[Federal Register Volume 87, Number 250 (Friday, December 30, 2022)]
[Rules and Regulations]
[Pages 80460-80462]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28334]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 39

RIN 2900-AR71


Statutory Increase in Operations and Maintenance Grant Funding

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations that govern Federal grants to establish, expand, improve, 
or operate and maintain veterans' cemeteries. This final rule 
implements new statutory amendments to increase the maximum amount of 
grants to States and Tribal Organizations to operate and maintain 
veterans' cemeteries as authorized by section 2206 of the ``Johnny 
Isakson and David P. Roe, M.D. Veterans Health Care and Benefits 
Improvement Act of 2020'' (the Act). Effective on January 5, 2021, the 
maximum amount of operation and maintenance grants increased from $5 
million to $10 million. This final rule implements that statutory 
change. Additionally, VA is revising the date by which the list of 
approved pre-applications is prioritized for fiscal year funding from 
August 15 to October 1 each year.

DATES: This rule is effective December 30, 2022.

FOR FURTHER INFORMATION CONTACT: George Eisenbach, Director of Veterans 
Cemetery Grants Program, National Cemetery Administration (41E), 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420. Telephone: (202) 632-7369. (This is not a toll-free telephone 
number.)

SUPPLEMENTARY INFORMATION: This final rule amends 38 CFR part 39 to 
conform with statutory amendments made by section 2206 of Public Law 
116-315, the ``Johnny Isakson and David P. Roe, M.D. Veterans Health 
Care and Benefits Improvement Act of 2020'' (the Act). The Act amended 
Section 2408(f)(2) of title 38, United States Code (U.S.C.) to increase 
the maximum amount of grants VA could award for operating and 
maintaining Veterans' cemeteries from $5 million to $10 million.
    To implement this authority, VA is revising regulatory text to 
replace ``$5 million'' with ``$10 million'' every place it appears in 
39 CFR 39.3 and 39.80. Specifically, VA is revising the information for 
Priority Group 4 operation and maintenance grants in existing 38 CFR 
39.3(c) to update the reference to the maximum grant awards to be made 
in any fiscal year from $5 million to $10 million. Similarly, we are 
revising the grant award information in Sec.  39.80(a)(2) and (b) to 
clarify that operations and maintenance grants for Priority Group 4 
projects must not result in a payment of more than $10 million.
    In Sec.  39.3(d), VA is replacing ``By August 15 of each year'' 
with ``By October 1 of each year'' to align the date for finalizing the 
prioritization of preapplications to the beginning of the fiscal year 
in which the associated final grant applications will be eligible for 
award. The August 15 date is not required by statute, but instead was a 
self-imposed deadline for finalizing the priority listing of 
preapplications when the grant program was first established. Since 
then, the number of preapplications has grown, and VA needs the 
additional time to conduct the final prioritization. VA publishes this 
date in regulation to ensure transparency and awareness of the process 
within the interested grant community.
    Preapplications are accepted and evaluated on a rolling basis; 
however, only those preapplications that were received on or before 
July 1 of the current fiscal year are eligible for consideration in the 
prioritization process for the upcoming/next fiscal year. The 
preapplication process serves as a means to determine whether the 
proposed project conforms to statutory and regulatory requirements. If 
the preapplication is conforming, VA notifies the State or Tribal 
Organization that the preapplication has been found to meet the 
requirements, and the proposed project is included in the 
prioritization.
    This change from August 15 to October 1 for finalizing the 
prioritization list expands VA's timeframe for conducting the 
prioritization of preapplications by approximately 45 calendar days. 
This does not affect a grant applicant's ability or opportunity to 
submit a final grant application for the fiscal year in which it is 
eligible for award and does not affect timeframes for awarding grants. 
Applicants may begin preparing final grant applications at any time and 
may submit the final application at any time. The October 1 date is 
merely the announcement of the priority of proposed projects based on 
preapplications and reflects the order in which those projects will be 
awarded and funded. Additionally, publishing this date in regulation is 
primarily informational for grant applicants and is not related to any 
subsequent deadlines that would affect applicants. VA works with grant 
applicants throughout the

[[Page 80461]]

final application process to award grants based on priority and 
available funding in accordance with 38 CFR part 39.

Administrative Procedure Act

    The Secretary of Veterans Affairs finds that there is good cause 
under the provisions of 5 U.S.C. 553(b)(B) to publish this rule without 
prior opportunity for public comment and dispense with the 30-day delay 
for the effective date of a rule under 5 U.S.C. 553(d)(3). Pursuant to 
section 553(b)(B) of the Administrative Procedure Act, general notice 
and opportunity for public comment are not required with respect to a 
rulemaking when an ``agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' Pursuant to section 
553(d)(3), an agency may ``for good cause found'' dispense with the 30-
day delay in the effective date of a rule. Because the increased grant 
amount is authorized by law and effective immediately, the Secretary 
finds that it is unnecessary to delay issuance of this rule for the 
purpose of soliciting prior public comment or to delay the rule's 
effective date. By statute, Congress has imposed a cap on the amount 
that VA expends for operation and maintenance grants, and VA 
regulations provide that VA will award operations and maintenance 
grants up to, but not exceeding, that cap. VA is not changing its 
policy of awarding operation and maintenance grants up to the statutory 
cap, but merely updating the regulation to reflect the statutory cap 
now in effect. See Hadson Gas Sys. v. FERC, 75 F.3d 680, 684 (D.C. Cir. 
1996) (finding that the act of amending regulatory language to reflect 
statutory changes does not require an agency to engage in notice and 
comment with respect to unchanged aspects of the regulatory scheme).

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. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866.
    The Regulatory Impact Analysis associated with this rulemaking can 
be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable 
to this rulemaking because notice of proposed rulemaking is not 
required. 5 U.S.C. 601(2), 603(a), 604(a).

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.

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).

Assistance Listing

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

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

List of Subjects in 38 CFR Part 39

    Cemeteries, Grant Programs--veterans, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on December 22, 2022, 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 39 as set forth below:

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

0
1. The authority citation for Part 39 continues to read as follows:

    Authority: 38 U.S.C. 101, 501, 2408, 2411, 3765.

Subpart A--General Provisions

0
2. Amend Sec.  39.3 by revising paragraphs (c) and (d) to read as 
follows:


Sec.  39.3  Priority list.

* * * * *
    (c) Grants for projects within Priority Group 4 will be awarded in 
any fiscal year only after grants for all project applications under 
Priority Groups 1, 2, and 3 that are ready for funding have been 
awarded. Within Priority Group 4, projects will be ranked in priority 
order based upon VA's determination of the relative importance of 
proposed improvements and the degree to which proposed Operation and 
Maintenance Projects achieve NCA national shrine standards of 
appearance. No more than $10 million in any fiscal year will be awarded 
for Operation and Maintenance Projects under Priority Group 4.
    (d) By October 1 of each year, VA will make a list prioritizing all 
preapplications that were received on or before July 1 of that year and 
that were approved under Sec.  39.31 or Sec.  39.81, ranking them in 
their order of priority within the applicable Priority Group for 
funding during the fiscal year. Preapplications from previous years 
will be re-prioritized each year and do not need to be resubmitted.

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

0
3. Amend Sec.  39.80 by revising paragraphs (a)(2) and (b) to read as 
follows:


Sec.  39.80  General requirements for a grant.

    (a) * * *
    (2) Its project must be ranked sufficiently high within Priority 
Group 4 as defined in Sec.  39.3 for the applicable fiscal year so that 
funds are available for the project, and a grant for the project must 
not result in payment of more than the $10 million total amount 
permissible for all Operation and Maintenance Projects in any fiscal 
year;
* * * * *
    (b) VA may approve under Sec.  39.85 any Operation and Maintenance 
Project grant application up to the amount of the grant requested once 
the

[[Page 80462]]

requirements under paragraph (a) of this section have been satisfied, 
provided that sufficient funds are available, and that total amount of 
grants awarded during any fiscal year for Operation and Maintenance 
Projects does not exceed $10 million. In determining whether sufficient 
funds are available, VA shall consider the project's ranking in 
Priority Group 4; the total amount of funds available for cemetery 
grant awards in Priority Group 4 during the applicable fiscal year; and 
the prospects of higher-ranking projects being ready for the award of a 
grant before the end of the applicable fiscal year.

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

[FR Doc. 2022-28334 Filed 12-29-22; 8:45 am]
BILLING CODE 8320-01-P