[Federal Register Volume 89, Number 155 (Monday, August 12, 2024)]
[Proposed Rules]
[Pages 65572-65575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-17316]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AS13


Veterans Legacy Grants Program Improvements

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
Veterans Legacy Grants Program (VLGP) regulations to align them with 
regulatory updates to the uniform administrative requirements and other 
requirements for Federal awards and makes additional revisions to 
improve the process for administration of the grant program. This 
rulemaking proposes housekeeping amendments to key terms, legal 
citations, and definitions and extends timelines for reporting and 
other grant recipient requirements.

DATES: Comments must be received on or before October 11, 2024.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
www.regulations.gov as soon as possible after they have been received. 
VA will not post on Regulations.gov public comments that make threats 
to individuals or institutions or suggest that the commenter will take 
actions to harm an individual. VA encourages individuals not to submit 
duplicative comments; however, we will post comments from multiple 
unique commenters even if the content is identical or nearly identical 
to other comments. Any public comment received after the comment 
period's closing date is considered late and will not be considered in 
the final rulemaking. In accordance with the Providing Accountability 
Through Transparency Act of 2023, a 100 word Plain-Language Summary of 
this proposed rule is available at Regulations.gov, under RIN 2900-
AS13.

FOR FURTHER INFORMATION CONTACT: John Williams, Senior Grants 
Management Specialist, Veterans Legacy Grants Program, National 
Cemetery Administration, Department of Veterans Affairs, 810 Vermont 
Avenue NW, Washington, DC 20420. Telephone: (314) 348-4073 (this is not 
a toll-free number).

SUPPLEMENTARY INFORMATION: VA proposes changes to the regulations 
governing Veterans Legacy grants to make housekeeping and clarifying 
edits, described below. These revisions would implement various 
programmatic improvements for applicants. Additionally, in April 2024, 
the Office of Management and Budget (OMB) published revisions to 
Uniform Administrative Requirements, Cost Principles, and Audit 
Requirements for Federal Awards (also known as the Uniform Guidance at 
2 CFR part 200). Current VLGP regulations reference outdated 2 CFR part 
200 throughout and in this rulemaking we propose changes to reflect 
revised sections, where appropriate.

Replacing the Term ``Notice of Funding Availability'' With ``Notice of 
Funding Opportunity''

    VA proposes to replace the terms ``Notice of Funding Availability'' 
and ``NOFA'' with ``Notice of Funding Opportunity'' and ``NOFO'', 
respectively, in 38 CFR 38.715(k) and throughout the VLGP regulations 
to align them with OMB's use and definition of the term ``Notice of 
funding opportunity'' in 2 CFR 200.1 and 200.204. Under the revised 
definition, the term ``NOFO'' would be defined as ``a formal 
announcement of the availability of a Federal funding opportunity 
published in the OMB-designated government-wide website Grants.gov 
(http://www.grants.gov) in accordance with Sec.  38.725 and 2 CFR 200.1 
and 200.204.'' Consistent with the definition in 2 CFR 200.1, a NOFO 
would provide information on the award, who is eligible to apply, the 
evaluation criteria for selection of an awardee, required components of 
an application, and how to submit the application. This change is 
intended to reduce the potential for grant recipient confusion due to 
discrepancies between terminology used in the VLGP regulations and the 
Grants.gov website.

Replacing the Term ``Grantee'' With ``Recipient''

    VA proposes to replace the term ``Grantee'' with ``Recipient'' in 
38 CFR 38.715(j) and to make similar changes throughout the VLGP 
regulations where applicable. This change would be consistent with 
OMB's use of the term ``Recipient'' as the entity that receives a 
Federal award directly from a Federal awarding agency. The alignment of 
these terms is intended to reduce any confusion for the public 
regarding the VLGP. The definition would clarify that ``recipient'' 
does not include a subrecipient or individual that is a beneficiary of 
the award.

Consolidating the Publication Location of the NOFO

    OMB uniform grant guidance requires a funding agency to provide 
public notice of Federal financial assistance programs. Current 38 CFR 
38.725 requires VA to publish funding opportunity announcements in both 
the Federal Register and in Grants.gov. VA proposes to discontinue the 
requirement in its current regulation to post NOFOs in the Federal 
Register. Because Grants.gov is an OMB-designated government-wide 
website and is recognized as the primary Federal system used for 
publication of notices concerning Federal funding opportunities and 
financial assistance, see 89 FR 30072 (Apr. 22, 2024), VA proposes to 
use Grants.gov as the primary source of publication for its funding 
opportunity announcements. VA believes this change would make the VLGP 
award procedures more efficient and would eliminate the duplicative 
publication requirement in the Federal Register, which may often result 
in additional processing time.

Updating the Terminology of Additional Factors for Deciding 
Applications

    VA proposes to amend 38 CFR 38.735 (Additional factors for deciding 
applications) by updating the terminology in the regulation to align it 
with the terminology and process framework established in 2 CFR part 
200. Specifically, VA would amend the heading in 38 CFR 38.735(a) from 
``Applicant's performance on prior award'' to ``Applicant's history of 
performance''. History of performance is a principal factor considered 
when evaluating an applicant's application. 2 CFR 200.206(b)(2)(iii). 
VA would revise the description for additional clarity and consistency 
on this deciding factor. The revised language would state that VA may 
consider the applicant's record

[[Page 65573]]

in managing Federal awards, if it is a prior recipient of a Federal 
award, including timeliness of compliance with applicable reporting 
requirements and conformance to the terms and conditions of any 
previous Federal award. The current language is specific to the 
applicant's noncompliance with requirements and limits the scope of 
evaluation to past written evaluation reports, memoranda on 
performance, and completion of prior submissions. The proposed language 
would expand VA's ability to review and consider a broader scope of 
relevant conduct that may impact an applicant's evaluative rating under 
the merit review process.
    VA proposes to also amend the heading in 38 CFR 38.735(b) from 
``Applicant's fiscal integrity'' to ``Applicant's financial stability'' 
to align it with 2 CFR 200.206(b)(2)(i), which includes an applicant's 
``financial stability'' among the principal evaluative factors to 
consider. In addition, VA proposes to remove the reference to 2 CFR 
200.205 within the description, which would provide flexibility for the 
VLGP regulation if future edits are made to 2 CFR part 200.

Extending the Timeframe for Recipients To Fulfill Reporting 
Requirements

    VA proposes to amend 38 CFR 38.765 (Recipient reporting 
requirements) to allow 120 calendar days after the end date of the 
period of performance for a grant recipient to submit a final report. 
Currently, the regulation only allows for a grant recipient to submit 
this information no later than 60 days after the last day of the grant 
period. The amended language would align with the closeout requirements 
under 2 CFR 200.344 (Closeout) and provide the grant recipient with the 
standard time period to submit required financial, performance, and 
other reports after the period of performance has concluded.

Changes to Authority Citations

    VA proposes to revise authority citations for the VLGP regulations. 
VA proposes to revise the authority citation for Sec.  38.715 by 
removing the reference to 2 CFR 200.203, which governs the requirement 
to provide public notice of Federal financial assistance programs, and 
adding in its place a reference to 2 CFR 200.1, which defines the term 
``notice of funding opportunity,'' and 2 CFR 200.204, which sets forth 
requirements of notices of funding opportunities. VA proposes to revise 
the authority citation for Sec.  38.725 by removing the reference to 2 
CFR 200.203 and adding in its place a reference to 2 CFR 200.204.
    VA also proposes to revise the authority citation for Sec.  38.730 
by removing the reference to 2 CFR 200.203 and adding a reference to 2 
CFR 200.208, which sets forth specific conditions for federal grant 
awards. VA proposes to revise the authority citation for Sec.  38.735 
by removing the reference to 2 CFR 200.203 and adding a reference to 2 
CFR 200.206, which provides that the Federal awarding agency will 
review risk posed by applicants. VA proposes to revise the authority 
citation for Sec.  38.740 by removing the reference to 2 CFR 200.203 
and adding a reference to 2 CFR 200.205, which provides that the 
Federal awarding agency will have a merit review process for proposals. 
VA also proposes to revise the authority citation for Sec.  38.745 by 
removing the reference to 2 CFR 200.203 and adding a reference to 2 CFR 
200.211, which sets forth information contained in a Federal award. VA 
proposes to revise the authority citation for Sec.  38.750 by removing 
the reference to 2 CFR 200.203 and adding a reference to 2 CFR 200.204, 
which governs notices of funding opportunities generally. VA proposes 
to revise the authority citation for Sec.  38.755 by removing the 
reference to 2 CFR 200.203 and adding a reference to 2 CFR 200.211, 
which sets forth information contained in a Federal award.
    VA also proposes to revise the authority citation for Sec.  38.760 
by removing the reference to 2 CFR 200.203 and adding a reference to 2 
CFR 200.305, which governs Federal payments. VA proposes to revise the 
authority citation for Sec.  38.765 by removing the reference to 2 CFR 
200.203 and adding a reference to 2 CFR 200.344, which governs closeout 
of federal awards. VA proposes to revise the authority citation for 
Sec.  38.770 by removing the reference to 2 CFR 200.203 and adding a 
reference to 2 CFR 200.339 and 200.410, which sets forth remedies for 
noncompliance and addresses collection of unallowable costs, 
respectively. VA proposes to revise the authority citation for Sec.  
38.775 by removing the reference to 2 CFR 200.203 and adding a 
reference to 2 CFR 200.329, which governs monitoring and reporting 
program performance. VA also proposes to revise the authority citation 
for Sec.  38.780 by including a reference to 2 CFR 200.476, which is 
included as part of the regulations governing general cost principles. 
VA proposes to revise the authority citation for Sec.  38.785 by 
removing the reference to 2 CFR 200.333, which governs fixed amount 
subawards, and adding a reference to 2 CFR 200.334-200.338, which 
govern record retention and access.

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 
rulemaking 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 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. The amendments proposed in this rule would likely not 
be determinative of whether small entities receive or do not receive a 
grant because they would have limited impact on small entities 
complying with grant application and reporting requirements. In 
addition to some technical revisions to the VLGP regulations, this rule 
would merely align those regulations to updates to the uniform 
administrative requirements and other requirements for Federal awards 
(2 CFR part 200). 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

[[Page 65574]]

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.

Paperwork Reduction Act

    Although this proposed rule contains collection of information 
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521), there are no provisions associated with this rulemaking 
constituting any new collection of information or any revisions to the 
existing collection of information. The collections of information for 
38 CFR 38.730 are currently approved by the Office of Management and 
Budget (OMB) and have been assigned OMB control numbers 4040-0004, 
4040-0006, 4040-0007, and 4040-0013.

Assistance Listing

    The Assistance Listing number and title for the program affected by 
this document are 64.204, Veterans Legacy Grants Program.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Claims, Crime, 
Grants programs--veterans, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on July 31, 2024, 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,
Regulations 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 proposes to amend 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, 531, 2306, 2400, 2402, 
2403, 2404, 2407, 2408, 2411, 7105.

0
2. Amend Sec.  38.715 by:
0
a. In paragraph (a) introductory text, removing ``Notice of Funding 
Availability'' and adding in its place ``Notice of Funding 
Opportunity''.
0
b. Removing ``NOFA'' each place it appears and adding in each place 
``NOFO''.
0
c. Revising paragraphs (j) and (k) and the authority citation.
    The revisions read as follows:


Sec.  38.715  Definitions.

* * * * *
    (j) Recipient means an eligible recipient (or entity) that is 
awarded a VLGP grant under this part. It does not include a 
subrecipient or individual that is a beneficiary of the award.
    (k) Notice of Funding Opportunity (NOFO) means a formal 
announcement of the availability of a Federal funding opportunity 
published in the OMB-designated government-wide website Grants.gov 
(http://www.grants.gov) in accordance with Sec.  38.725 and 2 CFR 200.1 
and 200.204.

(Authority: 38 U.S.C. 501(d), 2400 note, 2 CFR 200.1 and 200.204))

Sec.  38.720  [Amended]

0
3. Amend Sec.  38.720 by:
0
a. Removing ``grantee'' and ``grantee's'' each place they appear and 
adding in each place ``recipient'' and ``recipient's'', respectively.
0
b. Removing ``NOFA'' each place it appears and adding in each place 
``NOFO''.
0
4. Amend Sec.  38.725 by:
0
a. Revising the section heading and introductory text.
0
b. In the authority citation, removing ``2 CFR 200.203'' and adding in 
its place ``2 CFR 200.204''.
    The revisions read as follows:


Sec.  38.725  Notice of Funding Opportunity (NOFO).

    When funds are available for VLGP grants, VA will publish a NOFO at 
Grants.gov (http://www.grants.gov). The NOFO will identify:
* * * * *
0
5. Amend Sec.  38.730 by:
0
a. Removing ``NOFA'' each place it appears and adding in each place 
``NOFO''.
0
b. In the authority citation, removing ``2 CFR 200.203'' and adding in 
its place ``2 CFR 200.208''.
0
c. Adding a parenthetical reference at the end of the section.
    The revision reads as follows:


Sec.  38.730  Applications.

* * * * *

(The Office of Management and Budget has approved the information 
collection provisions in this section under control numbers 4040-
0004, 4040-0006, 4040-0007, and 4040-0013)''.


0
6. Amend Sec.  38.735 by:
0
a. Revising paragraphs (a) and (b).
0
b. In the authority citation, removing ``2 CFR 200.203'' and adding in 
its place ``2 CFR 200.206''.
    The revisions read as follows:


Sec.  38.735  Additional factors for deciding applications.

    (a) Applicant's history of performance. VA may consider the 
applicant's record in managing Federal awards, if a prior recipient of 
a Federal award, including timeliness of compliance with applicable 
reporting requirements and conformance to the terms and conditions of 
any previous Federal award.
    (b) Applicant's financial stability. Applicants must meet and have 
maintained standards of financial stability for participation in 
Federal grant programs.

(Authority: 38 U.S.C. 501(d), 2400 note, and 2 CFR 200.206)

Sec.  38.740  [Amended]

0
7. Amend Sec.  38.740 by:
0
a. Removing ``NOFA'' each place it appears and adding in each place 
``NOFO''.
0
b. In the authority citation, removing ``2 CFR 200.203'' and adding in 
its place ``2 CFR 200.205''.


Sec.  38.745  [Amended]

0
8. Amend Sec.  38.745 by, in the authority citation, removing ``2 CFR 
200.203'' and adding in its place ``2 CFR 200.211''.


Sec.  38.750  [Amended]

0
9. Amend Sec.  38.750 by, in the authority citation, removing ``2 CFR 
200.203'' and adding in its place ``2 CFR 200.204''.


Sec.  38.755  [Amended]

0
10. Amend Sec.  38.755 by:
0
a. In the introductory text, removing ``grantee'' and adding in its 
place ``recipient''.
0
b. In the authority citation, removing ``2 CFR 200.203'' and adding in 
its place ``2 CFR 200.211''.
0
11. Amend Sec.  38.760 by:
0
a. Revising paragraph (a).
0
b. In paragraph (b), removing ``NOFA'' and adding in its place 
``NOFO''.
0
c. In the authority citation, removing ``2 CFR 200.203'' and adding in 
its place ``2 CFR 200.305''.
    The revision reads as follows:


Sec.  38.760  Payments under the grant.

    (a) Recipients are to be paid in accordance with 2 CFR 200.305.
* * * * *
0
12. Amend Sec.  38.765 by:

[[Page 65575]]

0
a. Revising the section heading and paragraph (a).
0
b. In the authority citation, removing ``2 CFR 200.203'' and adding in 
its place ``2 CFR 200.344''.


Sec.  38.765  Recipient reporting requirements.

    (a) Final report. The recipient must submit to VA, no later than 
120 calendar days after the end date of the period of performance, all 
financial, performance, and other reports as required by the terms and 
conditions of the Federal award.
* * * * *
0
13. Amend Sec.  38.770 by:
0
a. Removing ``grantee'' each place it appears and adding in each place 
``recipient''.
0
b. Revising the authority citation.
    The revision reads as follows:


Sec.  38.770  Recovery of funds by VA.

* * * * *

(Authority: 38 U.S.C. 501(d), 2400 note, 2 CFR 200.339 and 200.410)

Sec.  38.775  [Amended]

0
14. Amend Sec.  38.775 by:
0
a. Removing ``grantee'' each place it appears and adding in each place 
``recipient''.
0
b. In the authority citation, removing ``2 CFR 200.203'' and adding in 
its place ``2 CFR 200.329''.


Sec.  38.780  [Amended]

0
15. Amend Sec.  38.780 by:
0
a. In paragraph (b), removing ``grantees'' and ``Grantees'' each place 
they appear and adding in each place ``recipients'' and ``Recipients'', 
respectively.
0
b. Removing ``2 CFR 200.400-200.475'' each place it appears and adding 
in each place ``2 CFR 200.400-200.476''.
0
16. Revise Sec.  38.785 to read as follows:


Sec.  38.785  Record retention and access.

    Recipients must ensure that records are maintained and accessible 
in accordance with 2 CFR 200.334-200.338. Recipients must produce such 
records at VA's request.

(Authority: 38 U.S.C. 501(d), 2400 note, and 2 CFR 200.334-200.338)


[FR Doc. 2024-17316 Filed 8-9-24; 8:45 am]
BILLING CODE 8320-01-P