for the
operation or maintenance of a State or Tribal veterans cemetery must
submit a preapplication to the Director, Veterans Cemetery Grants
Service, through http://www.cem.va.gov/cem/scg_grants.asp.
(b) No detailed drawings, plans, or specifications are required
with the preapplication. As a part of the preapplication, the State or
Tribal Organization must submit each of the following:
(1) Standard Form 424 (Application for Federal Assistance) and
Standard Form 424C (Budget Information) signed by the authorized
representative of the State or Tribal Organization. These forms
document the amount of the grant requested, which may not exceed 100
percent of the estimated cost of the project to be funded with the
grant.
(2) VA Form 40-0895-2 (Certification of Compliance with Provisions
of the Davis-Bacon Act) to certify that the State or Tribal
Organization has obtained the latest prevailing wage rates for
Federally funded projects. Any construction project fully or partially
funded with Federal dollars must comply with those rates for specific
work by trade employees (e.g., electricians, carpenters).
(3) VA Form 40-0895-6 (Certification of State or Tribal Government
Matching Architectural and Engineering Funds to Qualify for Group 1 on
the Priority List) to provide documentation that the State or Tribal
Organization has legal authority to support the project and the
resources necessary to initially fund the architectural and engineering
portion of the project development. Once the grant is awarded, VA will
reimburse the applicant for all allowable architectural and engineering
costs.
* * * * *
(9) A gravesite assessment survey documenting the State or Tribal
cemetery's performance related to the standards outlined in paragraph
(b)(10) of this section for the year in which the preapplication is
submitted.
(10) A program narrative describing how the project will assist the
State or Tribal Organization in meeting VA's national shrine standards
with respect to cleanliness, height and alignment of headstones and
markers, leveling of gravesites, or turf conditions. Specifically, the
preapplication should explain the need for the grant, how the work is
to be accomplished, and the expected improvement in the State or Tribal
cemetery's performance related to one or more of the following national
shrine standards:
* * * * *
(11) A description of the geographic location of the existing State
or Tribal veteran cemetery and any other supporting documentation, as
requested by the VCGS Director.
* * * * *
(c) In addition, the State or Tribal Organization must submit
written assurance of each of the following conditions:
(1) Any cemetery in receipt of a grant under this subpart will be
used exclusively for the interment or memorialization of eligible
persons, as set forth in Sec. 39.10(a), whose interment or
memorialization is not contrary to the conditions of the grant (see
Sec. 39.10(b) and 38 U.S.C. 2408(d) and 2411).
(2) Title to the site is or will be vested solely in the State or
held in trust for the Tribal Organization on trust land.
(3) The State or Tribal Organization possesses legal authority to
apply for the grant.

(4) The State or Tribal Organization will obtain approval by VA of
the final specifications before the project is advertised or placed on
the market for bidding; the project will achieve VA's national shrine
standards with respect to cleanliness, height and alignment of
headstones and markers, leveling of gravesites, or turf conditions in
accordance with the application and approved plans and specifications;
the State or Tribal Organization will submit to the Director of the
Veterans Cemetery Grants Service, for prior approval, changes that
alter any cost of the project; and the State or Tribal Organization
will not enter into a contract for the project or undertake other
activities until all the requirements of the grant program have been
met.
(d) Depending on the scope of the project, the VCGS will work with
the State or Tribal Organization to determine which, if any, of the
following are required:
* * * * *
(e) Upon receipt of a complete preapplication for a grant,
including all necessary assurances and all required supporting
documentation, VA will determine whether the preapplication conforms to
all requirements listed in paragraphs (a) through (d) of this section,
including whether it contains sufficient information necessary to
establish the project's priority. VA will notify the State or Tribal
Organization of any nonconformity. If the preapplication does conform,
VA shall notify the State or Tribal Organization that the
preapplication has been found to meet the preapplication requirements,
and the proposed project will be included in the next scheduled ranking
of projects, as indicated in Sec. 39.3(d).

(Authority: 25 U.S.C. 450b(l); 38 U.S.C. 501, 2408, 2411)

* * * * *

0
27. Amend Sec. 39.82 by
0
a. Revising paragraphs (a) introductory text and (a)(3).
0
b. Revising paragraphs (b) introductory text and (b)(1).
0
c. Revising paragraph (c).
The revisions read as follows:

Sec. 39.82 Plan preparation.

(a) The State or Tribal Organization must successfully complete its
plan preparation under this section before

[[Page 4478]]

submitting a grant application for an Operation and Maintenance
Project. The State or Tribal Organization may be required to undertake
some or all of the following requirements of this section. After
submitting all necessary plans and specifications to the VCGS and
obtaining approval for the State or Tribal Organization to solicit for
the Operation and Maintenance Project contract bids, the State or
Tribal Organization shall:
* * * * *
(3) Comply with the uniform requirements for grants-in-aid to
State, Tribal and local governments prescribed by OMB Circular No. A-
102, Revised.
(b) Depending on the scope of the project, the VCGS will work with
the State or Tribal Organization to determine which of the following
will be required prior to submission of an application. As determined
by VA, these may include:
(1) A boundary and site survey comprising a survey and legal
description of the existing State or Tribal cemetery site;
* * * * *
(c) If VA determines that the project's plans and specifications
comply with the terms and conditions prescribed by VA, VA will send the
State or Tribal Organization a written letter of approval indicating
that the project's plans and specifications comply with the terms and
conditions as prescribed by VA. This does not constitute approval of
the contract documents. It is the responsibility of the State or Tribal
Organization to ascertain that all State and Federal requirements have
been met and that the drawings and specifications are acceptable for
bid purposes.
* * * * *

0
28. Revise Sec. 39.83 to read as follows:

Sec. 39.83 Conferences.

(a) Planning conference. The VCGS may require planning conferences
for Operation and Maintenance Projects, primarily to ensure that the
State or Tribal Organization becomes oriented to VA's national shrine
standards, procedures, requirements, and any technical comments
pertaining to the project. These conferences will normally occur over
the telephone.
(b) Additional conferences. At any time, VA may recommend an
additional telephone conference to provide an opportunity for the State
or Tribal Organization to discuss with VA officials the requirements
for an Operation and Maintenance Project grant.

(Authority: 38 U.S.C. 501, 2408)

0
29. Revise Sec. 39.84 introductory text to read as follows:

Sec. 39.84 Application requirements.

For an Operation and Maintenance Project to be considered for grant
funding under this subpart, the State or Tribal Organization must
submit an application (as opposed to a preapplication) consisting of
the following:
* * * * *

Sec. Sec. 39.86 through 39.99 [Reserved]

0
30. Add and reserve Sec. Sec. 39.86 through 39.99 in subpart C.

0
31. Revise Sec. 39.101 introductory text and paragraph (d) to read as
follows:

Sec. 39.101 Payment of grant award.

The amount of an Operation and Maintenance Project grant award 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. Such
amount shall be paid by way of reimbursement and in installments that
are consistent with the progress of the project, as the Director of the
Veterans Cemetery Grants Service may determine and certify for payment
to the appropriate Federal institution. Funds paid under this section
for an approved Operation and Maintenance Project shall be used solely
for carrying out such project as approved. As a condition for the final
payment, the State or Tribal representative must submit to VA each of
the following:
* * * * *
(d) Evidence that the State or Tribal Organization has met its
responsibility for an audit under the Single Audit Act of 1984 (31
U.S.C. 7501 et seq.) and Sec. 39.122.
* * * * *

Sec. Sec. 39.102 through 39.119 [Reserved]

0
32. Add and reserve Sec. Sec. 39.102 through 39.119 in subpart C.

0
33. Revise Sec. 39.120 to read as follows:

Sec. 39.120 Documentation of grant accomplishments.

Within 60 days of completion of an Operation and Maintenance
Project, the State or Tribal Organization must submit to VCGS a written
report regarding the work performed to meet VA's national shrine
standards. This report must be based on the original justification for
the grant as noted in Sec. 39.81(b)(10) and must include statistical
data and detailed pictures of the work accomplished.

(Authority: 38 U.S.C. 501, 2408)

0
34. Amend Sec. 39.121 by:
0
a. Revising the section heading.
0
b. Revising paragraph (a).
0
c. Revising paragraph (b) introductory text.
0
d. Revising paragraphs (c) and (d).
The revisions read as follows:

Sec. 39.121 State or Tribal Organization responsibilities following
project completion.

(a) A State or Tribal Organization that has received an
Establishment, Expansion, and Improvement Project grant or an Operation
and Maintenance Project grant shall monitor use of the cemetery by
various subgroups and minority groups, including women veterans. If VA
determines that under-utilization by any of these groups exists, the
State or Tribal Organization shall establish a program to inform
members of these groups about benefits available to them. If a
significant number or portion of the population eligible to be served
or likely to be directly affected by the grant program needs benefits
information in a language other than English, the State or Tribal
Organization shall make such information available in the necessary
language.
(b) A State or Tribal veterans cemetery that has received an
Establishment, Expansion, and Improvement Project grant or an Operation
and Maintenance Project grant shall be operated and maintained as
follows:
* * * * *
(c) VA, in coordination with the State or Tribal Organization,
shall inspect the project for compliance with the standards set forth
in subpart B of this part for Establishment, Expansion, and Improvement
Projects and with the standards set forth in subpart C of this part for
Operation and Maintenance Projects at the project's completion and at
least once in every 3-year period following completion of the project
throughout the period the facility is operated as a State or Tribal
veterans cemetery. The State or Tribal Organization shall forward to
the Director, Veterans Cemetery Grants Service, a copy of the
inspection report, giving the date and location the inspection was made
and citing any deficiencies and corrective action to be taken or
proposed.
(d) Failure of a State or Tribal Organization to comply with any of
paragraphs (a) through (c) of this section shall be considered cause
for VA to suspend any payments due the State or Tribal Organization on
any project until the compliance failure is corrected.
* * * * *

0
35. Revise Sec. 39.122 to read as follows:

[[Page 4479]]

Sec. 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. The State or Tribal Organization will
provide to VA evidence that it has met its responsibility under the
Single Audit Act of 1984 (see Part 41 of this chapter).
(b) A State or Tribal Organization will make an annual report on VA
Form 40-0241 (State Cemetery Data) signed by the authorized
representative of the State or Tribal Organization. These forms
document current burial activity at the cemetery, use of gravesites,
remaining gravesites, and additional operational information intended
to answer questions about the status of the grant program.
(c) A State or Tribal Organization will complete and submit to VA a
VA Form 40-0895-13 (Certification Regarding Documents and Information
Required for State or Tribal Government Cemetery Construction Grants-
Post Grant Requirements) to ensure that the grantee is aware of and
complies with all grant responsibilities and to properly and timely
close out the grant.

(Authority: 38 U.S.C. 501, 2408)

(The Office of Management and Budget has approved the
information collection requirements in this section under control
number 2900-0559)

[FR Doc. 2012-1874 Filed 1-27-12; 8:45 am]
BILLING CODE 8320-01-P