[Federal Register Volume 81, Number 132 (Monday, July 11, 2016)]
[Rules and Regulations]
[Pages 44792-44795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16234]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AP75


Authority To Solicit Gifts and Donations

AGENCY: Department of Veterans Affairs.

ACTION: Direct final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends 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 
gives 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: This direct final rule is effective on September 9, 2016, 
without further notice, unless VA receives a significant adverse 
comment by August 10, 2016. If we receive a significant adverse comment 
by August 10, 2016, we will publish a document in the Federal Register 
withdrawing this rule before the effective date. See section on 
Administrative Procedure Act below.

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-AP75--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 viewed online through the Federal 
Docket Management System (FDMS) at http://www.regulations.gov.

[[Page 44793]]


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. VA is easing 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 clarify in the regulation that gifts and donations 
would 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 are amending 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 is easing 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 is replacing the existing 
provision at Sec.  38.603(b) with revised text that allows 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 does not amend any other regulation governing 
solicitation or acceptance of gifts and donations under any other 
authority available to VA.
    We are revising the authority citation for part 38 to include the 
statutory authority 38 U.S.C. 2407. We also add this statutory 
authority at the end of Sec.  38.603.

Administrative Procedure Act

    VA believes this rule is non-controversial and anticipates that it 
will not result in any significant adverse comments, and, therefore, is 
issuing this regulatory amendment as a direct final rule. VA is only 
minimizing the restriction to commensurate with statutory authority and 
legal guidance from VA's OGC and an opinion from DOJ's OLC. VA is 
publishing a separate, substantially identical proposed rule in the 
Federal Register, RIN 2900-AP74, that will serve as a proposal for the 
provisions in this direct final rule in the event that any significant 
adverse comment is received by VA.
    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

[[Page 44794]]

premise or approach, or why it would 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, this rule will become 
effective on the date specified above. After the close of the comment 
period, VA will publish a document in the Federal Register indicating 
that VA received no significant adverse comment and restating the date 
on which the final rule will become effective. VA will also publish a 
notice in the Federal Register withdrawing the proposed rule, RIN 2900-
AP74.
    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 the 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 the 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, revised by this rulemaking, 
represents the exclusive legal authority on this subject. No contrary 
rules or procedures are authorized. All VA guidance will conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

Paperwork Reduction Act

    This final 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 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 final rule will directly affect only individuals and will 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 5 U.S.C. 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 final rule will 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.

    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.


[[Page 44795]]


    For the reasons set out in the preamble, VA amends 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 citation 
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. 2016-16234 Filed 7-8-16; 8:45 am]
 BILLING CODE 8320-01-P