Custom Federal Regulations Service™

**This is supplemental material**

**for Book A of your set of**

**Federal Regulations**

Title 38, Parts 0, 1, 2, 12, 14-16,

18--20, 25-26, 38-45, 48--49, 74--75

*General*

**Veterans Benefits Administration**

Supplement No. 84

Covering period of *Federal Register* issues

through July 4, 2008

Copyright © 2008 Jonathan Publishing

**Need Assistance?**

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Administration

Mail Code: 20M33

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Washington DC 20420

Telephone: 202/273-7588

Fax: 202/275-5947

E-mail: coarms@vba.va.gov

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Copyright © 2008 Jonathan Publishing

# GENERAL INSTRUCTIONS

Custom Federal Regulations Service™

**Supplemental Materials for *Book A***

**Code of Federal Regulations**

**Title 38, Parts 0, 1, 2, 12, 14-16, 18--20, 25-26, 39-45, 48--49, 75**

***General***

**Veterans Benefits Administration**

**Supplement No. 84**

5 July 2008

Covering the period of Federal Register issues

through July 4, 2008

When **Book A** was originally prepared, it was current through final
regulations published in the *Federal Register* of 21 April 1992. These
supple­mental materials are designed to keep your regulations up to date.
You should file the attached pages immediately, and record the fact that
you did so on the *Supplement Filing Record* which begins on page A-8 of
Book A, *General*.

> **To ensure accuracy and timeliness of your materials,**
>
> **it is important that you follow these simple procedures:**
>
> 1\. Always file your supplemental materials immediately upon receipt.
>
> 2\. Before filing, always check the Supplement Filing Record (page
> A-8) to be sure that all prior supplements have been filed. If you are
> missing any supple­ments, contact the Veterans Benefits Administration
> at the address listed on page A-2.
>
> 3\. After filing, enter the relevant information on the Supplement
> Filing Record sheet (page A-8)---the date filed, name/initials of
> filer, and date through which the *Federal Register* is covered.
>
> 4\. If as a result of a failure to file, or an undelivered supplement,
> you have more than one supplement to file at a time, be certain to
> file them in chronological order, lower number first.
>
> 5\. Always retain the filing instructions (simply insert them at the
> back of the book) as a backup record of filing and for reference in
> case of a filing error.
>
> 6\. Be certain that you *permanently discard* any pages indicated for
> removal in the filing instructions in order to avoid confusion later.

To execute the filing instructions, simply remove *and throw away* the
pages listed under *Remove These Old Pages,* and replace them in each
case with the corres­pond­ing pages from this supplement listed under *Add
These New Pages*. Occasionally new pages will be added without removal
of any old material (reflecting new regulations), and occasionally old
pages will be removed with­out addition of any new material (reflecting
rescinded regulations)---in these cases the word *None* will appear in
the appropriate column.

> **FILING INSTRUCTIONS**

**Book A, Supplement No. 84**

**July 5, 2008**

*Remove these Add these Section(s)*

*[old pages]{.underline} [new pages]{.underline} [Affected]{.underline}*

**Do not file this supplement until you confirm that**

**all prior supplements have been filed**

38.600-1 to 38.600-2 38.600-1 to 38.600-2 §38.600

38.603-1 to 38.618-1 38.603-1 to 38.618-1 §38.617

39.5-1 to 39.7-1 39.5-1 to 39.7-1 §§39.5--39.6

**Be sure to complete the**

***Supplement Filing Record* (page A-8)**

**when you have finished filing this material.**

> **HIGHLIGHTS**

**Book A, Supplement No. 84**

**July 5, 2008**

***Supplement* Highlights *references***: Where substantive changes are
made in the text of regulations, the paragraphs of *Highlights* sections
are cited at the end of the relevant section of text. Thus, if you are
reading §3.263, you will see a note at the end of that section which
reads: "Supplement *Highlights* references---6(2)." This means that
paragraph 2 of the *Highlights* section in Supplement No. 6 contains
information about the changes made in §3.263. By keeping and filing the
*Highlights* sections, you will have a reference source explaining all
substantive changes in the text of the regulations.

***Supplement frequency***: This Book A (*General*) was originally
supplemented twice a year, in April and October. Beginning 1 August
1995, supplements will be issued *every month* during which a final rule
addition or modification is made to the parts of Title 38 covered by
this book. Supplements will be numbered consecutively as issued.

**Modifications in this supplement include the following:**

1\. On 23 June 2008, the VA published a final rule, effective that same
date, to implement section 662 of the National Defense Authorization Act
of 2006 (Pub. L. 109-163) which prohibits interment and memorialization
in a national or State veterans cemetery of certain persons who have
been convicted of a Federal or State capital crime and whose conviction
is final, unless such a person's sentence was commuted by the President
or the Governor of a State. Changes:

In §38.600, revised definitions for *Federal capital crime* and *State
capital crime*;

In §38.617, revised paragraphs (a) and (e)(1)(i)--(ii);

In §39.5, added a new paragraph (d); and

In §39.6, revised paragraph (c)(1).

**Part 38**

**National Cemeteries of the**

**Department of Veterans Affairs**

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

**Source**: 70 FR 4769, January 31, 2005, unless otherwise noted.

**Supplement *Highlights* reference**: 67(1), unless otherwise noted.

**§38.600 Definitions.**

\(a\) \[Reserved\]

\(b\) *Definitions*. For purposes of §§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 a
sentence of imprisonment for life or the death penalty 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 a
sentence of imprisonment for life or the death penalty may be imposed.
(Authority: 38 U.S.C. 2408, 2411)

\[70 FR 4769, Jan. 31, 2005, as amended at 73 FR 35352, June 23, 2008\]

**Supplement *Highlights* reference**: 84(1)

**§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.

*Next Section is §38.617*

**§38.617 Prohibition of interment or memorialization of persons who
have been convicted**

> **of Federal or State capital crimes.**

\(a\) *Persons Prohibited*. The interment in a national cemetery under
control of the National Cemetery Administration of the remains of any
person, or memorialization in such a cemetery of such person, shall not
take place absent a good faith effort by the affected cemetery director,
or the Under Secretary for Memorial Affairs, or his or her designee, to
determine whether such person is barred from receipt of such benefits
because the individual for whom interment or memoralization is sought
is:

\(1\) A 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 whose conviction is final, other than a person whose
sentence was commuted by the President.

\(2\) A 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 whose conviction is final, other than a person whose
sentence was commuted by the Governor of a State.

\(3\) A person found under procedures specified in §38.618 to 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.

\(b\) *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; 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.

\(2\) 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
§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 §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 §§19.26 through 19.38 of this title. (Authority: 38
U.S.C. 512, 2411, 7105)

\[70 FR 4769, Jan. 31, 2005, as amended at 73 FR 35352, June 23, 2008\]

**Supplement *Highlights* reference**: 84(1)

**§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

**Subpart B---Grant Requirements and Procedures**

**§39.5 General requirements for a grant.**

\(a\) In order to qualify for a grant, a State veterans' cemetery must
be operated solely for the interment of veterans, their spouses,
surviving spouses, minor children, and unmarried adult children who were
physically or mentally disabled and incapable of self-support.

\(b\) For a State to obtain a grant under this part for the
establishment, expansion, or improvement of a State veterans' cemetery:

> \(1\) Its preapplication for the grant must be approved under §39.6;
>
> \(2\) Its project must be ranked sufficiently high on the priority
> list in §39.7 for the current fiscal year so that funds are available
> for the project;
>
> \(3\) Its plans and specifications for the project must be approved
> under §39.8;
>
> \(4\) The State must meet the application requirements in §39.10; and
>
> \(5\) Other requirements specified in §§39.9 and 39.13 must be
> satisfied.

\(c\) VA may approve under §39.11 any application up to the amount of
the grant requested once the requirements under paragraph (b) of this
section have been satisfied, provided that sufficient funds are
available. In determining whether sufficient funds are available, VA
shall consider the project's priority ranking, the total amount of funds
available for cemetery grant awards during the applicable fiscal year,
and the prospects of higher ranking projects being ready for the award
of a grant before the end of the applicable fiscal year. (Authority: 38
U.S.C. 501, 2408.)

\(d\) Any grant under this part made on or after November 21, 1997, is
made on the condition that after the date of receipt of the grant the
State receiving the grant, subject to requirements for receipt of notice
in 38 U.S.C. 2408 and 2411, will prohibit in the cemetery for which the
grant is furnished the interment of the remains of or the
memorialization of any person:

\(1\) Who has been convicted of a Federal capital crime, as defined in
§38.600(b) of this chapter, and whose conviction is final, other than a
person whose sentence was commuted by the President;

\(2\) Who has been convicted of a State capital crime, as defined in
§38.600(b) of this chapter, and whose conviction is final, other than a
person whose sentence was commuted by the Governor of a State.

\(3\) Who has been found by an appropriate State official, under
procedures to be established by the State, to have committed a Federal
or State capital crime, as defined in §38.600(b) of this chapter, but to
have not been convicted of such crime by reason of unavailability for
trial due to death or flight to avoid prosecution. (Authority: 38 U.S.C.
501, 2408, 2411).

\[69 FR 16346, Mar. 29, 2004, as amended at 73 FR 35352, June 23, 2008\]

**Supplement *Highlights* reference**: 84(1)

**§39.6 Preapplication requirements.**

\(a\) A State seeking a grant for the establishment, expansion, or
improvement of a veterans' cemetery must submit a preapplication if the
State seeks more than \$100,000.

\(b\) No detailed drawings, plans, or specifications are required with
the preapplication. As a part of the preapplication, the State must
submit each of the following:

\(1\) Standard Form 424 ("Face Sheet") and Standard Form 424C ("Budget
Information") signed by the authorized representative of the State.
These forms document the amount of the grant requested, which may not
exceed 100 percent of the estimated cost of the project to be funded
with the grant.

\(2\) A program narrative describing the objectives of the project, the
need for a grant, the method of accomplishment, the projected interment
rate, and the results or benefits expected to be obtained from the
assistance requested.

\(3\) If a site has been selected, a description of the geographic
location of the project (*i.e.*, a map showing the location of the
project and all appropriate geographic boundaries, and any other
supporting documentation, as needed).

\(4\) A design concept describing the major features of the project
including the number and types of gravesites, such as columbarium
niches.

\(5\) Any comments or recommendations made by the State's "Single Point
of Contact" reviewing agency.

\(c\) In addition, the State must submit written assurance that:

\(1\) Any cemetery established, expanded, or improved through a grant
will be used exclusively for the interment or memorialization of
eligible persons, as set forth in §§39.2(h) and 39.5(a), whose interment
or memorialization is not contrary to the conditions of the grant (see
§§39.5(d) and 38 U.S.C. 2408 and 2411).

\(2\) Title to the site is or will be vested solely in the State.

\(3\) It possesses legal authority to apply for the grant, and to
finance and construct the proposed facilities; *i.e*., legislation or
similar action has been duly adopted or passed as an official act of the
applicant's governing body, authorizing the filing of the application,
including all understandings and assurances contained therein, and
directing and authorizing the person identified as the official
representative of the State to act in connection with the application
and to provide such additional information as may be required.

\(4\) Any cemetery established, expanded, or improved through a grant
will be maintained and operated in accordance with the operational
standards and measures of the National Cemetery Administration.

\(5\) It will assist VA in assuring that the grant complies with section
106 of the National Historic Preservation Act of 1966, as amended (16
U.S.C. 470), Executive Order 11593 (identification and protection of
historic properties), and the Archaeological and Historic Preservation
Act of 1974 (16 U.S.C. 469a-1, *et seq*.).

\(6\) It will obtain approval by VA of the final construction drawings
and specifications before the project is advertised or placed on the
market for bidding; it will construct the project, or cause it to be
constructed, to completion in accordance with the application and
approved plans and specifications; it will submit to the Director of the
State Cemetery Grants Service, for prior approval, changes that alter
the costs of the project, use of space, or functional layout; and it
will not enter into a construction contract(s) for the project or
undertake other activities until the conditions of the grant program
have been met.

\(7\) It will comply with the Federal requirements in 2 CFR parts 180
and 801 and 38 CFR part 43 and submit Standard Form 424D
("Assurances---Construction Programs").

\(8\) It will prepare an Environmental Assessment to determine whether
an Environmental Impact Statement is necessary, and certify that funds
are available to finance any costs related to preparation of the
Environmental Assessment.

\(d\) The State must submit a copy of the legislation, as enacted into
law, authorizing the establishment, maintenance and operation of the
facility as a veterans' cemetery in accordance with 38 CFR 39.5(a).

\(e\) Upon receipt of a preapplication for a grant, including all
necessary assurances and all required supporting documentation, VA shall
determine whether the preapplication conforms to all requirements listed
in paragraphs (a) through (d) of this section, including whether it
contains sufficient information necessary to establish the project's
priority. VA will notify the State of any nonconformity. If the
preapplication does conform, VA shall notify the State that the
preapplication has been found to meet the preapplication requirements,
and the proposed project will be included in the next scheduled ranking
of projects, as indicated in §39.7(d). (Authority: 38 U.S.C. 501, 2408,
2411)

(The Office of Management and Budget has approved the information
collection requirements in this section under control numbers 0348-0043,
0348-0041; 0348-0042.)

\[69 FR 16346, Mar. 29, 2004, as amended at 72 FR 30243, May 31, 2007;
73 FR 35353, June 23, 2008\]

**Supplement *Highlights* references**: 76(2), 84(1).

Reserved

**§39.7 Priority list.**

\(a\) The priority groups, with Priority Group 1 having the highest
priority and Priority Group 4 the lowest priority, are:

\(1\) Priority Group 1---Projects needed to avoid disruption in burial
service that would otherwise occur at existing veterans' cemeteries
within 4 years of the date of the preapplication. Such projects would
include expansion projects as well as improvement projects (such as
construction of additional or replacement facilities) when such
improvements are required to continue interment operations.

\(2\) Priority Group 2---Projects for the establishment of new veterans'
cemeteries.

\(3\) Priority Group 3---Expansion projects at existing veterans'
cemeteries when a disruption in burial service due to the exhaustion of
existing gravesites is not expected to occur within 4 years of the date
of the preapplication.

\(4\) Priority Group 4---Other improvement projects to cemetery
infrastructure such as building expansion and upgrades to roads and
irrigation systems that are not directly related to the development of
new gravesites.

\(b\) Within Priority Groups 1, 2, and 3, highest priority will be given
to projects in geographical locations with the greatest number of
veterans who will benefit from the project as determined by VA. This
prioritization system, based on veteran population data, will assist VA
in maintaining and improving access to burial in a veterans cemetery to
more veterans and their eligible family members. Within Priority Group
1, at the discretion of VA, higher priority may be given to a project
that must be funded that fiscal year to avoid disruption in burial
service.

\(c\) Within Priority Group 4, projects will be ranked in priority order
based upon VA's determination of the relative importance and necessity
to operations of the proposed improvements.

\(d\) By August 15 of each year, VA will make a list prioritizing the
preapplications that were received on or before July 1 of that year and
that were approved under §39.6, ranking them in their order of priority
for funding during the fiscal year that begins the following October 1.
Preapplications from previous years will be re-prioritized each year.
(Authority: 38 U.S.C. 501, 2408.)