[Federal Register Volume 70, Number 19 (Monday, January 31, 2005)]
[Rules and Regulations]
[Pages 4768-4773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1705]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1 and 38

RIN 2900-AM10


Relocation of National Cemetery Administration Regulations

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: Previously the regulations administered by the National 
Cemetery Administration (NCA) of the Department of Veterans Affairs 
(VA) were set forth in Part 1 of Title 38 of the Code of Federal 
Regulations. Recently, NCA was assigned Part 38 of Title 38 for its 
regulations. Accordingly, we are moving the regulations administered by 
NCA and located in Part 1 to new Part 38. We have made non-substantive 
changes to headings of regulations, but we have not made any changes to 
the text other than conforming changes to section numbers.

DATES: Effective Date: January 31, 2005.

FOR FURTHER INFORMATION CONTACT: Karen Barber, Program Analyst, 
Legislative and Regulatory Division (41C3), National Cemetery 
Administration (NCA), Department of Veterans Affairs, 810 Vermont 
Avenue, NW., Washington, DC 20420; telephone: (202) 273-5183 (this is 
not a toll-free number).

SUPPLEMENTARY INFORMATION: Regulations administered by NCA are 
currently located in Part 1 of Title 38 of the Code of Federal 
Regulations along with general provisions that are applicable to VA 
offices and programs other than NCA. The current placement of NCA 
regulations in Part 1 with regulations that are not particular to NCA 
programs may be confusing to users who want to quickly and easily 
reference information about NCA benefits. Additionally, as NCA expands 
its body of regulations, users will find it increasingly more difficult 
to reference information about NCA benefits unless NCA regulations are 
re-located and consolidated in a separate part of Title 38.
    NCA was recently assigned new Part 38 of Title 38 for its 
regulations. Relocation and consolidation of NCA regulations in a 
separate Part is intended to help readers reference information about 
NCA benefits more easily. Although certain headings are being changed 
and conforming changes to section numbers are being made, the 
amendments made by this notice are non-substantive and will not affect 
benefits entitlement or otherwise result in new costs. This final rule 
merely moves NCA regulations to a new location in the Code of Federal 
Regulations without any substantive changes.

Administrative Procedure Act

    We are publishing this document as a final rule without prior 
notice and comment and without a delayed effective date. This document 
contains only non-substantive changes. Because this document merely 
restates existing regulations without substantive change, it is exempt 
from those procedures under 5 U.S.C. 553(b)(3)(A) and (d)(2). 
Additionally, VA has determined that there is good cause under 5 U.S.C. 
553(b)(3)(B) and (d)(3) for dispensing with those procedures, because a 
comment period and a delayed effective date are unnecessary in the 
absence of any substantive change to existing regulations.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any given year. This rule would have no such 
effect on State, local, or tribal governments, or the private sector.

Paperwork Reduction Act

    This document does not contain new provisions constituting a 
collection of information under the Paperwork Reduction Act (44 U.S.C. 
3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will 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. Only individual VA beneficiaries could be directly affected. 
Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from 
the initial and final regulatory flexibility analyses requirements of 
sections 603 and 604.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program numbers for this 
document are 64.201 and 64.202.

List of Subjects in 38 CFR Parts 1 and 38

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

    Approved: December 14, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, we are amending 38 CFR Chapter 
1 as follows:

PART 1--GENERAL PROVISIONS

0
1. The authority citation for part 1 continues to read as follows:


[[Page 4769]]


    Authority: 38 U.S.C. 501(a), unless otherwise noted.


Sec. Sec.  1.600-1.633  [Removed]

0
2. Remove Sec. Sec.  1.600 through 1.633 and the undesignated center 
heading and authority citation immediately preceding those sections.

0
3. A new part 38 is added to read as follows:

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

Sec.
38.600 Definitions.
38.601 Advisory Committee on Cemeteries and Memorials.
38.602 Names for national cemeteries and features.
38.603 Gifts and donations.
38.617 Prohibition of interment or memorialization of persons who 
have been convicted of Federal or State capital crimes.
38.618 Findings concerning commission of a capital crime where a 
person has not been convicted due to death or flight to avoid 
prosecution.
38.620 Persons eligible for burial.
38.621 Disinterments.
38.629 Outer burial receptacle allowance.
38.630 Headstones and markers.
38.631 Graves marked with a private headstone or marker.
38.632 Headstone and marker application process.
38.633 Group memorial monuments.

    Authority: 38 U.S.C. 107, 501, 512, chapter 24, 7105, and as 
noted in specific sections.


Sec.  38.600  Definitions.

    (a) [Reserved]
    (b) Definitions. For purposes of Sec. Sec.  38.617 and 38.618:
    Appropriate State official means a State attorney general or other 
official with statewide responsibility for law enforcement or penal 
functions.
    Clear and convincing evidence means that degree of proof which 
produces in the mind of the fact-finder a firm belief regarding the 
question at issue.
    Convicted means a finding of guilt by a judgment or verdict or 
based on a plea of guilty, by a Federal or State criminal court.
    Federal capital crime means an offense under Federal law for which 
the death penalty or life imprisonment may be imposed.
    Interment means the burial of casketed remains or the placement or 
scattering of cremated remains.
    Life imprisonment means a sentence of a Federal or State criminal 
court directing confinement in a penal institution for life.
    Memorialization means any action taken to honor the memory of a 
deceased individual.
    Personal representative means a family member or other individual 
who has identified himself or herself to the National Cemetery 
Administration cemetery director as the person responsible for making 
decisions concerning the interment of the remains of or memorialization 
of a deceased individual.
    State capital crime means, under State law, the willful, 
deliberate, or premeditated unlawful killing of another human being for 
which the death penalty or life imprisonment without parole may be 
imposed.

(Authority: 38 U.S.C. 2408, 2411)

Sec.  38.601  Advisory Committee on Cemeteries and Memorials.

    Responsibilities in connection with Committee authorized by 38 
U.S.C. chapter 24 are as follows:
    (a) The Under Secretary for Memorial Affairs will schedule the 
frequency of meetings, make presentations before the Committee, 
participate when requested by the Committee, evaluate Committee reports 
and recommendations and make recommendations to the Secretary based on 
Committee actions.
    (b) The Committee will evaluate and study cemeterial, memorial and 
burial benefits proposals or problems submitted by the Secretary or 
Under Secretary for Memorial Affairs, and make recommendations as to 
course of action or solution. Reports and recommendations will be 
submitted to the Secretary for transmission to Congress.


Sec.  38.602  Names for national cemeteries and features.

    (a) Responsibility. The Secretary is responsible for naming 
national cemeteries. The Under Secretary for Memorial Affairs, is 
responsible for naming activities and features therein, such as drives, 
walks, or special structures.
    (b) Basis for names. The names of national cemetery activities may 
be based on physical and area characteristics, the nearest important 
city (town), or a historical characteristic related to the area. Newly 
constructed interior thoroughfares for vehicular traffic in national 
cemetery activities will be known as drives. To facilitate location of 
graves by visitors, drives will be named after cities, counties or 
States or after historically notable persons, places or events.


Sec.  38.603  Gifts and donations.

    (a) Gifts and donations will be accepted only after it has been 
determined that the donor has a clear understanding that title thereto 
passes to, and is vested in, the United States, and that the donor 
relinquishes all control over the future use or disposition of the gift 
or donation, with the following exceptions:
    (1) Carillons will be accepted with the condition that the donor 
will provide the maintenance and the operator or the mechanical means 
of operation. The time of operation and the maintenance will be 
coordinated with the superintendent of the national cemetery.
    (2) Articles donated for a specific purpose and which are usable 
only for that purpose may be returned to the donor if the purpose for 
which the articles were donated cannot be accomplished.
    (3) If the donor directs that the gift is donated for a particular 
use, those directions will be carried out insofar as they are proper 
and practicable and not in violation of Department of Veterans Affairs 
policy.
    (4) When considered appropriate and not in conflict with the 
purpose of the national cemetery, the donor may be recognized by a 
suitable inscription on those gifts. In no case will the inscription 
give the impression that the gift is owned by, or that its future use 
is controlled by, the donor. Any tablet or plaque, containing an 
inscription will be of such size and design as will harmonize with the 
general nature and design of the gift.
    (b) Officials and employees of the Department of Veterans Affairs 
will not solicit contributions from the public nor will they 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 money or articles for the purpose of making a 
donation to the Department of Veterans Affairs. This restriction does 
not preclude discussion with the individual offering the gift relative 
to the appropriateness of the gift offered.


Sec.  38.617  Prohibition of interment or memorialization of persons 
who have been convicted of Federal or State capital crimes.

    (a) Prohibition. The interment in a national cemetery under the 
control of the National Cemetery Administration of the remains, or the 
memorialization, of any of the following persons is prohibited:
    (1) Any person identified to the Secretary of Veterans Affairs by 
the United States Attorney General, prior to approval of interment or 
memorialization, as an individual who has been convicted of a Federal 
capital crime and sentenced to death or life imprisonment as a result 
of such crime.

[[Page 4770]]

    (2) Any person identified to the Secretary of Veterans Affairs by 
an appropriate State official, prior to approval of interment or 
memorialization, as an individual who has been convicted of a State 
capital crime and sentenced to death or life imprisonment without 
parole as a result of such crime.
    (3) Any person found under procedures specified in Sec.  38.618 to 
have committed a Federal or State capital crime but have avoided 
conviction of such crime by reason of unavailability for trial due to 
death or flight to avoid prosecution.
    (b) Notice. The prohibition referred to in paragraph (a)(3) of this 
section is not contingent on receipt by the Secretary of Veterans 
Affairs or any other VA official of notice from any Federal or State 
official.
    (c) Receipt of notification. The Under Secretary for Memorial 
Affairs is delegated authority to receive from the United States 
Attorney General and appropriate State officials on behalf of the 
Secretary of Veterans Affairs the notification of conviction of capital 
crimes referred to in paragraphs (a)(1) and (2) of this section.
    (d) Decision where notification previously received. Upon receipt 
of a request for interment or memorialization, where the Secretary of 
Veterans Affairs has received the notification referred to in paragraph 
(a)(1) or (2) of this section with regard to the deceased, the cemetery 
director will make a decision on the request for interment or 
memorialization pursuant to 38 U.S.C. 2411.
    (e) Inquiry. (1) Upon receipt of a request for interment or 
memorialization, where the Secretary of Veterans Affairs has not 
received the notification referred to in paragraph (a)(1) or (a)(2) of 
this section with regard to the deceased, but the cemetery director has 
reason to believe that the deceased may have been convicted of a 
Federal or State capital crime, the cemetery director will initiate an 
inquiry to either:
    (i) The United States Attorney General, in the case of a Federal 
capital crime, requesting notification of whether the deceased has been 
convicted of a Federal capital crime for which the deceased was 
sentenced to death or life imprisonment; or
    (ii) An appropriate State official, in the case of a State capital 
crime, requesting notification of whether the deceased has been 
convicted of a State capital crime for which the deceased was sentenced 
to death or life imprisonment without parole.
    (2) The cemetery director will defer decision on whether to approve 
interment or memorialization until after a response is received from 
the Attorney General or appropriate State official.
    (f) Decision after inquiry. Where an inquiry has been initiated 
under paragraph (e) of this section, the cemetery director will make a 
decision on the request for interment or memorialization pursuant to 38 
U.S.C. 2411 upon receipt of the notification requested under that 
paragraph, unless the cemetery director initiates an inquiry pursuant 
to Sec.  38.618(a).
    (g) Notice of decision. Written notice of a decision under 
paragraph (d) or (f) of this section will be provided by the cemetery 
director to the personal representative of the deceased, along with 
written notice of appellate rights in accordance with Sec.  19.25 of 
this title. This notice of appellate rights will include notice of the 
opportunity to file a notice of disagreement with the decision of the 
cemetery director. Action following receipt of a notice of disagreement 
with a denial of eligibility for interment or memorialization under 
this section will be in accordance with Sec. Sec.  19.26 through 19.38 
of this title.

(Authority: 38 U.S.C. 512, 2411, 7105)

Sec.  38.618  Findings concerning commission of a capital crime where a 
person has not been convicted due to death or flight to avoid 
prosecution.

    (a) Inquiry. With respect to a request for interment or 
memorialization, if a cemetery director has reason to believe that a 
deceased individual who is otherwise eligible for interment or 
memorialization may have committed a Federal or State capital crime, 
but avoided conviction of such crime by reason of unavailability for 
trial due to death or flight to avoid prosecution, the cemetery 
director, with the assistance of the VA regional counsel, as necessary, 
will initiate an inquiry seeking information from Federal, State, or 
local law enforcement officials, or other sources of potentially 
relevant information. After completion of this inquiry and any further 
measures required under paragraphs (c), (d), (e), and (f) of this 
section, the cemetery director will make a decision on the request for 
interment or memorialization in accordance with paragraph (b), (e), or 
(g) of this section.
    (b) Decision approving request without a proceeding or termination 
of a claim by personal representative without a proceeding. (1) If, 
after conducting the inquiry described in paragraph (a) of this 
section, the cemetery director determines that there is no clear and 
convincing evidence that the deceased committed a Federal or State 
capital crime of which he or she was not convicted due to death or 
flight to avoid prosecution, and the deceased remains otherwise 
eligible, the cemetery director will make a decision approving the 
interment or memorialization.
    (2) If the personal representative elects for burial at a location 
other than a VA national cemetery, or makes alternate arrangements for 
burial at a location other than a VA national cemetery, the request for 
interment or memorialization will be considered withdrawn and action on 
the request will be terminated.
    (c) Initiation of a proceeding. (1) If, after conducting the 
inquiry described in paragraph (a) of this section, the cemetery 
director determines that there appears to be clear and convincing 
evidence that the deceased has committed a Federal or State capital 
crime of which he or she was not convicted by reason of unavailability 
for trial due to death or flight to avoid prosecution, the cemetery 
director will provide the personal representative of the deceased with 
a written summary of the evidence of record and a written notice of 
procedural options.
    (2) The notice of procedural options will inform the personal 
representative that he or she may, within 15 days of receipt of the 
notice:
    (i) Request a hearing on the matter;
    (ii) Submit a written statement, with or without supporting 
documentation, for inclusion in the record;
    (iii) Waive a hearing and submission of a written statement and 
have the matter forwarded immediately to the Under Secretary for 
Memorial Affairs for a finding; or
    (iv) Notify the cemetery director that the personal representative 
is withdrawing the request for interment or memorialization, thereby, 
closing the claim.
    (3) The notice of procedural options will also inform the personal 
representative that, if he or she does not exercise one or more of the 
stated options within the prescribed period, the matter will be 
forwarded to the Under Secretary for Memorial Affairs for a finding 
based on the existing record.
    (d) Hearing. If a hearing is requested, the Director, Memorial 
Services Network will conduct the hearing. The purpose of the hearing 
is to permit the personal representative of the deceased to present 
evidence concerning whether the deceased committed a crime which would 
render the deceased ineligible for interment or memorialization in a 
national cemetery. Testimony at the hearing will be presented under 
oath, and the personal representative will

[[Page 4771]]

have the right to representation by counsel and the right to call 
witnesses. The VA official conducting the hearing will have the 
authority to administer oaths. The hearing will be conducted in an 
informal manner and court rules of evidence will not apply. The hearing 
will be recorded on audiotape and, unless the personal representative 
waives transcription, a transcript of the hearing will be produced and 
included in the record.
    (e) Decision of approval or referral for a finding after a 
proceeding. Following a hearing or the timely submission of a written 
statement, or in the event a hearing is waived or no hearing is 
requested and no written statement is submitted within the time 
specified:
    (1) If the cemetery director determines that it has not been 
established by clear and convincing evidence that the deceased 
committed a Federal or State capital crime of which he or she was not 
convicted due to death or flight to avoid prosecution, and the deceased 
remains otherwise eligible, the cemetery director will make a decision 
approving interment or memorialization; or
    (2) If the cemetery director believes that there is clear and 
convincing evidence that the deceased committed a Federal or State 
capital crime of which he or she was not convicted due to death or 
flight to avoid prosecution, the cemetery director will forward a 
request for a finding on that issue, together with the cemetery 
director's recommendation and a copy of the record to the Under 
Secretary for Memorial Affairs.
    (f) Finding by the Under Secretary for Memorial Affairs. Upon 
receipt of a request from the cemetery director under paragraph (e) of 
this section, the Under Secretary for Memorial Affairs will make a 
finding concerning whether the deceased committed a Federal or State 
capital crime of which he or she was not convicted by reason of 
unavailability for trial due to death or flight to avoid prosecution. 
The finding will be based on consideration of the cemetery director's 
recommendation and the record supplied by the cemetery director.
    (1) A finding that the deceased committed a crime referred to in 
paragraph (f) of this section must be based on clear and convincing 
evidence.
    (2) The cemetery director will be provided with written 
notification of the finding of the Under Secretary for Memorial 
Affairs.
    (g) Decision after finding. Upon receipt of notification of the 
finding of the Under Secretary for Memorial Affairs, the cemetery 
director will make a decision on the request for interment or 
memorialization pursuant to 38 U.S.C. 2411. In making that decision, 
the cemetery director will be bound by the finding of the Under 
Secretary for Memorial Affairs.
    (h) Notice of decision. The cemetery director will provide written 
notice of the finding of the Under Secretary for Memorial Affairs and 
of a decision under paragraph (b), (e)(1), or (g) of this section. With 
notice of any decision denying a request for interment or 
memorialization, the cemetery director will provide written notice of 
appellate rights to the personal representative of the deceased, in 
accordance with Sec.  19.25 of this title. This will include notice of 
the opportunity to file a notice of disagreement with the decision of 
the cemetery director and the finding of the Under Secretary for 
Memorial Affairs. Action following receipt of a notice of disagreement 
with a denial of eligibility for interment or memorialization under 
this section will be in accordance with Sec. Sec.  19.26 through 19.38 
of this title.

(Authority: 38 U.S.C. 512, 2411)

Sec.  38.620  Persons eligible for burial.

    The following is a list of those individuals who are eligible for 
burial in a national cemetery:
    (a) Any veteran (which for purposes of this section includes a 
person who died in the active military, naval, or air service).
    (b) Any member of a Reserve component of the Armed Forces, and any 
member of the Army National Guard or the Air National Guard, whose 
death occurs under honorable conditions while such member is 
hospitalized or undergoing treatment, at the expense of the United 
States, for injury or disease contracted or incurred under honorable 
conditions while such member is performing active duty for training, 
inactive duty training, or undergoing that hospitalization or treatment 
at the expense of the United States.
    (c) Any Member of the Reserve Officers' Training Corps of the Army, 
Navy, or Air Force whose death occurs under honorable conditions while 
such member is--
    (1) Attending an authorized training camp or on an authorized 
practice cruise;
    (2) Performing authorized travel to or from that camp or cruise; or
    (3) Hospitalized or undergoing treatment, at the expense of the 
United States, for injury or disease contracted or incurred under 
honorable conditions while such member is--
    (i) Attending that camp or on that cruise;
    (ii) Performing that travel; or
    (iii) Undergoing that hospitalization or treatment at the expense 
of the United States.
    (d) Any person who, during any war in which the United States is or 
has been engaged, served in the armed forces of any government allied 
with the United States during that war, whose last such service 
terminated honorably, and who was a citizen of the United States at the 
time of entry on such service and at the time of his or her death.
    (e) The spouse, surviving spouse, minor child, or unmarried adult 
child of a person eligible under paragraph (a), (b), (c), (d), or (g) 
of this section. For purposes of this section--
    (1) A surviving spouse includes a surviving spouse who had a 
subsequent remarriage;
    (2) A minor child means an unmarried child under 21 years of age, 
or under 23 years of age if pursuing a full-time course of instruction 
at an approved educational institution; and
    (3) An unmarried adult child means a child who became permanently 
physically or mentally disabled and incapable of self-support before 
reaching 21 years of age, or before reaching 23 years of age if 
pursuing a full-time course of instruction at an approved educational 
institution.
    (f) Such other persons or classes of persons as may be designated 
by the Secretary.
    (g) Any person who at the time of death was entitled to retired pay 
under chapter 1223 of title 10, United States Code, or would have been 
entitled to retired pay under that chapter but for the fact that the 
person was under 60 years of age.
    (h) Any person who:
    (1) Was a citizen of the United States or an alien lawfully 
admitted for permanent residence in the United States at the time of 
their death; and
    (2) Resided in the United States at the time of their death; and
    (3) Either was a--
    (i) Commonwealth Army veteran or member of the organized 
guerillas--a person who served before July 1, 1946, in the organized 
military forces of the Government of the Commonwealth of the 
Philippines, while such forces were in the service of the Armed Forces 
of the United States pursuant to the military order of the President 
dated July 26, 1941, including organized guerilla forces under 
commanders appointed, designated, or subsequently recognized by the 
Commander in Chief, Southwest Pacific Area, or other competent 
authority in the Army of the United States, and who died on or after 
November 1, 2000; or

[[Page 4772]]

    (ii) New Philippine Scout--a person who enlisted between October 6, 
1945, and June 30, 1947, with the Armed Forces of the United States 
with the consent of the Philippine government, pursuant to section 14 
of the Armed Forces Voluntary Recruitment Act of 1945, and who died on 
or after December 16, 2003.

(Authority: 38 U.S.C. 107, 501, 2402)

Sec.  38.621  Disinterments.

    (a) Interments of eligible decedents in national cemeteries are 
considered permanent and final. Disinterment will be permitted only for 
cogent reasons and with the prior written authorization of the National 
Cemetery Area Office Director or Cemetery Director responsible for the 
cemetery involved. Disinterment from a national cemetery will be 
approved only when all living immediate family members of the decedent, 
and the person who initiated the interment (whether or not he or she is 
a member of the immediate family), give their written consent, or when 
a court order or State instrumentality of competent jurisdiction 
directs the disinterment. For purposes of this section, ``immediate 
family members'' are defined as surviving spouse, whether or not he or 
she is remarried; all adult children of the decedent; the appointed 
guardian(s) of minor children; and the appointed guardian(s) of the 
surviving spouse or of the adult child(ren) of the decedent. If the 
surviving spouse and all of the children of the decedent are deceased, 
the decedent's parents will be considered ``immediate family members.''
    (b) All requests for authority to disinter remains will be 
submitted on VA Form 40-4970, Request for Disinterment, and will 
include the following information:
    (1) A full statement of reasons for the proposed disinterment.
    (2) Notarized statement(s) by all living immediate family members 
of the decedent, and the person who initiated the interment (whether or 
not he or she is a member of the immediate family), that they consent 
to the proposed disinterment.
    (3) A notarized statement, by the person requesting the 
disinterment that those who supplied affidavits comprise all the living 
immediate family members of the deceased.

(Authority: 38 U.S.C. 2404)

    (c) In lieu of the documents required in paragraph (b) of this 
section, an order of a court of competent jurisdiction will be 
considered.
    (d) Any disinterment that may be authorized under this section must 
be accomplished without expense to the Government.

(The reporting and recordkeeping requirements contained in paragraph 
(b) have been approved by the Office of Management and Budget under 
OMB control number 2900-0365)


Sec.  38.629  Outer Burial Receptacle Allowance.

    (a) Definitions--Outer burial receptacle. For purposes of this 
section, an outer burial receptacle means a graveliner, burial vault, 
or other similar type of container for a casket.
    (b) Purpose. This section provides for payment of a monetary 
allowance for an outer burial receptacle for any interment in a VA 
national cemetery where a privately-purchased outer burial receptacle 
has been used in lieu of a Government-furnished graveliner.
    (c) Second interments. In burials where a casket already exists in 
a grave with or without a graveliner, placement of a second casket in 
an outer burial receptacle will not be permitted in the same grave 
unless the national cemetery director determines that the already 
interred casket will not be damaged.
    (d) Payment of monetary allowance. VA will pay a monetary allowance 
for each burial in a VA national cemetery where a privately-purchased 
outer burial receptacle was used on and after October 9, 1996. For 
burials on and after January 1, 2000, the person identified in records 
contained in the National Cemetery Administration Burial Operations 
Support System as the person who privately purchased the outer burial 
receptacle will be paid the monetary allowance. For burials during the 
period October 9, 1996 through December 31, 1999, the allowance will be 
paid to the person identified as the next of kin in records contained 
in the National Cemetery Administration Burial Operations Support 
System based on the presumption that such person privately purchased 
the outer burial receptacle (however, if a person who is not listed as 
the next of kin provides evidence that he or she privately purchased 
the outer burial receptacle, the allowance will be paid instead to that 
person). No application is required to receive payment of a monetary 
allowance.
    (e) Amount of the allowance. (1) For calendar year 2000 and each 
calendar year thereafter, the allowance will be the average cost, as 
determined by VA, of Government-furnished graveliners, less the 
administrative costs incurred by VA in processing and paying the 
allowance.
    (i) The average cost of Government-furnished graveliners will be 
based upon the actual average cost to the Government of such 
graveliners during the most recent fiscal year ending prior to the 
start of the calendar year for which the amount of the allowance will 
be used. This average cost will be determined by taking VA's total cost 
during that fiscal year for single-depth graveliners which were 
procured for placement at the time of interment and dividing it by the 
total number of such graveliners procured by VA during that fiscal 
year. The calculation shall exclude both graveliners procured and pre-
placed in gravesites as part of cemetery gravesite development projects 
and all double-depth graveliners.
    (ii) The administrative costs incurred by VA will consist of those 
costs that relate to processing and paying an allowance, as determined 
by VA, for the calendar year ending prior to the start of the calendar 
year for which the amount of the allowance will be used.
    (2) For calendar year 2000 and each calendar year thereafter, the 
amount of the allowance for each calendar year will be published in the 
``Notices'' section of the Federal Register. The Federal Register 
notice will also provide, as information, the determined average cost 
of Government-furnished graveliners and the determined amount of the 
administrative costs to be deducted.
    (3) The published allowance amount for interments which occur 
during calendar year 2000 will also be used for payment of any 
allowances for interments which occurred during the period from October 
9, 1996 through December 31, 1999.

(Authority: 38 U.S.C. 2306(d))

Sec.  38.630  Headstones and markers.

    (a) Types of Government headstones and markers and inscriptions 
will be in accordance with policies approved by the Secretary.
    (b) Inscriptions on Government headstones, markers, and private 
monuments will be in accordance with policies and specifications of the 
Under Secretary for Memorial Affairs.
    (c) A memorial headstone or marker furnished for a deceased veteran 
by the Government may be erected in a private cemetery or in a national 
cemetery section established for this purpose. The headstones or 
markers for national cemeteries will be of the standard design 
authorized for the cemetery in which they are to be erected. In 
addition to the authorized inscription, the words ``In Memory Of'' are 
mandatory.

(Authority: 38 U.S.C. 501)


[[Page 4773]]




Sec.  38.631  Graves marked with a private headstone or marker.

    (a) VA will furnish an appropriate Government marker for the grave 
of a decedent described in paragraph (b) of this section, but only if 
the individual requesting the marker certifies on VA Form 40-1330 that 
it will be placed on the grave for which it is requested or, if 
placement on the grave is impossible or impracticable, as close to the 
grave as possible within the grounds of the private cemetery where the 
grave is located.
    (b) The decedent referred to in paragraph (a) of this section is 
one who:
    (1) Died on or after September 11, 2001;
    (2) Is buried in a private cemetery; and
    (3) Was eligible for burial in a national cemetery, but is not an 
individual described in 38 U.S.C. 2402(4), (5), or (6).
    (c) VA will deliver the marker directly to the cemetery where the 
grave is located or to a receiving agent for delivery to the cemetery.
    (d) VA will not pay the cost of installing a Government marker in a 
private cemetery.
    (e) The applicant must obtain certification on VA Form 40-1330 from 
a cemetery representative that the type and placement of the marker 
requested adheres to the policies and guidelines of the selected 
private cemetery.
    (f) VA will furnish its full product line of Government markers for 
private cemeteries.
    (g) The authority to furnish a marker under this section expires on 
December 31, 2006.

(Authority: 38 U.S.C. 501, 2306)


(The Office of Management and Budget has approved the information 
collection requirements in this section under control number 2900-
0222.)


Sec.  38.632  Headstone and marker application process.

    (a) Headstones and markers for graves in national cemeteries shall 
be ordered from the Record of Interment (VA Form 40-4956) prepared by 
the national cemetery superintendent at the time of interment. No 
further application is required.
    (b) Submission of VA Form 40-1330, Application for Headstone or 
Marker, is required for the purpose of:
    (1) Ordering a Government headstone or marker for any unmarked 
grave of any eligible veteran buried in a private or local cemetery.
    (2) Ordering a Government headstone or marker for any unmarked 
grave in a post cemetery of the Armed Forces.
    (3) Ordering a Government memorial headstone or marker for 
placement in a national cemetery, in a private or local cemetery and 
any post cemetery of the Armed Forces.


Sec.  38.633  Group memorial monuments.

    (a) Definitions of terms. For the purpose of this section, the 
following definitions apply:
    (1) Group--all the known and unknown dead who perished in a common 
military event.
    (2) Memorial Monument--a monument commemorating veterans, whose 
remains have not been recovered or identified. Monuments will be 
selected in accordance with policies established under 38 CFR 38.630.
    (3) Next of kin--recognized in order: Surviving spouse; children, 
according to age; parents, including adoptive, stepparents, and foster 
parents; brothers or sisters, including half or stepbrothers and 
stepsisters; grandparents; grandchildren; uncles or aunts; nephews or 
nieces; cousins; and/or other lineal descendent.
    (4) Documentary evidence--Official documents, records, or 
correspondence signed by an Armed Services branch historical center 
representative attesting to the accuracy of the evidence.
    (b) The Secretary may furnish at government expense a group 
memorial monument upon request of next of kin. The group memorial 
monument will commemorate two or more identified members of the Armed 
Forces, including their reserve components, who died in a sanctioned 
common military event, (e.g., battle or other hostile action, bombing 
or other explosion, disappearance of aircraft, vessel or other vehicle) 
while in active military, naval or air service, and whose remains were 
not recovered or identified, were buried at sea, or are otherwise 
unavailable for interment.
    (c) A group memorial monument furnished by VA may be placed only in 
a national cemetery in an area reserved for such purpose. If a group 
memorial monument has already been provided under this regulation or by 
any governmental body, e.g., the American Battle Monuments Commission, 
to commemorate the dead from a common military event, an additional 
group memorial monument will not be provided by VA for the same 
purpose.
    (d) Application for a group memorial monument shall be submitted in 
a manner specified by the Secretary. Evidence used to establish and 
determine eligibility for a group memorial monument will conform to 
paragraph (a)(4) of this section.

(Authority: 38 U.S.C. 501, 2403)


[FR Doc. 05-1705 Filed 1-28-05; 8:45 am]
BILLING CODE 8320-01-P