Applicants for VA Memorialization Benefits, 10765-10771 [2016-04553]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 81, Number 41 (Wednesday, March 2, 2016)]
[Rules and Regulations]
[Pages 10765-10771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-04553]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its regulations 
defining who may apply for a headstone or marker. The rule expands the 
types of individuals who may request headstones and markers on behalf 
of decedents.

DATES: The final rule is effective April 1, 2016.

FOR FURTHER INFORMATION CONTACT: Eric Powell, Deputy Director, Memorial 
Programs Service (41B1), National Cemetery Administration, Department 
of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 20420, (202) 
501-3060. (This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On October 1, 2014 (79 FR 59176), VA 
proposed revising its regulations regarding applicants for headstones 
and markers. The rule expanded the definition of applicant to allow 
more individuals to request that VA provide a burial headstone or 
marker for unmarked graves or a memorial headstone or marker if remains 
are not available for burial. Interested person were invited to submit 
comments on the proposed rule on or before December 1, 2014. VA 
received a total of 387 comments from interested stakeholders, 
including members of Congress, state and local officials, as well as 
members of genealogical, historical, and veterans service 
organizations. Because of the number of comments, both positive and 
negative, we have grouped them together by issue or content, and will 
address each group below. For the reasons set forth below and in the 
proposed rule, we adopt the proposed rule as final, with the changes 
explained below. To address some of these

[[Page 10766]]

comments, VA added a new 38 CFR 38.600(a)(1)(iv) and re-designated 
proposed paragraphs (a)(1)(iv) and (a)(1)(v) as paragraphs (a)(1)(v) 
and (a)(1)(vi), respectively.

Supportive Comments

    Of the 387 comments, more than half expressed support for an 
agreement with the proposed amendment to the headstone and marker 
applicant definition. Many of the supportive commenters urged VA's 
prompt implementation of the proposed expanded applicant definition and 
praised VA for broadening the applicant standard because it would 
result in marking veteran gravesites that would otherwise remain 
unmarked, particularly for veterans who served prior to World War I 
(WWI). Although most commenters did not specifically comment on any 
particular provision of the rule, several commenters provided 
information about specific claims they had made previously that had 
been denied or that they feel now would be allowed under the revised 
rule. Others merely stated that their ancestors' graves are unmarked 
without indicating whether they had previously attempted to obtain a VA 
headstone or marker. VA's intent is that the expanded applicant 
definition will encourage more people to present memorialization 
claims. However, as one individual accurately pointed out, the public 
comment forum is not an appropriate means to present a claim for a 
headstone or marker. VA considers any information in these comments 
that refers to specific claims to be outside the scope of the proposed 
rule. To the extent that this final rule discusses any of these 
comments, such discussion should not be construed as a determination on 
such purported claims. However, we encourage those individuals whose 
memorialization claims were denied under the previously more 
restrictive applicant definition to resubmit their requests, which VA 
will review on a de novo basis. Because none of these commenters raised 
specific objections to the rule, and because the rule will allow for 
many more individuals to apply for memorialization of their ancestors, 
we interpret these comments to be supportive of the regulation itself, 
as proposed. VA appreciates the efforts of all those who took the time 
to review the proposed rule and provide their comments. Because these 
commenters suggested no changes to the rule, we make no changes to the 
rule as proposed, based on these comments.

Inclusion of Other Groups as Applicants

    We received multiple comments from individuals who suggested that 
various entities, such as historical societies, genealogical societies, 
cemetery associations, or other similar entities, be listed as separate 
categories of applicants in the regulation so that they may request 
headstones or markers for the graves of veterans. Along these same 
lines, we received numerous suggestions to include, or requests that we 
clarify whether the rule includes, specifically-named groups or 
organizations. Commenters listed the Daughters of the American 
Revolution, Sons of the American Revolution, General Society of the War 
of 1812, Sons of Union Veterans of the Civil War, and Sons of 
Confederate Veterans, and other similar entities, which may be 
generally categorized as ``lineage societies,'' as groups they desired 
to see added to the regulation.
    We do not believe that the regulation must be changed to include 
those additional categories or to allow these specifically-named groups 
to apply for headstones and markers. We understand commenters' desire 
to have explicit authority for a particular entity that they support or 
to which they belong, but it is not practical to list every entity that 
may apply under the regulation. This is why we created broad categories 
to describe who may apply for a headstone or marker. The entities 
listed above all appear, by their names or descriptions, to have an 
interest in veterans whose service ended prior to April 6, 1917, the 
date on which the United States entered WWI. To the extent that 
commenters belong to such groups and seek to apply for headstones and 
markers for veterans with such service, and the comments that they made 
indicate this to be the case, they may do so under proposed Sec.  
38.600(a)(1)(v), now re-designated as Sec.  38.600(a)(1)(vi), which 
allows for ``any individual'' to apply for a headstone or marker for 
veterans whose service ended prior to April 6, 1917, or for an 
individual whose eligibility is based on such service. We make no 
changes based on these comments.
    We received eight comments from individuals requesting the addition 
of county veterans service officers (CVSOs) to the list of applicants 
in Sec.  38.600(a)(1)(iii), which, as proposed, only included 
representatives of Congressionally-chartered veterans service 
organizations (VSOs). One commenter equated the work of CVSOs to that 
of Congressionally-chartered VSO representatives who assist with and 
represent veterans and their families in their VA benefit claims. Other 
commenters noted that CVSOs work collaboratively with VA and other 
national VSOs, as well as funeral homes and cemetery caretakers on 
behalf of homeless and unclaimed veterans. We agree that VA should 
accept memorialization claims from CVSOs, in much the same manner as we 
will accept claims from Congressionally-chartered VSO representatives. 
We acknowledge the valuable work that CVSOs do on behalf of veterans 
and the collaborative nature of their relationship with VA and VA's 
National Cemetery Administration. However, we believe that merely 
adding CVSOs to our applicant definition will not be sufficient, as it 
fails to recognize other individuals, employed by government entities 
other than counties, whose vocation also is to serve and assist 
veterans and their families in a variety of ways. For this reason, we 
are adding a new Sec.  38.600(a)(1)(iv), which adds, to the definition 
of applicant, an individual employed by the relevant state or local 
government if that individual's official responsibilities include 
serving veterans and families of veterans. We include the phrase ``such 
as a state or county veterans service officer'' to assist readers in 
understanding the type of individual we are recognizing. We thank the 
commenters for bringing this additional category to our attention and 
for their ongoing service to our nation's veterans.
    VA received nine comments from members of state-authorized cemetery 
commissions and other locally-based entities authorized under state or 
local laws to maintain local, possibly historic cemeteries, requesting 
that VA include them on the list of applicants for VA memorialization 
benefits. Most of these comments were from representatives of Iowa 
Pioneer Cemetery Commissions from various counties in Iowa. We found 
that Iowa Code Sec.  331.325, ``Control and maintenance of pioneer 
cemeteries--cemetery commission,'' authorizes county boards to assume 
jurisdiction and control of pioneer cemeteries, defined in the state 
law as those in which there have been twelve or fewer burials in the 
past fifty years. Because comments were received from individuals 
representing similar entities in at least two other states, we believe 
that other states also may authorize commissions, counties, townships, 
and other local entities to be responsible for the maintenance, repair, 
and improvement of cemeteries, including pioneer cemeteries. However, 
we do not believe that the regulation must be revised to recognize 
these entities as

[[Page 10767]]

proper applicants for a VA burial headstone or marker. Proposed Sec.  
38.600(a)(1)(iv), now re-designated as Sec.  38.600(a)(1)(v), provides 
that individuals responsible under state or local laws for the 
disposition of unclaimed remains or other matters relating to a 
decedent's interment or memorialization may apply for headstones or 
markers. As we explained in the proposed rule, this would include 
``those responsible for the operation and maintenance of a cemetery, 
because their activities are regulated by state or local laws.'' 79 FR 
at 59177. Entities such as the Iowa Pioneer Cemetery Commissions would 
have such authority. As with the historical and genealogical societies 
discussed above, we cannot list every type of entity responsible under 
state or local law for the disposition of unclaimed remains or matters 
relating to interment or memorialization. However, we clarify that VA 
will accept burial headstone or marker requests from members of the 
Iowa Pioneer Cemetery Commissions and from applicants who are similarly 
situated. When presented with a burial headstone or marker claim from 
an applicant who indicates that they are responsible under state or 
local law to handle a decedent's burial or memorialization needs, VA 
may ask the applicant to provide information about the authorizing 
statute to ensure the applicant's standing. Because we believe these 
entities are provided for in the rule, we make no changes based on 
these comments.

Revert to Previous Applicant Standard

    VA received three comments suggesting that we revert to the 
applicant standard that was in effect prior to implementation of the 
2009 applicant definition. One commenter asserted that, prior to 2009, 
there was no definition. While it is true that there was no definition 
of applicant in our regulations, VA's policy was to accept 
memorialization requests from VSOs, landowners, and anyone with 
knowledge of the decedent. The final rule explicitly allows for 
application by a representative of a Congressionally-chartered VSO 
(and, with the amendments discussed above, an individual employed by 
the relevant state or local government whose official responsibilities 
include serving veterans and families of veterans). Depending on 
specific circumstances, owners of land containing the burial site of an 
individual eligible for a VA-furnished headstone or marker may be 
determined to be ``responsible . . . for other matters relating to the 
interment or memorialization of the decedent'' under proposed Sec.  
38.600(a)(1)(iv), now redesignated as Sec.  38.600(a)(1)(v), and so may 
also apply. Re-designated Sec.  38.600(a)(1)(vi) will allow for any 
individual to apply for a burial headstone or marker if the relevant 
dates of service of the veteran ended prior to April 6, 1917. This last 
revision is the only significant difference between the applicant 
standard that was in place prior to the 2009 amendment and the final 
rule. As discussed elsewhere in this rulemaking, we believe the April 
6, 1917, date is appropriate to ensure that we do not inappropriately 
deny families the opportunity to determine how and whether to mark the 
grave of their decedent.

Inclusion of Domestic Partners and Individuals in Loco Parentis

    We received one comment from a private advocacy organization for 
lesbian, gay, bisexual, transgender, and queer (LGBTQ) families 
requesting that we include domestic partners and those standing in loco 
parentis to a deceased veteran in the definition of ``family member'' 
in Sec.  38.600(a)(1) and (a)(2) for burial headstones and markers and 
memorial headstones and markers, respectively. The commenter stated 
that the existing definition of ``personal representative'' in Sec.  
38.600(b) unfairly requires family members to pay for burial or 
memorialization costs that would disqualify those who may not have the 
means to fund a decedent's burial services. We clarify that a personal 
representative need only identify themselves to VA as an individual 
``responsible for making decisions'' concerning burial or 
memorialization. 38 CFR 38.600(b). There is no financial requirement 
associated with a memorialization request from a personal 
representative or any other headstone or marker applicant.
    Additionally, this commenter suggested VA include in Sec.  
38.600(a)(1)(i) and (a)(2) the domestic partner of a veteran, a child 
for whom a veteran stood in loco parentis, and a parent who stood in 
loco parentis for a veteran. Although the proposed expanded list of ``a 
decedent's family member'' or ``a member of the decedent's family'' for 
headstone and marker applicants in Sec.  38.600(a)(1) and (a)(2), 
respectively, is broadly defined to include almost every possible 
family relationship, we agree that the language ``decedent's spouse'' 
would not include an individual in a legal union with a veteran if that 
legal union did not meet the legal requirements of a marriage. VA 
defined memorialization applicants to include others who are not in 
marital relationships, and in keeping with other VA efforts to 
recognize a veteran's domestic partnership, civil union, and other 
formal relationship in certain circumstances, we will insert in Sec.  
38.600(a)(1) and (a)(2) the language ``individual who was in a legal 
union as defined in 38 CFR 3.1702(b)(1)(ii) with the decedent.'' We 
note that VA's burial benefits regulation, finalized last year (79 FR 
32653, June 6, 2014), defined the term ``legal union'' in 38 CFR 
3.1702(b)(1)(ii) to mean a formal relationship between the decedent and 
the survivor that existed on the date of the veteran's death, was 
recognized under the law of the state in which the couple formalized 
the relationship, and was evidenced by the state's issuance of 
documentation memorializing the relationship.
    We do not believe it is necessary to include the commenter's in 
loco parentis language because an applicant who is either an individual 
who stood in loco parentis for a veteran or a child for whom a veteran 
stood in loco parentis will be included in the ``personal 
representative'' definition in Sec.  38.600(b). Under that provision, 
VA will accept a headstone or marker request from an individual who 
stood in the relationship of a family member, as suggested by the 
commenter, and as such we will make no further changes based on this 
comment.

Replacement Headstones and Markers

    VA received fourteen comments that discussed replacing headstones 
and markers that have become unreadable, are damaged or do not properly 
mark a veteran's gravesite. Commenters suggested VA allow historical 
preservationists and cemetery organizations to request replacement 
markers, particularly for Civil War gravesites where no family member 
was likely to exist. One commenter suggested VA make an exception to or 
consider further expansion of the applicant definition to include 
individuals or groups seeking to rehabilitate or replace markers that 
were, in their view, improperly marked. Another commenter suggested we 
revise VA Form 40-1330 to include requests for replacement markers. 
This regulation on applicant definition applies to requests to replace 
existing markers that may have become damaged or so worn that they are 
no longer readable, a condition we refer to as ``unserviceable,'' as 
well as to requests to mark an unmarked grave. The definition of 
applicant is equally applicable, irrespective of whether the request is 
for a new or a replacement

[[Page 10768]]

headstone or marker. We note, however, that these individuals may be 
citing difficulties they may have had not in applying for the 
replacement, but in providing sufficient documentation to support the 
request. To the extent that these comments are regarding the latter, 
they are outside the scope of this rulemaking, which only establishes 
who may apply for a headstone or marker, not whether VA may approve a 
request. We make no change to the rule based on these comments but we 
do clarify that individuals identified in this regulation will be 
recognized applicants for original burial or memorial headstones or 
markers or for replacement for an unserviceable burial or memorial 
headstones or markers.

Line of Succession for Family Members

    Two commenters suggested VA clarify a decedent's family member 
lineage by establishing a line of succession or imposing other 
requirements to ensure a decedent has an appropriate applicant. One 
commenter suggested changes to the headstone or marker request form (VA 
Form 40-1330) to establish an applicant's relationship to a decedent. 
The commenter indicated that if a next of kin is not available, VA 
should allow claims from descendants who demonstrate a relationship to 
the decedent based on notarized death certificates and statements from 
physicians. In adopting a new definition of ``family member,'' VA is 
moving away from the use of ``next of kin,'' so the comment is somewhat 
outside the scope of this rulemaking. We will be requesting information 
regarding the relationship of the applicant, but that, too, is beyond 
the scope of this rule, which is only to establish the definition of 
applicant.
    Another commenter suggested VA clarify the order of priority that 
will be used in applying the applicant definition for memorial 
headstone or marker requests in Sec.  38.600(a)(2), which requires an 
applicant to be a member of the decedent's family, which includes the 
decedent's spouse (or, with the amendment discussed above, individual 
who was in a legal union as defined in 38 CFR 3.1702(b)(1)(ii) with the 
decedent), a child, parent, or sibling, whether biological, adopted, or 
step relation, and any lineal or collateral descendant of the decedent. 
Establishing an order of priority is a substantive standard that 
requires notice and comment. Because this rulemaking only provided 
notice and sought comment on the definition of applicant, we do not 
here establish an order of priority that must be followed when we 
receive a claim from ``family members'' under either Sec.  
38.600(a)(1)(i) or Sec.  38.600(a)(2).

Eliminate Applicant Definition

    Several commenters suggested that VA eliminate any definition of 
applicant for a headstone or marker. In general, these comments express 
the view that ``anyone'' can apply for benefits and have their standing 
to do so adjudicated along with the merits of their request. However, 
we believe that memorialization benefits are in some ways unique among 
the benefits that VA provides and require this additional step because, 
for most other VA benefits, the applicant is requesting benefits for 
himself or herself. In the case of headstones or markers, the benefit 
is being requested by a third party on behalf of the individual who is 
entitled to it. While we have drafted this regulation to broaden the 
pool of potential applicants, we do not agree that we should eliminate 
entirely the requirement that a particular applicant must request 
memorialization on behalf of a veteran or other eligible decedent. 
First, the authorizing statute, 38 U.S.C. 2306, requires that we 
provide a headstone or marker ``when requested'' but does not indicate 
from whom we should accept such requests. It is generally accepted that 
an agency may, through regulation, fill a gap such as this. Second, as 
we have discussed elsewhere in this final rule and in the proposed 
rule, our intent, as much as possible, is to reserve to the family of 
the decedent decisions regarding memorialization. This includes the 
decision not to obtain a government-furnished headstone or marker--or 
any marker at all, if that is their decision. VA cannot force 
individuals to apply for or accept the benefits that we provide. In 
addition to broadening the definition of family beyond the previously 
more restrictive ``next-of-kin'' standard, we have provided five 
additional categories of applicants who may request a burial headstone 
or marker. We believe that the new rule sufficiently allows for a very 
broad applicant pool to request burial headstones or markers for 
decedents who bear no relation to them, while balancing the need to 
respect family decisions to memorialize their loved ones, including the 
decision to leave a gravesite unmarked. We make no changes based on 
these comments.

Eliminate Date Restrictions

    VA received twenty-four comments that objected to VA's use of April 
6, 1917, as a limiting date in proposed Sec.  38.600(a)(1)(v), now 
redesignated as Sec.  38.600(a)(1)(vi). In that paragraph, we state 
that any individual may apply for a burial headstone or marker for a 
veteran whose service ended prior to that date, or for an individual 
whose eligibility for memorialization derives from a veteran whose 
service ended prior to that date. Several commenters suggested VA 
either eliminate the date restriction or use a rolling date rather than 
a specific date. A few commenters suggested use of a different time 
limit, such as 100 years from dates of the end of WWI (1918) or the end 
of World War II (1945). Generally, these commenters asserted that use 
of the 1917 ``date-certain'' for burial marker requests would only 
result in VA needing to revisit in the future the same issues we are 
addressing now that were caused by a restrictive applicant standard. 
Two commenters suggested VA adopt the applicant standard proposed in 
legislation introduced in 2013 and 2014, which would allow any person 
to request a marker if the deceased veteran served more than 62 or 75 
years before the date of the memorialization request. As stated in the 
proposed rule, we chose to include a date after which we felt it will 
be more likely that living family members could be located and could 
provide input into the marking of a grave. Further, for those whose 
service ended after 1917 and who have no living family member, VA 
provides ample alternatives for non-relative applicants to request a 
headstone or marker for those decedents. We considered use of a rolling 
time frame for applicants requesting memorialization and found that 
implementation of such a process would likely be more complex than 
would be required when using a date certain. The rolling date actually 
equates to a date certain, but a constantly changing one. Adopting an 
ever-changing standard introduces increased risk of human error in 
determining whether the service was or was not within the defined time 
frame. In addition, it may require annual updates to the computer 
system to recognize the newly calculated year. As indicated in the 
proposed rule, the 1917 date was established based on the objective 
likelihood that those decedents will not have living family members to 
request a headstone or marker.

Allow Non-Relative Memorial Marker Applicants

    VA received three comments objecting to Sec.  38.600(a)(2), in 
which we require that applicants for memorial headstones and markers to 
be members of a decedent's family, including collateral and lineal 
descendants. Commenters suggested VA include non-relative applicants, 
such as historians,

[[Page 10769]]

personal representatives, VSOs, townships and counties, in the 
definition of applicant for memorial headstone and marker requests. As 
explained in the proposed rule, memorial headstones and markers, as 
authorized under 38 U.S.C. 2306(b), are distinguished from burial 
headstones and markers because they are intended to commemorate an 
eligible individual whose remains are unavailable for burial to provide 
a family with a physical site to gather to mourn and remember their 
loved one, similar to that provided by a burial headstone or marker 
when remains are available for burial. As such, VA has determined that 
requests for memorial headstones and markers should be made by family 
members who are likely to want to memorialize someone whose life had 
specific meaning to them. The commenters offered no justification on 
which we would consider changing this previously stated position, 
therefore, we make no changes to the applicant definition based on 
these comments.

Various Comments Outside the Scope of the Proposed Rule

    VA received ten comments that do not fit in any of the other 
categories of comments discussed above and that VA finds to be outside 
the scope of the proposed expansion of the applicant definition. One 
commenter suggested the language of the proposed rule was too difficult 
for ordinary citizens to decipher. VA tries to make the regulations as 
accessible as possible for the general public. Most commenters seemed 
to understand the proposed rule because their comments were clearly 
related to concepts expressed in the rule, so we do not believe the 
rule was unnecessarily difficult. Several other commenters made 
suggestions regarding considerations VA should make in approving 
requests for headstones and markers. For example, one commenter 
suggested using DNA, archival, and other technologies and assembling a 
volunteer veteran panel to verify the identity of an interred veteran 
to determine the appropriate memorialization. Another commenter advised 
VA to exercise caution to ensure that headstone or marker inscriptions, 
including emblems of belief and service information (e.g., Medal of 
Honor) be valid and appropriate, and another advised checking for the 
``reasonableness'' of a request to ensure we do not mark a grave for 
the same individual multiple times. Another commenter suggested VA 
impose penalties for the destruction of a Government-furnished 
headstone or marker. Two commenters referred to procedures relating to 
memorialization of veterans interred in foreign countries. Two 
commenters expressed concerns about the limitation of headstones and 
markers for decedents who die prior to the November 1, 1990, date, 
which applies to eligibility for a second marker under 38 U.S.C. 
2306(d)(4). Another commenter appeared to assert that VA requires proof 
of burial in requests for a memorial headstone or marker and expressed 
disagreement with such a requirement. One commenter suggested VA create 
bronze or metal emblems to be affixed to non-VA headstones and markers. 
All of these comments are in regard to aspects of the headstone and 
marker program that are unrelated to the proposed amendment of the 
applicant definition. It would be inappropriate to address these issues 
in this final rule, and there are no changes we can make to the rule on 
the definition of applicant that would address these comments.

Proposed Rule Vulnerabilities

    One commenter noted the proposed expansion of the applicant 
definition would be problematic because it would increase costs beyond 
what was estimated in the economic impact analysis and could be abused 
by interested third parties. Allowing non-relatives to request 
memorialization for veterans who have long been deceased could 
potentially conflict with what the commenter believes is a family's 
responsibility to mark a gravesite or leave the gravesite unmarked in 
accordance with veteran's family's wishes at the time of burial. The 
commenter remarked that unaffiliated individuals and special interest 
organizations should not be allowed to further their own goals by 
manipulating another person's gravesite, particularly a veteran's. The 
commenter also expressed concern that VA did not require non-relative 
applicants for veterans post-WWI to document that an attempt was made 
to locate the decedent's family members. We appreciate the commenter's 
well-reasoned response to our rulemaking, and we assure the commenter 
that we did consider these issues prior to issuing the proposed rule. 
However, the intention of the rule was to increase the ability of these 
interested parties to apply for headstones and markers because VA 
shares their goal of ensuring that graves of those who have served our 
country are appropriately marked. We believe our approach strikes an 
appropriate balance between protecting the interests of a decedent's 
family and ensuring the appropriate memorialization of veterans. We 
note again that implementing an expanded applicant standard is not a 
guarantee that VA will issue the requested headstone or marker, so we 
believe that our estimate of costs is reasonable. To the extent that 
the commenter's other statements are in regard to approval of an 
application and not who may apply, we find the comments outside the 
scope of this rulemaking.

Single Commenter

    VA received seventeen separate comments from a single commenter 
whose remarks about the proposed rule primarily relate back to his 
efforts to mark the gravesites of veterans who perished in a 1935 
hurricane while on a Federal work detail, some of whom are interred in 
individual gravesites in a private cemetery in Florida, and some whose 
remains are commingled in a monument located on public land in Florida. 
We note that we have communicated with this commenter several times on 
the hurricane veteran memorialization requests (some of his comments 
included excerpts from that correspondence) and do not address that 
issue here because it is outside the scope of this rulemaking. Some 
issues raised by this commenter were raised by other commenters as 
well, including the estimated costs of the rule, the need to define 
applicant at all, and eliminating the 1917 limiting date, which are 
addressed elsewhere in this rulemaking. We address here only the 
remaining comments provided by this individual as they relate to the 
proposed rule on the definition of applicant.
    The commenter stated that the rule, as proposed, would restrict 
applications for those who served after WWI and would disenfranchise 
any such veteran who lacks a next of kin to present a memorialization 
request. These statements incorrectly interpret the provisions of the 
rule, as we provide that family members (which is itself defined more 
broadly than just ``next of kin''), VSOs (and individuals employed by 
the relevant state or local government whose official responsibilities 
include serving veterans and families of veterans, as added in this 
final rule), and others appropriately situated may apply for burial 
headstones and markers for those who served in WWI and later, and their 
eligible dependents. The commenter suggested we merely adopt the 
provisions of either of two bills introduced in the 113th Congress 
instead of our proposed rule. We decline to make that change because 
the rule as proposed by VA will allow more individuals to apply for 
headstones and markers than either of the introduced bills would have 
allowed, again because of our use of an expansive definition of

[[Page 10770]]

family member, rather than the limited term ``next of kin.'' The 
commenter also suggested VA allow our Congressional oversight 
committees and the sponsors of two bills time to submit comments on the 
proposed rule for the record. Given that VA received comments from 
Congressional members within the designated comment period, we make no 
changes based on this comment. In another comment, the individual notes 
that the authorizing statute, 38 U.S.C. 2306, states that VA shall 
provide a headstone or marker upon request but the statute does not 
limit who may make the request. He suggests that VA itself should make 
the request. As discussed previously, it is incumbent on executive 
branch agencies to provide regulations where statutory authority has 
gaps. This is what VA has done. Also as discussed previously, VA cannot 
force individuals to apply for or accept the benefits we provide. To 
make the ``application'' ourselves would be to do just that. The 
commenter proposed language to VA regulations regarding disinterment, 
the headstone and marker application process, and group memorial 
monuments, which fall outside the scope of the proposed rule to amend 
the applicant definition.
    For all the reasons stated in the proposed rule and noted above, VA 
is adopting the proposed rule as final with the above noted changes.

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 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. This final rule will directly affect only individuals and will not 
directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking is exempt from the final regulatory flexibility 
analysis requirements of 5 U.S.C. 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 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).

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,'' 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 https://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 https://www.va.gov/orpm, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

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. Robert D. 
Snyder, Interim Chief of Staff, Department of Veterans Affairs, 
approved this document on February 22, 2016 for publication.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Claims, Crime, 
Veterans.

    Dated: February 26, 2016.
William F. Russo,
Director, Office of Regulation Policy & Management, Office of the 
General Counsel, Department of Veterans Affairs.

    For the reasons set out in the preamble, VA 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, 2402, 2403, 2404, 
2408, 2411, 7105.


0
2. Amend Sec.  38.600 as follows:
0
a. Add paragraph (a);
0
b. In paragraph (b) introductory text remove ``Sec. Sec.  38.617 and 
38.618'' and add in its place ``part 38''; and
0
c. In paragraph (b) amend the definition of ``personal representative'' 
by removing ``cemetery director''.
    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 or individual who was in a legal union as defined in 38 CFR 
3.1702(b)(1)(ii) with

[[Page 10771]]

the decedent; 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) An individual employed by the relevant state or local 
government whose official responsibilities include serving veterans and 
families of veterans, such as a state or county veterans service 
officer;
    (v) 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
    (vi) 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 or individual who was in a legal union as defined 
in 38 CFR 3.1702(b)(1)(ii) with the decedent; 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]

0
3. Amend Sec.  38.632(b)(1) by removing ``a Government-furnished 
headstone or marker and, in appropriate instances,''.

[FR Doc. 2016-04553 Filed 3-1-16; 8:45 am]
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