[Federal Register Volume 84, Number 57 (Monday, March 25, 2019)]
[Proposed Rules]
[Pages 11037-11044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-05454]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AQ35


Committal Services, Memorial Services and Funeral Honors

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations to address committal or memorial services and funeral 
honors. The proposed rule would reflect current VA practices relative 
to respecting the expressed wishes of the personal representative when 
making arrangements for the committal or memorial service. We would 
clarify the process for requesting committal or memorial services when 
requesting interment at VA national cemeteries and we would address 
access to public areas at VA national cemeteries. The proposed rule 
would also address when committal services may be conducted at a 
gravesite rather than in a committal shelter. We also propose measures 
to implement the statutory requirement that VA notify the personal 
representative of the funeral honors available to the deceased veteran.

DATES: Written comments must be received on or before May 24, 2019.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Ave. NW, Room 1063B, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ''RIN 2900-AQ35--Committal services, memorial services and funeral 
honors.'' Copies of comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1063B, 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 viewed online through the Federal 
Docket Management System (FDMS) at http://www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Melvin Gerrets, Office of the Director 
of Cemetery Operations, National Cemetery Administration (NCA), 
Department of Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 
20420. Telephone: (202) 461-9646 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION: VA national cemeteries are maintained as 
national shrines, places of honor and memory where veterans and 
visitors can sense the serenity, historic sacrifice and nobility of 
purpose of those who have served the Nation in the military. VA 
provides burial (also called interment) in VA national cemeteries to 
eligible persons identified in section 2402 of title 38 of the United 
States Code (U.S.C.). Section 2404(h) of 38 U.S.C. requires VA to 
respect the expressed wishes of the decedent's next-of-kin and give 
them appropriate deference when evaluating whether the proposed 
interment, funeral, memorial service, or ceremony affects the safety 
and security of the national cemetery and visitors. In addition, 
section 2404(h) provides that, to the extent possible, all appropriate 
public areas of the cemetery be made available to the family of the 
deceased veteran for mourning, prayer, contemplation or reflection, as 
well as to funeral honors providers. VA must also ensure that the 
family of the deceased veteran is able to display any religious or 
other symbols during such interment, memorial service, or ceremony.
    VA proposes to amend its regulations by adding a new section 38.619 
to address committal services, memorial services and funeral honors, as 
required in 2404(h). In addition, because a request for such services, 
particularly a request for a committal service, is normally received as 
part of a request for interment, we propose to request that the 
decedent's personal representative provide certain necessary 
information at the time that the request for interment is made.
    As a preliminary matter, we clarify two points regarding language 
differences between the statutory authority and this proposed 
regulation. First, while Sec.  2404(h) refers to ``next of kin or other 
agent of the deceased veteran,'' we propose to use the term ``personal 
representative'' when referring to the person from whom VA receives a 
request for interment or services. VA has previously defined ``personal 
representative'' at 38 CFR 38.600 as ``a family member or other 
individual who has identified himself or herself to the National 
Cemetery Administration as the person responsible for making decisions 
concerning the interment . . . or memorialization of a deceased 
individual.'' VA believes that use of this broad term eliminates the 
need to use the phrase ``next of kin or other agent[.]'' We note in 
particular that ``next of kin'' is defined in various ways in numerous 
state or federal laws or regulations, and may therefore lead to 
confusion. In addition, we note that the phrase ``agent of the 
deceased'' would generally be a legal contradiction in terms, because 
any agency relationship the decedent may have had with another person 
is extinguished upon death, and any individual making arrangements for 
a committal or memorial service would not be acting in the capacity of 
agent of the deceased individual. Under the existing regulatory 
definition, we do not require that a personal representative have any 
prior relationship to the deceased. This would allow for funeral 
directors or unrelated individuals to act as a personal representative 
for a decedent when they have custody of the remains, including for 
interment of unclaimed remains.
    The second language issue is in regard to the use of the term 
``funeral.'' Although Section 2404(h) of 38 U.S.C. refers to 
``funeral,'' we do not propose to use this term in the regulation 
because generally VA national cemeteries do not conduct or perform 
funerals. A funeral is generally held at a funeral home or religious 
facility prior

[[Page 11038]]

to transporting the remains of the decedent to a cemetery. The 
committal service is a brief ceremony that provides families and 
friends the opportunity to remember and honor their deceased loved one 
before the remains are interred or placed in a columbarium. 
Alternatively, if remains are not available for interment, VA national 
cemeteries may allow a personal representative to request a memorial 
service which provides the same opportunity for families and friends to 
honor the deceased. For this reason, VA regulations refer to committal 
services or memorial services, but not funerals. VA believes Congress 
simply utilized the term ``funeral'' in section 2404(h) because that 
term is part of common parlance, but that Congress did not intend to 
fundamentally alter the character of VA committal or memorial services.
    We also point out that, while the focus of 38 U.S.C. 2404(h) is on 
committal or memorial services and funeral honors for deceased 
veterans, under 38 U.S.C. 2402, individuals other than veterans are 
eligible for interment in a VA national cemetery. While a committal or 
memorial service could be held for such person, if requested, and 
therefore most provisions proposed here would be applicable, a 
committal or memorial service for such individuals would not include 
funeral honors, because funeral honors are available only to honor the 
military service of a deceased individual. VA would respect the 
expressed wishes of the decedent's personal representative for the 
committal or memorial service for a deceased eligible non-veteran and 
give appropriate deference to those wishes in scheduling and planning 
the interment, memorial service, or committal service. However, 
paragraph (f) of proposed section 38.619, regarding funeral honors, 
would apply only to a committal or memorial service in a VA national 
cemetery for a deceased veteran or other eligible individual who served 
in the U.S. armed forces.
    Although requests for burial in a VA national cemetery are claims 
for benefits, not unlike other claims received by VA for health care or 
other benefits provided under Title 38, because interment related 
services are a time-sensitive matter, VA accepts requests for burial by 
telephone, rather than requiring submission of a claim form. The 
process for requesting interment has been communicated widely by VA, 
and is efficient and effective, but has not been established in 
regulation. This regulation would establish in regulation provisions 
that reflect VA's current procedures for requesting interment in a VA 
national cemetery.
    We propose to establish in section 38.619(a) that a decedent's 
personal representative may request interment in a VA national cemetery 
by contacting the National Cemetery Scheduling Office (NCSO). 
Contacting the NCSO is the most efficient method for scheduling 
interments at VA national cemeteries. VA established the NCSO in 2007 
to improve the process for requesting interment in the national 
cemeteries. NCSO is able to determine eligibility and schedule 
committal and memorial services at any open VA national cemetery.
    VA requires certain critical information at the time of the request 
for interment, prior to scheduling. This information is necessary to 
establish eligibility and decrease potential delays in scheduling, so 
that the cemetery may plan the committal or memorial service. In 
paragraph (a)(1), we propose to provide that VA will request of the 
decedent's personal representative certain information, including 
documentation, at the time of the request for interment, with or 
without a committal service or memorial service. VA proposes in 
paragraph (a)(1)(i) to require submission of documentation at the time 
of the request for interment necessary to establish the decedent's 
eligibility for national cemetery interment. We also propose to include 
language noting that VA will comply with its obligation, under the 
Veterans Claims Assistance Act (see 38 U.S.C. 5103, 5103A), to advise a 
claimant of the necessary documentation needed to support a claim for 
burial, and to make reasonable efforts to assist the claimant (or in 
this case, the personal representative) in obtaining that 
documentation, especially information such as military service 
documents, which may already be available to the Agency. VA must have 
this documentation to establish eligibility of the decedent before 
scheduling national cemetery interment, or a committal or memorial 
service.
    VA proposes in paragraph (a)(1)(ii) to request that the personal 
representative provide a preferred time and date for the interment, or 
for the committal or memorial service, so that VA may schedule the 
requested service and, if necessary, provide logistical information to 
funeral honors providers. In proposed paragraph (a)(1)(iii), VA would 
request whether a committal service will be conducted before the 
interment. Committal services are not mandatory, and the personal 
representative of a decedent eligible for national cemetery interment 
may opt for interment without additional services. We discuss the 
content and conduct of committal services further in reference to 
paragraphs (c), (d), and (f) below.
    In proposed (a)(1)(iv), VA would request that the personal 
representative provide information on whether the remains are in a 
casket or urn so that logistics for the interment or memorial service 
may be coordinated, including the placement of the decedent's remains 
in a gravesite designed for the type of container. In addition, for 
cremated remains VA would require that a certificate of cremation or 
other documentation sufficient to identify the decedent also be 
submitted at the time of interment for cemetery administration and 
recordkeeping. This would help VA ensure that interment is of an 
eligible decedent and to maintain its internal records.
    In proposed paragraph (a)(1)(v), VA would request information on 
size of the casket or urn, if the request is for interment. This 
physical information is essential for logistical planning, primarily to 
ensure the size of the grave or columbarium niche is sufficient to 
accommodate the container, and for casketed remains, any outer burial 
receptacle or grave liner provided by the family or the Government. In 
proposed paragraph (a)(1)(vi), VA would request contact information for 
the personal representative so that VA may provide any changes in 
scheduling or logistical concerns prior to interment timely to the 
appropriate contact.
    In proposed paragraph (a)(1)(vii), VA would request information on 
whether the personal representative will provide a private vault for 
casketed remains, or whether a government-furnished grave liner is 
required. This information is necessary for the cemetery to determine 
if a government-furnished outer burial receptacle must be ordered and 
may affect the section of the cemetery where the interment will take 
place. VA ``pre-places'' outer burial receptacles in most of its 
national cemeteries. If a family has privately-purchased a grave liner 
or outer burial receptacle, the interment would need to be scheduled in 
a location without a pre-placed outer burial receptacle.
    In proposed paragraph (a)(1)(viii), VA would request information on 
whether the decedent's personal representative intends to have funeral 
honors included in the requested committal or memorial service, if the 
decedent is a veteran. VA requires this information for logistical and 
resource planning purposes and to assist in coordinating, as necessary, 
with the funeral honors provider(s) at the scheduled time of the 
committal or memorial service. The NCSO would

[[Page 11039]]

provide a list of funeral honors providers at the selected cemetery, 
based on the list of providers maintained by the cemetery director. We 
discuss funeral honors, including the list of available funeral honors 
providers, below in the discussion of paragraph (f).
    Because each request for interment is unique, VA proposes, in 
paragraph (a)(1)(ix), to alert requesters that additional information 
may be requested to establish or confirm eligibility or for cemetery 
logistical purposes. Additional information could include information 
relevant to confirming the military service of the deceased veteran to 
determine eligibility, or information regarding the relationship of the 
decedent to a veteran to ensure the decedent is an eligible dependent 
under section 2402.
    In proposed paragraph (b), VA proposes that the personal 
representative may request memorial services for the decedent when 
remains are unrecoverable or otherwise will not be interred (such as 
scattering of cremated remains). We propose to include this provision 
to ensure that families are not dissuaded from requesting a memorial 
service in a national cemetery when the family does not have the 
remains of an eligible decedent for burial, or has made other 
arrangements for disposition of the remains. Additional circumstances 
under which a memorial service may be requested include deaths in which 
remains are not recovered, or when a decedent's body is donated for 
research, or if the remains have been cremated and scattered. If the 
decedent would have been eligible for burial in the national cemetery, 
VA seeks to ensure that the family is allowed to have a memorial 
service to honor the decedent, even when there are no remains to inter. 
Under proposed (b)(1), we would require information sufficient to 
confirm that the decedent would have been eligible for burial in a 
national cemetery. VA does not provide memorial services for 
individuals who would not be eligible for burial. In proposed 
paragraphs (b)(2) through (b)(5), we indicate other information VA 
would request of the personal representative in order for VA to 
schedule a memorial service. This information is similar to that 
requested under proposed (a)(1), and is similarly necessary for VA to 
confirm and schedule the requested services.
    Proposed paragraph (c) would codify the statutory mandate to 
respect and defer to expressed wishes regarding the content and conduct 
of a committal or memorial service. We propose to provide that VA will 
respect and defer to the expressed wishes of the personal 
representative on the display of religious or other symbols chosen by 
the family, the use of all appropriate public areas, and selection of 
funeral honors providers, provided that the safety and security of the 
national cemetery and its visitors are not adversely affected. This 
paragraph would reaffirm VA's continuing commitment to allowing the 
family of the deceased veteran to display any religious or other 
symbols during such interment, memorial service, or ceremony, while in 
the committal shelter or at the gravesite if the committal service is 
held at a gravesite. Although VA is committed to respecting a family's 
wishes for the content of a committal or memorial service, we note that 
conduct in VA national cemeteries outside of the committal or memorial 
service, including displays of religious or other symbols, would be 
subject to VA's security and law enforcement regulations, found at 38 
CFR 1.218, which prohibit unauthorized demonstrations. VA is committed 
to respecting individual rights; however, VA national cemeteries are 
non-public fora, and VA has established rules of conduct to maintain 
order and protect the solemnity and dignity of the national cemeteries 
so that they remain national shrines dedicated to honoring the memory 
of those who served. The provisions in Sec.  1.218 also ensure the 
safety and security of the national cemetery and its visitors.
    In paragraph (d), we propose to codify current practices that 
committal and memorial services in a VA national cemetery generally 
will be held in committal shelters located away from the gravesite. 
Committal shelters are located away from the actual gravesite to ensure 
accessibility and visitor safety and to offer a private and quiet area 
in which to hold a service while minimizing the distraction to families 
from other cemetery operations. A committal shelter may be temporary or 
permanent, and consists of a roofed structure for the use of the 
committal or memorial service attendees. A committal shelter is also 
the preferred venue for a committal service in a national cemetery 
because it allows for a greater degree of accessibility for the family 
and friends of the decedent, particularly those who may find walking 
difficult. A committal shelter also affords a greater level of safety 
to visitors by reducing the risk of trips and falls or other potential 
hazards on the cemetery interment grounds. However, VA cemetery 
directors have the discretion to hold a committal or memorial service 
at a gravesite in order to effectively manage cemetery resources and to 
address unexpected circumstances that may occur in regular cemetery 
operations, such as a prior committal service that runs longer than 
scheduled, or when the arrival of a funeral party is delayed. In 
addition, a personal representative may present significant reasons for 
preferring that the committal service be held at the gravesite. VA 
accommodates these wishes to the extent possible, and a cemetery 
director may approve a committal service at a gravesite, providing 
certain conditions, set forth in proposed (d)(1) through (d)(4), are 
met. In proposed (d)(1), we would require that the personal 
representative make a request that is based on religious practices. As 
indicated above, VA respects the religious practices of those who wish 
to bury eligible decedents in VA national cemeteries and this includes 
requests to hold services at the gravesite. However, VA also seeks to 
protect the safety of families and VA staff, so proposed (d)(2) through 
(d)(4) would establish other conditions that must be met before a 
cemetery director may approve a gravesite service. In proposed (d)(2), 
we would require that the request be made sufficiently prior to the 
scheduled service to ensure accessibility of the gravesite. VA must 
have sufficient time to prepare the area surrounding the gravesite for 
non-cemetery personnel, who may not be familiar with the safety hazards 
inherent in cemetery operations. Under proposed (d)(3), the cemetery 
director would be required to determine that he or she has sufficient 
resources to accommodate the gravesite service. Because of the number 
of interments conducted at VA national cemeteries daily, scheduling of 
interments and committal services is often accomplished with a high 
degree of precision often unnoticed by cemetery visitors. Accommodating 
exceptions to the normal scheduling at a committal shelter may divert 
resources needed for other cemetery operations. The determination 
whether a request can be accommodated can only be determined by the 
cemetery director based on the circumstances at the time. Similarly, 
the condition of the cemetery on a particular day may impact VA's 
ability to accommodate a request for a gravesite service. For example, 
although a gravesite service may be approved and scheduled in advance, 
weather conditions may make access by the funeral party too hazardous. 
Under proposed (d)(4), we would require that

[[Page 11040]]

the site be safely accessible on the day of the service.
    VA also recognizes that there are instances where the decedent's 
family or personal representative may want only to have the decedent's 
remains interred without conducting additional services, but the 
decedent's family or personal representative may want to observe the 
actual interment of the remains. We propose, at paragraph (e), to allow 
this option of witnessing the interment without additional services. We 
distinguish this option from a gravesite service under proposed 
paragraph (d), in that an interment under proposed paragraph (e) would 
allow the decedent's family or personal representative to witness 
interment of the remains in a gravesite or inurnment in a columbarium 
without a committal service. Because the safety of all cemetery 
visitors is a priority for VA and timely notice is necessary to ensure 
the gravesite is prepared to safely accommodate those witnessing the 
interment, this option is available at the cemetery director's 
discretion when he or she finds that the conditions of proposed (e)(1) 
and (e)(2), regarding timing and safety of the site, are met. Under 
proposed (e)(2), we would also note that the cemetery director may 
enforce other restrictions to ensure safety of the visitors and 
cemetery staff.
    Funeral honors are a time-honored tradition, providing a grateful 
nation an opportunity to pay final tribute to individuals who, in times 
of war and peace, have dedicated their loyal service to the United 
States of America. Proposed paragraph (f) codifies the actions that VA 
would take to meet the statutory mandate contained in 2402(h)(3) that 
VA notify the personal representative of the funeral honors available 
to the decedent.
    VA proposes, in paragraph (f)(1), that each cemetery director will 
maintain a list of organizations that are available to provide funeral 
honors at the cemetery at no cost to the family. These organizations 
may also be available to augment Department of Defense (DoD) funeral 
honors providers. Section 2404(h)(3) requires VA to notify the personal 
representative ``of funeral honors available to the deceased veteran, 
including such honors provided by any military or volunteer veterans 
honor guard.'' We interpret the phrase ``volunteer veterans honor 
guard'' to mean that the services provided are without cost to the 
family. Therefore, we propose that the list include only those groups, 
including DoD funeral honors providers, that will provide funeral 
honors without cost to the family. Every cemetery director's list will 
include the contact information for DoD funeral honors coordinators for 
the specific branches of service. VA proposes that non-DoD funeral 
honors providers who want to be included on the funeral honors provider 
lists must make a request to be on the list and must meet certain 
requirements enumerated in (f)(5), which are discussed below.
    In proposed (f)(2), VA proposes that funeral honors will be 
provided at a committal or memorial service only if the personal 
representative requests them. VA would ask the personal representative 
who is scheduling an interment and committal service under proposed 
paragraph (a)(1), or memorial service under proposed paragraph (b)(4), 
whether funeral honors will be included in the services. If so, the 
NCSO staff would make available to the personal representative the list 
of funeral honors providers for the cemetery where the interment or 
services are to be scheduled. We note that providing the names and 
contact information of funeral honors providers to a personal 
representative is for information purposes only and should not be 
viewed as an endorsement of any organization by VA. The personal 
representative is not required to accept the list, or to use the list 
to select a funeral honors provider. Under proposed paragraph (f)(2), 
the personal representative may choose any funeral honors provider(s) 
on the list, and/or may select other organizations to provide the 
honors.
    As with other aspects of a committal or memorial service, the 
choice to include funeral honors during the committal or memorial 
service, and which funeral honors provider should render such services, 
lies solely with the personal representative. VA proposes in (f)(3) 
that any agreement to provide funeral honors would be exclusively 
between the organization(s) providing funeral honors and the personal 
representative, to ensure that the decedent's personal representative 
is aware that, should any issues arise between the personal 
representative and the funeral honors provider regarding the content or 
conduct of funeral honors, VA would not be involved in resolving the 
issue. This includes agreements with volunteer organizations that 
provide funeral honors. This provision applies to the agreement 
regarding the composition of a funeral honors detail, as well as the 
specific content of the ceremony provided during a committal or 
memorial service, which may be dependent on available resources of the 
providing organization(s). We would also note that while DoD funeral 
honors may be requested by the personal representative, they are 
available at the discretion of DoD, and based on eligibility 
requirements established by DoD. DoD funeral honors denotes funeral 
honors provided by uniformed military service personnel under the 
authority of 10 U.S.C. 1491 and is distinguished from funeral honors 
provided by non-DoD personnel, such as a funeral honors squad comprised 
of volunteers from a local veterans service organization.
    Although the agreement to provide funeral honors is between the 
personal representative and the funeral honors provider, VA is 
responsible for the safety of cemetery visitors and maintaining the 
honor and dignity of VA national cemeteries. Therefore, VA proposes at 
(f)(4) certain requirements regarding conduct in the national 
cemeteries by all funeral honors providers, including DoD funeral 
honors details and providers not on the list maintained by the cemetery 
director, that would apply without regard to the agreement between the 
personal representative and the funeral honors provider. Under proposed 
(f)(4)(i), all funeral honors providers, would be required to designate 
and provide contact information for a representative of their 
organization accountable for funeral honors activities. The funeral 
honors provider's point of contact would have responsibility for 
communicating with national cemetery director and staff. The 
designation of a funeral honors provider's single point of contact 
would facilitate VA's resource planning and cemetery administration, 
and ensue that cemetery staff have the ability to quickly communicate 
information to, or obtain information from, an accountable 
representative from the organization(s) providing funeral honors for a 
particular committal or memorial service.
    VA proposes in (f)(4)(ii) to require that all funeral honors 
providers be required to be in compliance with VA security, safety, and 
law enforcement regulations, to ensure the protection of decedent's 
families and other cemetery visitors and to maintain the honor and 
dignity of the national cemeteries. VA proposes at (f)(4)(iii) to 
require that equipment used by the all funeral honors details during a 
committal or memorial service be maintained and operated in a safe 
manner consistent with relevant VA policies and regulations, as well as 
DoD policy, because most weapons and ammunition used by funeral honors 
providers are issued by DoD. Equipment would include rifles and 
ammunition used during the rifle salute. We would

[[Page 11041]]

impose this requirement to ensure the safety and security of national 
cemetery visitors and staff.
    Under proposed (f)(4)(iv), all funeral honors providers would be 
required to not solicit or accept donations on VA property, except as 
authorized under 38 CFR 1.218(a)(8). This is a VA-specific regulation 
that prohibits soliciting contributions, commercial solicitation, 
vending of all kinds, displaying or distributing commercial 
advertising, or collecting private debts in or on VA property. 
Restricting solicitation by all individuals, including all funeral 
honors providers, helps maintain the dignity and solemnity of the 
national cemeteries, and protects families from disturbances during a 
particularly vulnerable and emotional time.
    In addition to the requirements in paragraph (f)(4)(i) thru 
(f)(4)(iv) that would apply to all funeral honors providers, VA 
proposes to include in paragraph (f)(5) additional requirements for 
non-DoD funeral honors providers, including providers selected by a 
personal representative but not on the cemetery director's list. Under 
proposed (f)(5)(i), the non-DoD funeral honors providers would be 
required to certify that they will comply with the requirements 
presented in paragraph (f)(4). This additional requirement for 
certification would be necessary to raise awareness of VA standards and 
to increase the accountability of these organizations performing 
activities on VA property. VA would not require this additional 
assurance of compliance from DoD funeral honors providers because VA 
has a long-established relationship with DoD and is confident that DoD 
funeral providers would abide by these requirements without additional 
certification. VA proposes at (f)(5)(ii) to require funeral honors 
providers to certify that they are conducting activities on federal 
property as an independent entity, not as an agent or employee of VA, 
unless they are registered as a VA volunteer. This requirement would 
ensure that non-DoD funeral honors providers understand that they may 
be liable for any injuries or damages that could occur while providing 
funeral honors on VA-property. DoD funeral honors details, and funeral 
honors providers who are registered as VA volunteers, would be exempt 
from this requirement because authorized action of federal employees 
would be subject to the Federal Tort Claims Act.
    Under proposed (f)(5)(iii), non-DoD funeral honors providers would 
be required to certify that members of the funeral honors detail have 
completed training on assigned funeral honors tasks and the safe use of 
equipment. Funeral honors providers' equipment and activities are 
capable of causing harm to the user as well as people in close 
proximity and therefore anyone who uses such equipment or performs such 
tasks must be trained to safely use the equipment and perform assigned 
tasks correctly. We would not specify the level of training required 
because funeral honors providers are aware of the importance of funeral 
honors and have experience in performing funeral honors for the 
grieving family of a deceased veteran. VA believes that funeral honors 
providers should be able to determine the degree of training required 
to perform any particular funeral honors task competently and safely. 
DoD funeral honors details are exempt from this requirement because 
military members of DoD funeral honors details are highly trained 
individuals and expert at accomplishing funeral honors duties, which 
eliminates uncertainty regarding their ability to safely and 
effectively carry out funeral honors functions.
    VA proposes at (f)(5)(iv) to require that non-DoD funeral honors 
providers certify that they will provide funeral honors services in 
accordance with the agreement between the provider and the personal 
representative. As discussed above regarding proposed (f)(3), VA is not 
a party to the agreement between the funeral honors provider and the 
personal representative. However, VA affirms its commitment to ensure 
deference to the wishes of the personal representative in planning the 
content of a committal or memorial service and expects those providing 
funeral honors as part of those services to similarly respect the 
choices made by the personal representative.
    A VA national cemetery, like other federal property, contains areas 
that may be accessed by the public as well as areas that are not 
publicly accessible. Areas that are not considered public areas may 
include private offices, storage rooms, or maintenance shops. In 
paragraph (g), we propose that all appropriate public areas of the 
cemetery, which include committal shelters, chapels, and benches, may 
be used by national cemetery visitors and funeral honors providers for 
service preparations, contemplation, prayer, mourning, or reflection so 
long as the safety and security of the national cemetery and cemetery 
operations are not adversely affected. This paragraph is intended to 
clearly state current VA practices and procedures, and does not reflect 
any change in policy. VA allows funeral honors providers, to the 
maximum extent practicable, to access appropriate public areas of a 
national cemetery if such access is requested. We believe that the 
funeral honors providers should have access to public areas to ensure 
that the funeral honors detail has adequate space to prepare for the 
committal or memorial service, and to receive any instructions or 
requests from the decedent's family.
    VA occasionally receives queries on whether organizations or 
individuals may offer a gift or token to the bereaved family before, 
after, or during a committal or memorial service in appreciation of a 
veteran's service or in recognition of the family's grief. VA is not 
aware of any statutory prohibition against this practice, and we 
believe the gesture could be meaningful to the surviving family. In 
paragraph (h), we would state that nothing in this section prohibits or 
constrains a funeral honors provider, Veterans Service Organization, or 
the public from offering a gift or token to a family member of the 
deceased or someone attending a committal or memorial service, provided 
that no compensation is requested, received, or expected in exchange 
for such gift or token, and the safety and security of the national 
cemetery and visitors is not adversely affected in doing so. Committal 
or memorial service attendees may accept or decline any such gift or 
token, and may also request that the offeror refrain from any offers to 
the service attendees.

Effect of Rulemaking

    The Code of Federal Regulations, as proposed 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

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521), 
requires that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid Office of Management and Budget (OMB) control number. 
This proposed rule contains provisions constituting collection of 
information at 38 CFR 38.619(a) and (b), and at 38 CFR 38.619(f)(5).
    The information collection at Sec.  38.619(a) and (b) is necessary 
to

[[Page 11042]]

establish eligibility for national cemetery burial and to schedule and 
plan interments. This information collection is currently approved by 
OMB and has been assigned OMB control number 2900-0232. The burden of 
this information collection would remain unchanged.
    This proposed rule also contains a provision constituting a new 
collection of information at 38 CFR 38.619(f)(5). Accordingly, under 44 
U.S.C. 3507(d), VA has submitted a copy of this rulemaking to OMB for 
review.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. If OMB does not approve the 
collection(s) of information as requested, VA will immediately remove 
the provision(s) containing a collection of information or take such 
other action as is directed by OMB.
    Comments on the collection of information contained in this rule 
should be submitted to the Office of Management and Budget, Attention: 
Desk Officer for the Department of Veterans Affairs, Office of 
Information and Regulatory Affairs, Washington, DC 20503, with copies 
sent by mail or hand delivery to the Director, Regulations Management 
(00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room 
1063B, Washington, DC 20420; fax to (202) 273-9026 (This is not a toll-
free no.); or through www.Regulations.gov. Comments should indicate 
that they are submitted in response to ``RIN 2900-AQ35 Committal 
services, memorial services and funeral honors.''
    OMB is required to make a decision concerning the collections of 
information contained in this rule between 30 and 60 days after 
publication of this document in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the proposed rule. VA considers 
comments by the public on proposed collections of information in--
     Evaluating whether the proposed collections of information 
are necessary for the proper performance of the functions of VA, 
including whether the information will have practical utility;
     Evaluating the accuracy of VA's estimate of the burden of 
the proposed collections of information, including the validity of the 
methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collections of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The collection of information contained in regulatory section 38 
CFR 38.619(f)(5) is described immediately following this paragraph.
    Title: Certification requirements for non-DoD funeral honors 
providers.
    OMB Control No.: XXXX-XXXX.
    Summary of collection of information: To ensure the safety of 
cemetery visitors and staff and to maintain the decorum of the national 
cemeteries, non-DoD funeral honors providers that perform funeral 
honors activities at VA national cemeteries must certify to VA that 
they will comply with certain requirements proposed in these 
regulations. These requirements include providing contact information 
for a representative for the organization, abiding by VA security, 
safety, and law enforcement regulations, maintaining and operating any 
equipment in a safe manner consistent with VA and DoD policies and 
regulations, and not soliciting for or accepting donations on VA 
property except as authorized under 38 CFR 1.218(a)(8). In addition, 
they must certify that they are conducting activities on federal 
property as an independent entity, not as an agent or employee of VA, 
unless registered as a VA volunteer; that members of the organization 
who will conduct the funeral honors have completed training on funeral 
honors tasks and the safe use of funeral honors equipment. Finally, the 
non-DoD funeral honors provider must certify that the funeral honors 
will be provided in accordance with the agreement between the 
decedent's personal representative and the funeral honors provider.
    Description of the need for information and proposed use of 
information: The information is needed to ensure that funeral honors 
activities performed on VA property maintain the honor and dignity of 
the national cemetery and do not negatively impact the safety of 
cemetery visitors.
    Description of likely respondents: Representatives are non-DoD 
funeral honors providers performing funeral honors activities at VA 
national cemeteries. Non-DoD funeral honors providers are unpaid 
volunteers.
    Estimated number of respondents per month/year: 380 annually.
    Estimated frequency of responses per month/year: One response 
total.
    Estimated average burden per response: 5 minutes/.08 hours.
    Estimated total annual reporting and recordkeeping burden: 31.7 
hours.
    Estimated cost to respondents per year: NCA estimates the total 
cost to all respondents to be $771.58 per year (31.7 burden hours x 
$24.34 per hour). The respondent population for the information 
collected is composed of individuals representing organizations who 
provide funeral honors duties for VA national cemetery visitors during 
committal or memorial services. The funeral honors providers may 
represent a component of DoD or may represent a non-profit Veteran 
Service Organization (VSO). The individuals representing VSOs are 
volunteers and are not paid for performing funeral honors services. 
Since funeral honors providers consist of unpaid volunteers, the hourly 
equivalent wage is the value of the volunteers' time, based on the mean 
hourly wage of all workers, so the volunteers will incur the costs as 
an opportunity cost, rather than having the non-profits incur the cost. 
Therefore, NCA used general wage data to estimate the respondents' 
costs associated with completing the information collection.

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. Even to the extent some veterans service organizations 
that provide funeral honors could be viewed as ``small entities'' as 
defined in 5 U.S.C. 601(4), (6), this proposed rule would not have a 
significant economic impact on them because it concerns only the 
standards of conduct those groups must abide by when conducting funeral 
honors in national cemeteries. Therefore, pursuant to 5 U.S.C. 605(b), 
this rulemaking would be exempt from the initial and final regulatory 
flexibility analysis requirements of 5 U.S.C. 603 and 604.

Executive Orders 12866, 13563, and 13771

    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;

[[Page 11043]]

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,'' which requires 
review by the Office of Management and Budget (OMB), 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.''
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and determined that the 
action is not 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 website at 
http://www.va.gov/orpm by following the link for VA Regulations 
Published from FY 2004 through FYTD. This proposed rule is not expected 
to be an E.O. 13771 regulatory action because this proposed rule is not 
significant under E.O. 12866.

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

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.201 National Cemeteries; 
64.202 Procurement of Headstones and Markers and/or Presidential 
Memorial Certificates; and, 64.203 State Cemetery Grants.

Signing Authority

    The Secretary of Veterans Affairs 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. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on January 2, 2019, for publication.

List of Subjects in 38 CFR Part 38

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

    Dated: March 18, 2019.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.

    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. The authority citation for part 38 continues to read as follows:

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

0
2. Add Sec.  38.619 to read as follows:


Sec.  38.619  Requests for interment, committal services or memorial 
services, and funeral honors.

    (a) Interment requests. A personal representative, as defined in 
Sec.  38.600, may request interment of an eligible decedent in a 
national cemetery by contacting the National Cemetery Scheduling Office 
(NCSO) at 1-800-535-1117.
    (1) Required Information. VA will request the following information 
from the decedent's personal representative at the time of the request 
for interment to allow VA to schedule the interment for the decedent:
    (i) Documentation of the decedent's eligibility for national 
cemetery interment. If needed, VA will make reasonable efforts to 
assist the personal representative in obtaining such documentation;
    (ii) Preferred date and time for the interment;
    (iii) Whether a committal service is requested (a committal service 
is not required);
    (iv) Whether the remains are in a casket or urn. For cremated 
remains, the personal representative will be advised to present a 
certificate of cremation or other documentation sufficient to identify 
the decedent at the time of interment.
    (v) The size of the casket or urn.
    (vi) The contact information for the personal representative.
    (vii) Whether a private vault will be provided to the national 
cemetery or a government-furnished grave liner is required.
    (viii) Whether the personal representative intends to have funeral 
honors during the committal service, if the decedent is a veteran.
    (ix) Other relevant information necessary to establish or confirm 
eligibility of the decedent and/or for cemetery logistics and planning.
    (2) [Reserved].
    (b) Memorial services requests. The personal representative may 
request a memorial service for a decedent who is eligible for interment 
in a VA national cemetery. Memorial services may be conducted if the 
decedent's cremated remains will be scattered and will not be interred, 
or if the remains of the eligible individual are otherwise not 
available for interment, or were previously interred without a 
committal service. The personal representative may request the memorial 
service by contacting the National Cemetery Scheduling Office (NCSO) at 
1-800-535-1117 and providing the following required information:
    (1) Documentation of the decedent's eligibility for national 
cemetery interment. If needed, VA will make reasonable efforts to 
assist the personal representative in obtaining such documentation;
    (2) Preferred date and time for the memorial service;
    (3) The contact information for the personal representative;
    (4) Whether the personal representative intends to have funeral 
honors services during the memorial service, if the decedent is a 
veteran;
    (5) Other relevant information necessary to establish or confirm 
eligibility of the decedent and/or for cemetery logistics and planning.
    (c) Content of committal or memorial services. VA will respect and 
defer to the expressed wishes of the personal representative for the 
content and conduct of a committal or memorial service, including the 
display of religious or other symbols chosen by the family, the use of 
all appropriate public areas, and the selection of funeral honors 
providers, provided that the safety and security of the national

[[Page 11044]]

cemetery and its visitors are not adversely affected.
    (d) Location of services. Committal or memorial services at VA 
national cemeteries will be held in committal shelters located away 
from the gravesite to ensure accessibility and visitor safety, unless 
the cemetery director determines that a committal shelter is not 
available for logistical reasons, or the cemetery director approves a 
request from the personal representative for a gravesite service. A 
request for a gravesite service may be approved by the cemetery 
director if:
    (1) The service is requested by the decedent's personal 
representative for religious reasons; and
    (2) The request is made sufficiently prior to the scheduled 
committal service to ensure the gravesite is accessible; and
    (3) The cemetery director has sufficient staffing resources for the 
gravesite service, and
    (4) The site can be safely accessed on the day of the service.
    (e) Witnessing interment without additional services. When 
scheduling the interment, the decedent's personal representative may 
request to witness the interment of the decedent's remains without 
additional services at the committal shelter. Approval of a request for 
witness-only interment is at the discretion of the cemetery director, 
and may be made only if:
    (1) The timing of the request provides sufficient time to ensure 
the gravesite is accessible, and;
    (2) The site can be safely accessed on the day of the interment. 
This determination may require limiting the number of individuals who 
may witness the interment and other logistics, such as distance from 
the gravesite, as the cemetery director finds necessary.
    (f) Funeral honors. (1) List of organizations providing funeral 
honors. Each cemetery director will maintain a list of organizations 
that will, upon request, provide funeral honors at the cemetery at no 
cost to the family. Each list must include DoD funeral honors contacts. 
Non-DoD funeral honors providers who want to be included on the list 
must make a request to the cemetery director and meet the requirements 
of paragraph (f)(5) of this section.
    (2) Request required. Funeral honors will be provided at a 
committal or memorial service for an eligible individual only if 
requested by the decedent's personal representative. When scheduling a 
committal or memorial service for a veteran or other eligible 
individual who served in the U.S. armed forces, the NCSO will make 
available to the personal representative the list of available funeral 
honors providers, as described in paragraph (f)(1) of this section, for 
the cemetery where interment or services are to be scheduled. The 
decedent's personal representative may choose any funeral honors 
provider(s) on the list provided by VA, and/or any other organization 
that provides funeral honors services.
    (3) Agreement. Any agreement to provide funeral honors is 
exclusively between the organization(s) providing funeral honors and 
the decedent's personal representative. The composition of a funeral 
honors detail, as well as the specific content of the ceremony provided 
during a committal or memorial service is dependent on available 
resources of the providing organization(s). The Department of Defense 
(DoD) is responsible for determining eligibility for funeral honors 
provided by a DoD funeral honors detail. If funeral honors are provided 
by a combined detail that includes one or more funeral honors 
providers, all providers must provide services as requested by the 
personal representative.
    (4) Requirements for all funeral honors providers. All 
organizations performing funeral honors at VA national cemeteries, 
including DoD organizations and any provider selected by the personal 
representative that is not on the list of providers provided by VA 
under paragraph (f)(1) of this section, must:
    (i) Provide to the cemetery director the name and contact 
information of a representative for the organization who is accountable 
for funeral honors activities; and
    (ii) Comply with VA security, safety, and law enforcement 
regulations under 38 CFR 1.218; and
    (iii) Maintain and operate any equipment in a safe manner 
consistent with VA and DoD policies and regulations; and
    (iv) Not solicit for or accept donations on VA property except as 
authorized under 38 CFR 1.218(a)(8).
    (5) Additional requirements for non-DoD funeral honors providers. 
Non-DoD funeral honors providers, including any provider selected by 
the personal representative that is not on the list of providers 
provided by VA under paragraph (f)(1) of this section, must certify 
that:
    (i) They will comply with the requirements in paragraph (f)(4) of 
this section;
    (ii) They are conducting activities on federal property as an 
independent entity, not as an agent or employee of VA, unless 
registered as a VA volunteer;
    (iii) Members of the organization who will conduct the funeral 
honors have completed training on funeral honors tasks and the safe use 
of funeral honors equipment; and
    (iv) The funeral honors will be provided in accordance with the 
agreement in paragraph (f)(3) of this section between the personal 
representative and the funeral honors provider.
    (g) Public areas. The cemetery director and cemetery staff will 
allow access to and use of appropriate public areas of the national 
cemetery by national cemetery visitors, as well as to families and 
funeral honors providers for service preparations, contemplation, 
prayer, mourning, or reflection, so long as the safety and security of 
the national cemetery and cemetery operations are not adversely 
affected. Appropriate public areas include, but are not limited to, 
committal shelters, rest areas, chapels, and benches. The cemetery 
director will ensure that signs adequately identify restricted or non-
public areas in the national cemetery.
    (h) Gifts. Nothing in this section prohibits or constrains any 
member of a funeral honors provider, a Veterans Service Organization, 
or the public from offering a gift or token to a family member of the 
decedent or any person at a committal or memorial service, provided 
that no compensation is requested, received, or expected in exchange 
for such gift or token. Committal or memorial service attendees may 
accept or decline any such gift or token, and may request that the 
offeror refrain from making any such offers to the service attendees.

(Authority: 38 U.S.C. 2402, 2404)

[FR Doc. 2019-05454 Filed 3-22-19; 8:45 am]
 BILLING CODE 8320-01-P