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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations
however, that, while that part of the Senate report cited by the commenters referred only to graves, without the unmarked qualifier, other parts of the reportand the public law itself limited this furnishing to graves of those who served in the Union and Confederate Armies and all others that were unmarked. This remains the language of the law in section 2306
today. As noted above, Congress did not provide, in Public Law 80871 or any other law since, a definition of the term unmarked.
At least one commenter asserted that, under the 1948 law, Congress intended that VA provide headstones which display the veterans name and other pertinent information. To the contrary, that topic was not addressed in Public Law 80871. And, as noted above, Congress has never declared that the content on a headstone or marker is the barometer for assessing whether a grave is unmarked. Indeed, Congress has strongly suggested that the provision of headstones or markers for alreadymarked private graves requires specific statutory authority: Congress added paragraph d to section 2306, see Public Law 107103, 502 2001, with the understanding that VA is restricted by statute from providing a headstone or marker for an already marked grave absent Congressional allowance. S. Rep.
10786, at 23 2001. Overall, as discussed above, while section 2404
requires that certain information be inscribed on headstones or markers in order to be an appropriate marker for graves in national cemeteries, this requirement is not related to VAs authority to furnish headstones or markers on unmarked graves outside national cemeteries.
Several commenters specifically referenced the effect the regulation may have on VAs provision of headstones for those interred in Oakwood Cemetery in Richmond, Virginia. One commenter cited to a specific headstone request for placement at Oakwood Cemetery and another commenter cited to legal challenges to VAs previous denials of claims for headstones for graves in Oakwoods Confederate section. Other comments stated support for providing headstones at Oakwood. As previously indicated, we cannot address specific claims within this rulemaking. We also clarify that the effect of this rulemaking is not to address specific gravesites or cemeteries, such as Confederates interred in Oakwood Cemetery. To the extent that the litigation regarding headstones at Oakwood Cemetery informed this regulation, it reinforced the importance of VA publishing a regulation with consistent standards
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and inviting public comment, to ensure the public is aware of, and able to provide input on, VAs interpretation of its statutory authority. The content of the regulation was not drafted with any intent of addressing specific previous or potential future claims at Oakwood or any other cemetery; as noted above, the regulation was drafted to provide a clear and effective method by which the headstone, marker, and medallion program will be managed in accordance with VAs interpretation of the authority provided by Congress.
One commenter asserted that VAfurnished headstones for Confederates at Oakwood Cemetery are incorrect or duplicative and questioned the accuracy of burial lists for graves at Oakwood. VA
appreciates the commenters concerns;
however, these comments are casespecific scenarios or issues that should be raised in the claim adjudication context, and not as part of a rulemaking.
Some of the commenters discussing Oakwood Cemetery referenced a statement submitted to the Office of Management and Budget OMB in 2017 by James B. Laidler. We attempted to obtain the full text of Mr.
Laidlers 2017 comment that presumably would have been submitted to OMB regarding proposed changes to VA Form 401330, Claim for Standard Government Headstone or Marker. We conducted an internal search of files, trying to locate the full content of Mr.
Laidlers 2017 comment, but we have no record of having received such comment. Because the commenters indicated it was submitted to OMB, we reviewed the online portal at www.regulations.gov but did not find any comment submitted by Mr. Laidler.
Finally, we also asked OMB if they could provide the comment to us;
however, OMB staff informed us that they also had no record of Mr. Laidlers submission.
Without the benefit of reviewing Mr.
Laidlers actual comment in full, it is difficult to evaluate the relevance of his input to this regulation specifically.
However, we can address the arguments conveyed by the commenters, which allegedly originated from this 2017
submission. The commenters asserted that VAs proposal would rely on a block-and-ledger system to determine whether a grave is unmarked and that, because all cemeteries use such a system, this would essentially result in VA never providing a Government headstone for any graves. To the extent the commenters are referring to a grave location system that marks sections and rows of graves within a large cemetery, this is indeed a system used in many, if not all, cemeteries, including VAs
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national cemeteries. However, VA did not propose that a grave is marked so long as the cemetery has a system for locating graves. Under the proposed rule and final rule, a grave lacking a durable headstone or marker is unmarked; a grave with a damaged, stolen, or vandalized headstone or marker is unmarked; and a grave without a legible inscription on a headstone or marker is unmarked. As explained in the preamble to the proposed rule, this definition is based on VAs longstanding policy, which, in turn, is based on the policy that the Department of the Army had used prior to the transfer of the national cemeteries and the headstone and marker program to VA in 1973. VA makes no change to the regulation based on these comments, including, to the extent it was capable of consideration, Mr. Laidlers 2017
comment.
Clarification and Technical Edits One commenter requested clarification as to whether a headstone or marker has to be individualized for the grave to be considered marked, i.e., whether a headstone or marker for a block of graves or a row of many graves suffices. Similarly, another stated that a grave should be considered unmarked if no individual marker is present at the soldiers actual burial site. To clarify VAs position on the matter, if there is a marker for a block or row of graves that serves to identify the decedent and is durable, not damaged beyond repair, etc., VA considers the grave to be marked. As noted above, VA
has no authority to control how private cemeteries historically chose to mark graves, and the choice to mark multiple graves with one block in proximity to those graves does not render them unmarked. To the extent the proposed regulatory text was unclear on the matter, we are replacing at the grave in proposed 38.630c6 with at or by the grave in final 38.630c6.
Beyond the changes noted above, VA
also makes a few technical edits in this final rule, including the correction of cross-references, addition of medallions to the replacement provisions in 38.630b3ii, and updating statutory citations in 38.630c4 to reflect renumbering in titles 10 and 14 of the United States Code.
Executive Orders 12866 and 13563
Executive Orders 12866 and 13563
direct 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,
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