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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations the Armed Forces serving on active duty under conditions other than dishonorable, as shown by a statement from a general court-martial convening authority, at the time of the spouses or childs death if it occurs before October 1, 2024. The definitions of minor child and unmarried adult child provided in 38.620e2 and 3 will apply to this paragraph. The statutory changes are also reflected in amendments to 38.630a1iv for burial headstones and markers and 38.631a1 for memorial headstones and markers, which extend eligibility to spouses and dependent children covered by Public Law 115407.

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General Comments Regarding the comments received, only two specifically noted support for the rulemaking. One commenter expressed general support for the proposed rule that recognizes the sacrifice of the men and women who served. A second commenter expressed specific support for the provisions regarding durability of headstones and requested that VA update Form 401330
to reflect these changes. We discuss the need for changes to Form 401330
below, in the section regarding the Paperwork Reduction Act. We thank these commenters for their support and input.
Although other commenters generally expressed negative opinions about the rulemaking, including suggesting that VA should abandon the effort, many of them did not specify ways in which VA
should change any particular proposed provision or suggest an overall change to the rule, short of withdrawing it. We thank all the commenters who took time to submit comments on the proposed rule; however, without more information regarding the changes certain commenters would like to see or the provisions with which they take exception, we cannot respond except to say that VA believes the rule is necessary and provides needed guidance to the public regarding its headstone and marker program.
Two commenters submitted information relating to specific unmarked graves and questioned the application of the rule to these circumstances. One of the commenters provided photographs of existing markings as examples of worn and broken block grave markers. Comments regarding specific claims are beyond the scope of this rulemaking. Because the circumstances regarding each claim for benefits are unique, and VA assesses claims on a case-by-case basis, we cannot speculate on the potential merits
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of the information provided regarding specific claims or potential claims.
Comments That the Rule Is Attempting To Alter or Is Inconsistent With Statutory Authority The first category of comments received generally asserted that VA was changing, or at least was being inconsistent with, the statutory authority for the headstone and marker program, as provided by Congress in 38
U.S.C. 2306. Several of these comments asserted that VA must provide headstones and markers for all soldiers graves or all veterans graves or just all graves. One commenter suggested that VA must provide a headstone to mark any grave for any veteran of any war.
Another suggested that VA adopt a One-Vet-One-Stone approach and provide a headstone regardless of whether the remains are unmarked or marked. We appreciate the input from these commenters; however, we clarify that our authority is circumscribed by section 2306. That statute prescribes eligibility for a Government headstone or marker depending on the type of individual and type of cemetery at issue. VA assures these commenters, and the public, that VA is not changing or departing from any of the eligibility categories set forth in current 38 U.S.C.
2306; as several commenters pointed out, VA has no authority to change a statutory provision. VAs responsibility is to provide benefits as authorized by Congress and, where Congress has left some ambiguity, to implement reasonable regulations consistent with the statute. VAs regulation includes all the categories of individuals who are eligible for headstones, markers, or medallions as established by Congress, including specific criteria for placement where applicable for example, some individuals may be eligible for a headstone only when buried in a national cemetery.
Several commenters suggested withdrawal of the proposal because it was inconsistent with the normal use of the term marked. We disagree.
Section 2306 authorizes VA to furnish headstones or markers for unmarked graves; the common definition of marked is having an identifying mark; and the common definition of unmarked is not having an identifying mark or distinctive notation. See Marked and Unmarked, Merriam-Webster.com Dictionary, https www.merriamwebster.com/dictionary last visited June 24, 2020. It would contravene these common definitions to consider graves with private, durable headstones
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containing a legible, identifying notation even if that notation is simply a nameor even a number that corresponds to a name as unmarked.
Several additional commenters stated that the proposed definition of unmarked grave is not a reasonable construction of the statutory term and is inconsistent with Congresss intent to furnish headstones or markers for the graves of all veterans. S. Rep. No. 80
1453, at 2 1948. The Senate Report cited in these comments was addressing the bill that would become Public Law 80871 1948, 62 Stat. 1215. This public law authorized Government headstones or markers for the unmarked graves of Union and Confederate soldiers, the unmarked graves of members of the Armed Forces who died in service or whose last service terminated honorably, and all unmarked graves in post and national cemeteries. 62 Stat. 1216.
Thus, while the Senate Report spoke in terms of headstones or markers for all veterans, S. Rep. 801453, at 2, the bill being recommendedand the Act which Congress passedconsistently restricted the furnishing of Government headstones or makers to unmarked graves. See id. at 1. Overall, the goal was not to ensure any specific content on the markjust that all graves be marked. And neither the Senate Report nor the Public Law prescribed or suggested a definition of unmarked.
As such, the definition of unmarked provided in this rule is consistent with the 1948 Congresss intent, and we make no changes based on these comments.
One commenter stated that veterans of all races and sexes who served in the military have a right to be remembered and honored with a headstone. Because section 2306 does not address race or sex in eligibility criteria, neither does VAs regulation. VA is committed to providing all of the many burial benefits, including headstones, markers, and medallions, to all persons eligible to receive them, without regard to a persons race, sex, or any other characteristics that are not enumerated in law.
Another commenter asserted that the proposal reflected an intent to deny headstones to veterans who served prior to World War I and who are interred in cemeteries that keep records of burials.
This comment seems to conflate two provisions of the proposed regulation, one regarding a statutorily mandated eligibility date and one addressing when information about a decedent is ascertainable from the headstone or marker. We discuss the term ascertainable below. As to World War I, we note that this war was not
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