[Federal Register Volume 79, Number 123 (Thursday, June 26, 2014)]
[Proposed Rules]
[Pages 36273-36277]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14651]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AO99


Reimbursement for Caskets and Urns for Burial of Unclaimed 
Remains in a National Cemetery

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs National Cemetery 
Administration (NCA) proposes to

[[Page 36274]]

amend its regulations to establish a new program to furnish caskets and 
urns for the interment of the remains of veterans with no known next-
of-kin (NOK) where sufficient financial resources are not available for 
this purpose. This rulemaking is necessary to implement new statutory 
authority by establishing procedures to provide reimbursement for 
privately purchased caskets or urns and to otherwise administer the new 
program. This proposed rule would implement a portion of the Dignified 
Burial and Other Veterans' Benefits Improvement Act of 2012 (the Act).

DATES: Comments must be received on or before July 28, 2014.

ADDRESSES: Written comments may be submitted 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-AO99--Reimbursements 
for Caskets and Urns for Burial of Unclaimed Remains in a National 
Cemetery.'' Copies of comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1063B, between the hours of 8 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.

FOR FURTHER INFORMATION CONTACT: Cynthia Riddle, Office of Field 
Programs (41A), National Cemetery Administration (NCA), Department of 
Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420. 
Telephone: (202) 461-6306 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: On January 10, 2013, Congress enacted the 
``Dignified Burial and Other Veterans' Benefits Improvement Act of 
2012'' (the Act), Public Law 112-260, 126 Stat. 2417 (2013), section 
101 of which amended 38 U.S.C. 2306 to authorize the Department of 
Veterans Affairs (VA) National Cemetery Administration (NCA) to furnish 
a casket or urn for interment in a VA national cemetery of the 
unclaimed remains of veterans for whom VA cannot identify a next of kin 
(NOK) and determines that sufficient financial resources for the 
furnishing of a casket or urn for burial are not available. VA proposes 
to add a new Sec.  38.637 to part 38 of title 38 of the Code of Federal 
Regulations (CFR) to implement this new statutory authority by 
providing a monetary reimbursement for privately purchased caskets or 
urns that meet NCA standards and are used to inter the remains of such 
veterans in VA national cemeteries.
    NCA is responsible for administering cemetery programs and memorial 
benefits, which include the provision of medallions, headstones, and 
markers, as well as burial in a VA national cemetery for eligible 
veterans and their family members. Section 2402 of title 38, United 
States Code, establishes eligibility requirements for burial in a VA 
national cemetery. For eligible veterans and certain family members, VA 
covers the cost of interment in a VA national cemetery and provides a 
headstone or marker (including inscription), as well as a gravesite or 
cremation niche and perpetual care of the gravesite or cremation niche. 
The Act authorizes VA to furnish a casket or urn for the burial in a 
national cemetery of the remains of a veteran with no known NOK and 
where sufficient financial resources are not otherwise available. 
Because VA's burial operations do not normally include the acquisition 
or provision of a casket or an urn, VA is proposing to provide monetary 
reimbursement for a privately purchased casket or urn for the burial of 
any veterans whose remains are unclaimed when no NOK can be identified 
and it is determined that insufficient financial resources are 
available to pay for cost of the casket or urn. VA believes that 
monetary reimbursement is a more efficient means to administer this 
authority because direct provision of caskets and urns would create 
additional administrative duties and expenses, outside the scope of 
normal operations, which may impact the timely provision of burial 
services.
    When veterans and other individuals die without sufficient funds 
for burial and no known NOK, third parties, such as public 
administrators, local coroners, funeral directors or volunteer 
organizations, often assume responsibility for the burial of unclaimed 
remains, to include the provision of a casket or urn for burial at 
private or public expense. By establishing a means to reimburse these 
third parties for the expense of a burial receptacle, VA would ensure 
that these veterans receive an appropriate burial in a national 
cemetery consistent with Congress' stated objective in enacting the 
amendment to 38 U.S.C. 2306. Requests for reimbursement would require 
presentation of an invoice to ensure accountability and quality of the 
purchased casket or urn, but would be limited to an average cost to 
ensure appropriate fiscal control.
    In paragraph (a) of proposed 38 CFR 38.637, we would state the 
general applicability of the reimbursement program, which is based on 
the authority set forth in the Act. Because the Act directs that burial 
will be in a national cemetery, VA would determine whether the deceased 
veteran is eligible for burial in one of the VA national cemeteries. 
Generally, eligibility requirements are set forth in Sec.  38.620. 
Sections 38.617 and 38.618 contain prohibitions for burial in certain 
circumstances, and the Act contained new restrictions, based on a 
deceased veteran's conviction of certain sex offenses, for which VA has 
not yet published regulations. These legal requirements would also be 
considered in determining whether a deceased veteran is eligible for 
burial in a national cemetery.
    Paragraphs (a)(1) and (2) of Sec.  38.637 state the additional 
requirements that were set forth in the Act which define when VA may 
furnish a burial receptacle. As stated previously, the Act provided 
authority for VA to furnish a casket or an urn when VA is unable to 
identify the veteran's next-of-kin and determines that sufficient 
resources to purchase the burial receptacle are not otherwise 
available. These requirements are discussed below.
    In paragraph (b) of Sec.  38.637, we propose the requirements 
necessary for an individual or entity to request reimbursement. To 
ensure consistent process and submission of information, VA has 
developed a form to be used for requesting reimbursement. VA has 
separately requested the Office of Management and Budget approval of 
the form and published a notice requesting comment on the information 
collection, as required by the Paperwork Reduction Act. See Paperwork 
Reduction Act section below.
    As proposed, the form and any supporting documentation would 
provide information sufficient for VA to make determinations regarding 
the veteran's eligibility for burial in a national cemetery, and the 
availability of the veteran's next-of-kin and resources for purchasing 
a burial receptacle. The individual or entity that seeks reimbursement 
must have attempted to identify both the next-of-kin and available 
resources. In some cases, an applicant may explain that a veteran's 
remains have been deemed abandoned based on State law, or describe 
circumstances that would reasonably lead the applicant to

[[Page 36275]]

conclude that the veteran's remains are unclaimed by a NOK and 
sufficient funds are not available for a casket or urn. For purposes of 
this rulemaking, VA may determine whether a NOK's refusal to arrange 
for the veteran's burial is deemed the same as the veteran having no 
next of kin. VA cannot compel an identified NOK who is unwilling or 
unable to assume responsibility for the deceased veteran's burial. In 
such cases, VA may recognize third parties who may be substituted in 
place of a NOK to inter the remains of deceased veterans that would 
otherwise remain unclaimed. VA would use its own internal resources to 
verify information about a deceased veteran's NOK and available 
financial resources, and in the absence of contrary evidence, the 
applicant's certifications would be accepted and the request for 
reimbursement would be accepted.
    In paragraphs (b)(4) and (5) of Sec.  38.637, we propose to require 
the individual or entity to submit an invoice showing the purchase 
price of the burial receptacle and information sufficient for VA to 
determine that the burial receptacle is compliant with certain minimum 
standards. We are aware that burial receptacles available for purchase, 
particularly caskets, are available in a wide array of materials and in 
a range of prices. The Federal Trade Commission (FTC), which has 
authority to regulate funeral industry practices, defines a ``casket'' 
in part 453 of title 16 of the Code of Federal Regulations as ``a rigid 
container which is designed for the encasement of human remains and 
which is usually constructed of wood, metal, fiberglass, plastic, or 
like material, and ornamented and lined with fabric.'' In addition, the 
FTC regulation provides a definition of an ``alternative container,'' 
which we construe as applicable to cremation urns. An ``alternative 
container'' is defined as ``an unfinished wood box or other non-metal 
receptacle or enclosure, without ornamentation or a fixed interior 
lining, which is designed for the encasement of human remains and which 
is made of fiberboard, pressed-wood, composition materials (with or 
without an outside covering), or like materials.'' VA proposes to 
establish minimum specifications for a casket or urn eligible for 
reimbursement based on these definitions, but refined to ensure a 
``dignified burial.'' See 38 U.S.C. 2306(f). By establishing minimum 
specifications, we do not prohibit individuals or entities from 
purchasing burial receptacles of higher standard; however, 
reimbursement would be subject to the maximum rate discussed below.
    In paragraph (b)(5)(i) of Sec.  38.637, we propose to require that 
purchased caskets be at least of 20-gauge metal construction. Although 
both VA and the individual or entity would have attempted to locate a 
NOK, there is the possibility that, in the future, someone may come 
forward to claim a veteran's remains and seek to reinter them somewhere 
other than a national cemetery. VA believes, based on our experience, 
that a casket crafted of 20-gauge metal would ensure the integrity of 
the remains should disinterment and reinterment be required. While 
other heavier weights of metal caskets are available, we propose that 
20-gauge would be a minimum required for reimbursement. This is a 
standard economical option that is generally available from major 
vendors of caskets and is in keeping with our intent to provide a 
durable yet affordable casket.
    We would also require that the casket be designed to contain human 
remains. Not all metal containers are appropriate for burial, nor would 
any metal container ensure the dignity we expect when burying our 
nation's veterans. Generally, caskets are of a consistent size, but we 
do not propose to regulate this element, other than to require that the 
casket be of sufficient size to contain the remains of the deceased. We 
note, for information, that the normal plot size in a national cemetery 
will accommodate caskets up to 82 inches long by 28 inches wide. Larger 
caskets, however, may be accommodated when necessary. We further 
propose design elements--that the casket have a gasketed seal and 
external rails or handles--to ensure integrity of the remains and to 
allow the casket to be raised and lowered as needed.
    We propose to require that urns be constructed of durable plastic, 
with a secure closure to contain the cremated remains. As with caskets, 
our proposal for the material is based on our concern that we may need 
to disinter and reinter these remains. VA national cemeteries provide 
direct in-ground burial for cremated remains, as well as niches in 
columbaria. We propose to require durable plastic construction to 
ensure the integrity of the remains in either case. Similar to our 
requirement for caskets, we require that the urn be designed for 
containing cremated human remains, because not all plastic containers 
are suitable for this purpose.
    We note that while these specifications are required for 
reimbursement under this regulation, they do not reflect a requirement 
that all caskets or urns used in burials in national cemeteries must 
meet. VA is committed to ensuring that the wishes of a veteran's family 
are paramount in burying their loved one. Some families may choose to 
provide a casket or urn for their veteran that does not meet the 
standards discussed above. They may even choose, for religious or 
cultural reasons, to not have a burial container at all. VA endeavors 
at all times to adhere closely to the wishes of a deceased veteran's 
family, so we would honor these wishes, providing we can do so while 
ensuring not only public health and safety but the health and safety of 
VA employees. In the case of unclaimed remains for which we are 
furnishing (through reimbursement) a casket or urn, we propose the 
standards defined above to ensure that each veteran, in the absence of 
a family member to make such determinations, is laid to rest in a 
consistently dignified manner.
    VA would visually inspect the casket or urn when it arrives at the 
national cemetery to ensure that it corresponds to the description on 
the invoice. Provided that visual inspection and the documentation 
confirm that the burial receptacle meets the specifications defined 
above, VA proposes to reimburse the individual or entity for the 
purchase price shown on the invoice, up to a maximum amount to protect 
the program from abuse. The Act requires VA to ensure the burial 
receptacle is ``appropriate for a dignified burial.'' As discussed 
above, we believe the standards we have provided would ensure a 
dignified burial. We do not prohibit an individual or entity from 
purchasing a burial receptacle that exceeds these standards. However, 
if VA were to reimburse for any purchase, without limit, we would 
jeopardize our ability to provide even the most reasonable burial for 
other deserving veterans. We propose, therefore, in paragraph (c) of 
Sec.  38.637, to determine the average cost of caskets and urns for the 
fiscal year preceding calendar year of the purchase and burial, and use 
that average as a maximum reimbursement limit. Our authority under the 
Act began on January 10, 2014, therefore all reimbursements for 
purchases of burial receptacles for individuals who die between January 
10, 2014 and December 31, 2014, would be subject to a maximum 
reimbursement limit based on the average cost of a casket or urn 
meeting the proposed specification available for purchase during the 
fiscal year from October 1, 2012 through September 30, 2013. By using 
the calendar year for the reimbursement, and the fiscal year for the 
average cost

[[Page 36276]]

calculation, we provide a three month time frame during which we would 
calculate the costs for the fiscal year, and develop and publish a 
notice in the Federal Register to alert individuals and entities of the 
maximum reimbursement that would be allowed before the beginning of the 
calendar year.
    This proposed rulemaking is being published after the effective 
date of the Act (January 10, 2014). Because individuals and entities 
who were responsible for the unclaimed remains of veterans may have 
purchased burial receptacles for those remains before the publication 
of this proposed rule without knowing VA's intended standards for at 
least 20-gauge metal construction of caskets or durable plastic 
construction of urns, VA would consider a limited deviation from those 
standards to allow reimbursement for purchases that do not meet those 
standards. This deviation is only for the standard that requires a 
casket to be of at least 20-gauge metal construction or an urn to be of 
durable plastic construction. All other requirements contained in the 
proposed regulation would apply, including required gasketed seals and 
handles or rails, as well as requirements regarding the eligibility of 
the veteran for burial, lack of a NOK, and insufficient resources to 
purchase a burial receptacle. If, before the publication date of the 
proposed rulemaking, an individual or entity purchased a casket or urn 
for burial in a VA national cemetery of the remains of a veteran who 
died after January 10, 2014, and the burial receptacle is not at least 
a 20-gauge metal casket or a durable plastic urn, VA would reimburse 
the purchase price of the burial receptacle, providing all other 
criteria in the proposed regulation are met. The reimbursement amount 
would be subject to the maximum reimbursement amount calculated for 
2014.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to this regulation or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

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, because the number of claims and the amounts involved 
are expected to be small. This rule would only impact those third 
parties and entities that choose to participate in this program. 
Payments made under this program are not intended as benefits but to 
provide reimbursement for privately purchased caskets and urns. We 
estimate the average price of a burial receptacle (and therefore the 
average reimbursement) would be less than $2,000 for caskets and less 
than $200 for urns. We also estimate that the total number of 
reimbursements for 2014 would be 338 caskets and 332 urns. Because the 
proposed rulemaking provides for a reimbursement, the individual or 
entity purchasing the burial receptacle would recoup the purchase 
price, up to the maximum rate established annually. Generally this 
would result in the individual or entity avoiding a financial loss for 
having made the purchase. But, because the reimbursement would be equal 
to the purchase price of the burial receptacle, the individual or 
entity would not experience any gain. 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.

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.

Paperwork Reduction Act

    VA has developed an application, VA Form 40-10088, which 
constitutes a collection of information under the Paperwork Reduction 
Act of 1995 (PRA) (44 U.S.C. 3501-3521) that requires approval by the 
Office of Management and Budget (OMB). Under the PRA, Federal agencies 
must obtain approval from OMB for each collection of information they 
conduct or sponsor. ``Collection of information'' is defined in 44 
U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or 
requirements that members of the public submit reports, keep records, 
or provide information to a third party. Section 3506(c)(2)(A) of the 
PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 
60-day notice in the Federal Register concerning each proposed 
collection of information before submitting the collection to OMB for 
approval. To comply with this requirement, VA has submitted for 
publication notice of the proposed collection of information 
recommended in this rulemaking.
    In accordance with the PRA, VA will solicit public comment and 
obtain OMB approval for any information collection included in this 
proposed rule. Prior to publication of any final rule, VA will analyze 
public comments received for this collection requirement.

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,'' which requires review by the Office 
of Management and Budget (OMB), 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 proposed rule 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

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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://www1.va.gov/orpm/, by following the link for ``VA Regulations 
Published.''

Comment Period

    Although Executive Order 12866 generally requires that agencies 
afford the public a 60-day comment period, VA has determined that good 
cause exists to limit the public comment period for this proposed rule 
to 30 days. This rulemaking is necessary to implement the statutory 
changes enacted in Public Law 112-260 to increase the availability of 
benefits for veterans whose remains are unclaimed where sufficient 
resources are not available for burial expenses. VA must implement the 
new casket and urn authority in regulation to inform the public of 
reimbursement amounts, application procedures, and standards for the 
caskets or urns. These statutory provisions became effective on January 
10, 2014, one year after the enactment date of the law. Accordingly, we 
are providing a 30-day comment period for the public to comment on the 
proposed rule.

Catalog of Federal Domestic Assistance Numbers

    The Catalog of Federal Domestic Assistance program number and title 
for this proposed rule are 64.201, National Cemeteries.

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. Jose D. 
Riojas, Chief of Staff, Department of Veteran Affairs, approved this 
document on June 13, 2014, for publication.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Veterans.

    Dated: June 18, 2014.
William F. Russo,
Deputy Director, Office of Regulation Policy & Management, Office of 
the General Counsel, U.S. 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, 2306, 2402, 2403, 2404, 
2408, 2411, 7105.

0
2. Add Sec.  38.637 to read as follows:


Sec.  38.637.  Reimbursement for caskets and urns for unclaimed remains 
of Veterans.

    (a) VA will reimburse any individual or entity for the actual cost 
of a casket or an urn, purchased by the individual or entity for the 
burial in a national cemetery of an eligible veteran who died on or 
after January 10, 2014, for whom VA:
    (1) Is unable to identify the veteran's next-of-kin; and
    (2) Determines that sufficient resources are otherwise unavailable 
to furnish the casket or urn.
    (b) An individual or entity may request reimbursement 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 reimbursement VA must find 
all of the following:
    (1) The veteran is eligible for burial in a VA national cemetery;
    (2) The individual or entity has certified that they cannot 
identify the veteran's next-of-kin, and VA's records do not identify a 
next-of-kin;
    (3) The individual or entity has certified that, to the best of 
their knowledge, sufficient resources are otherwise unavailable to 
furnish the casket or urn, and VA's records do not indicate such 
resources;
    (4) The invoice presented by the individual or entity clearly 
indicates the purchase price of the casket or urn purchased by the 
individual or entity; and
    (5) The invoice presented by the individual or entity contains 
information sufficient for VA to determine, in conjunction with a 
visual inspection, that the casket or urn meets the following minimum 
standards:
    (i) Caskets must be of 20-gauge metal construction, designed for 
containing human remains, sufficient to contain the remains of the 
deceased veteran, include a gasketed seal, and include external fixed 
rails or swing arm handles.
    (ii) Urns must be of durable plastic construction, with a secure 
closure to contain the cremated remains, and must be designed for 
containing cremated human remains.
    (c) Reimbursement under paragraph (a) of this section will not 
exceed the average cost of the casket or urn, as determined by VA and 
published annually in the Federal Register.
    (d) If, before June 26, 2014, an individual or entity purchased a 
casket or urn for burial in a VA national cemetery of the remains of a 
veteran who died after January 10, 2014, and the burial receptacle is 
not at least a 20-gauge metal casket or a durable plastic urn, VA will 
reimburse the purchase price of the burial receptacle, providing all 
other criteria in this regulation are met. The reimbursement amount 
will be subject to the maximum reimbursement amount calculated for 
2014.


(Authority: 38 U.S.C. 2306, 2402, 2411)


[FR Doc. 2014-14651 Filed 6-25-14; 8:45 am]
BILLING CODE 8320-01-P