[Federal Register Volume 74, Number 103 (Monday, June 1, 2009)]
[Rules and Regulations]
[Pages 26092-26098]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12650]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AM53


Headstone and Marker Application Process

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This final rule amends the Department of Veterans Affairs (VA) 
regulations concerning headstones and markers furnished by the 
Government through the VA headstone and marker program. It updates 
ordering procedures for headstones and markers and provides 
instructions for requesting the addition of a new emblem of belief to 
VA's list of emblems available for inscription on Government-furnished 
headstones and markers. Additionally, this final rule establishes 
criteria to guide VA's decisions on requests to add new emblems of 
belief to the list.

DATES: Effective Date: July 1, 2009.

FOR FURTHER INFORMATION CONTACT: Lindee Lenox, Director, Memorial 
Programs Service, Office of Field Programs, National Cemetery 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420. Telephone: (202) 501-3100 (this is not a 
toll-free number).

SUPPLEMENTARY INFORMATION: On January 19, 2007, VA published a notice 
of proposed rulemaking in the Federal Register (72 FR 2480). We 
proposed to amend VA's regulations concerning procedures for ordering 
Government-furnished headstones and markers and to establish 
requirements for requesting the addition of a new emblem of belief to 
VA's list of emblems available for inscription on headstones and 
markers. We provided a 60-day comment period, which ended on March 20, 
2007, and received 538 comments from 522 individuals and 16 
organizations. Of the 538 comments, 256 expressed support for VA's 
approval of a specific emblem of belief. Several other commenters 
suggested that VA conduct a review of all existing emblem inscriptions 
to ensure compliance with the proposed rule. Since the proposed rule 
concerned the procedures for adding a new emblem to the list of emblems 
available for inscription, not whether a specific emblem should be 
added pursuant to the proposed procedures or whether each of the 
2,774,634 graves currently maintained by VA are marked in accordance 
with the proposed procedures, these comments are beyond the scope of 
this rulemaking and will not be addressed in this document.
    Several commenters generally questioned the rulemaking process and 
our standard statements of compliance with regulatory law. A few 
commenters also requested that we send them separate, written responses 
to each of their comments. VA is required to follow the rulemaking 
procedures established by the Administrative Procedure Act, other 
Federal statutes, and various Executive Orders. Comments concerning 
those procedures are also beyond the scope of this rulemaking and will 
not be addressed in this document.
    Based on the rationale set forth in the proposed rule and in this 
document, we adopt the provisions of the proposed rule as a final rule 
with the changes indicated below.

Application Process

    Many commenters recommended that VA establish a period within which 
it must act on a request to add a new emblem of belief to its list of 
emblems available for inscription on Government-furnished headstones 
and markers. We disagree and will not make any changes based on these 
comments.
    To ensure that individuals are afforded every opportunity to 
substantiate their claims and receive the full benefit of VA's duty to 
assist, VA has not established arbitrary or unnecessary deadlines for 
deciding applications for veterans benefits. For the same reasons, we 
decline to establish such a deadline for emblem requests. Under 38 CFR 
38.632(f), VA will provide individuals who submit an incomplete emblem 
request notice concerning the status of their request and an 
opportunity to submit additional information. Also, in Sec.  38.632(g), 
we clarify that VA will decide applications for new emblems only if 
they are complete. Although we decline to establish an arbitrary 
deadline for deciding an emblem request, Sec.  38.632(g)(1) limits such 
requests to cases of immediate need. The request must relate to an 
application for a Government-furnished headstone or marker for an 
eligible deceased individual. Previously organizations could request 
that VA add their emblem to the list of emblems available for 
inscription when there was no immediate need. Many of the submissions 
we received from organizations were not actual applications, but merely 
letters of interest that required research, review, and written 
responses. Under the new ``immediate need'' requirement in Sec.  
38.632(g)(1), VA will be able to process applications for new emblems 
within a reasonable time after an interment or other memorial ceremony.
    Several commenters suggested that VA could provide greater 
transparency in the emblem request process by providing notice of 
receipt of requests and information concerning the status of requests.
    We agree that it is important to keep applicants apprised of the 
status of their requests. As described above regarding Sec.  38.632(g), 
VA will decide complete requests as soon as possible. Upon receipt of 
an incomplete request to add a new emblem of belief, Sec.  38.632(f) 
provides that VA will notify the applicant in writing of any missing 
information and that he or she has 60 days to submit the information. 
Further, if the Under Secretary for Memorial Affairs determines that an 
emblem represents a belief but would adversely affect the dignity and 
solemnity of the cemetery environment, Sec.  38.632(h)(2) provides for 
additional notice to the individual concerning remedial options. These 
measures provide sufficient transparency, and we decline to impose 
additional administrative requirements at this time.
    Some commenters suggested that VA allow living veterans and 
servicemembers, particularly servicemembers deployed to or serving in 
combat zones, to request a new emblem of belief in advance of need. We

[[Page 26093]]

will not make any changes based on these comments.
    VA has a substantial interest in timely providing inscribed 
headstones and markers for interments or other memorial ceremonies. By 
this we mean that it is VA's obligation to respond to veterans' next-
of-kins' or personal representatives' requests for inscribed, 
Government-furnished headstones and markers without undue delay. There 
are currently over 23 million veterans and 1.4 million active duty 
servicemembers. In addition, VA currently receives approximately 
350,000 applications for Government-furnished headstones and markers 
annually. VA has imposed the immediate need requirement to ensure that 
it meets its obligation to provide headstones and markers for 
interments and memorial ceremonies as expeditiously as possible with 
available resources. We decline to further burden those resources by 
reviewing requests for new emblems prior to time of need. However, we 
note that veterans and servicemembers may at any time make their burial 
wishes known to their next-of-kin or personal representatives and may 
provide them a completed VA Form 40-1330, Application for Standard 
Government Headstone or Marker, for their use if the need arises. 
Servicemembers may also prepare this form in advance and have it added 
to their service department records.
    Several commenters inquired about VA's application of the good 
cause exception in Sec.  38.632(g)(1) for replacement headstones and 
markers. Good cause will generally exist for purposes of providing a 
replacement headstone or marker if VA denies an emblem request but 
subsequently adds the emblem to the list of emblems available for 
inscription. Whether there is good cause in other situations will 
depend upon the facts as determined by VA's case-by-case review.
    A few commenters questioned whether VA's action on an individual 
request for a new emblem of belief based upon immediate need would also 
apply to all future requests for the same emblem. The final rule 
prescribes procedures for adding new emblems of belief to VA's list of 
emblems available generally for inscription on Government-furnished 
headstones and markers. Upon approval of an applicant's request for 
addition of a new emblem of belief, the emblem will be added to the 
list and available for inscription on all Government-furnished 
headstones or markers.

Evaluation Criteria

    Several commenters asserted that VA should either approve all 
emblems of belief or discontinue the program. The Federal Government 
has a long history of furnishing headstones and markers inscribed with 
emblems of belief to the family members or personal representatives of 
deceased veterans for interments or memorial ceremonies. The headstone 
and marker program was administered by the Department of the Army until 
1973 when Congress created the National Cemetery System and transferred 
authority for the program to VA. Our experience has shown that emblem 
of belief inscriptions are requested for the majority of Government-
furnished headstone and markers. Discontinuing this program might cause 
veterans' survivors to suffer unnecessary grief and anguish during a 
very difficult time. Further, as we describe below, we believe that we 
can address the commenters' concerns by imposing only very narrow, 
viewpoint-neutral restrictions on the design of emblems of belief and 
expressly prohibiting VA evaluation of the beliefs that they represent. 
Accordingly, we decline the commenters' suggestion that we either 
approve all emblems of belief or discontinue the optional inscription 
of emblems.
    Many commenters criticized proposed Sec.  38.632(b)(3), which 
defined ``belief system'' as meaning ``genuine and non-frivolous'' 
religious opinions, doctrines and/or principles. They also objected to 
the provision in proposed Sec.  38.632(h) that allowed the Under 
Secretary for Memorial Affairs to consider ``information from any 
source'' in evaluating a belief system and asserted that any claim of 
authority by VA to ascertain a belief system's genuineness and non-
frivolousness is unconstitutional. Other commenters objected on 
constitutional grounds to proposed Sec.  38.632(e), which would require 
applicants to establish that an emblem is ``widely used and recognized 
as the symbol of a distinct belief system'' and produce supplemental 
information concerning recognition of the decedent's belief system by a 
group, organization, or another Federal agency. Some commenters 
suggested that VA limit its discretion to ascertaining whether an 
eligible decedent's declared belief system was sincerely held or was a 
belief system that played a role equivalent to a religious belief 
system in the life of that individual.
    After carefully considering the comments and the applicable law, we 
agree with the commenters that it is difficult to establish objective 
criteria in VA's regulations for evaluating the religious beliefs of 
eligible deceased veterans and family members consistent with the First 
Amendment. In United States v. Seeger, 380 U.S. 163, 184-185 (1965), 
the Supreme Court held that courts ``are not free to reject beliefs 
because they consider them `incomprehensible.' Their task is whether 
the beliefs professed by [an individual] are sincerely held and whether 
they are, in his own scheme of things, religious.'' See also Thomas v. 
Review Bd. of the Indiana Employment Sec. Div., 450 U.S. 707, 714 
(1981) (The issue of whether a belief qualifies as a religion ``is not 
to turn upon a judicial perception of the particular belief or practice 
in question.''). In Wallace v. Jaffree, 472 U.S. 38, 52 (1985), the 
Court held that an ``individual's freedom to choose his own creed is 
the counterpart of his right to refrain from accepting the creed 
established by the majority.'' It rejected the notion that this right 
``merely proscribed the preference of one Christian sect over another, 
but would not require equal respect for the conscience of the infidel, 
the atheist, or the adherent of a non-Christian faith such as Islam or 
Judaism.'' Id.
    In other contexts, courts have applied various tests and indicia in 
an effort to determine whether a belief or practice has a religious 
character for First Amendment purposes. See Seeger, 380 U.S. at 163; 
Wisconsin v. Yoder, 406 U.S. 205 (1972); Kalka v. Hawk, 215 F.3d 90, 98 
(D.C. Cir. 2000); Alvarado v. City of San Jose, 94 F.3d 1223 (9th Cir. 
1996); Dettmer v. Landon, 799 F.2d 929 (4th Cir. 1986); Africa v. 
Commonwealth of Pennsylvania, 662 F.2d 1025 (3rd Cir. 1981). However, 
we have determined that these tests are not readily adaptable to 
promulgation of binding, objective criteria in the Department's 
regulations. For example, the Seeger test, under which one would 
evaluate whether the claimed belief occupies the same place in the life 
of the adherent as an orthodox belief in God holds in the life of 
another individual, would require some degree of subjective judgment on 
the part of a Department official. Given the difficulty in establishing 
objective criteria that can withstand constitutional challenge, we will 
not evaluate any belief for which an individual requests inscription of 
an emblem of belief on a Government-furnished headstone or marker. We 
have determined that it is necessary to clarify instead that VA's 
discretion is limited to ascertaining whether an emblem that assertedly 
represents the decedent's religion or religious belief system should be 
precluded because it is, for reasons unrelated to religious beliefs, 
inappropriate for inscription in VA cemeteries or on Government-
furnished headstones and markers. In the absence

[[Page 26094]]

of evidence to the contrary, VA will accept an applicant's statement 
regarding the religious or functionally equivalent belief of a deceased 
eligible individual. VA will attempt to resolve factual disputes 
concerning the emblem that represents the decedent's belief in 
accordance with the decedent's expressed preference. In cases where the 
decedent did not state a preference, VA would look to the individual(s) 
most likely to have the best knowledge of the decedent's religious or 
functionally equivalent belief, which would be the first individual(s) 
listed in Sec.  38.632(g)(2)(ii) as follows: the decedent's surviving 
spouse; the decedent's children 18 years of age or older; the 
decedent's parents; or the decedent's siblings.
    We also agree that emblems representing individuals' sincerely held 
beliefs are appropriate for inscription on Government-furnished 
headstones and markers even if such beliefs are not promulgated or 
endorsed by any specific church, organized denomination, or religious 
organization. The Supreme Court has rejected the notion that ``to claim 
the protection of the Free Exercise Clause one must be responding to 
the commands of a particular religious organization.'' See Frazee v. 
Illinois Dep't of Employment Sec., 489 U.S. 829, 833 (1989) (appellant 
asserted he was a Christian but did not claim to be a member of a 
particular Christian sect). Further, we have determined that it would 
not be too burdensome for VA to provide for the inscription of an 
emblem that represents an individual's, as opposed to a group's, 
asserted religious belief system. As indicated on VA Form 40-1330, VA 
already accommodates individual requests for inscription of other 
optional (birth date, date of death, military rank, military awards, 
and war service) and additional (terms of endearment, nicknames, 
military or civilian credentials or accomplishments, and special 
military unit designations) items, and digital imaging technology has 
allowed VA's contractors to achieve considerable flexibility in 
processing inscription requests. Accordingly, we have modified the rule 
to accommodate the religious beliefs of decedents who during their 
lives were not affiliated with a religious group.
    We wish to emphasize that we will not require an individual 
requesting inscription of a new emblem of belief to provide 
supplemental information to support his or her assertion that a 
particular belief was sincerely held by the decedent and played a role 
functionally equivalent to that of religion in the life of the 
decedent. Also, we will not establish criteria for ``affiliated 
organizations'' or require endorsement from such organizations. VA 
recognizes that several denominations or sects may adhere to a 
religious or functionally equivalent belief, each with its own emblem 
design. As described in this final rule, we have determined that it is 
appropriate to impose only minor, reasonable limits on religious 
emblems, to ensure that they do not undermine the purpose of 
Government-furnished headstones and markers or have an adverse impact 
on the dignity and solemnity of cemeteries honoring those who served 
the nation. In doing so, VA's discretion will be limited to evaluating 
emblems only for that narrow purpose. VA will not evaluate an 
individual's sincerely-held religious or functionally equivalent 
belief. VA's acceptance of an applicant's statement regarding the 
religious or functionally equivalent belief of a deceased eligible 
individual does not constitute an endorsement or approval of that 
belief.
    Several commenters objected to proposed Sec.  38.632(b)(4), under 
which we proposed to prohibit inscription of emblems that are obscene 
or have an adverse impact on the dignity and solemnity of cemeteries. 
The commenters suggested that we remove the provision because the terms 
``obscene'' and ``adverse impact'' are too ambiguous or ill-defined, 
and leave room for arbitrary or subjective decision-making. We agree 
that the constitutional obscenity standard, which includes a 
determination of whether the average person applying contemporary 
community standards would find that the expression appeals to the 
prurient interest, would be difficult to apply in the context of VA's 
emblems of belief determinations. To ensure clarity and consistency, 
the availability of markers furnished by the Federal Government should 
not turn on local community standards. Moreover, emblems depicting 
certain kinds of sexual content may be inappropriate for display on 
Government-furnished markers even if those emblems might not be deemed 
obscene. Accordingly, we have removed that standard and will prohibit 
instead emblems that explicitly or graphically depict or describe 
sexual content that is shocking, titillating, or pandering in nature. 
However, we disagree with and decline the commenters' suggestion that 
we avoid establishing a standard for determining whether an emblem is 
appropriate for inscription on Government-furnished headstones and 
markers.
    National cemeteries and Government-furnished headstones and markers 
serve a particular, congressionally mandated purpose, namely, to 
commemorate the gallant dead in a manner commensurate with the dignity 
of their sacrifice. See 38 U.S.C. 2403(c) (cemeteries under VA control 
shall be considered ``shrines as a tribute to our gallant dead''); see 
also 38 U.S.C. 2306(a) (eligibility for Government-furnished headstones 
and markers). Under 38 U.S.C. 2404(a), VA has authority to promulgate 
all rules and regulations necessary and appropriate for administration 
of national cemeteries. Section 2404(c)(1) further authorizes VA to 
provide ``appropriate'' grave markers and to prescribe rules concerning 
inscription of information on those markers. We interpret these clear 
statutory provisions as authorizing VA to prohibit inscription of 
emblems that would have an adverse impact on the dignity and solemnity 
of cemeteries.
    The commenters object to the proposed ``adverse impact'' standard 
because it is susceptible to multiple interpretations. However, we note 
that regulatory language is not unconstitutionally vague simply because 
it is susceptible to multiple interpretations. See Nat'l Endowment for 
the Arts v. Finley, 524 U.S. 569, 583 (1998) (``decency and respect for 
the diverse beliefs and values of the American public'' was not an 
unconstitutionally vague evaluation criteria). ``[W]hen the Government 
is acting as a patron rather than a sovereign, the consequences of 
imprecision are not constitutionally severe.'' Id. at 589. Nonetheless, 
we have determined that it would be helpful to expand the definition of 
``emblem of belief'' in Sec.  38.632(b)(2) to identify certain kinds of 
emblems that would have an adverse impact on the dignity and solemnity 
of cemeteries. In this regard, we have proscribed emblems that are 
graphic depictions or descriptions of sexual content that is shocking, 
titillating, or pandering in nature; or that include coarse or abusive 
language or images. In our view, these restrictions are reasonable in 
light of the express purpose of National Cemeteries and Government-
furnished headstones and markers. Moreover, such exclusions do not 
impermissibly discriminate on the basis of viewpoint. Cf. Bethel School 
Dist. 403 v. Fraser, 478 U.S. 675 (1986) (school district did not 
engage in impermissible viewpoint discrimination, or otherwise violate 
the First Amendment, by disciplining a student for giving a lewd speech 
at a school assembly).
    We have carefully avoided judging an individual's religious or 
functionally equivalent belief and intend only to

[[Page 26095]]

proscribe the inscription of emblems that are not appropriate for 
cemeteries and Government-furnished headstones and markers that honor 
deceased veterans. We acknowledge that proscribing explicit or graphic 
sexual content and coarse or abusive language inserts a minor but 
unavoidable element of subjectivity in VA's decisions. However, the 
Court of Appeals for the Federal Circuit has emphasized that 
restrictions on speech in nonpublic fora ``may be reasonable if they 
are aimed at preserving the property for its intended use.'' Griffin v. 
Sec'y of Veterans Affairs, 288 F.3d 1309, 1323 (Fed. Cir. 2002) (citing 
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 50-51 
(1983)). In Griffin, the Federal Circuit held that ``the government has 
established national cemeteries to serve particular commemorative and 
expressive roles'' in a nonpublic forum. Griffin, 288 F.3d at 1324. The 
court also held that the nature and function of the national cemeteries 
make the preservation of dignity and decorum a paramount concern, and 
that the Government ``must have greater discretion to decide what 
speech is permissible in national cemeteries than in those fora which 
serve no patriotic purpose.'' Id. Because the judgments necessary to 
ensure that cemeteries remain sacred to the honor and memory of those 
interred or memorialized there may defy objective description and may 
vary with individual circumstances, the court concluded that ``the 
discretion vested in VA administrators by [the challenged regulation] 
is reasonable in light of the characteristic nature and function of 
national cemeteries.'' Griffin, at 1325.
    The Federal Circuit's analysis in Griffin may be extended to the 
provision of Government-furnished headstones and markers, even if they 
are not placed in a national cemetery. In Perry v. McDonald, 280 F.3d 
159, 171 (2d Cir. 2001), the Court of Appeals for the Second Circuit 
held that viewpoint-neutral restrictions on the speech depicted on 
vanity license plates need only be reasonable in light of the purpose 
of the forum. See also Griffin, 288 F.3d at 1321 (``restraints on 
speech in a nonpublic forum will be upheld unless they are unreasonable 
or they embody impermissible viewpoint discrimination''). The court 
stated that ``automobile license plates are governmental property 
intended primarily to serve a governmental purpose'' and must be 
approved prior to issuance. Perry, 280 F.3d at 169. Similarly, in a 
1948 opinion, the Army Judge Advocate General (JAG) held that title to 
Government-furnished headstones and markers, which are installed for 
the express Government purpose of commemorating deceased veterans in a 
respectful manner, remains with the Government. The VA Office of the 
General Counsel has interpreted the law regarding ownership of 
headstones and markers consistent with the JAG opinion since the 
transfer of the national cemetery system to VA in 1973. The fact that 
VA makes available to the applicant the option of inscribing an emblem 
does not detract from the proprietary interest the Government maintains 
in the headstone or marker or from the solemn purpose of the headstone 
or marker.
    As a check on discretion, Sec.  38.632(g)(4) states that an adverse 
impact determination ``may not be made based on the content of the 
religious or functionally equivalent belief that the emblem 
represents.'' Section 38.632(h)(2) provides for notice concerning any 
VA determination that an emblem design is inappropriate and an 
opportunity to modify the design before any final decision. Finally, 
should any applicant disagree with the Under Secretary's decision 
concerning the design of an emblem, the decision is a final agency 
action for purposes of judicial review under the Administrative 
Procedure Act. See 5 U.S.C. 701-706. Accordingly, this final rule is 
narrowly-tailored to ensure that VA meets its obligation to provide 
headstones and markers that appropriately honor the service of deceased 
veterans.

Other Administrative Matters

    Some commenters expressed concern about the requirement in proposed 
Sec.  38.632(e)(7) concerning trademark and copyright restrictions. The 
commenters found it contradictory for VA to limit inscription of 
emblems to those that are free from copyright and trademark 
restrictions because VA currently allows for inscription of two emblems 
that are not free from such restrictions. Other commenters suggested 
that VA should not restrict an emblem that has copyright or trademark 
protections if the copyright or trademark owner has authorized 
inscription of the emblem on Government-furnished headstones and 
markers.
    VA administers the headstone and marker program with the assistance 
of over 165 contractors and 40 vendors. The list of emblems available 
for inscription on Government-furnished headstones and markers is 
distributed to these contractors and vendors and to the general public 
for purposes of expediting the application for and delivery of 
headstones and markers. Emblems are added to the list for the future 
general use of all applicants for Government-furnished headstones and 
markers. Further, VA does not have the resources or legal duty to 
monitor and protect the intellectual property rights of others. That 
duty belongs to the owner of the intellectual property. For these 
reasons, VA has determined that it is not feasible to add restricted-
use emblems to the list of emblems available for inscription. 
Nonetheless, we agree with the commenters that there is a less 
restrictive alternative to proscribing inscription of intellectual 
property.
    Accordingly, we will modify Sec.  38.632(e)(2) to clarify that the 
requested emblem must be free of copyright or trademark restrictions or 
authorized by the owner for inscription on Government-furnished 
headstones and markers. A few commenters also inquired about 
inscription technology and the costs to individuals for inscribing an 
emblem of belief on a headstone or marker. Regarding inscription 
technology, VA contracts with private vendors for the procurement and 
inscription of headstones and markers. As technologies improve, VA 
amends contracts to incorporate improved and diverse manufacturing 
techniques to take advantage of new inscription technologies. There are 
no costs imposed on families to inscribe emblems on Government-
furnished headstone or markers.

Paperwork Reduction Act

    Although this final rule will impose a new information collection 
for requests to add a new emblem of belief to VA's list of emblems 
available for inscription on Government-furnished headstones and 
markers, VA has concluded that this new requirement will affect fewer 
than 10 individuals within any 12-month period. Under 5 CFR 1320.3(c), 
requests that do not impose a collection of information on 10 or more 
entities within any 12-month period do not constitute a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521). 
Therefore, this final rule contains no provisions constituting a new 
collection of information. Furthermore, the Office of Management and 
Budget (OMB) previously approved all collections of information 
referenced in this final rule under control number 2900-0222. This rule 
does not change those collections.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and,

[[Page 26096]]

when regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety, and other advantages; distributive impacts; 
and equity). The Executive Order classifies a ``significant regulatory 
action,'' requiring review by 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 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 the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined, and it has been 
determined to be a significant regulatory action under the Executive 
Order because it may raise novel legal or policy issues arising out of 
legal mandates, the President's priorities, or the principles set forth 
in the Executive Order.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule would not have 
a significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This final rule primarily affects only individuals who request 
Government-furnished headstones and markers for deceased eligible 
veterans. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt 
from the initial and final regulatory flexibility analysis requirements 
of 5 U.S.C. 603 and 604.

Unfunded Mandates

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

Catalog of Federal Domestic Assistance Program Number

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this proposed rule are 64.201, National Cemeteries; and 
64.202, Procurement of Headstones and Markers and/or Presidential 
Memorial Certificates.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Veterans.

    Approved: February 20, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

0
For the reasons set out 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. 501(a), unless otherwise noted.


0
2. Revise Sec.  38.632 to read as follows:


Sec.  38.632  Headstone or marker application process.

    (a) General. This section contains procedures for ordering a 
Government-furnished headstone or marker through the National Cemetery 
Administration (NCA) headstone and marker application process for 
burial or memorialization of deceased eligible veterans and eligible 
family members. It also contains procedures for requesting the 
inscription of new emblems of belief on Government-furnished headstones 
and markers.
    (b) Definitions. For purposes of this section:
    (1) Applicant means the decedent's next-of-kin (NOK), a person 
authorized in writing by the NOK, or a personal representative 
authorized in writing by the decedent to apply for a Government-
furnished headstone or marker and, in appropriate instances, a new 
emblem of belief for inscription on a Government-furnished headstone or 
marker.
    (2) Emblem of Belief means an emblem that represents the decedent's 
religious affiliation or sincerely held religious belief system, or a 
sincerely held belief system that was functionally equivalent to a 
religious belief system in the life of the decedent. In the absence of 
evidence to the contrary, VA will accept as genuine an applicant's 
statement regarding the sincerity of the religious or functionally 
equivalent belief system of a deceased eligible individual. The 
religion or belief system represented by an emblem need not be 
associated with or endorsed by a church, group or organized 
denomination. Emblems of belief do not include social, cultural, 
ethnic, civic, fraternal, trade, commercial, political, professional or 
military emblems. VA will not accept any emblem that would have an 
adverse impact on the dignity and solemnity of cemeteries honoring 
those who served the Nation, including (but not limited to) emblems 
that contain explicit or graphic depictions or descriptions of sexual 
organs or sexual activities that are shocking, titillating, or 
pandering in nature; and emblems that display coarse or abusive 
language or images.
    (3) Federally-administered cemetery means a VA National Cemetery, 
Arlington National Cemetery, the Soldiers' and Airmen's Home National 
Cemetery, a military post or base cemetery of the Armed Forces, a 
service department academy cemetery, and a Department of the Interior 
National Cemetery.
    (4) Headstones or markers means headstones or markers that are 
furnished by the Government to mark the grave or memorialize a deceased 
eligible veteran or eligible family member.
    (5) State veterans cemetery means a cemetery operated and 
maintained by a State or territory for the benefit of deceased eligible 
veterans or eligible family members.
    (c) Headstone or Marker Application Process. (1) Headstones or 
markers will be ordered automatically during the process of arranging 
burial or memorialization for a deceased eligible veteran or eligible 
family member in a national cemetery or a State veterans cemetery that 
uses the NCA electronic ordering system. Cemetery staff will order a 
Government-furnished headstone or marker by entering information 
received from the applicant directly into the NCA electronic ordering 
system. Unless a new emblem of belief is requested (see paragraph 
(d)(1) of this section), no further application is required to order a 
Government-furnished headstone or marker when the national or state 
cemetery uses the NCA electronic ordering system.
    (2) Submission of a completed VA Form 40-1330 (Application for 
Standard Government Headstone or Marker) is required when a request for 
a Government-furnished headstone or marker is not made using the NCA 
electronic ordering system. VA Form 40-1330 requires the applicant to 
provide information about the decedent,

[[Page 26097]]

inscription preferences, and placement of headstone or marker. There is 
a space in the Remarks section of VA Form 40-1330 for applicants to 
clarify information or make special requests, to include an emblem of 
belief that is not currently available. To access VA Form 40-1330 use 
the following link: http://www.va.gov/vaforms/va/pdf/40-1330.pdf.
    (d) Application Process for New Emblems of Belief. When there is an 
immediate need, and the applicant requests a new emblem of belief for 
inscription on a new, first Government-furnished headstone or marker 
for a deceased eligible individual, the following procedures will 
apply:

 
------------------------------------------------------------------------
 If the burial or memorialization of an
      eligible individual is in a:             The applicant must:
------------------------------------------------------------------------
 (1) Federally-administered cemetery or   (i) Submit a written request
 a State veterans cemetery that uses      to the director of the
 the NCA electronic ordering system.      cemetery where burial is
                                          requested indicating that a
                                          new emblem of belief is
                                          desired for inscription on a
                                          Government-furnished headstone
                                          or marker; and
                                         (ii) Provide the information
                                          specified in paragraph (e) of
                                          Sec.   38.632 to the NCA
                                          Director of Memorial Programs
                                          Service.
 (2) Private cemetery (deceased           (i) Submit a completed VA Form
 eligible veterans only), Federally-      40-1330 to the NCA Director of
 administered cemetery or a State         Memorial Programs Service,
 veterans cemetery that does not use      indicating in the REMARKS
 the NCA electronic ordering system.      section of the form that a new
                                          emblem of belief is desired;
                                          and
                                         (ii) Provide the information
                                          specified in paragraph (e) of
                                          Sec.   38.632 to the NCA
                                          Director of Memorial Programs
                                          Service.
------------------------------------------------------------------------

     (e) Application. The applicant must identify the deceased eligible 
individual for whom a request has been made to add a new emblem of 
belief to those emblems of belief available for inscription on 
Government-furnished headstones and markers. The application must 
include the following:
    (1) Certification by the applicant that the proposed new emblem of 
belief represents the decedent's religious affiliation or sincerely 
held religious belief system, or a sincerely held belief system that 
was functionally equivalent to a religious belief system in the life of 
the decedent.
    (2) A three-inch diameter digitized black and white representation 
of the requested emblem that is free of copyright or trademark 
restrictions or authorized by the owner for inscription on Government-
furnished headstones and markers and can be reproduced in a production-
line environment in stone or bronze without loss of graphic quality.
    (f) Incomplete application. If VA determines that an application 
for a new emblem of belief is incomplete, VA will notify the applicant 
in writing of any missing information and that he or she has 60 days to 
submit such information or no further action will be taken. If the 
applicant does not submit all required information or demonstrate that 
he or she has good cause for failing to provide the information within 
60 days of the notice, then the applicant will be notified in writing 
that no further action will be taken on the request for a new emblem.
    (g) Evaluation criteria. The Director of NCA's Office of Field 
Programs shall forward to the Under Secretary for Memorial Affairs all 
complete applications, any pertinent records or information, and the 
Director's recommendation after evaluating whether:
    (1) The applicant has demonstrated that there is an immediate need 
to inscribe the emblem on a new, first, Government-furnished headstone 
or marker for a deceased eligible individual, unless good cause is 
shown for an exception;
    (2) The applicant has submitted a certification concerning the 
emblem that meets the requirements of paragraph (e)(1) of this section.
    (i) In the absence of evidence to the contrary, VA will accept as 
genuine an applicant's statement regarding the sincerity of the 
religious or functionally equivalent belief system of a deceased 
eligible individual. If a factual dispute arises concerning whether the 
requested emblem represents the sincerely held religious or 
functionally equivalent belief of the decedent, the Director will 
evaluate whether the decedent gave specific instructions regarding the 
appropriate emblem during his or her life and the Under Secretary will 
resolve the dispute on that basis.
    (ii) In the absence of such instructions, the Under Secretary will 
resolve the dispute in accordance with the instructions of the 
decedent's surviving spouse. If the decedent is not survived by a 
spouse, the Under Secretary will resolve the dispute in accordance with 
the agreement and written consent of the decedent's living next-of-kin. 
For purposes of resolving such disputes, next-of-kin means the living 
person(s) first listed as follows:
    (A) The decedent's children 18 years of age or older, or if the 
decedent does not have children, then
    (B) The decedent's parents, or if the decedent has no surviving 
parents, then
    (C) The decedent's siblings.
    (3) The emblem meets the definition of an emblem of belief in 
paragraph (b)(2);
    (4) The emblem would not have an adverse impact on the dignity and 
solemnity of cemeteries honoring those who served the Nation--for 
example, the emblem cannot contain explicit or graphic depictions or 
descriptions of sexual organs or sexual activities that are shocking, 
titillating, or pandering in nature, or display coarse or abusive 
language or images. A determination that an emblem would have an 
adverse impact on the dignity and solemnity of cemeteries honoring 
those who served the Nation may not be made based on the content of the 
religious or functionally equivalent belief that the emblem represents.
    (5) The emblem meets the technical requirements for inscription 
specified in paragraph (e)(2) of this section.
    (h) Decision by the Under Secretary for Memorial Affairs. (1) A 
decision will be made on all complete applications. A request to 
inscribe a new emblem on a Government-furnished headstone or marker 
shall be granted if the Under Secretary for Memorial Affairs finds that 
the request meets each of the applicable criteria in paragraph (g) of 
this section. In making that determination, if there is an approximate 
balance between the positive and negative evidence concerning any fact 
material to making that determination, the Under Secretary shall give 
the benefit of the doubt to the applicant. The Under Secretary shall 
consider the Director of NCA's Office of Field Programs' recommendation 
and may consider information from any source.
    (2) If the Under Secretary for Memorial Affairs determines that 
allowing the inscription of a particular proposed emblem would 
adversely

[[Page 26098]]

affect the dignity and solemnity of the cemetery environment or that 
the emblem does not meet the technical requirements for inscription, 
the Under Secretary shall notify the applicant in writing and offer to 
the applicant the option of either:
    (i) Omitting the part of the emblem that is problematic while 
retaining the remainder of the emblem, if this is feasible, or
    (ii) Choosing a different emblem to represent the religious or 
functionally equivalent belief that does not have such an adverse 
impact.
    Applicants will have 60 days from the date of the notice to cure 
any adverse impact or technical defect identified by the Under 
Secretary. Only if neither option is acceptable to the applicant, the 
applicant's requested alternative is also unacceptable, or the 
applicant does not respond within the 60-day period, will the Under 
Secretary ultimately deny the application.
    (3) If the Under Secretary determines that the request should be 
denied and that decision is based wholly or partly on information 
received from a source other than the applicant, then the following 
procedure will be followed:
    (i) A tentative decision denying the request will be prepared;
    (ii) Written notice of the tentative decision accompanied by a copy 
of any information on which the Under Secretary intends to rely will be 
provided to the applicant;
    (iii) The applicant will have 60 days from the date of the written 
notice specified in subparagraph (ii) to present evidence and/or 
argument challenging the evidence and/or tentative decision; and
    (iv) The Under Secretary will consider the applicant's submission 
under subparagraph (iii) and will issue a final decision on the 
request.
    (4) The Director, Office of Field Programs, will provide the 
individual who made the request written notice of the Under Secretary's 
decision.

    Authority: (38 U.S.C. 501, 2404).

[FR Doc. E9-12650 Filed 5-29-09; 8:45 am]
BILLING CODE 8320-01-P