Commemorative Plaques and Urns, 40386-40391 [2024-10194]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 89, Number 92 (Friday, May 10, 2024)]
[Rules and Regulations]
[Pages 40386-40391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10194]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AR88


Commemorative Plaques and Urns

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations to implement new statutory authority to furnish 
commemorative plaques and urns for certain veterans whose cremated 
remains are not interred. This action is necessary to administer the 
new benefits, which were authorized by the ``Johnny Isakson and David 
P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 
2020'' (the Act).

DATES: This rule is effective June 10, 2024.

FOR FURTHER INFORMATION CONTACT: Eric Powell, Director, Memorial 
Products Service, National Cemetery Administration, Department of 
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420. 
Telephone: 202-632-8670 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: On November 20, 2023, VA published in the 
Federal Register, at 88 FR 80649, a proposed rule revising its 
regulations to implement section 2207 of the Act (Pub. L. 116-315), 
which amended sec. 2306 of title 38, United States Code, by adding a 
new subsection (h), to create a new memorialization authority for the 
National Cemetery Administration

[[Page 40387]]

(NCA) to furnish, upon request, an urn or commemorative plaque for a 
veteran whose cremated remains are not interred. The public comment 
period ended January 19, 2024, and VA received nine comments. VA will 
address each in greater detail below but notes generally that six 
commenters expressed concerns with the rulemaking, two commenters 
supported the rulemaking, and one commenter's comment is considered 
beyond the scope of the rulemaking.
    One commenter criticized the proposed rule as poorly written and 
lacking in foresight, suggesting the rulemaking was a cost-saving 
measure at the expense of the veteran community. While the expressed 
opinions about the regulatory work product are outside the scope of the 
rulemaking, we address this commenter's remarks about the underlying 
statutory authority implemented by this final rule. The commenter noted 
that a veteran who receives a commemorative plaque or urn would be 
prohibited from interment in a ``national/state'' cemetery in addition 
to being prohibited from receiving a headstone, marker, or medallion. 
The commenter also expressed concern about the effect of this outcome 
on grants for interment and care of remains.
    The commenter is partially correct in that, if VA furnishes a 
commemorate plaque or urn for a veteran, Sec.  38.634(a)(3)(i) and (ii) 
would prohibit VA from providing a Government headstone or marker and 
interring the veteran in a VA national cemetery. However, the proposed 
rule correctly explains this prohibition is based on statutory law, not 
a budgetary decision. See 38 U.S.C. 2306(d)(4) (authorizing VA to 
provide a medallion in lieu of a headstone or marker) and (h)(2) 
(prohibiting VA, after furnishing a plaque or urn, from providing a 
headstone or marker (and, by extension, a medallion provided in lieu of 
a headstone or marker) and interring the eligible individual in a VA 
national cemetery).
    Additionally, we clarify for this commenter that VA grant-funded 
cemeteries are not prohibited from interring an individual who receives 
a commemorative plaque or urn, as VA national cemeteries are prohibited 
from doing so in sec. 2306(h)(2)(B); therefore, VA grant-funded 
cemeteries may inter a veteran who has received a plaque or urn and 
provide perpetual care of that veteran's gravesite. VA will make no 
changes based on commenter's concerns about the statutory restrictions 
in sec. 2306(h) implemented in this final rule.
    Three commenters provided detailed feedback on multiple issues, 
which VA will address by subject matter below.

Adverse Impacts on Eligibility for Other VA Benefits and Cemetery Grant 
Funding

    Commenters expressed concern that when a claimant accepts a 
Government-furnished commemorative plaque or urn for an eligible 
deceased veteran, the veteran is prohibited from future interment in a 
VA national cemetery or receiving a Government-furnished headstone or 
marker. The commenters noted that acceptance of ``relatively low cost'' 
items would deny the significant burial benefit and perpetual care of a 
veteran's gravesite. These commenters generally criticized the proposed 
rule's disqualification of a veteran's remains from interment in a VA 
national cemetery or a VA grant-funded cemetery as counter to the 
larger purpose of ``honoring veterans and providing perpetual care'' of 
their gravesites. The commenters were concerned that if a VA grant-
funded cemetery interred a veteran who received a commemorative plaque 
or urn, such interment would violate the terms of grant funding under 
38 U.S.C. 2408 and adversely impact a cemetery's eligibility to receive 
the VA plot or interment allowance. The commenters also cited to 
possible administrative burdens to verify whether a veteran has 
received a commemorative plaque or urn. The commenters noted financial 
burdens for VA grant-funded cemeteries to cover costs of furnishing a 
headstone or marker at their expense to veterans who received a 
commemorative plaque or urn and are interred in such cemeteries because 
VA would otherwise provide headstones or markers for veterans interred 
in those cemeteries.
    First, VA reiterates that the purpose of the commemorative plaque 
and urn benefit is to honor veterans for their service for families 
that choose not to inter their loved one. The commemorative plaque or 
urn is authorized as a Federal benefit provided to an eligible deceased 
veteran instead of a headstone or marker, under sec. 2306(h)(1); and if 
furnished, VA is prohibited from interring that veteran in a VA 
national cemetery and providing a headstone or marker for such 
individual, under sec. 2306(h)(2)(A) and (B).
    The commenters implied that because commemorative plaques and urns 
are ``relatively low cost,'' VA's provision of these items should not 
affect a veteran's eligibility for burial. VA clarifies that the cost 
of the commemorative plaque or urn is irrelevant to VA's obligation to 
follow the law, which prohibits VA from interring an eligible veteran 
in a VA national cemetery or furnishing a VA headstone or marker if we 
have furnished a commemorative plaque or urn for that veteran. 
Consistent with sec. 2306(h)(2), these express prohibitions must be 
implemented in regulations as proposed.
    Additionally, the prohibitions in sec. 2306(h)(2) only affect 
burial in a VA national cemetery and the provision of a Government 
headstone or marker. Statutory eligibility for burial in a VA national 
cemetery is defined in sec. 2402, but sec. 2306(h)(2) prohibits VA from 
interring such veteran in a national cemetery or providing a Government 
headstone or marker for that veteran. If a VA grant-funded cemetery 
receives a request to inter a veteran for whom VA has furnished a 
commemorative urn or plaque, the cemetery may inter that veteran, and 
the prohibitions in sec. 2306(h)(2) would have no impact on existing or 
future VA grant-funding terms and conditions. VA grant-funded 
cemeteries are operated for the interment of eligible veterans and 
their eligible family members, including veterans who received a 
commemorative plaque or urn. Similarly, eligibility of certain 
cemeteries to receive the VA plot or interment allowance under sec. 
2303 for the interments of eligible veterans would be unaffected by VA 
furnishing a commemorative plaque or urn for veterans interred in those 
cemeteries. However, if a cemetery, including a VA grant-funded 
cemetery, inters a veteran for whom VA furnished a commemorative plaque 
or urn, sec. 2306(h)(2)(A) prohibits VA from providing a Government 
headstone or marker for such veteran, and the cemetery would need to 
provide a headstone or marker through some other means.
    VA understands the administration and financial burdens raised by 
the commenters. However, VA's provision of a commemorative plaque or 
urn for an eligible veteran and the prohibitions in sec. 2306(h) do not 
directly affect any non-VA national cemetery's decision to inter that 
veteran.
    The commenters expressed uncertainty about processes for VA grant-
funded cemeteries or other stakeholders to verify whether a veteran was 
furnished a commemorative urn or plaque. VA plans to include 
information on a public facing online tool that stakeholders can use to 
find such information. We stress that information in such online tool 
would not be intended to be determinative of a veteran's eligibility 
for interment in any

[[Page 40388]]

cemetery, but instead would be designed to provide stakeholders, which 
potentially include every cemetery or burial services provider in the 
nation, information to support their business decisions regarding the 
interment of a veteran subject to prohibitions under sec. 2306(h).
    VA appreciates these comments raising concerns regarding 
restrictions in the underlying statutory authorities, including sec. 
2306(h). However, VA is obligated to implement the current authority as 
proposed and makes no changes based on these comments.

Impacts on Future Generations and Risk of Increased Unclaimed Remains

    The commenters noted the common practice of families delaying 
interment of cremated remains until surviving spouses and dependents 
have passed, which could affect long-term chain of custody of the 
commemorative plaque or urn. They raised concerns that decisions 
affecting the disposition of remains may fall to a family 
representative, generations removed, who may be unfamiliar with the 
prohibitions in sec. 2306(h) and the impact on other VA benefits. 
Additionally, commenters noted that because a veteran received a plaque 
or urn in lieu of interment in a VA national cemetery or a Government 
headstone or marker, there is a risk of the cremated remains of such 
veterans being unattended, resulting in an increase in those veterans' 
remains becoming unclaimed. One commenter asserted that the 
commemorative plaque and urn program would ``not help increase the 
number of eligible deceased veterans interred in a governmental 
cemetery.''
    VA appreciates these comments, however, as explained, sec. 
2306(h)(2) expressly bars VA from interring in a VA national cemetery 
or furnishing a headstone or marker to a veteran for whom VA has 
furnished a commemorative plaque or urn. There is no exception to this 
mandated prohibition.
    Further, sec. 2306(h)(4)(A) mandates that any commemorative plaque 
or urn provided upon request for an eligible deceased veteran ``shall 
be the personal property of the next of kin or other such individual.'' 
In our proposed rule, VA specified many practical limitations of our 
authority to furnish a commemorative plaque or urn to raise the 
public's awareness. We also proposed an ``applicant'' definition to 
minimize the potential for unintended forfeitures of benefits, family 
disputes, and duplicate claims. Additionally, applicants must certify 
they are authorized to make decisions about the disposition of 
veteran's remains and certify their awareness of other precluded 
benefits, before submitting a claim for a plaque or urn. VA will 
continue to raise awareness of the limitations of sec. 2306(h) by 
providing detailed information about the commemorative plaque and urn 
program, following the effective date of this final rulemaking. 
However, VA has no jurisdiction over a commemorative plaque or urn once 
it has been furnished and must defer to a veteran's family members to 
maintain control of a furnished plaque or urn as their personal 
property.
    Similarly, VA has no ability to control circumstances that result 
in remains of veterans becoming unclaimed by a family member or 
personal representative. VA has several benefit authorities supporting 
unclaimed veterans and those who bring remains to VA to ensure 
dignified burials. However, sec. 2306(h) prohibits VA from interring 
the unclaimed remains of a veteran for whom VA has furnished a 
commemorative plaque or urn. Again, the prohibition only applies to 
interment in VA national cemeteries, not to other cemeteries where 
burial of the unclaimed remains of a veteran, for whom VA has provided 
a commemorative plaque or urn, is not expressly prohibited.
    Regarding the comment that the rule will not increase interments in 
``governmental cemeteries,'' we reiterate that provision of a 
commemorative plaque or urn would bar interment only in a VA national 
cemetery. Further, as noted above, the purpose of the law is to provide 
an appropriate commemorative benefit to families that do not intend to 
inter their loved one in a cemetery. Finally, regardless of whether the 
availability of this benefit might affect a family's decision regarding 
interment in a VA cemetery, VA does not have authority to disregard the 
express limitations in the statute.
    VA will make no changes to the rulemaking based on comments 
critical of the plaque and urn statutory authority.

Consideration of Suggested ``Reinstatement'' Process

    Two commenters suggested including a procedure for returning a 
commemorative plaque or urn to reestablish eligibility for other 
veteran burial benefits. They added that not including such a provision 
would lead to irreversible decisions adversely affecting veterans and 
their families. Another commenter suggested regulatory procedures for 
returning a commemorative plaque or urn to governmental control 
``whether in National, State, or Tribal cemeteries.'' This commenter 
suggested VA grant reinstatement ``with legitimate justification as a 
part of a request to cancel the initial decision to receive a 
commemorative plaque or urn in lieu of burial.''
    VA understands the commentors' concerns, but the concept of 
reinstatement does not apply because VA has no authority to alter the 
prohibitions under sec. 2306(h). Further, while provision of a 
commemorative plaque or urn for an eligible veteran prohibits VA from 
interring such veteran in a national cemetery or furnishing a headstone 
or marker for such veteran, it does not invalidate the underlying 
criteria for a veteran's eligibility for burial in a VA national 
cemetery. The concept of ``reinstatement'' or ``reversing'' a decision 
affecting burial eligibility is technically inaccurate because VA 
furnishes a commemorative plaque or urn to eligible veterans. VA must 
confirm the individual meets the statutory criteria for eligibility as 
a veteran who served in the Armed Forces on or after April 6, 1917, who 
is eligible for a headstone or marker under sec. 2306(d) (or would be 
so eligible but for the date of the individual's death), and whose 
cremated remains are not interred. These criteria apply to VA's 
decision to furnish a requested plaque or urn and have no further 
impact, except on subsequent requests for burial in a VA national 
cemetery or a headstone or marker. The provision of either burial in a 
VA national cemetery or a headstone or marker is prohibited under sec. 
2306(h)(2). As explained above, such veterans can be interred in any 
other cemetery with no impact on other VA benefits, except VA's 
provision of a headstone or marker. And, under 38 U.S.C. 2402(a)(5), an 
eligible spouse, surviving spouse, or dependent would not be prohibited 
from receiving a Government headstone or marker or being interred in a 
VA national cemetery. VA grant-funded cemeteries and veterans' family 
members or representatives may still submit claims for other VA 
benefits that are based on an individual's qualifying military service 
and other applicable criteria.
    Lastly, VA has no authority to cancel a decision granting a 
requested benefit to allow the claimant to request a different benefit. 
Revision of a decision on grounds of clear and unmistakable error, 
renouncement of rights to monetary benefits, and withdrawal of a 
supplemental claim, higher-level review, or a notice of disagreement do

[[Page 40389]]

not apply in the context suggested by the commenter. Even if VA agreed 
with the commenter's suggestion to implement a return process in this 
final rule, VA has no authority to do so. VA is bound by sec. 2306(h) 
requirements and will make no changes based on these comments.
    Two commenters expressed concern about the impact of the sec. 
2306(h) prohibitions on veterans and their surviving spouses who are 
both entitled to distinct burial benefits. Both commenters raised the 
following hypothetical scenario: a veteran's spouse requested and 
received a commemorative plaque or urn for the deceased veteran; but, 
upon the death of the veteran's spouse, the family now wants to inter 
the veteran's spouse in a VA national cemetery or Arlington National 
Cemetery. Each commenter noted that a short-term decision of a 
veteran's spouse to not inter the veteran in a VA national cemetery 
and, instead, request a commemorative plaque or urn has long-term 
consequences for future surviving family members for whom VA cannot 
provide burial in a national cemetery or a headstone or marker for the 
veteran's eligible spouse. We clarify that the prohibition in sec. 
2306(h)(2) applies only to burial in VA national cemeteries, not 
Arlington National Cemetery. However, prior to applying for a 
commemorative plaque or urn, VA encourages potential applicants to 
check directly with agencies that operate other cemeteries (including 
the Department of Defense regarding Arlington National Cemetery) 
concerning any potential adverse impact on eligibility for interment in 
such other cemeteries resulting from receipt of VA's plaque or urn 
benefit. As previously explained in this rulemaking, veterans who 
receive a commemorative plaque or urn may be interred in any other 
cemetery with no impact on other VA benefits, except VA's provision of 
a headstone or marker; and their eligible spouse, surviving spouse, or 
dependent would not be prohibited from receiving a headstone or marker 
or being interred in a VA national cemetery, although they would not be 
interred with the veteran.
    One commenter suggested VA allow the veteran to be interred with 
the spouse if the spouse is already interred in a VA national cemetery, 
noting that including the urn ``would not add an additional cost to 
VA'' and would ``be no different than including a memento in the 
casket.'' While VA agrees that in certain scenarios, there would 
seemingly be negligible or no ``cost'' to allow such practice, the law 
explicitly prohibiting interment in a VA national cemetery of a veteran 
for whom VA has furnished a commemorative plaque or urn does not grant 
VA the authority to consider cost. VA is mandated to enforce the 
statutory prohibition. Second, the commemorative urn containing the 
cremated remains of an eligible veteran is a VA benefit intended to 
honor the veteran's service and sacrifice to this Nation. As explained 
in the preamble of the proposed rule, VA cautions families, and will 
continue to caution families, about the prohibitive impact of 
requesting a commemorative plaque or urn for a veteran. Once the final 
rule becomes effective, VA will provide extensive information about the 
plaque and urn authorities, impacts on VA burial and memorialization, 
and other critical issues on the VA public-facing web page.
    One commenter suggested VA allow families to return the plaque or 
urn and reinstate eligibility for interment in a VA national cemetery 
and a Government headstone or marker. The commenter likened the return 
of a plaque or urn to the return of a Government headstone or marker 
when a decedent is moved from a VA national cemetery to a private 
cemetery. As explained in response to a similar comment suggesting 
reinstatement, this is not currently authorized under sec. 2306. 
Further, the Government headstone or marker installed in a VA national 
cemetery is not returned to VA when a family disinters a loved one and 
reinters the remains in a private cemetery. VA regulations in 38 CFR 
38.630(b)(5)(iii) and 38.631(b)(5)(i) and (iii) provide that all 
Government-furnished burial and memorial headstones and markers remain 
the property of the United States Government in perpetuity and must be 
properly disposed of when they are removed from any cemetery, except 
burial headstones and markers may be relocated to a different gravesite 
following disinterment. By contrast, sec. 2306(h)(4)(A) mandates that 
any commemorative plaque or urn furnished for an eligible veteran is 
the personal property of the next of kin or such other individual as 
the Secretary considers appropriate. Additionally, sec. 2306(h)(4)(B) 
provides that the Federal Government shall not be liable for any damage 
after the date a commemorative plaque or urn is furnished. As explained 
in the preamble of the proposed rule, VA is aware of the complexity of 
the plaque and urn benefit, and we will continue to inform families of 
issues that they may need to manage if their request for a 
commemorative plaque or urn is granted. However, because these comments 
attack the statutory mandates implemented in this final rule, VA will 
make no changes based on these comments.
    One commentor wrote that VA's provision of the commemorative urn 
under sec. 2306(h), as opposed to reimbursing the cost of such an urn, 
has financial implications for funeral homes, which traditionally sell 
urns to veteran families. VA acknowledges the commenter's concern and 
relies on information provided by the U.S. Small Business 
Administration (SBA) in determining if this regulatory action would 
have a significant impact on a substantial number of small entities. VA 
considers 1% or higher of the total number of entities within a North 
American Industry Classification System (NAICS) industry to be a 
``substantial number.'' In determining whether a regulatory action may 
have a ``significant impact'' on small entities, VA uses a revenue test 
for each specific NAICS code that may be affected. Any regulatory 
action that generates a cost of 3% or higher on that NAICS code's 
annual revenue is deemed to have a ``significant impact. As explained 
in the Regulatory Flexibility Act (RFA) section of the proposed rule 
and this final rule, VA's analysis regarding the cost of commemorative 
plaques and urns, along with the Paperwork Reduction Act (PRA) costs of 
the rulemaking, yields a potential impact of $234,535.10 on the funeral 
home industry, which equates to a potential de minimis cost of $139.27 
per funeral home ($234,535.10/1,684 estimated caseload). Based on this 
analysis and revenue test, the rulemaking will not have a significant 
economic impact on funeral homes.
    Further, VA has no alternative but to implement the commemorative 
plaque or urn benefit in regulation and will make no changes based on 
this comment.
    One of the two commenters who supported the rulemaking also 
expressed concern about the amount of time required for VA to implement 
the regulation that is necessary for an applicant to obtain a 
commemorative plaque or urn, and that an applicant should not be denied 
the benefit due to the delay in implementation of the authority. VA 
clarifies that the rule does not establish eligibility criteria that 
would preclude an eligible applicant from obtaining a commemorative 
plaque or urn for an eligible veteran who was deceased prior to the 
implementation of the regulation but on or after April 6, 1917, which 
is the eligibility date established under section 2306(h)(3). VA 
proposed the regulation to implement the new authority as expeditiously 
as possible, and it will

[[Page 40390]]

become effective within thirty days of publication of this final rule 
in the Federal Register. VA will update its website to provide 
information about the new benefit and how to apply for it. No changes 
to the rulemaking are needed based on these comments.
    Finally, VA addresses the comment outside the scope of the 
rulemaking that requested an amendment to 38 U.S.C. 2306 to provide 
eligibility for burial for veterans who ``who commit suicide due to 
PTSD, or possible drug induced impulsiveness.'' VA clarifies that the 
rule only implements new statutory authority for the commemorative 
plaque or urn benefit for veterans with qualifying service; it does not 
establish eligibility criteria that pertain to cause of death. Cause of 
death has no bearing on eligibility. This means that a veteran who dies 
by suicide still may be eligible for a plaque or urn or other burial 
benefit. The comment also requested eligibility for veterans who are 
not ``registered'' with VA. VA clarifies that veterans do not need to 
be previously registered or affiliated with VA in any manner for 
someone to apply for a commemorative plaque or urn for their remains. 
VA will encourage veterans and family members who are interested in the 
new benefit to visit the VA web page for more information about how to 
apply. VA makes no changes based on the comment.

Executive Orders 12866, 13563 and 14094

    Executive Orders 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 (Modernizing 
Regulatory Review) supplements and reaffirms the principles, 
structures, and definitions governing contemporary regulatory review 
established in Executive Orders 12866 and 13563. 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 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 conclusion is based on the cost of commemorative plaques and 
urns and the Paperwork Reduction Act costs of the rulemaking to arrive 
at a potential impact of $234,535.10 on the funeral home industry, 
which equates to a potential de minimis cost of $139.27 per funeral 
home ($234,535.10/1,684 estimated caseload). Therefore, pursuant to 5 
U.S.C. 605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

Unfunded Mandates

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

Paperwork Reduction Act

    This final rule includes a provision constituting a new collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521) that requires approval by the Office of Management and 
Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a 
copy of this rulemaking action to OMB for review and approval.
    This final rule adding 38 CFR 38.634 contains a new collection of 
information under the Paperwork Reduction Act of 1995. OMB has assigned 
control number 2900-0937 to this information collection, and this 
information collection is pending final OMB approval. VA may not 
conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number. If OMB does not approve the collection of information 
as requested, VA will immediately remove the provision containing a 
collection of information or take such other action as is directed by 
OMB.
    The collection of information contained in 38 CFR 38.634 is 
described immediately following this paragraph, under its respective 
title.
     Title: Request for Commemorative Plaque or Urn.
     OMB Control No: 2900-0937.
     CFR Provision: 38 CFR 38.634.
     Summary of collection of information: The new collection 
of information in proposed Sec.  38.634 would require information 
necessary to establish the identity of a deceased veteran to verify 
burial eligibility under 38 U.S.C. 2402 for purposes of furnishing a 
commemorative plaque or urn, as authorized under 38 U.S.C. 2306(h). It 
would also require information regarding the applicant's relationship 
to the deceased veteran, the applicant's certification as to certain 
factual matters, and the applicant's contact information.
     Description of need for information and proposed use of 
information: The information would be used by VA to verify an 
individual's service in the Armed Forces on or after April 6, 1917; 
eligibility for a headstone, marker, or medallion that VA has not yet 
furnished under sec. 2306(d); and that the individual's remains were 
cremated and not interred. Information regarding the applicant's 
relationship to the deceased veteran would be used to verify that the 
applicant is a family member empowered to make decisions regarding 
memorialization of the veteran and disposition of any remains.
     Description of likely respondents: Veterans' family 
members.
     Estimated number of respondents per year: 1,684.
     Estimated frequency of responses per year: This is a one-
time collection.
     Estimated average burden per response: 10 minutes.
     Estimated total annual reporting and recordkeeping burden: 
VA estimates the total annual reporting and recordkeeping burden to be 
280.6667 hours (1,684 respondents x 10 minutes/60 minutes).
     Estimated cost to respondents per year: VA estimates the 
annual cost to respondents to be $8352.64. Using VA's average annual 
number of 1,684 respondents, VA estimates the total information 
collection burden cost to be $8352.64 per year (280.6667 burden hours 
(1,684 respondents x 10 minutes/60 minutes) x $29.76 mean hourly wage).
    * To estimate the respondents' total information collection burden 
cost, VA uses the Bureau of Labor Statistics (BLS) mean hourly wage for 
``All Occupations'' of $29.76. This information is available at https://www.bls.gov/oes/2022/may/oes_nat.htm#00-0000.

[[Page 40391]]

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not satisfying the criteria under 5 U.S.C. 
804(2).

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Claims, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on April 11, 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.

Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
General Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, the Department of 
Veterans Affairs amends 38 CFR part 38 as follows:

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.  38.600 by revising the definition of ``Interment'' to 
read as follows:


Sec.  38.600   Definitions.

    (a) * * *
    Interment means the burial or entombment of casketed or cremated 
remains, including the placement of cremated remains in a columbarium 
niche.
* * * * *

0
3. Add Sec.  38.634 to read as follows:


Sec.  38.634   Commemorative urns and plaques.

    (a) General. (1) In lieu of furnishing a headstone, marker, or 
medallion under this part, the Department of Veterans Affairs (VA) will 
furnish, when requested--
    (i) A commemorative urn; or
    (ii) A commemorative plaque.
    (2) For the purposes of this section, the following definitions 
apply:
    (i) Commemorative urn means a container that signifies the deceased 
individual's status as a veteran, in which the individual's cremated 
remains may be placed at private expense.
    (ii) Commemorative plaque means a tablet that signifies the 
deceased individual's status as a veteran.
    (3) If VA furnishes a commemorative plaque or a commemorative urn 
for an individual under this section, VA may not provide for such 
individual--
    (i) A headstone, marker, or medallion; or
    (ii) Any burial benefit under 38 U.S.C. 2402.
    (4) Any commemorative plaque or commemorative urn furnished under 
this section shall be the personal property of the applicant.
    (5) The Federal Government shall not be liable for any damage to a 
commemorative plaque or urn furnished under this section that occurs 
after the date on which the commemorative plaque or urn is furnished. 
VA will not replace a commemorative plaque or urn unless it was damaged 
during shipping or contains a manufacturing deficiency or inscription 
error.
    (b) Eligible individuals to be commemorated. An eligible individual 
for purposes of this section is a deceased individual:
    (1) Who served in the Armed Forces on or after April 6, 1917;
    (2) Who is eligible for, but has not received, a headstone, marker, 
or medallion under 38 U.S.C. 2306(d) (or would be so eligible but for 
the date of the death of the individual); and
    (3) Whose remains were cremated and not interred (see Sec.  38.600 
for definition of interment).
    (c) Application process. (1) Applicant. An applicant for a 
commemorative plaque or urn must be a member of the veteran's family, 
which includes the veteran's spouse or individual who was in a legal 
union as defined in Sec.  3.1702(b)(1)(ii) of this chapter with the 
veteran; a child, parent, or sibling of the veteran, whether 
biological, adopted, or step relation; and any lineal or collateral 
descendant of the veteran.
    (2) Application. An applicant must submit a completed VA Form 40-
1330UP, Claim for Commemorative Urn or Commemorative Plaque for 
Veteran's Cremains Not Interred in a Cemetery. The National Cemetery 
Administration will verify the decedent's eligibility for a 
commemorative plaque or urn. Applicants must certify that they have 
read a statement about other benefits to which the veteran will lose 
benefit rights, that the decedent's remains were cremated and are not 
interred at the time of application, that the applicant is a member of 
the decedent's family authorized to make decisions about the 
disposition of the decedent's remains, and that the applicant is in 
possession of the entirety of the cremains. Other required claim 
information will include documentation of the decedent's eligibility 
and the applicant's contact information and mailing address. VA's duty 
to notify claimants of necessary information or evidence under Sec.  
3.159(b) of this chapter and duty to assist claimants in obtaining 
evidence under Sec.  3.159(c) of this chapter will apply.

[FR Doc. 2024-10194 Filed 5-9-24; 8:45 am]
BILLING CODE 8320-01-P