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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations VAs statutory authority to furnish headstones or markers, is whether such a grave is unmarked. And in our proposal, we posited a definition of unmarked that can be consistently applied, regardless of the type of cemetery at issue.
As discussed in the preamble to the proposed rule, VA considered including as unmarked privately purchased headstones that do not meet the minimum inscription criteria that Congress set for an appropriate marker in VA national cemeteries at 38
U.S.C. 2404c. Those minimum criteria are the name of the decedent, the number of the grave, and other information that VA shall prescribe, id., which currently is branch of service and years of birth and death, see VA Form 401330 Inscription Information.
However, we continue to reject that alternative, because there is no indication that Congress intended its view of what is appropriate for markers in national cemeteries as the barometer for what is marked or unmarked in other cemeteries. In other words, Congresss use of the term appropriate marker in section 2404c indicates that some graves having a marker that is not appropriate for a national cemetery are nevertheless marked. In any event, it is incongruous to use section 2404cs definition of appropriate marker under the national cemetery administration program as a definition for unmarked graves in the headstone and marker program of section 2306. The predecessor to section 2404c, for example, required that national cemetery headstones contain the State of the decedent, 24 U.S.C. 279 1970;
but that does not mean that Congress considered a headstone not chronicling a State in a private cemetery as unmarked. And VA believes that if Congress were later to determine that the use of nicknames on headstones is not appropriate for national cemeteries, that would not mean that a headstone with a nickname in a private cemetery is unmarked. Although Congress mandated certain information be on headstones in national cemeteries, there is no indication that it intended section 2404c to be a definition of marked. Accordingly, the rule here focuses the unmarked inquiry not on what is appropriate for national cemeteries, but on whether there is a durable headstone or marker with a legible inscription that, in conjunction with a cemetery ledger or other reasonably accessible source, serves to identify the decedent. We make no changes based on these comments.

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One commenter suggested that VA
determine, on a case by case basis, whether a grave was marked based on the content of the inscription of an existing headstone or marker. The commenter provided hypothetical examples of the application of this test. We appreciate the considerable thought put into the comment and note that VA does undertake some of the analysis suggested when determining whether a Government-furnished headstone or marker should be replaced based on newly discovered information.
This is reflected in the rule at 38.630b3E for burial headstones or markers and 38.631b3E for memorial headstones or markers. We thank the commenter, but because, as explained above, the content of the inscription is not determinative of whether a grave is considered unmarked, we make no changes based on this comment.
Another commenter interpreted the proposal to mean that, if a headstone were unreadable, but identification could be made through research, VA
would not provide a headstone or marker. This is not the case. Under 38.630c6iiC, where the identifying elements of an inscription on the headstone or marker are no longer legible, the grave is unmarked.
The commenter then raised an issue that seems to pertain to whether information is ascertainable by citing a lack of services available at some cemeteries, which may make timely identification difficult. While we are sympathetic to this concern, we note again that VAs mandate is to furnish headstones or markers for the unmarked graves of veterans. We cannot extend our authority to address the lack of customer service provided by private entities by providing a headstone or marker where one already exists.
Nevertheless, the definition of ascertainable addresses this issue by requiring the decedents name to be reasonably accessible, which may involve a case-by-case consideration of the availability of the private cemeterys ledger or other sources.
On a similar note, one commenter argued that a grave is not marked if a visitor has to review a cemetery ledger to learn of the decedents name. But Congress has authorized VA to furnish headstones or markers for unmarked graves, not marked graves lacking certain information. Again, while we are sympathetic to the burden on visitors when a headstone or marker itself conveys little information about a decedent, that does not mean that the grave is unmarked.

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Comments Regarding Confederate Headstones and Oakwood Cemetery Many comments VA received, including several noted previously, were concerned about the application of this rule to the provision of headstones and markers for individuals who served in the Confederate armed forces during the Civil War, and particularly those who are buried in Oakwood Cemetery in Richmond, Virginia. We understand that readers of any rulemaking document will understand its contents through their own experiences and circumstances. But this rule was drafted to apply to the myriad circumstances, both historic and contemporary, that VA
navigates in deciding claims for headstones and markers. The rule provides VA with the flexibility to provide headstones or markers in numerous situations, without dictating how private individuals must mark or should have marked a grave.
Some of these commenters expressed a belief that the rulemaking reflected a political bias against those who served in the Confederate armed forces and is an attempt to limit provision of headstones to mark graves of Confederate soldiers. We affirmatively state that the regulation was not created to advance any political agenda or to deny any group of individuals the benefit to which they are entitled.
Consistent with section 2306a, this rule treats Confederate soldiers the same as Union soldiers and most others eligible for burial in a national cemetery. The regulation will provide VA with a consistent method for determining eligibility for the headstone, marker, and medallion benefits within the scope of its statutory authority. As acknowledged above, to the extent VAs past implementation may have been inconsistent at times, VA
intends with this regulation to create a clear and effective method by which the headstone, marker, and medallion program will be managed.
Commenters also asserted that VAs proposal is inconsistent with Public Law 80871 1948, because the Senate characterized the bill that would become this Public Law as authorizing Government headstones or markers for the graves of all persons who served honorably in the armed forces of the United States, including the Union and Confederate Armies. S. Rep. 801453, at 2. As stated above, 38 U.S.C.
2306a3 provides eligibility for headstones or markers for individuals who served in the Union and Confederate Armies, and this rule similarly includes them as eligible at 38.630a1iii. We reiterate,
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