[Federal Register Volume 79, Number 190 (Wednesday, October 1, 2014)]
[Proposed Rules]
[Pages 59176-59179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-23330]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 38
RIN 2900-AO95
Applicants for VA Memorialization Benefits
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its
regulations defining who may apply for a headstone or marker. The
intended effect of this proposed rule would be to expand the types of
individuals who may request headstones and markers on behalf of
decedents. This amendment would address concerns that the existing
applicant definition is too restrictive and results in identified
veteran gravesites going unmarked.
DATES: Comments must be received on or before December 1, 2014.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to the Director,
Regulation Policy and Management (02Reg), Department of Veterans
Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or by
fax to (202) 273-9026. Comments should indicate that they are submitted
in response to ``RIN 2900-AO95--Applicants for VA Memorialization
Benefits.'' 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 www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Anita Hanson, Director, Memorial
Programs Service (41B), National Cemetery Administration, 810 Vermont
Ave. NW., Washington, DC 20420, (202) 501-3060. (This is not a toll-
free number.)
SUPPLEMENTARY INFORMATION: The National Cemetery Administration (NCA)
proposes to amend its regulations regarding applications for headstones
and markers. NCA is proposing, as discussed below, to amend the
definition of ``applicant,'' set forth in 38 CFR 38.632, as it pertains
to individuals requesting VA headstones and markers. In 2009, VA
implemented the existing definition of applicant to include the
decedent's next of kin (NOK), a person authorized in writing by NOK, or
a personal representative authorized in writing by the decedent. An
individual who met the definition was authorized to apply for a
Government-furnished headstone or marker, or a new emblem of belief for
inscription on a Government-furnished headstone or marker.
VA has received a number of requests from individuals who did not
meet the current definition of applicant for headstones or markers.
Because of the
[[Page 59177]]
regulatory restriction, VA denied the requests for headstones or
markers which has frustrated the efforts of individuals to ensure the
unmarked graves of veterans, particularly those from historic eras, are
appropriately marked. VA shares the goal of these individuals to ensure
appropriate recognition of veterans who served the United States and
proposes to revise the definition of applicant to ease the restrictive
aspects of the definition and allow more individuals to apply for
headstones and markers, including memorial headstones and markers.
We propose to place this revised definition in Sec. 38.600(a).
Section 38.600(b) contains other definitions that are used elsewhere in
part 38, including the definition of one term that we intend to use in
the revised definition of applicant, so putting all the definitions
together is a logical step.
The revised definition of applicant recognizes that VA is
authorized to provide two types of headstones or markers. Under 38
U.S.C. 2306(a), VA provides ``appropriate Government headstones or
markers . . . for the unmarked graves'' of certain eligible
individuals. Under section 2306(b), VA provides ``an appropriate
memorial headstone or marker for the purpose of commemorating an
eligible individual whose remains are unavailable.'' We do not believe
we need to supply additional definitions of these items, since the
statute has clearly identified the use for each, but for ease of
identification in our regulations, we adopt the term ``burial headstone
and marker'' for those items provided under section 2306(a) and
``memorial headstone and marker'' for those provided under section
2306(b).
We propose to recognize five categories of individuals who may
submit requests for burial headstones and markers. In proposed Sec.
38.600(a)(1), we would ensure that any family member can request a
burial headstone or marker. We believe that burial and memorialization
are among the most personal decisions that individuals make, and that
family members generally make these decisions. However, as we have
stated above, we understand that our current definition, which relies
on the phrase ``next of kin,'' is too restrictive because it would not
allow for extended relatives, such as fifth cousins and great-nieces or
great-great-nephews, to request a headstone or marker for their
relatives. We have chosen to use ``family member,'' and we provide
clarification that this phrase would include the decedent's spouse, or
the child, parent, or sibling of the decedent, whether biological,
adopted, or step relation. In addition, because we may receive requests
to provide burial headstones and markers for veterans who served
decades and even centuries ago, we would allow for requests from a
lineal or collateral descendant of the decedent. This would allow
families who have recently discovered the military service of an
ancestor to apply for memorialization of their deceased relative.
In addition to family members, we are also proposing that
``personal representatives'' would be allowed to apply for headstones
or markers. Currently, our regulation limits applications by personal
representatives to those who are specifically authorized by NOK or the
decedent. This has also been the source of many denied applications. We
propose to continue to allow personal representatives to apply, but we
update the regulation by using an existing definition of the term
contained in Sec. 38.600(b). Our intent is to allow an individual who
is responsible for the burial or memorialization of a deceased
individual to apply for a headstone or marker. The current definition
in Sec. 38.600(b) requires the individual to identify himself or
herself to an NCA cemetery director as ``the person responsible for
making decisions concerning the interment of the remains of or
memorialization of a deceased individual.'' In addition to referencing
the definition in Sec. 38.600(b), we would update Sec. 38.600(b) by
removing the requirement that the individual notify a cemetery director
of their responsibilities toward the decedent. Our current processing
of applications for headstones and markers, and burial benefits as
well, generally involves contact first with the National Cemetery
Scheduling Office or the Memorial Programs Service, located in NCA's
central office. The removal of ``cemetery director'' from this
definition reflects the current practice. Use of the revised definition
of personal representative would allow for application for headstones
and markers not only by family members, but also by individuals who
have no familial relationship to the veteran but to whom the
responsibility for final disposition of the remains or other related
activities have fallen. For example, a close friend or a fellow veteran
who served with the decedent may be called upon to make final
arrangements for a veteran with no living family members. We want to
make it possible for this individual to request memorialization of the
veteran. Similarly, groups such as the Missing in America Project have
made a significant contribution to finding the unclaimed remains of
veterans and ensuring that they are provided with a final resting
place. It is a logical step that the same individual who made the
burial arrangements should be able to request memorialization as well.
We note, however, that if these veterans are buried in a national
cemetery, or in a state or tribal cemetery that has received a VA
grant, no additional request for memorialization is necessary; a
headstone or marker will be ordered as part of the burial process at
all such cemeteries.
A particular type of personal representative, and one that we
provide for separately here, is a congressionally charted Veterans
Service Organization (VSO). Because these organizations provide
numerous activities in service to veterans and families of veterans, we
would accept applications from a VSO for a headstone or marker to mark
the grave of an eligible deceased individual.
We also propose, in Sec. 38.600(a)(1)(iv), to accept applications
from individuals who have authority under state or local laws to make
final arrangements for decedents. As may be expected, states and
localities have varying laws on this topic, and we cannot detail each
variation. However, some examples include an individual who is
appointed by a county within a state to arrange burial of homeless or
indigent individuals, or someone to whom a court of competent
jurisdiction has issued an order providing the individual with
authority to arrange burial or memorialization. We also include in this
group funeral home directors, crematory operators, or those responsible
for the operation and maintenance of a cemetery, because their
activities are regulated by state or local laws. Any individual who
provides documentation of such lawful duty would be eligible to apply
for a headstone or marker for an eligible deceased individual.
In proposed Sec. 38.600(a)(1)(v), we would address applicants for
burial headstones and markers for graves of veterans whose service
ended prior to April 6, 1917, or on whose service prior to April 6,
1917, the eligibility of another individual for memorialization is
based. We chose to use April 6, 1917, because it is the date on which
the United States entered World War I. We are aware that many
individuals are interested in researching genealogy, either for
themselves or others, or have broad interest in researching military
history, including the burial of veterans. We know that many
individuals have taken up the task of identifying burial places of
veterans to obtain for them a lasting memorial to their service. We
[[Page 59178]]
applaud the efforts of these individuals and seek to recognize those
efforts by allowing them to make an application if they identify an
unmarked grave of an eligible individual. We believe that if the grave
belongs to a veteran who served during World War I or later, it is more
likely that a living family member (as defined in proposed paragraph
(a)(1)) could be found. To ensure that family wishes are respected, we
believe that an unrelated individual who identifies an unmarked grave
of an eligible veteran who served during or after World War I should
attempt to identify and contact family rather than making the
application for a burial headstone or marker directly to VA.
Memorial headstones and markers, under section 2306(b), are
distinct from burial headstones and markers and are authorized to
commemorate an eligible individual whose remains are unavailable for
burial. When an individual dies and is buried, the gravesite provides a
place for family to gather to mourn and remember their loved one. The
burial headstone or marker, particularly in a national cemetery, offers
the family a physical remembrance of the individual and of the
contribution of a veteran to our country. When a family has no remains
to bury, they have no similar place to mourn. The memorial marker
provides such a location. We believe this is why Congress limited the
availability of the memorial headstones and markers to locations in
cemeteries. We are proposing to limit the definition of applicant for
memorial headstones and markers to family members, with the same
parameters for that term as discussed above, so that a memorial
headstone or marker retains the same symbolism and purpose that a
burial headstone would have. It is a commemoration of an individual,
not the service of the individual. The nation honors the service of
veterans in many ways; the memorial headstone or marker allows families
to honor their loved one individually.
We also propose to make several technical corrections to current
regulations necessitated by this rulemaking. First, we would update the
introductory paragraph in Sec. 38.600(b) to make the definitions that
follow pertain to all of part 38. These definitions were placed in
Sec. 38.600(b) as part of a rulemaking that promulgated Sec. 38.617
and Sec. 38.618, which bar burial benefits for individuals who
committed capital crimes. However, a few of the terms defined in Sec.
38.600(b) are used elsewhere in part 38, including interment,
memorialization, and notably, personal representative. As discussed
above, we propose to use this term in Sec. 38.600(a). In addition,
making these definitions apply to all of part 38 is a step we are
making in anticipation of a general rewrite of part 38. We anticipate
adding other definitions to this paragraph in future rulemakings
designed to clarify our regulations and may consider relocation of the
definitions in Sec. 38.600, including the revised definition of
applicant.
Second, as discussed above, we are proposing to remove the phrase
``cemetery director'' from the definition of personal representative in
Sec. 38.600(b), so that individuals may make themselves known to NCA
in ways other than through the cemetery directors.
Finally, we propose to remove the phrase ``a Government-furnished
headstone or marker and, in appropriate instances,'' from Sec.
38.632(b)(1). The current regulation applies to applicants for
headstones and markers and emblems of belief. We propose to remove the
indicated language because the new definition we introduce in this
rulemaking would apply to headstones and markers, and we propose to
leave intact, at least for the present time, the definition of
applicant in Sec. 38.632 as it applies to emblems of belief (EOBs). We
have received no negative feedback regarding use of this definition for
EOBs. We may reconsider the definition in a future rulemaking as we
rewrite part 38. We alert interested parties, however, that we are not
accepting comments at this time on the definition of applicant as it
pertains to EOBs. Such comments will be considered outside the scope of
this rulemaking.
Effect of Rulemaking
The Code of Federal Regulations, as proposed to be revised by this
rulemaking, would represent the exclusive legal authority on this
subject. No contrary rules or procedures would be authorized. All VA
guidance would be read to conform with this proposed rulemaking if
possible or, if not possible, such guidance would be superseded by this
rulemaking.
Paperwork Reduction Act
This proposed 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 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. This proposed rule directly affects only individuals
and would 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 Order 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://www1.va.gov/orpm, by following the link for ``VA
Regulations Published.''
[[Page 59179]]
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 1 year. This proposed rule would 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 numbers and
titles for the programs 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. Jose D.
Riojas, Chief of Staff, Department of Veterans Affairs, approved this
document on September 18, 2014, for publication.
List of Subjects in 38 CFR Part 38
Administrative practice and procedure, Cemeteries, Claims, Crime,
Veterans.
Dated: September 26, 2014.
William F. Russo,
Acting Director, Office of Regulation Policy & Management, Office of
the General Counsel, U.S. Department of Veterans Affairs.
For the reasons set out in the preamble, VA proposes to amend 38
CFR part 38 as follows:
PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS
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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.
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2. Amend Sec. 38.600 by:
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a. Adding paragraph (a).
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b. Removing ``Sec. Sec. 38.617 and 38.618'' and adding in its place
``part 38'' in paragraph (b) introductory text.
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c. Removing ``cemetery director'' from the definition of ``personal
representative'' in paragraph (b).
The addition reads as follows:
Sec. 38.600 Definitions.
(a)(1) Applicant defined--burial headstones and markers. An
applicant for a headstone or marker that will mark the gravesite or
burial site of an eligible deceased individual may be:
(i) A decedent's family member, which includes the decedent's
spouse; a child, parent, or sibling of the decedent, whether
biological, adopted, or step relation; and any lineal or collateral
descendant of the decedent;
(ii) A personal representative, as defined in paragraph (b) of this
section;
(iii) A representative of a Congressionally-chartered Veterans
Service Organization;
(iv) Any individual who is responsible, under the laws of the
relevant state or locality, for the disposition of the unclaimed
remains of the decedent or for other matters relating to the interment
or memorialization of the decedent; or
(v) Any individual, if the dates of service of the veteran to be
memorialized, or on whose service the eligibility of another individual
for memorialization is based, ended prior to April 6, 1917.
(2) Applicant defined--memorial headstones and markers. An
applicant for a memorial headstone or marker to commemorate an eligible
individual must be a member of the decedent's family, which includes
the decedent's spouse; a child, parent, or sibling of the decedent,
whether biological, adopted, or step relation; and any lineal or
collateral descendant of the decedent.
* * * * *
Sec. 38.632 [Amended]
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3. Amend Sec. 38.632(b)(1) by removing ``a Government-furnished
headstone or marker and, in appropriate instances,''.
[FR Doc. 2014-23330 Filed 9-30-14; 8:45 am]
BILLING CODE 8320-01-P