Outer Burial Receptacles

SUPPLEMENTARY INFORMATION:

On February 6, 2024, VA published a proposed rule in the Federal Register at 89 FR 8126 that proposed revisions to 38 CFR 38.629 to include provision of OBRs for gravesites in State or Tribal organization cemeteries funded through VA grants. The proposed rule also proposed revisions to 38 CFR 39.50 to clarify that VA would reimburse the cost of pre-placed OBRs separately from the grant award and revisions to 38 CFR 39.122 to establish that a State or Tribal organization that seeks payment in the form of reimbursement or monetary allowance for OBRs under § 38.629 would be subject to related inspections, audits, and reporting. The public comment period ended on April 8, 2024, and VA received no comments in response to the proposed rule.

During the final rule drafting process, VA noted an unintended outcome based on the proposed language of § 38.629(e)(2), which we have addressed in this final rule. In the proposed rule, the monetary allowance for OBRs placed at the time of interment would have only been payable if a State or Tribal organization submitted a request for payment within 1 year of interment. However, with the time that has elapsed while developing this rulemaking, the 1-year limitation on filing requests for payment would have created an unintended barrier to awarding the benefit from the earliest date authorized by statute, January 5, 2023. This provision would have unintentionally prohibited the payment of the allowance for burials that occurred more than 1 year prior to the final rule becoming effective. To ensure that the payment of the monetary allowance for OBRs placed at the time of interment is payable for all eligible burials, VA has revised the provision to read: “Requests for payment under this section for burials that occur from January 5, 2023, through December 31, 2024, must be submitted by December 31, 2025. Requests for payment under this section for burials that occur on or after January 1, 2025, must be submitted within 1 year of interment.” This change accommodates the lag in publishing this rulemaking and ensures VA can provide payment for claims that could not be submitted until such time as this final rule becomes effective.

VA has also made technical changes to note the heading change to § 38.629(c) in the amendatory instructions, which was inadvertently omitted in the proposed rule, and to conform to cross-reference conventions. We added the phrase “of this chapter” after cross-references to other regulatory sections in §§ 38.629(h), 39.50(e), and 39.122(a).

Because no comments were received during the public comment period, VA made no changes to the proposed regulatory text besides the technical changes described here.

Executive Orders 12866, 13563, and 14094

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Orders 12866 and 13563. The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This final rule will generally be small business neutral as it applies only to State and Tribal entities that have received a grant for a cemetery under 38 U.S.C. 2408. The Secretary acknowledges that some Tribal governments may be considered small entities; however, the economic impact would be entirely beneficial. This final rule will impose no mandatory requirements or costs on Tribal governments as a whole and will only affect those that are recipients of veterans cemetery grants. To the extent that small entities are affected, the impact of this final rule will be entirely beneficial as it will provide reimbursement for costs of OBRs associated with casketed burials in grant-funded cemeteries. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any 1 year. This final rule will have no such effect on State, local, and Tribal governments, or on the private sector.

Paperwork Reduction Act

This final rule includes a provision constituting a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The new collection of information requires approval by the Office of Management and Budget (OMB) and the assignment of an OMB Control Number. Accordingly, under 44 U.S.C. 3507(d), VA submitted a copy of this rulemaking to OMB for review and approval. VA received no comments on the new collection of information.

An OMB Control Number of 2900-0941 has been assigned to the new collection of information associated with this final rule. Assignment of this OMB control number is not an approval to conduct or sponsor an information collection under the Paperwork Reduction Act of 1995. In accordance with 5 CFR part 1320, the new collection of information associated with this rulemaking is not approved by OMB at this time. OMB's approval of the new collection of information will occur within 30 days after the final rulemaking publishes. If OMB does not approve the new collection of information as requested, VA will immediately remove the provision containing a new collection of information or take such other action as is directed by OMB.

The new collection of information associated with this rulemaking contained in 38 CFR 38.629 is described immediately following this paragraph.

Title: Request for Payment of Monetary Allowance for Outer Burial Receptacles.

OMB Control No.: 2900-0941.

CFR Provision: 38 CFR 38.629.

• Summary of collection of information: The new collection of information in revised 38 CFR 38.629 will require a State or Tribal organization to submit a request for payment of monetary allowance for OBRs placed at the time of interment, and it will require individuals to submit a request for payment of monetary allowance for a privately purchased OBR.
• Description of need for information and use of information: The information will be used by the National Cemetery Administration Financial Service Center to issue payment of the OBR monetary benefit. The information will identify the claimant and the amount claimed and will be necessary to make determinations for payment and for other budget, oversight, and compliance purposes associated with administering this benefit for burials in State and Tribal organization veterans cemeteries. In addition, VA may use a summary of this information to respond to Congressional oversight inquiries.
• Description of likely respondents: Primarily Veterans Cemetery Grants Program grantees that are States and Tribal Organizations. A small number of private individuals may be respondents.
• Estimated number of respondents: 110 in Fiscal Year 2024.
• Estimated frequency of responses: Quarterly for States and Tribal organizations that need to request payment of monetary allowance for burials where OBRs are placed at time of interment. One-time occurrence for any individual who needs to claim the monetary allowance for a privately purchased OBR.
• Estimated average burden per response: 15 minutes for all respondents.