81_FR_44959 81 FR 44827 - Authority To Solicit Gifts and Donations

81 FR 44827 - Authority To Solicit Gifts and Donations

DEPARTMENT OF VETERANS AFFAIRS

Federal Register Volume 81, Issue 132 (July 11, 2016)

Page Range44827-44830
FR Document2016-16232

The Department of Veterans Affairs (VA) is proposing to amend its National Cemeteries regulation on the prohibition of officials and employees of VA from soliciting contributions from the public or authorizing the use of their names, name of the Secretary, or the name of VA for the purpose of making a gift or donation to VA. The amended regulation would give the Under Secretary of Memorial Affairs (USMA), or his designee, authority to solicit gifts and donations, which include monetary donations, in-kind goods and services, and personal property, or authorize the use of their names, the name of the Secretary, or the name of VA by an individual or organization in any campaign or drive for donation of money or articles to VA for the purpose of beautifying, or for the benefit of, one or more national cemeteries.

Federal Register, Volume 81 Issue 132 (Monday, July 11, 2016)
[Federal Register Volume 81, Number 132 (Monday, July 11, 2016)]
[Proposed Rules]
[Pages 44827-44830]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-16232]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AP74


Authority To Solicit Gifts and Donations

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend 
its National Cemeteries regulation on the prohibition of officials and 
employees of VA from soliciting contributions from the public or 
authorizing the use of their names, name of the Secretary, or the name 
of VA for the purpose of making a gift or donation to VA. The amended 
regulation would give the Under Secretary of Memorial Affairs (USMA), 
or his designee, authority to solicit gifts and donations, which 
include monetary donations, in-kind goods and services, and personal 
property, or authorize the use of their names, the name of the 
Secretary, or the name of VA by an individual or organization in any 
campaign or drive for donation of money or articles to VA for the 
purpose of beautifying, or for the benefit of, one or more national 
cemeteries.

DATES: Comments must be received by VA on or before August 10, 2016.

ADDRESSES: Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to Director, Regulation 
Policy and Management (02REG), Department of Veterans Affairs, 810 
Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. (This is not a toll-free number.) Comments should indicate 
that they are submitted in response to ``RIN 2900-AP74--Authority to 
Solicit Gifts and Donations.'' Copies of comments received will be 
available for public inspection in the Office of Regulation Policy and 
Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 461-4902 for 
an appointment. (This is not a toll-free number.) In addition, during 
the comment period, comments may be

[[Page 44828]]

viewed online through the Federal Docket Management System (FDMS) at 
http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Thomas Howard, Chief of Staff, 
National Cemetery Administration (NCA), Department of Veterans Affairs, 
(40A), 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6215. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: Title 38 U.S.C. 2407 authorizes the 
Secretary of VA to ``accept gifts, devises, or bequests from legitimate 
societies and organizations or reputable individuals, made in any 
manner, which are made for the purpose of beautifying national 
cemeteries, or are determined to be beneficial to such cemetery.'' In 
1978, VA published implementing regulations for this authority at 38 
CFR 1.603 (now redesignated as 38 CFR 38.603). 43 FR 26572 (June 21, 
1978). Included in this regulation, at Sec.  38.603(b), is a 
prohibition on the solicitation of contributions from the public by any 
VA official or employee. Unfortunately, as was common at the time, the 
proposed and final rulemaking documents provide less information 
regarding the rationale for the regulations than is commonly provided 
today, so the full rationale for this regulation, including the reason 
for the prohibition on solicitations, is no longer available. The 
prohibition is not contained in the statutory authority at section 
2407, nor does the plain language of the statute indicate a rationale 
for the prohibition. We propose to ease this restriction because it 
negatively impacts VA's ability to fully realize the potential of its 
authority to accept gifts and donations for the benefit of the national 
cemeteries.
    The gift and donation acceptance authority at section 2407 is just 
one of several authorities under which VA may accept gifts or donations 
that advance the mission or enhance the services that VA provides. 
These authorities include, among others, 38 U.S.C. 521 (acceptance of 
funds to support recreational activities furthering the rehabilitation 
of disabled veterans); 2406 (gifts of land for national cemeteries); 
8103 and 8104 (acceptance of land, interests in land, or facilities for 
use as medical facilities); and 8301 (acceptance of gifts for use in 
carrying out all laws administered by VA). None of these statutory 
authorities nor any implementing regulations for any of the 
authorities, includes a provision like that contained in Sec.  
38.603(b), prohibiting the solicitation of contributions.
    Legal guidance indicates that such a prohibition is not required by 
law. In 2015, VA's Office of General Counsel (OGC) issued a precedent 
opinion concluding that VA's express statutory authority to accept 
gifts under section 8301 included the implied statutory authority to 
solicit those gifts. VAOPGCPREC 2-2015, Mar. 20, 2015. Outside VA, a 
2001 opinion from the Office of Legal Counsel (OLC) of the Department 
of Justice found that the broad statutory authority granted by Congress 
in section 403(b)(1) of the Office of Government Ethics Authorization 
Act of 1996 to accept gifts implies the authority to solicit gifts. 25 
Op. OLC 55, Jan. 19, 2001. VA believes that section 2407 similarly 
contains an implied statutory authority to solicit gifts and donations 
for the benefit of the national cemeteries and that, by prohibiting use 
of that implied statutory authority, the provision in Sec.  38.603(b), 
in addition to not being legally necessary, may impede VA's ability to 
fully realize the authority provided to VA in section 2407. The ability 
of VA to operate other gift and donation programs under the authorities 
mentioned above, effectively and within legal parameters, in the 
absence of a prohibition on the ability of principals to solicit gifts 
and donations, indicates that a prohibition like that contained in 
Sec.  38.603(b) is unnecessary.
    Gifts and donations received by the national cemeteries under the 
authority of section 2407 have taken many forms, including monetary 
donations, donations of services and property (such as landscaping 
services or trees), and memorials and other commemorative works. 
Consistent with the plain language of the terms ``gifts'' and 
``donations,'' we would clarify in the regulation that gifts and 
donations include monetary donations, in-kind goods and services, and 
personal property. These gifts and donations from generous persons and 
organizations enhance the experience of visitors to the national 
cemeteries. The prohibition contained in Sec.  38.603(b) impedes VA's 
ability to proactively advise donors or potential donors of gift and 
donation opportunities that could be beneficial to the national 
cemeteries. Although Sec.  38.603(b) includes a provision that allows 
VA employees to discuss the ``appropriateness'' of a proposed gift, 
that discussion can only happen if a donor first approaches VA about a 
potential gift or donation. VA cannot proactively advise a donor that a 
particular gift or donation would be beneficial to the national 
cemeteries in general or any one national cemetery in particular. 
Easing the prohibition benefits not only the national cemeteries by 
ensuring that gifts and donations are more likely to be beneficial, but 
also is beneficial to donors who may not know of opportunities to 
provide beneficial gifts and donations to the national cemeteries. 
Therefore, we would amend Sec.  38.603(b) to provide that the USMA, or 
his designee, may solicit gifts and donations, which include monetary 
donations, in-kind goods and services, and personal property, or 
authorize the use of their names, the name of the Secretary, or the 
name of VA by an individual or organization in any campaign or drive 
for money or articles to VA for the purpose of beautifying, or for the 
benefit of, one or more national cemeteries.
    While VA would ease the prohibition on solicitation of gifts and 
donations, the intent is not to remove the restriction in its entirety. 
VA maintains 133 national cemeteries, one national Veterans' burial 
ground, and 33 soldiers' lots and monument sites in 40 states and 
Puerto Rico, as national shrines, that is, places of honor and memory 
where visitors can sense the serenity, historic sacrifice, and nobility 
of purpose of those who have served in the military. The USMA is 
responsible for the operation of the national cemeteries and is in the 
best position to determine the appropriateness of any campaign to 
solicit gifts and donations. Although VA would replace the existing 
provision at Sec.  38.603(b) with revised text that would allow the 
USMA or designee to solicit gifts and donations to VA for the purpose 
of beautifying, or for the benefit of, one or more national cemeteries, 
this rulemaking would not amend any other regulation governing 
solicitation or acceptance of gifts and donations under any other 
authority available to VA.
    We propose to revise the authority citation for part 38 to include 
the statutory authority 38 U.S.C. 2407. We also propose to add this 
statutory authority at the end of Sec.  38.603.

Administrative Procedure Act

    Concurrent with this proposed rule, we are also publishing a 
separate, substantially identical direct final rule in this Federal 
Register. See RIN 2900-AP75. The simultaneous publication of these 
documents will speed notice and comment rulemaking under the 
Administrative Procedure Act (5 U.S.C. 553) should we have to withdraw 
the direct final rule due to receipt of a significant adverse comment.
    For purposes of the direct final rulemaking, a significant adverse 
comment is one that explains why the rule would be inappropriate, 
including challenges to the rule's underlying premise or approach, or 
why it would

[[Page 44829]]

be ineffective or unacceptable without change. If VA receives a 
significant adverse comment, VA will publish a notice of receipt of a 
significant adverse comment in the Federal Register and withdraw the 
direct final rule. In determining whether an adverse comment is 
significant and warrants withdrawing a direct final rule, we will 
consider whether the comment raises an issue serious enough to warrant 
a substantive response in a notice-and-comment process in accordance 
with section 553 of the Administrative Procedure Act (5 U.S.C. 553). 
Comments that are frivolous, insubstantial, or outside the scope of the 
rule will not be considered adverse under this procedure. For example, 
a comment recommending an additional change to the rule will not be 
considered a significant adverse comment unless the comment states why 
the rule would be ineffective or unacceptable without the additional 
change.
    Under direct final rule procedures, if no significant adverse 
comment is received within the comment period, the direct final rule 
will become effective on the date specified in RIN 2900-AP75. After the 
close of the comment period, VA will publish a document in the Federal 
Register indicating that VA received no significant adverse comments 
and restating the date on which the final rule will become effective. 
VA will also publish a notice in the Federal Register withdrawing this 
proposed rule.
    In the event that VA withdraws the direct final rule because of 
receipt of any significant adverse comment, VA will proceed with the 
rulemaking by addressing the comments received and publishing a final 
rule. The comment period for this proposed rule runs concurrently with 
that of the direct final rule. VA will treat any comments received in 
response to the direct final rule as comments regarding this proposed 
rule as well. VA will consider such comments in developing a subsequent 
final rule. Likewise, VA will consider any significant adverse comment 
received in response to the proposed rule as a comment regarding the 
direct final rule as well.
    VA has determined that it is not necessary to provide a 60-day 
comment period for this rulemaking because the rulemaking does not 
establish duties or benefits affecting members of the public, but 
merely makes a minor modification concerning the authority of certain 
officials or employees to solicit gifts and donations for the benefit 
of VA national cemeteries. VA has instead specified that comments must 
be received within 30 days after date of publication in the Federal 
Register.

Effect of Rulemaking

    The Code of Federal Regulations, to be revised by this proposed 
rulemaking, would represent the exclusive legal authority on this 
subject. No contrary rules or procedures would be authorized. All VA 
guidance would be read to conform with this proposed rulemaking if 
possible or, if not possible, such guidance would be superseded by this 
rulemaking.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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 proposed rule would only affect individuals and 
would not directly affect small entities. Therefore, pursuant to 5 
U.S.C. 605(b), this rulemaking is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

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, 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 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' requiring review by the Office of 
Management and Budget (OMB), unless OMB waives such review, as ``any 
regulatory action that is likely to result in a rule that may: (1) Have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.''
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at http://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's Web 
site at http://www.va.gov/orpm, by following the link for ``VA 
Regulations Published From FY 2004 Through Fiscal Year to Date.''

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 one year. This proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Catalog of Federal Domestic Assistance

    There are no Catalog of Federal Domestic Assistance program numbers 
and titles affected by this document.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. Gina S. 
Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, 
approved this document on June 30, 2016, for publication.


[[Page 44830]]


    Dated: June 30, 2016.
Jeffrey Martin,
Office Program Manager, Office of Regulation Policy & Management, 
Office of the Secretary, Department of Veterans Affairs.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Claims, Crime, 
Veterans.

    For the reasons set out in the preamble, VA proposes to amend 38 
CFR part 38 as follows:

PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

0
1. Revise the authority citation for part 38 to read as follows:

    Authority: 38 U.S.C. 107, 501, 512, 2306, 2402, 2403, 2404, 
2407, 2408, 2411, 7105.


0
2. In Sec.  38.603, revise paragraph (b) and add an authority citaiton 
to read as follows:


Sec.  38.603  Gifts and donations.

* * * * *
    (b) The Under Secretary of Memorial Affairs, or his designee, may 
solicit gifts and donations, which include monetary donations, in-kind 
goods and services, and personal property, or authorize the use of 
their names, the name of the Secretary, or the name of the Department 
of Veterans Affairs by an individual or organization in any campaign or 
drive for donation of money or articles to the Department of Veterans 
Affairs for the purpose of beautifying, or for the benefit of, one or 
more national cemeteries.

(Authority: 38 U.S.C. 2407)


[FR Doc. 2016-16232 Filed 7-8-16; 8:45 am]
 BILLING CODE 8320-01-P



                                                                         Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                                 44827

                                               ADDRESSES. We seek any comments or                       PART 165—REGULATED NAVIGATION                         p.m. from October 6 through October 9,
                                               information that may lead to the                         AREAS AND LIMITED ACCESS AREAS                        2016.
                                               discovery of a significant environmental                                                                          Dated: June 27, 2016.
                                               impact from this proposed rule.                          ■ 1. The authority citation for part 165              J.F. Dixon,
                                                                                                        continues to read as follows:
                                               G. Protest Activities                                                                                          Captain, U.S. Coast Guard, Captain of the
                                                                                                          Authority: 33 U.S.C. 1231; 50 U.S.C. 191;           Port Jacksonville.
                                                 The Coast Guard respects the First                     33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
                                               Amendment rights of protesters.                                                                                [FR Doc. 2016–16331 Filed 7–8–16; 8:45 am]
                                                                                                        Department of Homeland Security Delegation
                                               Protesters are asked to contact the                      No. 0170.1.                                           BILLING CODE 9110–04–P
                                               person listed in the FOR FURTHER
                                               INFORMATION CONTACT section to                           ■ 2. Add § 165.T07–0077 to read as
                                               coordinate protest activities so that your               follows:                                              DEPARTMENT OF VETERANS
                                               message can be received without                          § 165.T07–0077 Safety Zone; Daytona                   AFFAIRS
                                               jeopardizing the safety or security of                   Beach Wings and Waves Air Show, Atlantic
                                               people, places, or vessels.                              Ocean, Daytona Beach, FL.                             38 CFR Part 38
                                               V. Public Participation and Request for                     (a) Regulated Area. The following                  RIN 2900–AP74
                                               Comments                                                 regulated area is a safety zone located
                                                                                                        offshore from Daytona Beach, FL. All                  Authority To Solicit Gifts and
                                                  We view public participation as                                                                             Donations
                                                                                                        waters of the Atlantic Ocean
                                               essential to effective rulemaking, and
                                                                                                        encompassed within an imaginary line                  AGENCY:    Department of Veterans Affairs.
                                               will consider all comments and material
                                                                                                        connecting the following points:                      ACTION:   Proposed rule.
                                               received during the comment period.
                                                                                                        Starting at Point 1 in position
                                               Your comment can help shape the                                                                                SUMMARY:    The Department of Veterans
                                                                                                        29°14′44.72″ N., 081°0′46.90″ W.; thence
                                               outcome of this rulemaking. If you                                                                             Affairs (VA) is proposing to amend its
                                                                                                        northeast to Point 2 in position
                                               submit a comment, please include the                                                                           National Cemeteries regulation on the
                                                                                                        29°14′58.74″ N., 081°0′16.18″ W.; thence
                                               docket number for this rulemaking,                                                                             prohibition of officials and employees of
                                                                                                        southeast to Point 3 in position
                                               indicate the specific section of this                                                                          VA from soliciting contributions from
                                                                                                        29°13′3.80″ N., 080°59′21.78″ W.; thence
                                               document to which each comment                                                                                 the public or authorizing the use of their
                                                                                                        southwest to Point 4 in position
                                               applies, and provide a reason for each                                                                         names, name of the Secretary, or the
                                                                                                        29°12′54.63″ N., 080°59′53.87″ W.;
                                               suggestion or recommendation.                                                                                  name of VA for the purpose of making
                                                  We encourage you to submit                            thence northwest back to origin. These
                                                                                                        coordinates are based on North                        a gift or donation to VA. The amended
                                               comments through the Federal
                                                                                                        American Datum 1983.                                  regulation would give the Under
                                               eRulemaking Portal at http://
                                                                                                           (b) Definition. The term ‘‘designated              Secretary of Memorial Affairs (USMA),
                                               www.regulations.gov. If your material
                                                                                                        representative’’ means Coast Guard                    or his designee, authority to solicit gifts
                                               cannot be submitted using http://
                                                                                                        Patrol Commanders, including Coast                    and donations, which include monetary
                                               www.regulations.gov, contact the person
                                                                                                        Guard coxswains, petty officers, and                  donations, in-kind goods and services,
                                               in the FOR FURTHER INFORMATION
                                                                                                        other officers operating Coast Guard                  and personal property, or authorize the
                                               CONTACT section of this document for
                                                                                                        vessels, and Federal, state, and local                use of their names, the name of the
                                               alternate instructions.
                                                  We accept anonymous comments. All                     officers designated by or assisting the               Secretary, or the name of VA by an
                                               comments received will be posted                         Captain of the Port Jacksonville in the               individual or organization in any
                                               without change to http://                                enforcement of the regulated area.                    campaign or drive for donation of
                                               www.regulations.gov and will include                        (c) Regulations. (1) All persons and               money or articles to VA for the purpose
                                               any personal information you have                        vessels are prohibited from entering,                 of beautifying, or for the benefit of, one
                                               provided. For more about privacy and                     transiting through, anchoring in, or                  or more national cemeteries.
                                               the docket, you may review a Privacy                     remaining within the regulated area                   DATES: Comments must be received by
                                               Act notice regarding the Federal Docket                  unless authorized by the Captain of the               VA on or before August 10, 2016.
                                               Management System in the March 24,                       Port Jacksonville or a designated                     ADDRESSES: Written comments may be
                                               2005, issue of the Federal Register (70                  representative.                                       submitted by email through http://
                                               FR 15086).                                                  (2) Persons and vessels desiring to                www.regulations.gov; by mail or hand-
                                                  Documents mentioned in this NPRM                      enter, transit through, anchor in, or                 delivery to Director, Regulation Policy
                                               as being available in the docket, and all                remain within the regulated area may                  and Management (02REG), Department
                                               public comments, will be in our online                   contact the Captain of the Port                       of Veterans Affairs, 810 Vermont
                                               docket at http://www.regulations.gov                     Jacksonville by telephone at 904–714–                 Avenue NW., Room 1068, Washington,
                                               and can be viewed by following that                      7557, or a designated representative via              DC 20420; or by fax to (202) 273–9026.
                                               Web site’s instructions. Additionally, if                VHF–FM radio on channel 16, to                        (This is not a toll-free number.)
                                               you go to the online docket and sign up                  request authorization. If authorization is            Comments should indicate that they are
                                               for email alerts, you will be notified                   granted, all persons and vessels                      submitted in response to ‘‘RIN 2900–
                                               when comments are posted or a final                      receiving such authorization must                     AP74—Authority to Solicit Gifts and
                                               rule is published.                                       comply with the instructions of the                   Donations.’’ Copies of comments
                                                                                                        COTP Jacksonville or a designated                     received will be available for public
                                               List of Subjects in 33 CFR Part 165                      representative.                                       inspection in the Office of Regulation
ehiers on DSK5VPTVN1PROD with PROPOSALS




                                                 Harbors, Marine safety, Navigation                        (3) The Coast Guard will provide                   Policy and Management, Room 1068,
                                               (water), Reporting and recordkeeping                     notice of the regulated area through                  between the hours of 8:00 a.m. and 4:30
                                               requirements, Security measures,                         Broadcast Notice to Mariners via VHF–                 p.m., Monday through Friday (except
                                               Waterways.                                               FM channel 16 or by on-scene                          holidays). Please call (202) 461–4902 for
                                                 For the reasons discussed in the                       designated representatives.                           an appointment. (This is not a toll-free
                                               preamble, the Coast Guard proposes to                       (d) Enforcement Period. This section               number.) In addition, during the
                                               amend 33 CFR part 165 as follows:                        will be enforced daily 11 a.m. to 4:30                comment period, comments may be


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                                               44828                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                               viewed online through the Federal                        2015, VA’s Office of General Counsel                  by ensuring that gifts and donations are
                                               Docket Management System (FDMS) at                       (OGC) issued a precedent opinion                      more likely to be beneficial, but also is
                                               http://www.regulations.gov.                              concluding that VA’s express statutory                beneficial to donors who may not know
                                               FOR FURTHER INFORMATION CONTACT:                         authority to accept gifts under section               of opportunities to provide beneficial
                                               Thomas Howard, Chief of Staff, National                  8301 included the implied statutory                   gifts and donations to the national
                                               Cemetery Administration (NCA),                           authority to solicit those gifts.                     cemeteries. Therefore, we would amend
                                               Department of Veterans Affairs, (40A),                   VAOPGCPREC 2–2015, Mar. 20, 2015.                     § 38.603(b) to provide that the USMA, or
                                               810 Vermont Avenue NW., Washington,                      Outside VA, a 2001 opinion from the                   his designee, may solicit gifts and
                                               DC 20420, (202) 461–6215. (This is not                   Office of Legal Counsel (OLC) of the                  donations, which include monetary
                                               a toll-free number.)                                     Department of Justice found that the                  donations, in-kind goods and services,
                                               SUPPLEMENTARY INFORMATION: Title 38                      broad statutory authority granted by                  and personal property, or authorize the
                                               U.S.C. 2407 authorizes the Secretary of                  Congress in section 403(b)(1) of the                  use of their names, the name of the
                                               VA to ‘‘accept gifts, devises, or bequests               Office of Government Ethics                           Secretary, or the name of VA by an
                                               from legitimate societies and                            Authorization Act of 1996 to accept gifts             individual or organization in any
                                                                                                        implies the authority to solicit gifts. 25            campaign or drive for money or articles
                                               organizations or reputable individuals,
                                                                                                        Op. OLC 55, Jan. 19, 2001. VA believes                to VA for the purpose of beautifying, or
                                               made in any manner, which are made
                                                                                                        that section 2407 similarly contains an               for the benefit of, one or more national
                                               for the purpose of beautifying national
                                                                                                        implied statutory authority to solicit                cemeteries.
                                               cemeteries, or are determined to be                                                                               While VA would ease the prohibition
                                               beneficial to such cemetery.’’ In 1978,                  gifts and donations for the benefit of the
                                                                                                        national cemeteries and that, by                      on solicitation of gifts and donations,
                                               VA published implementing regulations                                                                          the intent is not to remove the
                                               for this authority at 38 CFR 1.603 (now                  prohibiting use of that implied statutory
                                                                                                        authority, the provision in § 38.603(b),              restriction in its entirety. VA maintains
                                               redesignated as 38 CFR 38.603). 43 FR                                                                          133 national cemeteries, one national
                                               26572 (June 21, 1978). Included in this                  in addition to not being legally
                                                                                                        necessary, may impede VA’s ability to                 Veterans’ burial ground, and 33 soldiers’
                                               regulation, at § 38.603(b), is a                                                                               lots and monument sites in 40 states
                                               prohibition on the solicitation of                       fully realize the authority provided to
                                                                                                        VA in section 2407. The ability of VA                 and Puerto Rico, as national shrines,
                                               contributions from the public by any VA                                                                        that is, places of honor and memory
                                               official or employee. Unfortunately, as                  to operate other gift and donation
                                                                                                        programs under the authorities                        where visitors can sense the serenity,
                                               was common at the time, the proposed                                                                           historic sacrifice, and nobility of
                                               and final rulemaking documents                           mentioned above, effectively and within
                                                                                                        legal parameters, in the absence of a                 purpose of those who have served in the
                                               provide less information regarding the                                                                         military. The USMA is responsible for
                                               rationale for the regulations than is                    prohibition on the ability of principals
                                                                                                        to solicit gifts and donations, indicates             the operation of the national cemeteries
                                               commonly provided today, so the full                                                                           and is in the best position to determine
                                               rationale for this regulation, including                 that a prohibition like that contained in
                                                                                                        § 38.603(b) is unnecessary.                           the appropriateness of any campaign to
                                               the reason for the prohibition on                                                                              solicit gifts and donations. Although VA
                                               solicitations, is no longer available. The                  Gifts and donations received by the                would replace the existing provision at
                                               prohibition is not contained in the                      national cemeteries under the authority               § 38.603(b) with revised text that would
                                               statutory authority at section 2407, nor                 of section 2407 have taken many forms,                allow the USMA or designee to solicit
                                               does the plain language of the statute                   including monetary donations,                         gifts and donations to VA for the
                                               indicate a rationale for the prohibition.                donations of services and property (such              purpose of beautifying, or for the benefit
                                               We propose to ease this restriction                      as landscaping services or trees), and                of, one or more national cemeteries, this
                                               because it negatively impacts VA’s                       memorials and other commemorative                     rulemaking would not amend any other
                                               ability to fully realize the potential of its            works. Consistent with the plain                      regulation governing solicitation or
                                               authority to accept gifts and donations                  language of the terms ‘‘gifts’’ and                   acceptance of gifts and donations under
                                               for the benefit of the national                          ‘‘donations,’’ we would clarify in the                any other authority available to VA.
                                               cemeteries.                                              regulation that gifts and donations                      We propose to revise the authority
                                                  The gift and donation acceptance                      include monetary donations, in-kind                   citation for part 38 to include the
                                               authority at section 2407 is just one of                 goods and services, and personal                      statutory authority 38 U.S.C. 2407. We
                                               several authorities under which VA may                   property. These gifts and donations                   also propose to add this statutory
                                               accept gifts or donations that advance                   from generous persons and                             authority at the end of § 38.603.
                                               the mission or enhance the services that                 organizations enhance the experience of
                                               VA provides. These authorities include,                  visitors to the national cemeteries. The              Administrative Procedure Act
                                               among others, 38 U.S.C. 521 (acceptance                  prohibition contained in § 38.603(b)                    Concurrent with this proposed rule,
                                               of funds to support recreational                         impedes VA’s ability to proactively                   we are also publishing a separate,
                                               activities furthering the rehabilitation of              advise donors or potential donors of gift             substantially identical direct final rule
                                               disabled veterans); 2406 (gifts of land                  and donation opportunities that could                 in this Federal Register. See RIN 2900–
                                               for national cemeteries); 8103 and 8104                  be beneficial to the national cemeteries.             AP75. The simultaneous publication of
                                               (acceptance of land, interests in land, or               Although § 38.603(b) includes a                       these documents will speed notice and
                                               facilities for use as medical facilities);               provision that allows VA employees to                 comment rulemaking under the
                                               and 8301 (acceptance of gifts for use in                 discuss the ‘‘appropriateness’’ of a                  Administrative Procedure Act (5 U.S.C.
                                               carrying out all laws administered by                    proposed gift, that discussion can only               553) should we have to withdraw the
                                                                                                        happen if a donor first approaches VA
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                                               VA). None of these statutory authorities                                                                       direct final rule due to receipt of a
                                               nor any implementing regulations for                     about a potential gift or donation. VA                significant adverse comment.
                                               any of the authorities, includes a                       cannot proactively advise a donor that                  For purposes of the direct final
                                               provision like that contained in                         a particular gift or donation would be                rulemaking, a significant adverse
                                               § 38.603(b), prohibiting the solicitation                beneficial to the national cemeteries in              comment is one that explains why the
                                               of contributions.                                        general or any one national cemetery in               rule would be inappropriate, including
                                                  Legal guidance indicates that such a                  particular. Easing the prohibition                    challenges to the rule’s underlying
                                               prohibition is not required by law. In                   benefits not only the national cemeteries             premise or approach, or why it would


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                                                                         Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules                                            44829

                                               be ineffective or unacceptable without                   30 days after date of publication in the              otherwise interfere with an action taken
                                               change. If VA receives a significant                     Federal Register.                                     or planned by another agency; (3)
                                               adverse comment, VA will publish a                                                                             Materially alter the budgetary impact of
                                                                                                        Effect of Rulemaking
                                               notice of receipt of a significant adverse                                                                     entitlements, grants, user fees, or loan
                                               comment in the Federal Register and                        The Code of Federal Regulations, to                 programs or the rights and obligations of
                                               withdraw the direct final rule. In                       be revised by this proposed rulemaking,               recipients thereof; or (4) Raise novel
                                               determining whether an adverse                           would represent the exclusive legal                   legal or policy issues arising out of legal
                                               comment is significant and warrants                      authority on this subject. No contrary
                                                                                                                                                              mandates, the President’s priorities, or
                                               withdrawing a direct final rule, we will                 rules or procedures would be
                                                                                                                                                              the principles set forth in this Executive
                                               consider whether the comment raises an                   authorized. All VA guidance would be
                                                                                                        read to conform with this proposed                    Order.’’
                                               issue serious enough to warrant a
                                               substantive response in a notice-and-                    rulemaking if possible or, if not                        The economic, interagency,
                                               comment process in accordance with                       possible, such guidance would be                      budgetary, legal, and policy
                                               section 553 of the Administrative                        superseded by this rulemaking.                        implications of this regulatory action
                                               Procedure Act (5 U.S.C. 553). Comments                                                                         have been examined, and it has been
                                                                                                        Paperwork Reduction Act
                                               that are frivolous, insubstantial, or                                                                          determined not to be a significant
                                               outside the scope of the rule will not be                  This proposed rule contains no                      regulatory action under Executive Order
                                               considered adverse under this                            provisions constituting a collection of               12866. VA’s impact analysis can be
                                               procedure. For example, a comment                        information under the Paperwork                       found as a supporting document at
                                               recommending an additional change to                     Reduction Act of 1995 (44 U.S.C. 3501–                http://www.regulations.gov, usually
                                               the rule will not be considered a                        3521).                                                within 48 hours after the rulemaking
                                               significant adverse comment unless the                   Regulatory Flexibility Act                            document is published. Additionally, a
                                               comment states why the rule would be                        The Secretary hereby certifies that                copy of the rulemaking and its impact
                                               ineffective or unacceptable without the                  this proposed rule would not have a                   analysis are available on VA’s Web site
                                               additional change.                                       significant economic impact on a                      at http://www.va.gov/orpm, by
                                                  Under direct final rule procedures, if                substantial number of small entities as               following the link for ‘‘VA Regulations
                                               no significant adverse comment is                        they are defined in the Regulatory                    Published From FY 2004 Through Fiscal
                                               received within the comment period,                      Flexibility Act, 5 U.S.C. 601–612. This               Year to Date.’’
                                               the direct final rule will become                        proposed rule would only affect
                                               effective on the date specified in RIN                                                                         Unfunded Mandates
                                                                                                        individuals and would not directly
                                               2900–AP75. After the close of the                        affect small entities. Therefore, pursuant
                                               comment period, VA will publish a                                                                                 The Unfunded Mandates Reform Act
                                                                                                        to 5 U.S.C. 605(b), this rulemaking is                of 1995 requires, at 2 U.S.C. 1532, that
                                               document in the Federal Register                         exempt from the initial and final
                                               indicating that VA received no                                                                                 agencies prepare an assessment of
                                                                                                        regulatory flexibility analysis                       anticipated costs and benefits before
                                               significant adverse comments and                         requirements of sections 603 and 604.
                                               restating the date on which the final                                                                          issuing any rule that may result in the
                                               rule will become effective. VA will also                 Executive Orders 12866 and 13563                      expenditure by State, local, and tribal
                                               publish a notice in the Federal Register                    Executive Orders 12866 and 13563                   governments, in the aggregate, or by the
                                               withdrawing this proposed rule.                          direct agencies to assess the costs and               private sector, of $100 million or more
                                                  In the event that VA withdraws the                    benefits of available regulatory                      (adjusted annually for inflation) in any
                                               direct final rule because of receipt of                  alternatives and, when regulation is                  one year. This proposed rule would
                                               any significant adverse comment, VA                      necessary, to select regulatory                       have no such effect on State, local, and
                                               will proceed with the rulemaking by                      approaches that maximize net benefits                 tribal governments, or on the private
                                               addressing the comments received and                     (including potential economic,                        sector.
                                               publishing a final rule. The comment                     environmental, public health and safety
                                                                                                                                                              Catalog of Federal Domestic Assistance
                                               period for this proposed rule runs                       effects, and other advantages;
                                               concurrently with that of the direct final               distributive impacts; and equity).                      There are no Catalog of Federal
                                               rule. VA will treat any comments                         Executive Order 13563 (Improving                      Domestic Assistance program numbers
                                               received in response to the direct final                 Regulation and Regulatory Review)                     and titles affected by this document.
                                               rule as comments regarding this                          emphasizes the importance of
                                               proposed rule as well. VA will consider                  quantifying both costs and benefits,                  Signing Authority
                                               such comments in developing a                            reducing costs, harmonizing rules, and
                                               subsequent final rule. Likewise, VA will                 promoting flexibility. Executive Order                  The Secretary of Veterans Affairs, or
                                               consider any significant adverse                         12866 (Regulatory Planning and                        designee, approved this document and
                                               comment received in response to the                      Review) defines a ‘‘significant                       authorized the undersigned to sign and
                                               proposed rule as a comment regarding                     regulatory action,’’ requiring review by              submit the document to the Office of the
                                               the direct final rule as well.                           the Office of Management and Budget                   Federal Register for publication
                                                  VA has determined that it is not                      (OMB), unless OMB waives such                         electronically as an official document of
                                               necessary to provide a 60-day comment                    review, as ‘‘any regulatory action that is            the Department of Veterans Affairs. Gina
                                               period for this rulemaking because the                   likely to result in a rule that may: (1)              S. Farrisee, Deputy Chief of Staff,
                                               rulemaking does not establish duties or                  Have an annual effect on the economy                  Department of Veterans Affairs,
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                                               benefits affecting members of the public,                of $100 million or more or adversely                  approved this document on June 30,
                                               but merely makes a minor modification                    affect in a material way the economy, a               2016, for publication.
                                               concerning the authority of certain                      sector of the economy, productivity,
                                               officials or employees to solicit gifts and              competition, jobs, the environment,
                                               donations for the benefit of VA national                 public health or safety, or State, local,
                                               cemeteries. VA has instead specified                     or tribal governments or communities;
                                               that comments must be received within                    (2) Create a serious inconsistency or


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                                               44830                     Federal Register / Vol. 81, No. 132 / Monday, July 11, 2016 / Proposed Rules

                                                 Dated: June 30, 2016.                                  elements of a State Implementation Plan               submissions, and EPA’s evaluation of
                                               Jeffrey Martin,                                          (SIP) submission from the State of                    how Kansas addressed the relevant
                                               Office Program Manager, Office of Regulation             Kansas addressing the applicable                      elements of sections 110(a)(1) and (2).
                                               Policy & Management, Office of the Secretary,            requirements of Clean Air Act (CAA)                   This section provides additional
                                               Department of Veterans Affairs.                          section 110 for the 2012 annual PM2.5                 information by addressing the following
                                                                                                        NAAQS. Section 110 requires that each                 questions:
                                               List of Subjects in 38 CFR Part 38
                                                                                                        state adopt and submit a SIP to support               I. What is being addressed in this document?
                                                 Administrative practice and                            the implementation, maintenance, and                  II. Have the requirements for approval of a
                                               procedure, Cemeteries, Claims, Crime,                    enforcement of each new or revised                         SIP revision been met?
                                               Veterans.                                                NAAQS promulgated by the EPA. These                   III. What action is EPA taking?
                                                 For the reasons set out in the                         SIPs are commonly referred to as
                                                                                                        ‘‘infrastructure’’ SIPs. The infrastructure           I. What is being addressed in this
                                               preamble, VA proposes to amend 38
                                                                                                        requirements are designed to ensure that              document?
                                               CFR part 38 as follows:
                                                                                                        the structural components of each                        EPA is proposing to approve the
                                               PART 38—NATIONAL CEMETERIES                              state’s air quality management program                infrastructure SIP submission received
                                               OF THE DEPARTMENT OF VETERANS                            are adequate to meet the state’s                      from the State of Kansas on November
                                               AFFAIRS                                                  responsibilities under the CAA.                       25, 2015. The infrastructure SIP
                                                                                                        DATES: Comments must be received on                   submission addresses the requirements
                                               ■ 1. Revise the authority citation for part              or before August 10, 2016.
                                               38 to read as follows:                                                                                         of CAA sections 110(a)(1) and (2) as
                                                                                                        ADDRESSES: Submit your comments,                      applicable to the 2012 annual PM2.5
                                                 Authority: 38 U.S.C. 107, 501, 512, 2306,              identified by Docket ID No. EPA–R07–                  NAAQS. A TSD is included as part of
                                               2402, 2403, 2404, 2407, 2408, 2411, 7105.                OAR–2016–0313, to http://                             the docket to discuss the details of this
                                               ■ 2. In § 38.603, revise paragraph (b)                   www.regulations.gov. Follow the online                proposal, including an analysis of how
                                               and add an authority citaiton to read as                 instructions for submitting comments.                 the SIP meets the applicable 110
                                               follows:                                                 Once submitted, comments cannot be                    requirements for infrastructure SIPs.
                                                                                                        edited or removed from Regulations.gov.
                                               § 38.603   Gifts and donations.                          The EPA may publish any comment                       II. Have the requirements for approval
                                               *     *     *     *     *                                received to its public docket. Do not                 of a SIP revision been met?
                                                 (b) The Under Secretary of Memorial                    submit electronically any information                   The state submission has met the
                                               Affairs, or his designee, may solicit gifts              you consider to be Confidential                       public notice requirements for SIP
                                               and donations, which include monetary                    Business Information (CBI) or other                   submissions in accordance with 40 CFR
                                               donations, in-kind goods and services,                   information whose disclosure is                       51.102. The submission also satisfied
                                               and personal property, or authorize the                  restricted by statute. Multimedia                     the completeness criteria of 40 CFR part
                                               use of their names, the name of the                      submissions (audio, video, etc.) must be              51, appendix V. In addition, as
                                               Secretary, or the name of the                            accompanied by a written comment.                     explained above and in more detail in
                                               Department of Veterans Affairs by an                     The written comment is considered the                 the TSD which is part of this docket, the
                                               individual or organization in any                        official comment and should include                   revision meets the substantive SIP
                                               campaign or drive for donation of                        discussion of all points you wish to                  requirements of the CAA, including
                                               money or articles to the Department of                   make. The EPA will generally not                      section 110 and implementing
                                               Veterans Affairs for the purpose of                      consider comments or comment                          regulations.
                                               beautifying, or for the benefit of, one or               contents located outside of the primary
                                               more national cemeteries.                                submission (i.e. on the web, cloud, or                III. What action is EPA taking?
                                               (Authority: 38 U.S.C. 2407)                              other file sharing system). For
                                                                                                        additional submission methods, the full                 EPA is proposing to approve the
                                               [FR Doc. 2016–16232 Filed 7–8–16; 8:45 am]
                                                                                                        EPA public comment policy,                            November 25, 2015, infrastructure SIP
                                               BILLING CODE 8320–01–P
                                                                                                        information about CBI or multimedia                   submission from the State of Kansas
                                                                                                        submissions, and general guidance on                  which addresses the requirements of
                                                                                                        making effective comments, please visit               CAA sections 110(a)(1) and (2) as
                                               ENVIRONMENTAL PROTECTION                                 http://www2.epa.gov/dockets/                          applicable to the 2012 annual PM2.5
                                               AGENCY                                                   commenting-epa-dockets.                               NAAQS. The EPA’s analysis of the
                                                                                                                                                              submission is addressed in a TSD as
                                                                                                        FOR FURTHER INFORMATION CONTACT:
                                               40 CFR Part 52                                                                                                 part of the docket to discuss the
                                                                                                        Heather Hamilton, Air Planning and
                                               [EPA–R07–OAR–2016–0313; FRL–9948–83–                                                                           proposal.
                                                                                                        Development Branch, U.S.
                                               Region 7]                                                Environmental Protection Agency,                        Based upon review of the state’s
                                                                                                        Region 7, 11201 Renner Boulevard,                     infrastructure SIP submissions and
                                               Approval and Promulgation of                             Lenexa, KS 66219 at (913) 551–7039, or                relevant statutory and regulatory
                                               Implementation Plans; State of                           by email at hamilton.heather@epa.gov.                 authorities and provisions referenced in
                                               Kansas; Infrastructure SIP                                                                                     those submissions or referenced in
                                                                                                        SUPPLEMENTARY INFORMATION:
                                               Requirements for the 2012 Annual Fine                                                                          Kansas’ SIP, EPA believes that Kansas’
                                                                                                        Throughout this document whenever
                                               Particulate Matter (PM2.5) National                                                                            SIP will meet all applicable required
                                                                                                        ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we refer
                                               Ambient Air Quality Standards                                                                                  elements of sections 110(a)(1) and (2)
                                                                                                        to EPA. A detailed technical support
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                                               (NAAQS)                                                                                                        with respect to the 2012 annual PM2.5
                                                                                                        document (TSD) is included in this
                                               AGENCY:  Environmental Protection                        rulemaking docket to address the                      NAAQS.
                                               Agency (EPA).                                            following: a description of CAA section                 We are processing this as a proposed
                                               ACTION: Proposed rule.                                   110(a)(1) and (2) infrastructure SIPs; the            action because we are soliciting
                                                                                                        applicable elements under sections                    comments on this proposed action.
                                               SUMMARY: The Environmental Protection                    110(a)(1) and (2); EPA’s approach to the              Final rulemaking will occur after
                                               Agency (EPA) is proposing to approve                     review of infrastructure SIP                          consideration of any comments.


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Document Created: 2016-07-09 00:21:34
Document Modified: 2016-07-09 00:21:34
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesComments must be received by VA on or before August 10, 2016.
ContactThomas Howard, Chief of Staff, National Cemetery Administration (NCA), Department of Veterans Affairs, (40A), 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-6215. (This is not a toll-free number.)
FR Citation81 FR 44827 
RIN Number2900-AP74
CFR AssociatedAdministrative Practice and Procedure; Cemeteries; Claims; Crime and Veterans

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