[Federal Register Volume 89, Number 197 (Thursday, October 10, 2024)]
[Rules and Regulations]
[Pages 82179-82182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-23438]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 38 and 39

RIN 2900-AR82


Outer Burial Receptacles

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is revising its 
regulation that governs the outer burial receptacle (OBR) monetary 
allowance for burials in a VA national cemetery when a privately 
purchased OBR is used in lieu of a Government-furnished graveliner. 
First, VA is expanding applicability of the monetary allowance to 
burials in VA grant-funded State and Tribal cemeteries when a privately 
purchased OBR was used, or where an OBR is placed at the time of 
interment, at the cost of the State or Tribal organization. Second, VA 
is adding a provision to reimburse States and Tribal organizations for 
OBRs that are pre-placed as part of a new construction or expansion 
grant project. In addition, VA is making minor conforming revisions to 
its regulations governing aid for the establishment, expansion, and 
improvement of veterans cemeteries to clarify that VA will reimburse 
the cost of pre-placed OBRs separately from the grant award. These 
changes implement new authorities provided in the Johnny Isakson and 
David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 
2020. VA also is removing retroactive provisions no longer needed 
because the relevant time period has passed.

DATES: This rule is effective November 12, 2024.

FOR FURTHER INFORMATION CONTACT: Michelle Myers, Management and Program 
Analyst, Policy and Regulatory Service, National Cemetery 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420. Telephone: (720) 607-0364. (This is not a toll-
free number.)

SUPPLEMENTARY INFORMATION: On February 6, 2024, VA published a proposed 
rule in the Federal Register at 89 FR 8126 that proposed revisions to 
38 CFR 38.629 to include provision of OBRs for gravesites in State or 
Tribal organization cemeteries funded through VA grants. The proposed 
rule also proposed revisions to 38 CFR 39.50 to clarify that VA would 
reimburse the cost of pre-placed OBRs separately from the grant award 
and revisions to 38 CFR 39.122 to establish that a State or Tribal 
organization that seeks payment in the form of reimbursement or 
monetary allowance for OBRs under Sec.  38.629 would be subject to 
related inspections, audits, and reporting. The public comment period 
ended on April 8, 2024, and VA received no comments in response to the 
proposed rule.
    During the final rule drafting process, VA noted an unintended 
outcome based on the proposed language of Sec.  38.629(e)(2), which we 
have addressed in this final rule. In the proposed rule, the monetary 
allowance for OBRs placed at the time of interment would have only been 
payable if a State or Tribal organization submitted a request for 
payment within 1 year of interment. However, with the time that has 
elapsed while developing this rulemaking, the 1-year limitation on 
filing requests for payment would have created an unintended barrier to 
awarding the benefit from the earliest date authorized by statute, 
January 5, 2023. This provision would have unintentionally prohibited 
the payment of the allowance for burials that occurred more than 1 year 
prior to the final rule becoming effective. To ensure that the payment 
of the monetary allowance for OBRs placed at the time of interment is 
payable for all eligible burials, VA has revised the provision to read: 
``Requests for payment under this section for burials that occur from 
January 5, 2023, through December 31, 2024, must be submitted by 
December 31, 2025. Requests for payment under this section for burials 
that occur on or after January 1, 2025, must be submitted within 1 year 
of interment.'' This change accommodates the lag in publishing this 
rulemaking and ensures VA can provide payment for claims that could not 
be submitted until such time as this final rule becomes effective.
    VA has also made technical changes to note the heading change to 
Sec.  38.629(c) in the amendatory instructions, which was inadvertently 
omitted in the proposed rule, and to conform to cross-reference 
conventions. We added the phrase ``of this chapter'' after cross-
references to other regulatory sections in Sec. Sec.  38.629(h), 
39.50(e), and 39.122(a).
    Because no comments were received during the public comment period, 
VA made no changes to the proposed regulatory text besides the 
technical changes described here.

Executive Orders 12866, 13563, and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
agencies to assess the costs and benefits of available regulatory 
alternatives and, when regulation is necessary, to select regulatory 
approaches that maximize net benefits (including potential economic, 
environmental, public health and safety effects, and other advantages; 
distributive impacts; and equity). Executive Order 13563 (Improving 
Regulation and Regulatory Review) emphasizes the importance of 
quantifying both costs and benefits, reducing costs, harmonizing rules, 
and promoting flexibility. Executive Order 14094 (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 final rule will generally be small business neutral as it 
applies only to State and Tribal entities that have received a grant 
for a cemetery under 38 U.S.C. 2408. The Secretary acknowledges that 
some Tribal governments may be considered small entities; however, the 
economic impact would be entirely beneficial. This final rule will 
impose no mandatory requirements or costs on Tribal governments as a 
whole and will only affect those that are recipients of veterans 
cemetery grants. To the extent that small entities are affected, the 
impact of this final rule will be entirely beneficial as it will 
provide reimbursement for costs of OBRs associated with casketed 
burials in grant-funded cemeteries. Therefore, pursuant to 5 U.S.C. 
605(b), the initial and final regulatory flexibility analysis

[[Page 82180]]

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 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 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). The new collection of information requires approval by the 
Office of Management and Budget (OMB) and the assignment of an OMB 
Control Number. Accordingly, under 44 U.S.C. 3507(d), VA submitted a 
copy of this rulemaking to OMB for review and approval. VA received no 
comments on the new collection of information.
    An OMB Control Number of 2900-0941 has been assigned to the new 
collection of information associated with this final rule. Assignment 
of this OMB control number is not an approval to conduct or sponsor an 
information collection under the Paperwork Reduction Act of 1995. In 
accordance with 5 CFR part 1320, the new collection of information 
associated with this rulemaking is not approved by OMB at this time. 
OMB's approval of the new collection of information will occur within 
30 days after the final rulemaking publishes. If OMB does not approve 
the new collection of information as requested, VA will immediately 
remove the provision containing a new collection of information or take 
such other action as is directed by OMB.
    The new collection of information associated with this rulemaking 
contained in 38 CFR 38.629 is described immediately following this 
paragraph.
    Title: Request for Payment of Monetary Allowance for Outer Burial 
Receptacles.
    OMB Control No.: 2900-0941.
    CFR Provision: 38 CFR 38.629.
    <bullet> Summary of collection of information: The new collection 
of information in revised 38 CFR 38.629 will require a State or Tribal 
organization to submit a request for payment of monetary allowance for 
OBRs placed at the time of interment, and it will require individuals 
to submit a request for payment of monetary allowance for a privately 
purchased OBR.
    <bullet> Description of need for information and use of 
information: The information will be used by the National Cemetery 
Administration Financial Service Center to issue payment of the OBR 
monetary benefit. The information will identify the claimant and the 
amount claimed and will be necessary to make determinations for payment 
and for other budget, oversight, and compliance purposes associated 
with administering this benefit for burials in State and Tribal 
organization veterans cemeteries. In addition, VA may use a summary of 
this information to respond to Congressional oversight inquiries.
    <bullet> Description of likely respondents: Primarily Veterans 
Cemetery Grants Program grantees that are States and Tribal 
Organizations. A small number of private individuals may be 
respondents.
    <bullet> Estimated number of respondents: 110 in Fiscal Year 2024.
    <bullet> Estimated frequency of responses: Quarterly for States and 
Tribal organizations that need to request payment of monetary allowance 
for burials where OBRs are placed at time of interment. One-time 
occurrence for any individual who needs to claim the monetary allowance 
for a privately purchased OBR.
    <bullet> Estimated average burden per response: 15 minutes for all 
respondents.

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                                                                                          Estimated burden hours
                                                --------------------------------------------------------------------------------------------------------
                                                   Estimated    Estimated       Average                                                    Actual number
                                                   number of    number of     minutes per     Minutes                                        of burden
                                                  respondents   responses      response                                                        hours
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                                                                 (x) times       (x) times   = (Equals)  / by 60 =
                                                --------------------------------------------------------------------------------------------------------
Monetary Allowance for Privately Purchased OBR.           100            1              15        1,500  ...............................              25
Monetary Allowance for OBRs Placed at Time of              10            4              15          600                                               10
 Interment.
                                                --------------------------------------------------------                                 ---------------
    Accumulative Total.........................           110  ...........  ..............  ...........                                               35
--------------------------------------------------------------------------------------------------------------------------------------------------------

    <bullet> Estimated total annual reporting and recordkeeping burden: 
VA estimates the total annual reporting and recordkeeping burden to be 
35 burden hours. Based on an estimated number of 100 respondents filing 
one-time claims with an average of 15 minutes for the response, and an 
estimated number of 10 respondents filing claims quarterly with an 
average of 15 minutes for the response, the total annual reporting and 
recordkeeping burden is estimated to be 35 hours.
    <bullet> Estimated cost to respondents per year: VA estimates the 
annual cost for all respondents to be $1,101.80. To estimate the total 
information collection burden cost, VA used the May 2023 Bureau of 
Labor Statistics (BLS) mean hourly wage for ``all occupations'' of 
$31.48 per hour. This information is available at https://www.bls.gov/oes/2023/may/oes_nat.htm#00-0000. Using VA's estimated average annual 
burden of 35 hours, and using a mean hourly wage of $31.48, VA 
estimates the total information collection burden cost to be $1,101.80 
per year (35 burden hours x $31.48 mean wage per hour).

Assistance Listing

    The Assistance Listing numbers and titles for the programs affected 
by this document are 64.201, National Cemeteries; 64.203, Veterans 
Cemetery Grants Program; and 64.206, VA OBR Allowance Program.

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

38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Veterans.

38 CFR Part 39

    Cemeteries, Grant programs--veterans, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on October 3, 2024, and

[[Page 82181]]

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 stated in the preamble, VA amends 38 CFR parts 38 
and 39 as set forth below:

PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

0
1. The authority citation for part 38 continues to read as follows:

    Authority: 38 U.S.C. 107, 501, 512, 531, 2306, 2400, 2402, 2403, 
2404, 2407, 2408, 2411, 7105.


0
2. Amend Sec.  38.629 as follows:
0
a. Revise the section heading;
0
b. Revise paragraphs (b) through (d);
0
c. Redesignate paragraph (e) as paragraph (f);
0
d. Add new paragraph (e);
0
e. Revise the heading of newly redesignated paragraph (f) and revise 
newly redesignated paragraphs (f)(1) introductory text and (f)(2);
0
f. Remove newly redesignated (f)(3); and
0
e. Add paragraphs (g) and (h).
    The revisions and additions read as follows:


Sec.  38.629  Outer burial receptacles.

* * * * *
    (b) Purpose. (1) This section provides for payment of a monetary 
allowance for an outer burial receptacle for any interment with 
casketed remains in a VA national cemetery where a privately purchased 
outer burial receptacle has been used in lieu of a Government-furnished 
graveliner and, for any interment on or after January 5, 2023, in a 
cemetery that is the subject of a grant to a State or Tribal 
organization under 38 U.S.C. 2408 where a privately purchased outer 
burial receptacle has been used.
    (2) This section also provides for payment of a monetary allowance 
for outer burial receptacles placed at the time of interment, for 
burials on or after January 5, 2023, in a cemetery that is the subject 
of a grant awarded to a State or Tribal organization under 38 U.S.C. 
2408.
    (3) This section also provides for reimbursement of the cost of 
pre-placed outer burial receptacles that are installed as part of 
construction or expansion of a cemetery that is the subject of a grant 
awarded on or after January 5, 2023, to a State or Tribal organization 
under 38 U.S.C. 2408.
    (c) Subsequent interments. In burials where a casket already exists 
in a grave with or without an outer burial receptacle, subsequent 
placement of a second casket in an outer burial receptacle will not be 
permitted in the same grave unless the cemetery director determines 
that the already interred casket will not be damaged.
    (d) Payment of monetary allowance for privately purchased outer 
burial receptacles. (1) VA will pay a monetary allowance for each 
casket burial in a VA national cemetery where a privately purchased 
outer burial receptacle was used in lieu of a Government-furnished 
graveliner. Payment will be made to the person identified in records 
contained in the National Cemetery Administration (NCA) electronic 
ordering system as the person who paid for the outer burial receptacle. 
No application is required to receive payment of this monetary 
allowance as the payment is processed automatically based on entry in 
the system.
    (2) VA will pay a monetary allowance for each casket burial in a 
cemetery that is the subject of a grant to a State or Tribal 
organization under 38 U.S.C. 2408, where a privately purchased outer 
burial receptacle was used on or after January 5, 2023. The person who 
paid for the outer burial receptacle must submit a request for payment 
of the allowance on the appropriate VA form. The request must be 
verified by the cemetery director where the burial occurred.
    (e) Payment of monetary allowance for outer burial receptacles 
placed at time of interment. (1) VA will pay a monetary allowance for 
outer burial receptacles placed at the time of interment for burials on 
or after January 5, 2023, in a cemetery that is the subject of a grant 
to a State or Tribal organization under 38 U.S.C. 2408. Such payments 
may be issued on a quarterly basis and will be paid to the State agency 
or Tribal organization.
    (2) VA will pay the allowance only if a State or Tribal 
organization submits a request for payment on the appropriate VA form. 
Requests may be submitted on a quarterly basis for the total number of 
burials that required an outer burial receptacle in that quarter and 
for which a fee for the outer burial receptacle was not charged to the 
decedent's family or other responsible party. Requests for payment 
under this section for burials that occur from January 5, 2023, through 
December 31, 2024, must be submitted by December 31, 2025. Requests for 
payment under this section for burials that occur on or after January 
1, 2025, must be submitted within 1 year of interment.
    (3) No payment may be made for burials where a fee for the outer 
burial receptacle was charged to the decedent's family or other 
responsible party.
    (f) Amount of the monetary allowance. (1) The monetary allowance 
will be the average cost, as determined by VA, of Government-furnished 
graveliners, less the administrative costs incurred by VA in processing 
and paying the allowance.
* * * * *
    (2) The amount of the allowance for each calendar year will be 
published in the ``Notices'' section of the Federal Register. The 
Federal Register notice will also provide, as information, the 
determined average cost of Government-furnished graveliners and the 
determined amount of the administrative costs to be deducted.
    (g) Reimbursement for pre-placed outer burial receptacles. (1) VA 
will reimburse the cost of outer burial receptacles that are pre-placed 
as part of new construction, expansion, or improvement of a cemetery 
that is the subject of a grant to a State or Tribal organization under 
38 U.S.C. 2408 if the grant was awarded on or after January 5, 2023. 
The reimbursement will be paid to the State or Tribal organization or, 
if designated by the State or Tribal organization representative, the 
State or Tribal veterans cemetery for which such project is being 
carried out, or to any other State or Tribal organization, agency, or 
instrumentality.
    (2) States and Tribal organizations must submit a request for 
reimbursement of the cost of pre-placed outer burial receptacles using 
Standard Form 271, Outlay Report and Request for Reimbursement for 
Construction Programs, with supporting documentation. The Director of 
the Veterans Cemetery Grants Program must review and certify the 
request for payment. Funds paid under this section for pre-placed outer 
burial receptacles, as part of an approved establishment, expansion, 
and improvement project shall be used solely for payment of such outer 
burial receptacles. As a condition for payment, the representative of 
the State or Tribal organization must submit to VA an invoice reporting 
the cost for purchase and delivery of outer burial receptacles.
    (h) Audits. A State or Tribal organization that seeks reimbursement 
for the cost of outer burial receptacles under this section will be 
subject to inspections, audits, and reports in accordance with Sec.  
39.122 of this chapter.


[[Page 82182]]


(Authority: 38 U.S.C. 2306(e))

PART 39--AID FOR THE ESTABLISHMENT, EXPANSION, AND IMPROVEMENT, OR 
OPERATION AND MAINTENANCE, OF VETERANS CEMETERIES

0
3. The authority citation for part 39 continues to read as follows:

    Authority: 38 U.S.C. 101, 501, 2408, 2411, 3765.


0
4. Amend Sec.  39.50 as follows:
0
a. Remove the text ``preplaced liners or crypts,'' from paragraph 
(b)(2); and
0
b. Add paragraph (e).
    The addition reads as follows:


Sec.  39.50  Amount of grant.

* * * * *
    (e) VA will reimburse the cost of preplaced outer burial 
receptacles separately in accordance with Sec.  38.629 of this chapter.
* * * * *

0
5. Amend Sec.  39.122 by revising paragraph (a) to read as follows:


Sec.  39.122   Inspections, audits, and reports.

    (a) A State or Tribal organization will allow VA inspectors and 
auditors to conduct inspections as necessary to ensure compliance with 
the provisions of this part and with provisions of Sec.  38.629 of this 
chapter regarding outer burial receptacles. The State or Tribal 
organization will provide to VA evidence that it has met its 
responsibilities under the Single Audit Act of 1984.
* * * * *
[FR Doc. 2024-23438 Filed 10-9-24; 8:45 am]
BILLING CODE 8320-01-P