[Federal Register Volume 88, Number 125 (Friday, June 30, 2023)]
[Rules and Regulations]
[Pages 42245-42247]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-13712]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AR36


Allowances for Caskets and Urns for Unclaimed Remains of Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is implementing in 
regulation the Charles Duncan Buried with Honor Act of 2016, which 
expanded the casket and urn authority to apply to eligible veteran 
burials in State and Tribal cemeteries that received a VA cemetery 
grant. In addition, VA is establishing flat-rate allowances for caskets 
and urns, which will be adjusted annually based on the Consumer Price 
Index (CPI). Additionally, VA is updating the specifications for 
caskets based on feedback from funeral directors and other funeral 
industry professionals. Finally, VA is eliminating the retroactive 
reimbursement provisions since the relevant applicability period has 
passed.

DATES: This rule is effective July 31, 2023.

FOR FURTHER INFORMATION CONTACT: Daniel Catron, Supervisory Program 
Analyst, National Cemetery Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420; 
[email protected], telephone: (314) 416-6324 (this is not a toll-
free number).

SUPPLEMENTARY INFORMATION: On December 8, 2022, VA published a proposed 
rule in the Federal Register (87 FR 75196) that proposed to implement 
the following: expansion of the casket and urn authority to apply to 
eligible veteran burials in State and Tribal cemeteries that received a 
VA cemetery grant; flat-rate allowances for

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caskets and urns; updated specifications for caskets; and the 
elimination of retroactive reimbursement provisions. The public comment 
period ended on February 6, 2023, and VA received 3 comments in 
response to the proposed rule.
    One comment was not relevant to this rulemaking and indicated an 
individual preference for memorialization. VA considers this 
preferential request to be beyond the scope of this rulemaking and will 
make no changes to the regulatory text based on this comment.
    Another commenter expressed support for the proposed rule. The 
commenter commended VA's continued engagement and outreach to funeral 
homes and funeral directors regarding the casket and urn reimbursement 
program rates. The commenter applauded the payment of flat-rate 
allowances for caskets and urns, noting consistency of this 
programmatic approach with other VA burial benefits. The commenter 
agreed with VA that the flat-rate provision would provide a predictable 
methodology for determining casket and urn reimbursement. The commenter 
supported VA's approach and intent to avoid confusion regarding the 
``actual cost'' standard that required that actual costs be shown by 
invoices reflecting the purchase price of the casket or urn purchased 
by the individual or entity requesting reimbursement. The commenter 
expressed support for the elimination of the outdated retroactive 
applicability provision and support for the programmatic expansion of 
the casket and urn benefit for qualifying burials in Veterans' 
cemeteries that received VA grant funds. VA appreciates the commenter's 
support for the proposed changes to implement the casket and urn 
benefit. VA will make no changes to the regulatory text based on this 
comment.
    Finally, VA received a comment that expressed general support of VA 
programs that ensure respect for deceased veterans, regardless of 
whether they have a next-of-kin. VA appreciates the commenter's 
recognition of our commitment to ensuring veterans who die without 
family members to see to their last wishes still receive a dignified 
burial. We also acknowledge the commenter's expressed concern and 
opposition to the proposed flat-rate allowance for caskets and urns due 
to varying prices that may cause potential resource shortfalls. 
However, VA declines to make any changes to the regulatory text based 
on this comment.
    To the extent the commenter had concerns that individuals and 
organizations would not utilize the program due to the allowance 
potentially not covering all costs, as stated in the proposed rule, in 
Sec.  38.628(e), VA will make cost-of-living adjustments for the flat-
rate allowances using the CPI, which is a methodology used in other, 
similar VA monetary allowances. Consistent with the Veterans Benefits 
Administration (VBA) cost increases for monetary allowances under 38 
U.S.C. 2303, from June to June each year, under this rule the National 
Cemetery Administration (NCA) will apply a similar percentage increase 
(rounded to the nearest dollar) to the allowances for caskets and urns. 
Use of VBA's cost-of-living increase analysis will promote consistency 
across VA benefit programs and ensure the casket and urn allowances 
meet current costs, to the extent practicable. Also, as noted in the 
proposed rule, ``[t]he purpose of the casket and urn reimbursement is 
to help offset a claimant's cost for bringing unclaimed veterans' 
remains to burial in a VA national or grant-funded cemetery'' and to 
avoid a significant financial loss or gain for an individual or entity 
for having made the purchase, 87 FR at 75198, not necessarily to make 
each individual or entity completely whole for the purchase.
    To the extent the commenter had concerns that the Government may 
not have resources to administer the program and provide caskets and 
urns for all eligible veterans, 38 U.S.C. 2306(f) authorizes VA to 
furnish a casket or urn for burial of the unclaimed remains of veterans 
for whom VA cannot identify the next of kin and determines that 
sufficient resources for the furnishing of a casket or urn for burial 
are not available. The implementation of flat-rate allowances will not 
jeopardize funding of the casket and urn reimbursement program. The 
program is funded through the VBA Compensation and Pension mandatory 
appropriation. As such, the appropriation does not constrain the 
payment of benefits. If a Veteran or survivor is eligible for a 
benefit, it is paid. As we noted in the proposed rule, we believe using 
flat-rate allowances will promote consistency and efficiency in the 
administration of this program. VA appreciates the commenter's concerns 
but will make no changes to the regulatory text based on this comment.

Executive Orders 12866, 13563 and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
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 14094 (Executive Order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 of September 30, 
1993 (Regulatory Planning and Review), and Executive Order 13563 of 
January 18, 2011 (Improving Regulation and Regulatory Review). The 
Office of Information and Regulatory Affairs has determined that this 
rule is not a significant regulatory action under Executive Order 
12866, as amended by Executive Order 14094. The Regulatory Impact 
Analysis associated with this rulemaking can be found as a supporting 
document at www.regulations.gov.

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, because the number of claims and the amounts involved are expected 
to be small. The average cost of a burial receptacle that meets 
regulatory specifications under this rule is $1,199 for caskets and 
$138 for urns in 2023. Also, we estimate that the total number of 
allowances for 2023 will be 259 for caskets and 18 for urns. Because 
the rulemaking provides for issuance of an allowance, the individual or 
entity purchasing the burial receptacle is only entitled to recoup the 
allowance rate, regardless of the actual purchase price.
    Therefore, pursuant to 5 U.S.C. 605(b), the initial and final 
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do 
not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule will have no

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such effect on State, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act

    Although this action contains provisions constituting collections 
of information at 38 CFR 38.628, under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501-3521), no new collection of 
information is associated with this final rule. This rulemaking creates 
no change to the annual PRA costs of the program. The information 
collection requirements for 38 CFR 38.628 are currently approved by the 
Office of Management and Budget (OMB) and have been assigned OMB 
control number 2900-0799. VA made non-substantive text changes to an 
existing form (VA40-10088) to reflect programmatic updates that will 
not affect the information collection burden costs or create 
administrative costs associated with this rulemaking.

Assistance Listing

    The Assistance Listing number and title for the programs affected 
by this document is 64.205, VA Casket or Urn Reimbursement Program.

Congressional Review Act

    Pursuant to 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 38

    Administrative practice and procedure, Cemeteries, Claims, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on May 3, 2023, 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.

Luvenia Potts,
Regulation Development Coordinator, 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 38 as set forth below:

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

0
1. The authority citation for part 38 continues to read as follows:

    Authority: 38 U.S.C. 107, 501, 512, 2306, 2400, 2402, 2403, 
2404, 2407, 2408, 2411, 7105.


0
2. Amend Sec.  38.628 by revising the section heading, the introductory 
text of paragraphs (a) and (c), and paragraphs (c)(1), (c)(5)(i), (d), 
and (e) to read as follows:


Sec.  38.628  Allowance for caskets and urns for unclaimed remains of 
veterans.

    (a) VA will issue a flat-rate allowance, as established in 
paragraph (d) of this section, to any individual or entity for a casket 
or urn, purchased by the individual or entity for the burial in a 
national cemetery or in a veterans' cemetery of a State or Tribal 
Organization that has received a grant under 38 U.S.C. 2408, of an 
eligible deceased veteran for whom VA:
* * * * *
    (c) An individual or entity may request an allowance from VA under 
paragraph (a) of this section by completing and submitting VA Form 40-
10088 and supporting documentation, in accordance with the instructions 
on the form. Prior to approving issuance of an allowance, VA must find 
all of the following:
    (1) The veteran is eligible for burial in a VA national cemetery or 
in a veterans' cemetery of a State or Tribal Organization that has 
received a grant under 38 U.S.C. 2408;
* * * * *
    (5) * * *
    (i) Caskets must be of metal construction of at least 20-gauge 
thickness, designed for containing human remains, sufficient to contain 
the remains of the deceased veteran, and include external fixed rails 
or swing arm handles.
* * * * *
    (d) The allowance for a claim received in any calendar year under 
paragraph (a) of this section is $1,199.00 for a metal casket and 
$138.00 for an urn of durable material.
    (e) VA will make cost-of-living adjustments for the flat-rate 
casket and urn allowances using the Consumer Price Index (CPI). Each 
fiscal year, VA will provide a percentage increase (rounded to the 
nearest dollar) in the casket and urn flat-rate allowances equal to the 
percentage by which the CPI (all items, United States city average) for 
the 12-month period (June to June) preceding the beginning of the 
fiscal year for which the percentage increase is made exceeds the CPI 
for the 12-month period preceding the 12-month period described in this 
paragraph (e). VA will only make cost-of-living increases to the flat 
rate allowances when the CPI has increased.
* * * * *

[FR Doc. 2023-13712 Filed 6-29-23; 8:45 am]
BILLING CODE 8320-01-P