26092 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 

1753. Individuals who use 

telecommunication devices for the deaf 

(TDD) may call the Federal Information 

Relay Service (FIRS) at 1–800–877–8339 

between 8 a.m. and 8 p.m., Eastern 

Standard Time, Monday through Friday. 

SUPPLEMENTARY INFORMATION: The 

Department is delaying the effective 

date of the final rule published 

December 29, 2008 (73 FR 79367), 

which regulates the sustainable free use, 

commercial harvest, and sale of special 

forest products and forest botanical 

products from National Forest System 

lands. The Department previously 

delayed the effective date on March 30, 

2009 (74 FR 14049). Further delay is 

necessary, because more time is needed 

for the Forest Service to properly 

respond to the comments and to 

consider any potential changes to the 

rule. 

Dated: May 27, 2009. 

Ann Bartuska, 

Acting Deputy Under Secretary, Natural 

Resources and Environment. 

[FR Doc. E9–12685 Filed 5–29–09; 8:45 am] 

BILLING CODE 3410–11–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 38 

RIN 2900–AM53 

Headstone and Marker Application 

Process 

AGENCY: Department of Veterans Affairs. 

ACTION: Final rule. 

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 Governmentfurnished 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 § 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, 

§ 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 

§ 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 

§ 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, § 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, § 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 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 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 nextof-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 § 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, viewpointneutral 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 

§ 38.632(b)(3), which defined ‘‘belief 

system’’ as meaning ‘‘genuine and nonfrivolous’’ religious opinions, doctrines 

and/or principles. They also objected to 

the provision in proposed § 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 § 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 Governmentfurnished 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 

26094 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 

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 

§ 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 § 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 Governmentfurnished 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 § 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 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 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 viewpointneutral 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, 

§ 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 

§ 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 

§ 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, 

26096 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 

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 Governmentfurnished 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. 

■ 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 

■ 1. The authority citation for part 38 

continues to read as follows: 

Authority: 38 U.S.C. 501(a), unless 

otherwise noted. 

■ 2. Revise § 38.632 to read as follows: 

§ 38.632 Headstone or marker application 

process. 

(a) General. This section contains 

procedures for ordering a Governmentfurnished 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 Governmentfurnished headstone or marker and, in 

appropriate instances, a new emblem of 

belief for inscription on a Governmentfurnished 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, 

Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 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 Governmentfurnished 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 a State veterans cemetery that 

uses the NCA electronic ordering system.

(i) Submit a written request to the director of the 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 § 38.632 to the 

NCA Director of Memorial Programs Service. 

(2) Private cemetery (deceased eligible veterans only), Federally-administered cemetery or a State veterans cemetery that does not use 

the NCA electronic ordering system.

(i) Submit a completed VA Form 40–1330 to the NCA Director of Memorial Programs Service, indicating in the REMARKS section of the 

form that a new emblem of belief is desired; and 

(ii) Provide the information specified in paragraph (e) of § 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 

26098 Federal Register / Vol. 74, No. 103 / Monday, June 1, 2009 / Rules and Regulations 

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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2003–0062; FRL–8910–6] 

RIN 2060–AN86 

Implementation of the New Source 

Review Program for Particulate Matter 

Less Than 2.5 Micrometers (PM2.5) 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule; notice of grant of 

reconsideration and administrative stay 

of regulation. 

SUMMARY: The Environmental Protection 

Agency (EPA or Agency) is providing 

notice that through a letter signed on 

April 24, 2009, EPA has granted a 

petition for reconsideration dated 

February 10, 2009, submitted by 

Earthjustice on behalf of the National 

Resources Defense Council (NRDC) and 

the Sierra Club, with respect to the final 

rule titled, ‘‘Implementation of the New 

Source Review (NSR) Program for 

Particulate Matter Less Than 2.5 

Micrometers (PM2.5),’’ published on 

May 16, 2008. In addition, EPA has 

administratively stayed one of the 

provisions to which the petitioners 

objected—a ‘‘grandfathering’’ provision 

for PM2.5 contained in the federal 

prevention of significant deterioration 

(PSD) program. The EPA will publish 

notification in the Federal Register 

establishing a comment period and 

opportunity for a public hearing for the 

reconsideration proceeding. 

The petition for reconsideration and 

request for administrative stay can be 

found in the docket for the May 16, 

2008 rule. The EPA considered the 

petition for reconsideration and request 

for stay, along with information 

contained in the rulemaking docket, in 

reaching a decision on both the 

reconsideration and the stay. 

DATES: Effective June 1, 2009, 40 CFR 

52.21(i)(1)(xi) is stayed for a period of 

three months, until September 1, 2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dan deRoeck, Air Quality Policy 

Division, (C504–03), U.S. 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–5593; or 

e-mail address: deroeck.dan@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. How Can I Get Copies of This 

Document and Other Related 

Information? 

This Federal Register notice, the 

petition for reconsideration and the 

letter granting reconsideration and an 

administrative stay of the grandfathering 

provision under the federal PSD 

program at 40 CFR 52.21(i)(1)(xi) are 

available in the docket that EPA has 

established for the final rule titled 

‘‘Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5),’’ published on May 16, 2008 at 

73 FR 28321, under Docket ID No. EPA– 

HQ–OAR–2003–0062. The table below 

identifies the petitioner, the date EPA 

received the petition, the document 

identification number for the petition, 

the date of EPA’s response, and the 

document identification number for 

EPA’s response. 

Petitioner Date of 

petition to EPA 

Petition: 

Document No. 

in docket 

Date of EPA 

response 

EPA response: 

Document No. 

in docket 

National Resources Defense Council/Sierra Club ........................................... 2/10/2009 0281 4/24/2009 0282 

Note that all document numbers listed 

in the table are in the form of ‘‘EPA– 

HQ–OAR–2003–0062–xxxx.’’ 

All documents in the docket are listed 

on the http://www.regulations.gov Web 

site. Although listed in the index, some 

information may not be publicly 

available, i.e., confidential business 

information or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the EPA Docket Center, Docket 

ID No. EPA–HQ–OAR–2003–0062, EPA 

West, Room 3334, 1301 Constitution 

Avenue, Northwest, Washington, DC. 

The Public Reading Room is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the EPA 

Docket Center is (202) 566–1742. 

In addition to being available in the 

docket, an electronic copy of this 

Federal Register notice and EPA’s 

response letter to the petitioners are also 

available on the World Wide Web at 

http://www.epa.gov/nsr. 

II. Judicial Review 

Under Clean Air Act section 307(b), 

judicial review of the Agency’s decision 

concerning the stay is available only by