[Federal Register Volume 81, Number 132 (Monday, July 11, 2016)]
[Proposed Rules]
[Pages 44827-44830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16232]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AP74


Authority To Solicit Gifts and Donations

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its National Cemeteries regulation on the prohibition of officials and 
employees of VA from soliciting contributions from the public or 
authorizing the use of their names, name of the Secretary, or the name 
of VA for the purpose of making a gift or donation to VA. The amended 
regulation would give the Under Secretary of Memorial Affairs (USMA), 
or his designee, authority to solicit gifts and donations, which 
include monetary donations, in-kind goods and services, and personal 
property, or authorize the use of their names, the name of the 
Secretary, or the name of VA by an individual or organization in any 
campaign or drive for donation of money or articles to VA for the 
purpose of beautifying, or for the benefit of, one or more national 
cemeteries.

DATES: Comments must be received by VA on or before August 10, 2016.

ADDRESSES: Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. (This is not a toll-free number.) Comments should indicate 
that they are submitted in response to ``RIN 2900-AP74--Authority to 
Solicit Gifts and Donations.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. (This is not a toll-free number.) In addition, during 
the comment period, comments may be

[[Page 44828]]

viewed online through the Federal Docket Management System (FDMS) at 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Thomas Howard, Chief of Staff, 
National Cemetery Administration (NCA), Department of Veterans Affairs, 
(40A), 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6215. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Title 38 U.S.C. 2407 authorizes the 
Secretary of VA to ``accept gifts, devises, or bequests from legitimate 
societies and organizations or reputable individuals, made in any 
manner, which are made for the purpose of beautifying national 
cemeteries, or are determined to be beneficial to such cemetery.'' In 
1978, VA published implementing regulations for this authority at 38 
CFR 1.603 (now redesignated as 38 CFR 38.603). 43 FR 26572 (June 21, 
1978). Included in this regulation, at Sec.  38.603(b), is a 
prohibition on the solicitation of contributions from the public by any 
VA official or employee. Unfortunately, as was common at the time, the 
proposed and final rulemaking documents provide less information 
regarding the rationale for the regulations than is commonly provided 
today, so the full rationale for this regulation, including the reason 
for the prohibition on solicitations, is no longer available. The 
prohibition is not contained in the statutory authority at section 
2407, nor does the plain language of the statute indicate a rationale 
for the prohibition. We propose to ease this restriction because it 
negatively impacts VA's ability to fully realize the potential of its 
authority to accept gifts and donations for the benefit of the national 
cemeteries.
    The gift and donation acceptance authority at section 2407 is just 
one of several authorities under which VA may accept gifts or donations 
that advance the mission or enhance the services that VA provides. 
These authorities include, among others, 38 U.S.C. 521 (acceptance of 
funds to support recreational activities furthering the rehabilitation 
of disabled veterans); 2406 (gifts of land for national cemeteries); 
8103 and 8104 (acceptance of land, interests in land, or facilities for 
use as medical facilities); and 8301 (acceptance of gifts for use in 
carrying out all laws administered by VA). None of these statutory 
authorities nor any implementing regulations for any of the 
authorities, includes a provision like that contained in Sec.  
38.603(b), prohibiting the solicitation of contributions.
    Legal guidance indicates that such a prohibition is not required by 
law. In 2015, VA's Office of General Counsel (OGC) issued a precedent 
opinion concluding that VA's express statutory authority to accept 
gifts under section 8301 included the implied statutory authority to 
solicit those gifts. VAOPGCPREC 2-2015, Mar. 20, 2015. Outside VA, a 
2001 opinion from the Office of Legal Counsel (OLC) of the Department 
of Justice found that the broad statutory authority granted by Congress 
in section 403(b)(1) of the Office of Government Ethics Authorization 
Act of 1996 to accept gifts implies the authority to solicit gifts. 25 
Op. OLC 55, Jan. 19, 2001. VA believes that section 2407 similarly 
contains an implied statutory authority to solicit gifts and donations 
for the benefit of the national cemeteries and that, by prohibiting use 
of that implied statutory authority, the provision in Sec.  38.603(b), 
in addition to not being legally necessary, may impede VA's ability to 
fully realize the authority provided to VA in section 2407. The ability 
of VA to operate other gift and donation programs under the authorities 
mentioned above, effectively and within legal parameters, in the 
absence of a prohibition on the ability of principals to solicit gifts 
and donations, indicates that a prohibition like that contained in 
Sec.  38.603(b) is unnecessary.
    Gifts and donations received by the national cemeteries under the 
authority of section 2407 have taken many forms, including monetary 
donations, donations of services and property (such as landscaping 
services or trees), and memorials and other commemorative works. 
Consistent with the plain language of the terms ``gifts'' and 
``donations,'' we would clarify in the regulation that gifts and 
donations include monetary donations, in-kind goods and services, and 
personal property. These gifts and donations from generous persons and 
organizations enhance the experience of visitors to the national 
cemeteries. The prohibition contained in Sec.  38.603(b) impedes VA's 
ability to proactively advise donors or potential donors of gift and 
donation opportunities that could be beneficial to the national 
cemeteries. Although Sec.  38.603(b) includes a provision that allows 
VA employees to discuss the ``appropriateness'' of a proposed gift, 
that discussion can only happen if a donor first approaches VA about a 
potential gift or donation. VA cannot proactively advise a donor that a 
particular gift or donation would be beneficial to the national 
cemeteries in general or any one national cemetery in particular. 
Easing the prohibition benefits not only the national cemeteries by 
ensuring that gifts and donations are more likely to be beneficial, but 
also is beneficial to donors who may not know of opportunities to 
provide beneficial gifts and donations to the national cemeteries. 
Therefore, we would amend Sec.  38.603(b) to provide that the USMA, or 
his designee, may solicit gifts and donations, which include monetary 
donations, in-kind goods and services, and personal property, or 
authorize the use of their names, the name of the Secretary, or the 
name of VA by an individual or organization in any campaign or drive 
for money or articles to VA for the purpose of beautifying, or for the 
benefit of, one or more national cemeteries.
    While VA would ease the prohibition on solicitation of gifts and 
donations, the intent is not to remove the restriction in its entirety. 
VA maintains 133 national cemeteries, one national Veterans' burial 
ground, and 33 soldiers' lots and monument sites in 40 states and 
Puerto Rico, as national shrines, that is, places of honor and memory 
where visitors can sense the serenity, historic sacrifice, and nobility 
of purpose of those who have served in the military. The USMA is 
responsible for the operation of the national cemeteries and is in the 
best position to determine the appropriateness of any campaign to 
solicit gifts and donations. Although VA would replace the existing 
provision at Sec.  38.603(b) with revised text that would allow the 
USMA or designee to solicit gifts and donations to VA for the purpose 
of beautifying, or for the benefit of, one or more national cemeteries, 
this rulemaking would not amend any other regulation governing 
solicitation or acceptance of gifts and donations under any other 
authority available to VA.
    We propose to revise the authority citation for part 38 to include 
the statutory authority 38 U.S.C. 2407. We also propose to add this 
statutory authority at the end of Sec.  38.603.

Administrative Procedure Act

    Concurrent with this proposed rule, we are also publishing a 
separate, substantially identical direct final rule in this Federal 
Register. See RIN 2900-AP75. The simultaneous publication of these 
documents will speed notice and comment rulemaking under the 
Administrative Procedure Act (5 U.S.C. 553) should we have to withdraw 
the direct final rule due to receipt of a significant adverse comment.
    For purposes of the direct final rulemaking, a significant adverse 
comment is one that explains why the rule would be inappropriate, 
including challenges to the rule's underlying premise or approach, or 
why it would

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be ineffective or unacceptable without change. If VA receives a 
significant adverse comment, VA will publish a notice of receipt of a 
significant adverse comment in the Federal Register and withdraw the 
direct final rule. In determining whether an adverse comment is 
significant and warrants withdrawing a direct final rule, we will 
consider whether the comment raises an issue serious enough to warrant 
a substantive response in a notice-and-comment process in accordance 
with section 553 of the Administrative Procedure Act (5 U.S.C. 553). 
Comments that are frivolous, insubstantial, or outside the scope of the 
rule will not be considered adverse under this procedure. For example, 
a comment recommending an additional change to the rule will not be 
considered a significant adverse comment unless the comment states why 
the rule would be ineffective or unacceptable without the additional 
change.
    Under direct final rule procedures, if no significant adverse 
comment is received within the comment period, the direct final rule 
will become effective on the date specified in RIN 2900-AP75. After the 
close of the comment period, VA will publish a document in the Federal 
Register indicating that VA received no significant adverse comments 
and restating the date on which the final rule will become effective. 
VA will also publish a notice in the Federal Register withdrawing this 
proposed rule.
    In the event that VA withdraws the direct final rule because of 
receipt of any significant adverse comment, VA will proceed with the 
rulemaking by addressing the comments received and publishing a final 
rule. The comment period for this proposed rule runs concurrently with 
that of the direct final rule. VA will treat any comments received in 
response to the direct final rule as comments regarding this proposed 
rule as well. VA will consider such comments in developing a subsequent 
final rule. Likewise, VA will consider any significant adverse comment 
received in response to the proposed rule as a comment regarding the 
direct final rule as well.
    VA has determined that it is not necessary to provide a 60-day 
comment period for this rulemaking because the rulemaking does not 
establish duties or benefits affecting members of the public, but 
merely makes a minor modification concerning the authority of certain 
officials or employees to solicit gifts and donations for the benefit 
of VA national cemeteries. VA has instead specified that comments must 
be received within 30 days after date of publication in the Federal 
Register.

Effect of Rulemaking

    The Code of Federal Regulations, to be revised by this proposed 
rulemaking, would represent the exclusive legal authority on this 
subject. No contrary rules or procedures would be authorized. All VA 
guidance would be read to conform with this proposed rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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 proposed rule would only affect individuals and 
would not directly affect small entities. Therefore, pursuant to 5 
U.S.C. 605(b), this rulemaking is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

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,'' requiring review by the Office of 
Management and Budget (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 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. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's Web 
site at http://www.va.gov/orpm, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

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 the 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 proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    There are no Catalog of Federal Domestic Assistance program numbers 
and titles affected by this document.

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. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on June 30, 2016, for publication.


[[Page 44830]]


    Dated: June 30, 2016.
Jeffrey Martin,
Office Program Manager, Office of Regulation Policy & Management, 
Office of the Secretary, Department of Veterans Affairs.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Claims, Crime, 
Veterans.

    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 38 as follows:

PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

0
1. Revise the authority citation for part 38 to read as follows:

    Authority: 38 U.S.C. 107, 501, 512, 2306, 2402, 2403, 2404, 
2407, 2408, 2411, 7105.


0
2. In Sec.  38.603, revise paragraph (b) and add an authority citaiton 
to read as follows:


Sec.  38.603  Gifts and donations.

* * * * *
    (b) The Under Secretary of Memorial Affairs, or his designee, may 
solicit gifts and donations, which include monetary donations, in-kind 
goods and services, and personal property, or authorize the use of 
their names, the name of the Secretary, or the name of the Department 
of Veterans Affairs by an individual or organization in any campaign or 
drive for donation of money or articles to the Department of Veterans 
Affairs for the purpose of beautifying, or for the benefit of, one or 
more national cemeteries.

(Authority: 38 U.S.C. 2407)


[FR Doc. 2016-16232 Filed 7-8-16; 8:45 am]
 BILLING CODE 8320-01-P