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Federal Register / Vol. 86, No. 149 / Friday, August 6, 2021 / Rules and Regulations
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referenced in the proposed rulemaking, but the regulation does contain three references to April 6, 1917, the date on which the United States entered World War I. One of these references, in proposed 38.630c1vi, defines Applicant to include any individual if the veterans service ended prior to April 6, 1917so that provision does not exclude veterans who served prior to World War I. The other two references, in proposed 38.630a2ii and iii, correspond to statutory references to that date in 38 U.S.C.
2306d4 and 5. We make no changes based on this comment.
We also received a comment that our proposed regulation did not focus on defining headstones, markers, or medallions, but rather on determining whether a veteran deserves any of those benefits. The commenter asserted that this allowed VA to establish a criteria for worthiness. As indicated above, Congress decides which categories of individuals should receive a headstone or marker. Congress also established, mostly in 38 U.S.C. 101, the definitions that shape these categories, by defining, for example, when service in the military constitutes active duty and who may be considered a veteran for purposes of VA benefits. VAs responsibility is to determine whether a decedent meets the requisite criteria before providing a headstone or marker.
We do not consider this determination to be an assessment of anyones worth; it is merely a factual determination whether the decedent meets the criteria.
As noted above, VA received one comment suggesting a one-veteran-oneheadstone rule, regardless of placement in a national or private cemetery, and irrespective of whether the remains are marked, unmarked, or on a collective monument. We thank the commenter for giving serious consideration to the issue of marking graves and suggesting an alternative. However, as previously explained, VAs regulation must remain within the authorities provided by Congress, which currently restrict who is eligible to receive a Government headstone or marker based on the nature of service, the type of cemetery at issue, and whether the grave is unmarked.
VA makes no changes based on this comment.
Comments That the Rule Is Not Consistent With VA Practice or Will Prevent Provision of Headstones and Markers Several commenters suggested that the content of the proposed rule was changing or not consistent with VAs current or past practice in providing
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headstones and markers for unmarked graves. Many of the comments urged VA
to remove the rulemaking from the docket because the commenters believe it is unnecessary and would have farranging negative effects that would curtail an ordinary citizens ability to honor and preserve the graves of veterans of all eras. Some commenters predicted dire results, stating that the regulation would result in VA no longer providing individual headstonesor any headstones at allin the future, even if a grave is newly discovered.
Several commenters specifically suggested that VAs rule would result in VA never providing a headstone for the grave of anyone who served in the Civil War, whether for the Union or the Confederacy. One commenter noted that several of VAs national cemeteries contain graves of enemy prisoners of war for which VA has provided headstones and stated that VA should show the same respect for our own American veterans.
While these commenters hypothesized possible effects of the proposed rulemaking, most did not specify the provisions of the proposed rule that would lead to these dire results. As indicated above, without a clear indication of what provision a commenter finds problematic, VA
cannot respond as to why VA believes otherwise. We clarify for these commenters, however, that VA will indeed continue to provide headstones and markers for eligible veterans and others as required by section 2306. As to the particular categories that were mentioned, we note that the statute requires VA to provide headstones for individuals buried in a national cemetery, which would include enemy prisoners of war buried in national cemeteries, as well as soldiers of the Union and Confederate Armies, who are eligible for headstones or makers for their unmarked graves within or outside VA national cemeteries. Both categories of individuals are reflected in the regulation.
To the extent the commenters apprehension is related to the proposed definition of unmarked grave, the preamble to the proposed rulemaking addressed this issue. Although the definition had never before been included in VA regulations, the content of the definition is consistent with VAs longstanding policy and guidance in VA
Department of Memorial Affairs Headstone and Marker Manual M403, which itself is consistent with Department of the Army regulation 32
CFR 536.57b3 1961 and policy predating VAs assumption of responsibility for managing the national
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cemeteries, and the headstone and marker program, which occurred in 1973. We assure these commenters that the content of the rule is consistent with our current and past practice, despite the possibility that there may have been individual instances of inconsistent application in the past. Publication of the rule will assist in preventing such inconsistencies in the future. We believe that publication of the rule will establish consistency in VAs provision of headstone, marker, and medallion benefits within the scope of its statutory authority.
Finally, to the extent the commenters concern is that VA will no longer furnish headstones or markers so long as the decedent interred in the grave can be ascertained through research or a cemetery office ledger, that is not the case. If there is no durable headstone or marker at or by the grave, that grave is unmarked under this rule, 38.630c6, and VA would therefore furnish a headstone or marker if eligibility criteria are met. Moreover, if a headstone or marker is damaged beyond repair, lacks a legible inscription that can lead to identification of the decedent, or has been stolen or vandalized, that grave is unmarked under this rule, id., and VA
would therefore furnish a headstone or marker if eligibility criteria are met. In sum, a cemeterys maintenance of a ledger does not preclude consideration of a grave as unmarked. That said, where the inscription on a durable headstone or marker, in conjunction with a cemetery ledger or other reasonably accessible source, serves to identify the decedent, the grave is considered marked under the proposed rule and this final rule.
Comments on Content of Inscriptions Two commenters suggested that graves should be considered unmarked if a headstone or marker does not contain a proper inscription, including name, rank, and other service information. Others asserted that a number on a headstone, corresponding to a book or list, was not sufficient to mark a grave or honor a veteran.
Another stated that the definition of marked should be the same regardless of the type of cemetery at issue.
At the outset, it must be noted that VA cannot change a private choice in a private cemetery to place only a name or number on a headstone. While one commenter stated that no one should ever have to settle for just being a number, some private purchasers chose and private cemeteries permit such a practice, and VA cannot prohibit it. The critical question, for purposes of
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