Federal Register / Vol. 84, No. 25 / Wednesday, February 6, 2019 / Proposed Rules 2093 

■ 25. In § 4219.1: 

■ a. Amend paragraph (a) by adding two 

sentences at the end of the paragraph; 

■ b. Amend paragraph (b)(1) by 

removing in the third sentence ‘‘shall’’ 

and adding in its place ‘‘does’’; 

■ c. Amend paragraph (b)(2) by 

removing in the second sentence ‘‘shall 

cease’’ and adding in its place ‘‘cease’’; 

■ d. Amend paragraph (c) by removing 

in the second sentence ‘‘whom’’ and 

adding in its place ‘‘which’’. 

The additions read as follows: 

§ 4219.1 Purpose and scope. 

(a) * * * Section 4219(c) of ERISA 

requires a withdrawn employer to make 

annual withdrawal liability payments at 

a set rate over the number of years 

necessary to amortize its withdrawal 

liability, generally limited to a period of 

20 years. This subpart provides rules for 

disregarding certain contribution 

increases in determining the highest 

contribution rate under section 4219(c) 

of ERISA. 

* * * * * 

§ 4219.2 [Amended] 

■ 26. In § 4219.2: 

■ a. Amend paragraph (a) by removing 

‘‘multiemployer plan,’’ and adding in its 

place ‘‘multiemployer plan, 

nonforfeitable benefit,’’; 

■ b. Amend the definition of ‘‘Mass 

withdrawal valuation date’’ by removing 

the last sentence of the definition; 

■ c. Amend the definition of 

‘‘Reallocation record date’’ by removing 

‘‘shall be’’ and adding in its place ‘‘is’’; 

■ d. Amend the definition of 

‘‘Unfunded vested benefits’’ by 

removing ‘‘a plan’s vested nonforfeitable 

benefits (as defined for purposes of this 

section)’’ and adding in its place ‘‘a 

plan’s nonforfeitable benefits’’. 

■ 27. Add § 4219.3 to read as follows: 

§ 4219.3 Disregarding certain 

contributions. 

(a) General rule. For purposes of 

determining the highest contribution 

rate under section 4219(c) of ERISA, a 

plan must disregard: 

(1) Surcharge. Any surcharge under 

section 305(e)(7) of ERISA or section 

432(e)(7) of the Code the obligation for 

which accrues on or after December 31, 

2014. 

(2) Contribution increase. Any 

contribution increase that goes into 

effect during a plan year beginning after 

December 31, 2014, so that a plan may 

meet the requirements of a funding 

improvement plan under section 305(c) 

of ERISA or section 432(c) of the Code 

or a rehabilitation plan under section 

305(e) of ERISA or section 432(e) of the 

Code, except to the extent that one of 

the following exceptions applies: 

(i) The contribution increase is due to 

increased levels of work, employment, 

or periods for which compensation is 

provided. 

(ii) The contribution increase 

provides an increase in benefits, 

including an increase in future benefit 

accruals, permitted by sections 

305(d)(1)(B) or 305(f)(1)(B) of ERISA or 

sections 432(d)(1)(B) or section 

432(f)(1)(B) of the Code, and an increase 

in benefit accruals as an integral part of 

the benefit formula. The portion of such 

contribution increase that is attributable 

to an increase in benefit accruals must 

be determined actuarially. 

(b) Simplified method for a plan that 

is no longer in endangered or critical 

status. A plan sponsor may amend a 

plan without PBGC approval to use the 

simplified method in this paragraph (b) 

for purposes of determining the highest 

contribution rate for a plan that is no 

longer in endangered or critical status. 

The highest contribution rate is the 

greater of— 

(1) The employer’s contribution rate, 

for a calendar year plan, as of December 

31, 2014, and for other than a calendar 

year plan, as of the last day of the first 

plan year that ends on or after December 

31, 2014 (the ‘‘freeze date’’) plus any 

contribution increases after the freeze 

date, and before the employer’s 

withdrawal date that are determined in 

accordance with the rules under 

§ 4219.3(a)(2)(ii); or 

(2) The highest contribution rate for 

any plan year after the plan year that 

includes the expiration date of the first 

collective bargaining agreement of the 

withdrawing employer requiring plan 

contributions that expires after the plan 

is no longer in endangered or critical 

status, or, if earlier, the date as of which 

the withdrawing employer renegotiated 

a contribution rate effective after the 

plan year the plan is no longer in 

endangered or critical status. 

Issued in Washington, DC. 

William Reeder, 

Director, Pension Benefit Guaranty 

Corporation. 

[FR Doc. 2019–00491 Filed 2–5–19; 8:45 am] 

BILLING CODE 7709–02–P 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 38 and 39 

RIN 2900–AQ28 

Government-Furnished Headstones, 

Markers, and Medallions; Unmarked 

Graves 

AGENCY: Department of Veterans Affairs. 

ACTION: Proposed rule. 

SUMMARY: The Department of Veterans 

Affairs (VA) proposes to amend its 

regulations related to the provision of 

government-furnished headstones, 

markers, and medallions. These 

proposed revisions would clarify 

eligibility for headstones, markers, or 

medallions, would establish 

replacement criteria for such 

headstones, markers, and medallions 

consistent with VA policy, would define 

the term ‘‘unmarked grave’’ consistent 

with VA policy, and would generally 

reorganize and simplify current 

regulatory language for ease of 

understanding. 

DATES: Written comments must be 

received on or before April 8, 2019. 

ADDRESSES: Written comments may be 

submitted through 

www.Regulations.gov; by mail or handdelivery 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–AQ28— 

Government-Furnished Headstones, 

Markers, and Medallions; Unmarked 

Graves.’’ 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: 

Kimberly Wright, Director, Office of 

Field Programs, National Cemetery 

Administration (NCA), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW, Washington, DC 20420. Telephone: 

(202) 461–6748 (this is not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: In 

accordance with 38 U.S.C. 2306(a), VA 

must ‘‘furnish, when requested, 

appropriate Government headstones or 

markers at the expense of the United 

States for the unmarked graves of’’ 

eligible individuals as further listed in 

sec. 2306(a)(1)–(5). The regulations 

governing the provision of Government 

headstones and markers are found in 38 

CFR part 38, specifically 38 CFR 38.600 

and §§ 38.630 through 38.632. We 

propose to revise these regulations to 

conform to statutory amendments made 

by Public Law 114–315, 130 Stat. 1536 


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2094 Federal Register / Vol. 84, No. 25 / Wednesday, February 6, 2019 / Proposed Rules 

(2016); Public Law 115–136, 132 Stat. 

343 (2018); and Public Law 115–141, 

132 Stat. 348 (2018). Additional 

proposed changes would clarify 

eligibility for burial and memorial 

headstones and markers, as well as 

medallions; would reorganize and 

simplify current regulatory language; 

and would define the term ‘‘unmarked 

grave’’ in a manner consistent with 

current VA policy. Because this 

rulemaking would reorganize a large 

portion of current §§ 38.630 through 

38.632, we offer the following chart to 

indicate where applicable provisions in 

the current regulations would be located 

(with revision in some cases) in the 

proposed new regulatory framework: 

Current regulation Location of applicable provisions in 

proposed regulation 

§ 38.600(a)(1) ........................................................................................... § 38.630(c)(1). 

§ 38.600(a)(2) ........................................................................................... § 38.631(c)(1). 

§ 38.600(b) ................................................................................................ § 38.600(a)(1)–(9). 

§ 38.630(a) and (b) ................................................................................... §§ 38.630(b)(2) and 38.631(b)(2). 

§ 38.630(c) ................................................................................................ § 38.631(a) and (b)(2)(i)–(ii). 

§ 38.630(c)(1) ............................................................................................ § 38.631(a). 

§ 38.630(c)(1)(i)–(iii) .................................................................................. § 38.631(a)(1)(i)–(iii). 

§ 38.630(c)(2) ............................................................................................ § 38.631(c)(2). 

§ 38.630(c)(3)(i)–(ii) .................................................................................. § 38.631(a)(1)(i)–(ii). 

§ 38.631(a) ................................................................................................ § 38.630(a)(2)(i) and (b)(1)(iii)(A)–(B). 

§ 38.631(b)(1) ........................................................................................... § 38.630(a)(2)(ii)(A). 

§ 38.361(b)(2) ........................................................................................... § 38.630(a)(2)(i). 

§ 38.631(b)(3) ........................................................................................... § 38.630(a)(2)(i)(A)–(F). 

§ 38.631(c) and (d) ................................................................................... §§ 38.630(b)(4)(i) and 38.631(b)(4). 

§ 38.631(e) ................................................................................................ § 38.630(b)(1)(iii)(C). 

§ 38.631(f) ................................................................................................. § 38.630(b)(2)(ii). 

§ 38.632(a) ................................................................................................ §§ 38.630(b)(1), 38.631(b)(1), and 38.632(a). 

§ 38.632(b) ................................................................................................ § 38.632(b). 

§ 38.632(c) ................................................................................................ §§ 38.630(b)(1) and 38.631(b)(1). 

§ 38.632(d) ................................................................................................ § 38.632(c). 

§ 38.632(e) ................................................................................................ § 38.632(d). 

§ 38.632(f) ................................................................................................. § 38.632(e). 

§ 38.632(g) ................................................................................................ § 38.632(f). 

§ 38.632(h) ................................................................................................ § 38.632(g). 

§ 38.600 Definitions 

Current § 38.600 defines terms that 

apply throughout 38 CFR part 38, 

related to the provision of headstones, 

markers, and medallions as well as the 

provision of other burial or 

memorialization benefits. We would 

remove definitions of the term 

‘‘applicant’’ from current § 38.600(a)(1) 

and (2) and relocate them to proposed 

§§ 38.630(c)(1) and 38.631(c)(1), 

respectively. The definition of 

‘‘applicant’’ in current § 38.600(a)(1) 

relates to burial headstones and 

markers, and its relocation to proposed 

§ 38.630(c)(1) would be consistent with 

the proposed reorganization and 

revision of § 38.630 to address burial 

headstones and markers as explained 

later in this rulemaking. The definition 

of ‘‘applicant’’ in current § 38.600(a)(2) 

relates to memorial headstones and 

markers, and its relocation to proposed 

§ 38.631(c)(1) would be consistent with 

the proposed reorganization and 

revision of § 38.631 to address memorial 

headstones and markers as explained 

later in this rulemaking. 

With the proposed removal and 

relocation of the definitions of 

‘‘applicant’’ in current § 38.600(a)(1) 

and (2), proposed § 38.600(a) would 

state that the definitions in proposed 

§ 38.600 apply to 38 CFR part 38. The 

definitions in current § 38.600(b) would 

then be numbered in proposed 

§ 38.600(a)(1)–(9) without any proposed 

revisions, and we would revise 

§ 38.600(b) to clarify that other terms 

not defined in proposed § 38.600(a)(1)– 

(9) may be defined in and be applicable 

to other sections of 38 CFR part 38, as 

this is presently the case (see, e.g., 

definitions of ‘‘outer burial receptacle’’ 

in § 38.629(a) and ‘‘emblem of belief’’ in 

§ 38.632(b)(2)). The authority citation 

for § 38.600 would also be revised. 

§ 38.620 Persons Eligible for Burial 

Section 2402 of title 38, U.S.C., 

establishes eligibility for burial in 

national cemeteries. Section 251 of 

Public Law 115–141, Div. J, enacted on 

March 23, 2018, amended 38 U.S.C. 

2402(a) to establish such eligibility for 

individuals, or spouses of individuals, 

naturalized pursuant to sec. 2(1) of the 

Hmong Veterans’ Naturalization Act of 

2000 (Pub. L. 106–207, 114 Stat. 316 

(2000)) (i.e., certain refugees from Laos 

who served with a special guerilla unit, 

or irregular forces, operating from a base 

in Laos in support of the U.S. military 

from February 28, 1961, to September 

18, 1978) and were residing in the 

United States at the time of the 

individual’s death. Section 251 of 

Public Law 115–141 further limits this 

eligibility to those individuals whose 

deaths occurred on or after the date of 

the law’s enactment on March 23, 2018. 

We propose to add a new paragraph (j) 

to current § 38.620 to reflect this 

expanded eligibility for interment in a 

national cemetery, consistent with 38 

U.S.C. 2402(a)(10). 

§ 38.630 Burial Headstones and 

Markers; Medallions 

VA provides burial headstones and 

markers (headstones or markers 

provided for placement at the graves of 

eligible individuals) in accordance with 

applicable authority under 38 U.S.C. 

2306(a). We propose to unite all 

pertinent information regarding such 

headstones or markers into proposed 

§ 38.630, with the new title ‘‘Burial 

headstones and markers; medallions.’’ 

New proposed § 38.630(a)(1) would 

articulate eligibility for burial 

headstones and markers for the 

unmarked graves of certain eligible 

individuals as provided under 38 U.S.C. 

2306(a), and proposed § 38.630(a)(1)(i)– 

(iv) would list those eligible individuals 

in accordance with sec. 2306(a)(1)–(5). 

Proposed § 38.630(a)(1)(i) would 

restate from sec. 2306(a)(1) the 

eligibility for a burial headstone or 

marker for an individual buried in a 

national cemetery or in a post cemetery, 

and would make a non-substantive 

clarification that a post cemetery is a 


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‘‘military’’ post cemetery. Proposed 

paragraph (a)(1)(i) would additionally 

provide that when more than one 

individual is buried in a single gravesite 

in a national cemetery, VA will, if 

feasible, include inscription information 

for all such individuals on a single 

headstone or marker, rather than 

furnishing a separate headstone or 

marker for each buried individual. This 

additional language related to multiple 

interments would primarily account for 

VA’s practice (since assuming 

jurisdiction over most national 

cemeteries in 1973) to inter more than 

one eligible individual in a single 

gravesite, such as when a veteran is 

buried in the same gravesite as a spouse 

or dependent child. The use of a single 

headstone or marker to identify multiple 

interred individuals in a single gravesite 

is an administrative necessity for 

national cemeteries. 

Proposed § 38.630(a)(1)(ii) would 

establish, consistent with sec. 

2306(a)(2), the eligibility for a burial 

headstone or marker for certain 

individuals who are eligible for burial in 

a national cemetery, but who are buried 

elsewhere (e.g., are buried in a state, 

tribal, private, or local government 

cemetery). There are certain individuals 

that meet this criterion, but are 

nevertheless excluded by sec. 

2306(a)(2): Namely, persons or classes of 

persons enumerated in sec. 2402(a)(4), 

(5), and (6). Therefore, proposed 

§ 38.630(a)(1)(ii)(A)–(F) would establish 

eligibility for a headstone or marker 

outside of a national cemetery in 

accordance with sec. 2306(a)(2), by only 

including the persons or classes of 

persons enumerated in sec. 2402(a)(1), 

(2), (3), (7), (8), and (10). (We note that 

eligibility for burial under sec. 

2402(a)(9) is necessarily in a national 

cemetery, and therefore is not included 

in proposed § 38.630(a)(1)(ii)). Proposed 

§ 38.630(a)(1)(ii)(A)–(F) would 

additionally reference relevant VA 

regulations related to eligibility for 

burial in a national cemetery in current 

§ 38.620, as well as in proposed 

§ 38.620(j). Finally, proposed 

§ 38.630(a)(1)(ii) would clarify that the 

unmarked graves for such burial 

headstones and markers may be located 

in any type of non-national cemetery 

(e.g., state, tribal, private, or local 

government cemetery), as there is no 

limiting language regarding location of 

graves for those individuals who are 

eligible under sec. 2306(a)(2). 

Proposed § 38.630(a)(1)(iii) would 

restate from sec. 2306(a)(3) the 

eligibility for a burial headstone or 

marker for soldiers of the Union and 

Confederate Armies of the Civil War, 

and would additionally state that the 

unmarked graves for such headstones or 

markers may be located in any type of 

non-national cemetery (e.g., state, tribal, 

private, or local government cemetery), 

as there is no limiting language 

regarding location of graves for 

individuals who are eligible under sec. 

2306(a)(3). 

Proposed § 38.630(a)(1)(iv) would 

restate from sec. 2306(a)(4) the 

eligibility for a burial headstone or 

marker for certain spouses and 

dependents not buried in a national 

cemetery, but only to be placed in 

cemeteries owned by a State, as sec. 

2304(a)(4) does have this specific 

limiting language regarding location of 

the unmarked graves. We note that these 

same spouses and dependents are 

eligible for burial in a national 

cemetery, and therefore such unmarked 

graves in a national cemetery may also 

receive upon request a headstone or 

marker under sec. 2306(a)(1) and 

proposed § 38.630(a)(1)(i). 

Proposed § 38.630(a)(2) would 

address the provision of burial 

headstones, markers, or medallions for 

the graves of certain individuals, 

notwithstanding that such graves may 

already be marked by a headstone or 

marker furnished at private expense, in 

accordance with 38 U.S.C. 2306(d). 

Proposed § 38.630(a)(2) would move 

and revise information that is located in 

current § 38.631 related to the provision 

of headstones and markers for marked 

graves located in private cemeteries. By 

moving language from current and 

standalone § 38.631, to proposed 

§ 38.630(a)(2), we would clarify that 

headstones and markers provided for 

the marked graves of certain individuals 

are a type of burial headstone and 

marker and, by using the header 

‘‘marked graves’’ for proposed 

§ 38.630(a)(2), would distinguish it from 

the burial headstones and markers 

provided for ‘‘unmarked graves’’ in 

proposed § 38.630(a)(1). Proposed 

§ 38.630(a)(2)(i)(A)–(F) would expressly 

list those individuals eligible for a 

headstone or marker for marked graves 

in accordance with 38 U.S.C. 2306(d). 

We note that VA interprets the term 

‘‘private cemetery,’’ in the context of 

headstones and markers provided for 

marked graves under sec. 2306(d), to 

mean any non-national cemetery in 

which a privately purchased marker has 

been placed. We reviewed the 

legislative history of sec. 2306(d) and 

we do not believe that Congress 

intended to limit the sec. 2306(d) 

benefit to only those cemeteries that are 

strictly privately owned. Moreover, the 

applicability date in proposed 

§ 38.630(a)(2)(ii) (i.e., date of death on or 

after November 1, 1990) accords with 

the date prescribed by Congress in sec. 

8041 of Public Law 101–508, 104 Stat. 

1388 (1990), when it eliminated the 

option for families to request and 

receive a monetary allowance to 

purchase their own headstone or 

marker, in lieu of requesting and 

receiving a Government-furnished 

headstone or marker. This option to 

receive a monetary allowance in lieu of 

a Government-furnished headstone or 

marker had formerly been available 

from 1978–1990 (see sec. 203, Pub. L. 

95–476, 92 Stat. 1497 (1978)). From 

November 1, 1990, through December 

27, 2001, VA was not authorized to 

provide a Government-furnished 

headstone or marker for an already 

marked grave in a private cemetery. 

Section 502 of Public Law 107–103, 115 

Stat. 976 (2001), first authorized VA to 

provide Government-furnished 

headstones or markers for graves that 

were already marked with privately 

purchased headstones or markers, for 

Veterans who died on or after the date 

Public Law 107–103 was effective, 

which was December 27, 2001. VA 

colloquially refers to these Governmentfurnished headstones and markers for 

already marked graves as ‘‘second 

markers.’’ Section 203 of Public Law 

107–330, 116 Stat. 2820 (2002), changed 

the applicability date for Governmentfurnished second markers for veterans 

who died on or after September 11, 

2001, and sec. 203 of Public Law 110– 

157, 121 Stat. 1831 (2007), further 

changed the applicability date to 

include veterans who died on or after 

November 1, 1990. In changing the 

applicability date for the second marker 

to November 1, 1990, Congress intended 

to make the sec. 2306(d) authority 

‘‘retroactive to cover the 11-year gap’’ so 

that veterans who died in the time 

period from November 1, 1990, to 

September 11, 2001, (who previously 

were only able to receive Governmentfurnished headstones or markers if their 

graves were unmarked) would receive 

the same benefits as veterans who died 

on or after September 11, 2001 (see 153 

Cong. Rec. S13736 (daily ed. Nov. 2, 

2007) (statement by Sen. Akaka). By 

making the general applicability date for 

the second marker authority in sec. 

2306(d) retroactive to November 1, 

1990, Congress intended to provide 

parity between groups of veterans. We 

do not believe that Congress intended to 

limit this spirit of parity by only 

authorizing the second marker for 

strictly privately owned cemeteries, 

versus any non-national cemetery where 

privately purchased markers may be 

placed. VA has been administering the 

second marker benefit in sec. 2306(d) 


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under this broader interpretation and 

does not intend to apply a more 

restrictive interpretation in this 

proposed rule. Proposed § 38.630(a)(2)(i) 

would therefore clarify that burial 

headstones and markers for marked 

graves may be provided for certain 

eligible individuals in non-national 

cemeteries and would parenthetically 

include examples of such cemeteries 

(e.g., state, tribal, private, or local 

government cemetery). 

Proposed § 38.630(a)(2)(ii)(A) would 

restate from current § 38.631(b)(1) the 

eligibility criterion that the eligible 

individual’s date of death must have 

been on or after November 1, 1990. 

Proposed § 38.630(a)(2)(ii)(B) would 

establish additional eligibility criteria 

for a Medal of Honor recipient. 

Proposed paragraph (a)(2)(iii) would 

establish eligibility for a medallion, in 

lieu of a headstone or marker, for a 

marked grave. These latter two 

provisions are consistent with Public 

Law 114–315, sec. 301. See also 38 

U.S.C. 2306(d)(4) and (5). We note that 

VA has been providing these memorial 

benefits as applicable under Public Law 

114–315 since its enactment and that 

proposed § 38.630(a)(2)(ii)(B) and (iii) 

would merely conform VA regulation to 

VA authority and practice. 

Proposed § 38.630(b) would create a 

‘‘general’’ paragraph to move, combine, 

or newly establish regulatory language 

related to administrative aspects of VA’s 

provision of burial headstones and 

markers, to include the ordering or 

application process, styles and types, 

and criteria for replacement. Proposed 

§ 38.630(b)(1)(i) and (ii) would move 

and revise language that is currently 

located in § 38.632(c) related to the 

ordering and application process for 

Government-furnished headstones and 

markers, as 38 U.S.C. 2306(a) (burial 

headstones and markers for unmarked 

graves) and sec. 2306(d) (burial 

headstones and markers for marked 

graves) both provide that such 

headstones and markers are only 

furnished ‘‘when requested.’’ Proposed 

§ 38.630(b)(1)(i) would relocate the 

process in current § 38.632(c)(1) related 

to ordering headstones and markers, as 

part of the burial or memorialization 

arrangements, to be placed in those 

cemeteries that use NCA’s electronic 

ordering system. Proposed § 38.630(b)(1) 

would make non-substantive language 

changes from current § 38.632(c)(1) to 

improve readability, and would 

parenthetically note for clarity those 

types of cemeteries other than national 

cemeteries that are known to use NCA’s 

electronic ordering system (e.g., a State 

veterans cemetery or military post 

cemetery). Proposed § 38.630(b)(1)(ii) 

would relocate the process in current 

§ 38.632(c)(2) related to individuals 

applying for headstones and markers to 

be placed in those cemeteries that do 

not use NCA’s electronic ordering 

system. Proposed § 38.630(b)(1)(ii)(A) 

would restate the requirement from 

current § 38.632(c)(2) that applicants 

must complete and submit VA Form 40– 

1330, Claim for Standard Government 

Headstone or Marker, to order a 

headstone or marker for placement in a 

cemetery that does not use NCA’s 

electronic ordering system. 

Proposed § 38.630(b)(1)(ii)(B) would 

newly state in regulation the 

requirement to complete and submit VA 

Form 40–1330M, Claim for Government 

Medallion for Placement in a Private 

Cemetery, for an applicant to order a 

medallion to be affixed to a privately 

purchased headstone or marker, in 

accordance with VA’s authority under 

38 U.S.C. 2306(d)(4) to furnish, upon 

request, a medallion to signify the 

deceased individual’s status as a 

veteran. Because a medallion must also 

be requested under sec. 2306(d)(4) (as 

with a second marker), the same 

application process applies for a 

medallion as for a second marker, albeit 

a different form (VA Form 40–1330M) is 

used to apply for a medallion. 

Proposed § 38.630(b)(1)(iii) would 

relocate and simplify language in 

current § 38.632(c)(2) regarding where to 

locate and how to complete VA Form 

40–1330, and would newly provide the 

same information for VA Form 40– 

1330M. 

Proposed § 38.630(b)(1)(iii)(A) would 

newly establish in regulation the VA 

practice that a Government-furnished 

headstone and marker that is requested 

for an unmarked grave is only to be 

provided for placement on or at that 

grave. This is a reasonable current 

practice, as 38 U.S.C. 2306(a) provides 

that a headstone or marker shall be 

furnished upon request ‘‘for the 

unmarked graves of’’ eligible 

individuals, which indicates 

Congressional intent that such 

headstones or markers be furnished for 

placement on or at such graves (versus, 

for instance, statutory language that 

would provide the headstone or marker 

‘‘for’’ the eligible individuals 

themselves). We believe this current 

practice is well known to the public, as 

VA Form 40–1330 currently states, 

under the submission instructions, that 

‘‘[h]eadstones and markers furnished 

remain the property of the United States 

Government and may not be used for 

any purpose other than to be placed at 

an eligible individual’s grave or in a 

memorial section within a cemetery.’’ 

Proposed § 38.630(b)(1)(iii)(A) would 

conform regulations to this known 

practice, by requiring an applicant for a 

burial headstone or marker provided for 

an unmarked grave to certify on VA 

Form 40–1330 that such headstone or 

marker will be placed on or at the grave 

for which it is requested. 

Proposed § 38.630(b)(1)(iii)(B) would 

move and revise language from current 

§ 38.631(a), which requires that 

individuals requesting a burial 

headstone or marker for a marked grave 

in a private cemetery must certify 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. We note that current § 38.631(a) 

is essentially a restatement of the 

statutory certification requirement in 38 

U.S.C. 2306(d)(1). 

Both proposed paragraphs 

(b)(1)(iii)(A) and (B) would further 

require these certifications when 

placement would occur in a local 

government cemetery (the definition of 

‘‘local government’’ is discussed later in 

this rulemaking) as well as private 

cemeteries. Additionally, applying these 

certification requirements to local 

government cemeteries is reasonable, 

because VA does not know with 

certainty whether or how such 

cemeteries’ administrative procedures 

might dictate the placement of burial 

headstones or markers. For instance, 

these certification requirements for 

placement of burial headstones and 

markers need not apply to national 

cemeteries, because national cemeteries 

must mark every grave in accordance 

with 38 U.S.C. 2404(c). Similarly, VA 

knows from experience that State and 

tribal cemeteries (particularly those that 

are established and improved through 

VA State cemetery grants) do not accept 

Government-furnished burial 

headstones and markers for purposes 

other than to place on or at a grave. 

Therefore, the applicant’s certifications 

regarding placement of the burial 

headstone or marker in proposed 

paragraph (b)(1)(iii)(A) and (B) would 

apply to private and local government 

cemeteries only. Proposed paragraphs 

(b)(1)(iii)(A) and (B) would require 

revisions to VA Form 40–1330, which is 

explained in the section of this 

rulemaking related to the Paperwork 

Reduction Act. 

Proposed § 38.630(b)(1)(iii)(C) would 

move and revise language from current 

§ 38.631(e), which requires that 

applicants requesting a burial headstone 

or marker for a marked grave in a 

private cemetery must obtain 

certification on VA Form 40–1330, from 


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a cemetery representative, that the type 

and placement of the headstone or 

marker requested adheres to the policies 

and guidelines of the selected private 

cemetery. This is not a statutory 

requirement, but an administrative 

requirement in current VA regulation to 

ensure that VA does not provide a 

headstone or marker that is of a type or 

style that a private cemetery would not 

accept (for instance, if a private 

cemetery only accepts flat markers, VA 

would not approve an application for an 

upright marble headstone to be placed 

in such a cemetery). Proposed paragraph 

(b)(1)(iii)(C) would essentially restate 

current § 38.631(e), except that the 

proposed language would apply to 

burial markers for unmarked graves as 

well as marked graves. We do not see a 

logical reason to apply this requirement 

to marked graves (as is the case in 

current § 38.631(e)) but not unmarked 

graves, and we believe the public is 

aware that this requirement applies to 

unmarked graves because there is a 

requirement on current VA Form 40– 

1330 for a cemetery representative to 

certify that the Government-furnished 

headstone or marker is the correct type 

for the designated cemetery, without 

distinguishing between marked versus 

unmarked graves. Proposed paragraph 

(b)(1)(iii)(C) would also require 

revisions to VA Form 40–1330, which is 

explained in the section of this 

rulemaking related to the Paperwork 

Reduction Act. 

Proposed § 38.630(b)(2) would 

establish a paragraph related to the 

styles and types of Governmentfurnished headstones and markers, as 

well as their inscriptions, and would 

move and revise language from current 

§ 38.630(a) and (b). Current § 38.630(a) 

and (b) are somewhat duplicative and 

confusing regarding the scope of current 

VA policies concerning headstone and 

marker styles, types, and inscriptions, 

and confusing regarding which VA 

official is responsible for establishing 

that policy. For instance, current 

§ 38.630(a) relates to the Secretary of 

Veterans Affairs establishing policy for 

headstone and marker materials as well 

as inscriptions, whereas current 

§ 38.630(b) relates to the Under 

Secretary for Memorial Affairs 

establishing policy only for inscriptions 

and further seems to apply VA’s 

inscription policies to private 

monuments. To reduce this duplication 

and confusion, proposed § 38.630(b)(2) 

would state that the styles and types of 

headstones and markers, as well as the 

inscriptions thereon to include an 

emblem of belief, will be provided in 

accordance with VA policy as well as in 

a manner consistent with 38 U.S.C. 

2306(c) and 2404(c). We note that NCA 

has established policy related to the 

styles, types, and inscriptions available 

for Government-furnished headstones 

and markers, to include emblems of 

belief (examples of styles, types, 

inscriptions, and available emblems of 

belief can be found on VA Forms 40– 

1330 and 40–1330M). Proposed 

§ 38.630(b)(2) would further newly 

reference applicable VA statutes related 

to allowable materials for Government 

headstones and markers under 38 U.S.C. 

2306(c), and related to certain 

inscription and style criteria for 

headstones and markers in national 

cemeteries under 38 U.S.C. 2404(c). 

These statutory criteria would not be 

newly implemented, but merely newly 

referenced in regulation. 

Proposed § 38.630(b)(2)(i) would 

newly establish in regulation that the 

styles and types of burial headstones 

and markers, as well as the inscriptions 

thereon, may be limited in accordance 

with certain requirements including 

aesthetic and administrative 

requirements of the cemetery in which 

the headstone or marker will be placed. 

This provision is new in regulation but 

is not a new criterion or restriction 

concerning VA’s provision of 

headstones and markers, as the style of 

headstone and marker is presently 

determined by a veteran’s era of service 

(e.g., Civil War era versus current era), 

and the types of headstones and markers 

can be further determined by size, 

space, or other restrictions of a cemetery 

prior to installation (such as when a flat 

bronze marker must be placed instead of 

an upright marble headstone). 

Proposed § 38.630(b)(2)(ii) would 

move and revise language from current 

§ 38.631(f), to implement the 

requirement in 38 U.S.C. 2306(d)(3) that 

headstones and markers provided for 

marked graves in private cemeteries (for 

certain eligible individuals under sec. 

2306(d)) be among those that VA makes 

available for selection generally. We 

interpret sec. 2306(d)(3) to require VA to 

make available the same types of 

headstones and markers for both 

unmarked and marked graves under sec. 

2306(a) and 2306(d), respectively, and 

proposed § 38.630(b)(2)(ii) would clarify 

this interpretation. 

Proposed § 38.630(b)(2)(iii) would 

establish in regulation the current VA 

practice of providing a headstone or 

marker that indicates a deceased’s status 

as a Medal of Honor recipient as 

applicable. Proposed § 38.630(b)(2)(iii) 

would expressly apply to headstones 

and markers for both unmarked graves 

and marked graves. We interpret 38 

U.S.C. 2306(d)(5)(A), which requires VA 

to provide, upon request, a headstone or 

marker for a marked grave (for certain 

eligible individuals) that signifies the 

deceased’s status as a Medal of Honor 

recipient, applies similarly to unmarked 

graves. Proposed § 38.630(b)(2)(iii) 

would clarify this interpretation. 

Proposed § 38.630(b)(2)(iv) would 

restate the portion of current 

§ 38.632(c)(2) related to requirements for 

requesting an emblem of belief that is 

not offered in VA’s inventory of images 

for emblems of belief (a ‘‘new’’ emblem 

of belief) to be inscribed on a headstone 

or marker, and would cross reference 

current § 38.632 that describes the 

process for requesting a new emblem of 

belief. VA’s current inventory of images 

for emblems of belief can be found on 

VA Form 40–1330. 

Proposed § 38.630(b)(3) would newly 

establish in regulation the criteria that 

exist in current VA policy, more 

specifically NCA Notice 2004–06 (Dec. 

21, 2004), regarding replacement of 

Government-furnished headstones, 

markers, and medallions because they 

warrant replacement. Although the 

governing statutes do not clearly 

provide that VA’s authority to furnish 

headstones, markers, or medallions 

includes authority to furnish 

replacements as needed, the function of 

these benefits is to memorialize veterans 

and other eligible individuals in 

perpetuity, and therefore we believe it is 

reasonable and necessary to interpret a 

general replacement authority. To 

ensure that these benefits continue to 

fulfill their intended function of 

marking a veteran’s grave, VA interprets 

that it may replace Governmentfurnished headstones, markers, or 

medallions if they cease to be 

serviceable (i.e., they no longer 

reasonably function to identify the 

decedent), or for other administrative 

reasons related to ensuring that the 

correct style and type of headstone or 

marker has been provided or related to 

changing or adding inscription 

information if required. 

Proposed § 38.630(b)(3)(i) would 

establish that replacements would occur 

upon request, as for any headstone, 

marker, or medallion that may be 

provided under 38 U.S.C. 2306, if one 

of the specified bases for replacement is 

satisfied. Proposed paragraphs 

(b)(3)(i)(A)–(E) would state the primary 

reasons currently found in NCA Notice 

2004–06 that VA considers a 

Government-furnished headstone or 

marker to warrant replacement. 

Proposed paragraphs (b)(3)(i)(A)–(C) are 

self-explanatory as listed and relate to 

the serviceability of a headstone or 

marker, where VA would replace a 

Government-furnished headstone or 


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marker if: It is damaged beyond repair; 

it has deteriorated to the extent it no 

longer serves to identify the buried 

decedent (e.g., identifying elements of 

an inscription are not legible, such as a 

decedent’s name or a grave number for 

an unknown decedent), or, in the case 

of a medallion, no longer serves to 

identify the buried decedent as a 

veteran or as a Medal of Honor recipient 

if applicable; or it has been stolen or 

vandalized. 

Proposed paragraph (b)(3)(i)(D) relates 

to ensuring the correct headstone or 

marker style or type is provided, where 

VA would provide a replacement if the 

incorrect style or type for the veteran’s 

era of service was initially provided. 

Proposed paragraph (b)(3)(i)(E) relates 

to ensuring that the Governmentfurnished headstone or marker conveys 

accurate and requested inscription 

information, where VA would provide a 

replacement to correct or add 

inscription information for the reasons 

in proposed paragraphs (b)(3)(i)(E)(1)– 

(5), all of which are current VA practice 

unless otherwise noted below. We note 

that these reasons apply to inscription 

information for headstones and markers 

but not necessarily medallions, as 

medallions are only inscribed with the 

word ‘‘Veteran’’ in accordance with the 

purpose of a medallion to identify the 

deceased’s status as a veteran under 38 

U.S.C. 2306(d)(4)(A). Therefore, we will 

only refer to headstones and markers in 

explaining the proposed replacement 

reasons related to adding or correcting 

inscription information. 

Proposed paragraph (b)(3)(i)(E)(1) 

would provide for a replacement 

headstone or marker to correct errors in 

factual information that was provided to 

VA as part of the initial application 

process. The most common types of 

factual errors for which VA receives 

replacement requests relate to a 

decedent’s name or dates of birth or 

death, so proposed paragraph 

(b)(3)(i)(E)(1) would include a nonexhaustive parenthetical example to that 

effect. 

We note that proposed paragraph 

(b)(3)(i)(E)(1) is written to capture 

factual errors in information provided to 

VA, meaning VA was a party to the 

initial provision of the Governmentfurnished headstone or marker. Because 

VA took control of Governmentfurnished headstones or markers when 

it assumed jurisdiction over a majority 

of national cemeteries in 1973 (see Pub. 

L. 93–43, sec. 2, 87 Stat. 75 (1973)), 

proposed paragraph (b)(3)(i)(E)(1) would 

not apply to those Governmentfurnished headstones or markers 

provided prior to 1973. VA is currently 

examining how to best address possible 

replacement of Government-furnished 

headstones or markers that were 

provided prior to 1973, when the reason 

for replacement is the assertion of a 

factual inscription error. Present NCA 

Notice 2015–01 (July 23, 2015) provides 

some guidance for replacement of older 

Government-furnished headstones or 

markers (those 50 years or older as of 

the date of the replacement request) due 

to assertions of factual inscription 

errors, where NCA examines primary 

source documentation from the 

requestor, as well as other available 

information, to determine whether it is 

more likely than not that the existing 

inscription has factual errors (and if so, 

to provide a replacement). However, a 

50-year time frame to apply this ‘‘more 

likely than not’’ standard does not fully 

coincide with when VA took control of 

the headstone and marker program. 

Further, NCA has received requests to 

replace historic headstones and markers 

(primarily from the Civil War era) based 

on a desire to correct inscriptions (or 

inscription practices) from the 19th 

century or add new information found 

through modern research, where such 

corrections or additions might make an 

inscription more accurate but would not 

necessarily correct critical inaccuracies 

related to identifying the buried 

individual. With Government-furnished 

headstones or markers provided prior to 

1973, particularly those that are 

approaching or are older than 100 years, 

VA must weigh requests to correct 

inscriptions for factual errors against 

considerations that such inscriptions 

were based on information that was 

then available, and that such headstones 

and markers may be part of a larger, 

collective historic landscape. VA 

therefore invites comments on this 

proposed rule on whether or how VA 

should establish distinct replacement 

criteria to correct factual errors for 

Government-furnished headstones and 

markers provided prior to 1973. 

Proposed paragraph (b)(3)(i)(E)(2) 

would provide for a replacement 

headstone or marker to indicate 

information related to the deceased’s 

military service that is provided to VA 

after the initial application. Changes to 

an inscription for this reason are most 

often requested when additional 

information becomes available regarding 

the deceased’s posthumous receipt of a 

military award, so proposed paragraph 

(b)(3)(i)(E)(2) would include a nonexhaustive parenthetical example to that 

effect. 

Proposed paragraph (b)(3)(i)(E)(3) 

would provide for a replacement 

headstone or marker to identify on a 

single headstone or marker multiple 

decedents who are each eligible for a 

Government-furnished headstone or 

marker and are buried in the same 

gravesite in a cemetery. Proposed 

paragraph (b)(3)(i)(E)(3) would primarily 

account for VA’s longstanding practice 

(since assuming jurisdiction over most 

national cemeteries in 1973) to inter 

more than one eligible individual in a 

single gravesite, such as when a veteran 

is buried in the same gravesite as a 

spouse or dependent child. 

Replacement of a headstone or marker 

to identify multiple interments in a 

gravesite is an administrative necessity 

for national cemeteries. Proposed 

paragraph (b)(3)(i)(E)(3) would not be 

limited to only national cemeteries, 

however, to ensure parity if this same 

practice of multiple interments might 

occur in non-national cemeteries. 

Proposed paragraph (b)(3)(i)(E)(3) would 

specifically indicate that this type of 

replacement may occur only if the 

multiple decedents are each eligible for 

a Government-furnished headstone or 

marker, to ensure it is clear that we 

would not be expanding eligibility for 

headstones and markers for nonnational cemeteries in a manner that is 

not consistent with 38 U.S.C. 2306. 

Proposed paragraph (b)(3)(i)(E)(3) would 

include replacing a Governmentfurnished burial headstone and marker 

to add a memorial inscription for that 

individual’s surviving spouse or eligible 

dependent child, rather than furnishing 

a separate burial headstone or marker 

for that individual’s surviving spouse or 

eligible dependent child, in accordance 

with sec. 2306(g)(1). 

Proposed paragraph (b)(3)(i)(E)(4) 

would provide for a replacement 

headstone or marker to indicate the 

deceased’s status as a Medal of Honor 

recipient if applicable, for a headstone 

or marker provided for a marked grave 

in accordance with 38 U.S.C. 

2306(d)(5)(B). This is a relatively new 

authority that was added to sec. 2306 by 

sec. 301 of Public Law 114–315, and 

would be included in this proposed rule 

to implement a specific replacement 

reason under statute. 

Proposed paragraph (b)(3)(i)(E)(5) 

would allow the decedent’s next of kin 

as indicated in NCA’s records systems 

to request that VA replace a headstone 

or marker to add or correct inscription 

information for any reason not listed in 

proposed paragraphs (b)(3)(i)(E)(1)–(4), 

if the request is received by VA within 

six months after the initial headstone or 

marker was provided. We would 

establish this broad authority for 

replacement, with a time-limited 

duration to make the request, primarily 

because family members may not visit a 

gravesite for an extended period of time 

after a burial or after a headstone or 


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marker is installed (most often due to 

travel difficulties or grief-related 

reasons). In such cases, we want to 

ensure that family members get the 

memorialization benefit that they 

consider satisfactory to memorialize the 

decedent, within the bounds of what VA 

provides generally for all those eligible 

for the headstone or marker benefit. In 

general, VA has received requests from 

family members to add or change 

inscription information that does not 

affect the factual accuracy of a 

headstone or marker (such as adding a 

decedent’s middle initial, or adding 

terms of endearment, to the inscription). 

Although VA would want to provide a 

headstone or marker that a decedent’s 

family ultimately finds satisfactory, we 

must balance the family’s interest in 

that regard with VA’s interest of not 

unnecessarily replacing a Governmentfurnished headstone or marker that is 

serviceable to reasonably identify the 

decedent. Therefore, we would impose 

a time limit of six months in which 

replacement could be requested under 

this proposed provision. In addition, 

proposed paragraph (b)(3)(i)(E)(5) would 

require that such a replacement request 

must come from the deceased’s next of 

kin as indicated in NCA’s records 

systems, to prevent multiple and 

possibly contradictory family requests 

for inscription changes. Proposed 

paragraph (b)(3)(i)(E)(5) would 

implement in regulation a replacement 

reason similar to that contained in 

current NCA policy, although NCA 

Directive 2004–06 does not impose the 

six-month limitation or the next of kin 

of record requirement. We interpret 

these additional criteria in proposed 

paragraph (b)(3)(i)(E)(5) to be reasonable 

and necessary to assist VA in properly 

managing the headstone and marker 

benefit. 

In keeping with current NCA policy, 

proposed § 38.630(b)(3)(ii) would state 

that replacement headstones and 

markers to be provided will be of the 

same style and type, to include 

inscription information, as those being 

replaced—NCA refers to this practice as 

‘‘in-kind’’ replacement. Proposed 

§ 38.630(b)(3)(ii) would provide for 

exceptions to this ‘‘in-kind’’ 

replacement to permit replacements to 

be of a different style or type, or have 

different inscription information, if the 

reason for replacement is related to 

type, style, or inscription under 

proposed paragraph (b)(3)(i)(D) or (E), 

and the replacement would necessarily 

have to differ in style, type, or 

inscription information. 

Proposed § 38.630(b)(3)(iii) would 

establish in regulation the process for 

requesting replacement headstones, 

markers, or medallions, which is 

essentially the same as the process of 

requesting Government-furnished 

headstones, markers, or medallions 

initially. As in proposed 

§ 38.630(b)(1)—related to application for 

Government-furnished headstones, 

markers, and medallions—proposed 

paragraph (b)(3)(iii)(A) would restate the 

process of ordering a replacement 

through NCA’s electronic ordering 

systems (where the replacement will be 

installed in a cemetery that uses such 

systems), and proposed paragraph 

(b)(3)(iii)(B) would restate the process of 

completing and submitting VA Form 

40–1330 or 40–1330M (where the 

replacement will be installed in a 

cemetery that does not use NCA’s 

electronic ordering systems). 

We reiterate that the reasons for 

replacement in proposed paragraphs 

(b)(3)(i)(A)–(E), the ‘‘in-kind’’ 

replacement policy in proposed 

paragraph (b)(3)(ii), and the process of 

requesting replacements in proposed 

paragraph (b)(3)(iii), are all based on 

NCA Notice 2004–06, and reflect 

current practice except where otherwise 

indicated. 

Proposed § 38.630(b)(4) would newly 

establish a ‘‘limitations’’ paragraph in 

regulation, and proposed paragraph 

(b)(4)(i) would relocate language from 

current § 38.631(c) and (d), which state 

that VA does not pay for the cost of 

installing a headstone or marker in a 

non-national cemetery, although VA 

does deliver the headstone or marker 

directly to such cemetery or to a 

receiving agency for delivery to the 

cemetery. Although current § 38.631(c) 

and (d) apply to only burial headstones 

and markers for marked graves under 38 

U.S.C. 2306(d) (specifically, see limiting 

language in sec. 2306(d)(2)), and only 

‘‘private’’ cemeteries are technically 

referenced in sec. 2306(d) and in current 

§ 38.631, proposed § 38.630(b)(4) would 

apply the same cost limitation and 

delivery procedure to headstones and 

markers for unmarked graves, and for all 

non-national cemeteries and not just 

those that are privately owned. We 

would establish these requirements in 

regulations for burial headstones and 

markers for unmarked graves consistent 

with current practice. The cost 

limitation for both unmarked and 

marked graves is already established 

through a VA Form 40–1330 

certification that the headstone or 

marker ‘‘will be installed in the 

cemetery listed in block 27 at no 

expense to the Government.’’ Proposed 

§ 38.630(b)(4)(ii) would newly establish 

for Government-furnished medallions 

the same cost limitation as for burial 

headstones and markers in proposed 

paragraph (b)(4)(i), but proposed 

paragraph (b)(4)(ii) would provide for 

delivery directly to the applicant for the 

medallion as opposed to the cemetery 

where the privately purchased marker is 

located (and upon which the medallion 

is to be affixed), as this is current VA 

practice. 

Proposed § 38.630(b)(5) would newly 

establish in regulation the existing NCA 

policy related to ownership, alteration, 

and disposition of Governmentfurnished headstones, markers, and 

medallions, in accordance with NCA 

Notice 2011–05 and applicable Federal 

statutes. Proposed § 38.630(b)(5) would 

provide that all Government-furnished 

headstones, markers, and medallions 

remain the property of the Government 

in perpetuity and should not be defaced 

or altered in any way, and that 

knowingly converting Government 

property to private use (such as using 

whole or partial headstones or markers 

in structures or landscaping, or offering 

such items for sale) is a violation of 

Federal law under 18 U.S.C. 641. These 

would not be new requirements, but 

would merely make VA regulations 

consistent with VA policy in NCA 

Notice 2011–05 and would cross 

reference otherwise applicable Federal 

statute. Proposed § 38.630(b)(5)(ii) 

would provide that, under 38 CFR 

1.218(b)(5), the destruction, mutilation, 

defacement, injury, or removal of any 

monument, gravestone, or other 

structure within the limits of any 

national cemetery is prohibited (with an 

associated fine of $500) and that, under 

18 U.S.C. 1361, willful depredation of 

any property of the United States (e.g., 

a headstone or marker in a non-national 

cemetery) shall be punishable by a fine 

or imprisonment under title 18, U.S.C. 

This would also not be a new policy 

requirement, and further would not be 

a new regulatory requirement (as it is 

already enforceable under § 1.218(b)(5)), 

but we find it appropriate to include it 

as part of the general reorganization of 

these regulations in this proposed rule. 

Proposed § 38.630(b)(5)(iii) would 

establish that when a Governmentfurnished burial headstone, marker, or 

medallion is removed from a gravesite 

area in any cemetery (due to it 

warranting replacement under 

paragraph (b)(3) of this section, or in 

cases of disinterment where the 

headstone or marker will not be placed 

at a new gravesite), it should be 

properly disposed. Proposed 

§ 38.630(b)(5)(iii) would further 

establish that unless such a headstone 

or marker would be maintained by NCA 

for historic purposes, if the headstone or 

marker was stone, it must be physically 


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broken into small enough pieces to 

ensure no portion of the inscription is 

legible and to ensure no part is available 

for any private, personal, or commercial 

use, and if it was bronze must be 

returned to VA for recycling. These 

would not be new requirements, but 

would merely make VA regulations 

consistent with VA policy in NCA 

Notice 2011–05 (May 19, 2011). 

Proposed § 38.630(c) would establish 

a definitions paragraph to relocate and 

revise current regulatory definitions, 

and newly define terms related to burial 

headstones and markers. As stated 

previously in this rulemaking, the 

definition of the term ‘‘applicant’’ in 

current § 38.600(a)(1) would be moved 

to proposed § 38.630(c)(1). We would 

also propose a minor revision to the 

current definition of ‘‘applicant’’ in 

§ 38.600(a)(1) to remove the phrase ‘‘that 

will mark the gravesite or burial site of’’ 

an eligible individual, to account for the 

provision of burial headstones and 

markers for marked graves under 

proposed § 38.630(a)(2) (as the provision 

of a headstone or marker for an already 

marked grave under 38 U.S.C. 2306(d) 

does not, in effect, mark the grave 

again). Proposed § 38.630(c)(1) would 

read that ‘‘[a]n applicant for a burial 

headstone or marker for an eligible 

deceased individual, or an applicant for 

a medallion to be affixed to a privately 

purchased headstone or marker, may 

be’’ certain eligible individuals, and 

proposed paragraph (c)(1)(i)–(vi) would 

restate the eligible individuals listed in 

current § 38.600(a)(1)(i)–(vi). 

Proposed § 38.630(c)(2) would newly 

define in regulation the term 

‘‘ascertainable,’’ to clarify how that term 

would be interpreted in the newly 

proposed definition of ‘‘unmarked 

grave’’ that will be explained in 

proposed § 38.630(c)(6); the proposed 

definition of ‘‘ascertainable’’ will be 

explained in the portion of this 

rulemaking devoted to the proposed 

definition of ‘‘unmarked grave.’’ 

Proposed § 38.630(c)(3) would newly 

define ‘‘local government’’ to mean the 

administrative body of a local 

geographic area that is not a state, such 

as a county, city, or town. This 

definition would be relevant in the few 

places that ‘‘local government’’ is used 

in proposed § 38.630(a) and (b), and 

proposed § 38.631(a), related to where 

headstones and markers might be 

placed, as well as related to 

administrative components of the 

application process for headstones and 

markers. 

Proposed § 38.630(c)(4) would newly 

define in regulation the term ‘‘Medal of 

Honor recipient’’ in a manner consistent 

with 38 U.S.C. 2306(d)(5)(D), where this 

definition is relevant for eligibility for 

headstones and markers under proposed 

§ 38.630(a)(2). 

Proposed § 38.630(c)(5) newly would 

define ‘‘privately purchased and durable 

headstone or marker’’ to mean a 

headstone or marker that was not 

purchased or provided by the 

Government, and that is made of 

material (such as but not limited to 

stone) that is lasting and not anticipated 

to unduly degrade under exposure to 

the environment in which it is placed. 

We believe this proposed definition of 

‘‘privately purchased and durable 

headstone or marker’’ is self-explanatory 

and would capture those types of 

headstones and markers that are not 

purchased by the Government, and that 

are placed by families or others in nonnational cemeteries with the intent of 

lasting memorialization of decedents. 

This proposed definition of ‘‘privately 

purchased and durable headstone or 

marker’’ would be relevant to the 

proposed definition of ‘‘unmarked 

grave’’ in proposed 38.360(c)(6). 

Because the definition of ‘‘unmarked 

grave’’ in proposed § 38.630(c)(6) would 

affect whether VA could provide a 

burial headstone or marker under 

proposed § 38.630(a), we explain the 

proposed definition of ‘‘unmarked 

grave’’ more fully below. 

The Proposed Definition of ‘‘Unmarked 

Grave’’ 

In accordance with 38 U.S.C. 2306(a), 

VA must ‘‘furnish, when requested, 

appropriate Government headstones or 

markers at the expense of the United 

States for the unmarked graves of’’ 

certain individuals listed in sec. 

2306(a)(1)–(5). The term ‘‘unmarked 

grave’’ is not defined in sec. 2306 or 

elsewhere in VA statute. The term 

‘‘unmarked grave’’ was similarly not 

defined in Federal statutes pertaining to 

national cemeteries prior to VA 

assuming control over such cemeteries 

through the National Cemeteries Act of 

1973 (Pub. L. 93–43). Although not 

defined in Federal statute, the term 

‘‘unmarked grave’’ was interpreted in 

relevant regulations of the Department 

of the Army, which applied to national 

cemeteries prior to 1973 (see former 

Army regulation 32 CFR 536.57(b)(3) 

(1961); § 536.57 was last updated in 

1964, 29 FR 16986). The definition of 

‘‘unmarked grave’’ in Army regulations 

was adopted by VA in 1982, in an NCA 

policy (see VA Department of Memorial 

Affairs Headstone and Marker Manual 

M40–3 (Dec. 1, 1982), para. 2.04) 

(hereinafter referred to as the ‘‘policy’’ 

or as ‘‘Manual M40–3’’), although VA 

did not, until now, seek to revise its 

regulations to be consistent with this 

policy. Proposed § 38.630(c)(6) would 

define ‘‘unmarked grave’’ consistent 

with NCA’s policy definition of 

‘‘unmarked grave’’ in its Manual M40– 

3, as well as in a manner consistent with 

former Army regulation and consistent 

with VA’s current statutory authorities, 

as further explained below. 

Former Army regulation at 32 CFR 

536.57(b)(3) established that a grave in 

a private cemetery is considered 

unmarked if: (1) A Government 

headstone or Government marker has 

not been furnished, or a private 

monument has not been erected; or (2) 

the condition of a previously furnished 

Government or private headstone or 

marker is such as to warrant 

replacement. This regulation was first 

promulgated in 1959 (24 FR 4595, June 

5, 1959), and remained substantively 

unchanged from 1959–1972 (see 26 FR 

2643, Mar. 29, 1961; 29 FR 16986, Dec. 

11, 1964). In 1982, VA adopted the 

definition of ‘‘unmarked grave’’ from 

that regulation in Manual M40–3, 

paragraph 2.04.b. VA’s policy definition 

of ‘‘unmarked grave’’ provides that ‘‘the 

grave of a deceased military member or 

veteran in other than a Federal cemetery 

is considered unmarked if: (1) A 

Government headstone or marker has 

not been furnished or a privately 

purchased monument has not been 

erected at the grave. (2) The condition 

of a previously furnished Government 

or private headstone or marker is such 

as to warrant replacement.’’ See Manual 

M40–3, para. 2.04.b. 

Under former 32 CFR 536.57(b)(3)(i) 

and current paragraph 2.04.b.(1) of 

Manual M40–3, the first criterion for 

considering whether a grave is 

‘‘unmarked’’ is whether a Government 

headstone or marker or privately 

purchased monument has been erected 

on a grave, without consideration of 

specific characteristics such as style, 

type, or inscription information. A plain 

reading of this criterion means that, if a 

grave in a non-national cemetery has 

any existing monument, headstone or 

marker, then such a grave could not be 

considered ‘‘unmarked’’ and a 

Government-furnished headstone or 

marker could not be provided. This 

criterion is straight-forward in its 

assessment of whether a grave is 

considered ‘‘unmarked’’—either there 

is, or is not, a headstone, monument, or 

marker erected at the grave. 

Under former 32 CFR 536.57(b)(3)(ii) 

and current paragraph 2.04.b.(2) of 

Manual M40–3, the second criterion for 

considering whether a grave is 

‘‘unmarked’’ is whether the condition of 

a Government or privately purchased 

headstone or marker is such as to 

warrant replacement. This criterion is 


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not as straight-forward. In terms of a 

Government-furnished headstone or 

marker, we reiterate from previous 

discussion in this rulemaking that VA 

has established in policy (and would 

seek to establish in regulation) the 

reasons that Government-furnished 

headstones and markers might warrant 

replacement. In terms of a private 

headstone or marker, we similarly 

interpret former 32 CFR 536.57(b)(3)(ii) 

and paragraph 2.04.b.(2) of Manual 

M40–3 to mean that, if a privately 

purchased headstone or marker erected 

or installed on a grave ceases to be 

serviceable (i.e., it no longer reasonably 

functions to identify the decedent), the 

grave would be considered unmarked; 

and, if the decedent is otherwise eligible 

for a Government-furnished headstone 

or marker, the Government may then for 

the first time provide, upon request, a 

Government-furnished headstone or 

marker for that unmarked grave. (We do 

not technically consider this a 

‘‘replacement’’ of a privately purchased 

headstone or marker because the 

Government did not originally furnish 

such a headstone or marker.) 

Based on this interpretation of former 

regulation 32 CFR 536.57(b)(3)(ii) and 

paragraph 2.04.b.(2) of Manual M40–3 

that the Government would newly 

provide a headstone or marker if the 

existing privately purchased headstone 

or marker no longer functioned to 

reasonably identify a decedent (such 

that the grave would be considered 

unmarked), we would seek to establish 

in regulation two primary criteria by 

which to assess whether the privately 

purchased marker functioned to 

reasonably identify the decedent. First, 

we would assess whether the headstone 

or marker was durable, or made of a 

material (such as but not limited to 

stone) that is lasting and not anticipated 

to unduly degrade under exposure to 

the environment in which it is placed 

(in accord with the definition of 

‘‘privately purchased and durable 

headstone or marker’’ in proposed 

§ 38.630(c)(5), which would characterize 

‘‘durable’’ in this manner). The 

assessment of only the durability of a 

privately purchased headstone or 

marker, without further considering the 

specific styles, types, or specific 

inscription information, would establish 

a clear criterion that would permit VA 

to consistently evaluate a myriad of 

privately purchased markers. Second, 

we would assess whether a decedent’s 

name, if known, was ascertainable from 

the headstone or marker. Whether a 

decedent’s name was ascertainable 

would similarly provide a clear criterion 

for evaluating a myriad of privately 

purchased headstones and markers, as 

we believe that a name is adequate 

information to identify a buried 

decedent. Particularly, the assessment of 

whether a decedent’s name was 

‘‘ascertainable’’ from a privately 

purchased headstone or marker would 

mean that the headstone or marker 

could be considered as marking a grave, 

even if the name was not inscribed on 

the headstone or marker itself (for 

instance, if instead a numerical or other 

indicator is inscribed on the marker, 

where that indicator then corresponds 

to a burial ledger). To ensure this 

interpretation of the term 

‘‘ascertainable’’ is clear, we would 

further define ‘‘ascertainable’’ in 

proposed § 38.630(c)(2) to mean that a 

decedent’s name is ‘‘inscribed on the 

headstone or marker or discoverable 

from some inscription on the headstone 

or marker that corresponds to 

information that is reasonably accessible 

by the public (e.g., a corresponding 

burial ledger at the cemetery, or 

publicly available burial information 

accessible on the internet).’’ We clarify 

that both criteria would need to be met 

for a grave not to be considered 

‘‘unmarked’’—the privately purchased 

headstone or marker would have to be 

durable and the decedent’s name would 

have to be ascertainable from the 

headstone or marker. If either of these 

criteria were not met, the grave could be 

considered ‘‘unmarked.’’ 

Based on the rationale stated above, 

the current policy definition of 

‘‘unmarked grave’’ in paragraph 2.04.b. 

of Manual M40–3 would accordingly be 

revised by proposed § 38.630(c)(6), and 

proposed § 38.630(c)(6) would read as 

set out in the regulatory text below. The 

portion of the definition of ‘‘unmarked 

grave’’ in proposed § 38.630(c)(6)(i), 

related to a Government-furnished 

headstone or marker, is substantively 

the same as paragraphs 2.04.b.(1) and 

b.(2) in Manual M40–3, and proposed 

§ 38.630(c)(6)(i) would additionally 

cross reference proposed § 38.360(b)(3) 

for ease in locating the applicable 

proposed replacement criteria for 

Government-furnished headstones and 

markers that were discussed earlier in 

this rulemaking. The portion of the 

definition of ‘‘unmarked grave’’ in 

proposed § 38.630(c)(6)(ii), to include 

paragraphs (c)(6)(ii)(A)–(D) related to 

assessing the condition of a privately 

purchased marker to determine whether 

a grave could be considered 

‘‘unmarked,’’ would provide more detail 

than paragraph 2.04.b. in Manual M40– 

3. Because proposed § 38.630(c)(6)(ii) 

would clarify and modify current VA 

policy, we invite comments on those 

proposed provisions particularly, and 

offer commenters the following two 

alternatives to proposed 

§ 38.630(c)(6)(ii) that VA considered but 

ultimately did not propose. 

One alternative to proposed 

§ 38.630(c)(6)(ii) is that VA would assess 

whether a grave is unmarked by 

applying the minimal inscription 

criteria for headstones and markers in 

national cemeteries under 38 U.S.C. 

2404(c)(1) to privately purchased 

headstones or markers, where the 

absence of such minimal inscription 

information on a privately purchased 

marker would mean a grave could be 

considered unmarked. Section 

2404(c)(1) requires that each marker 

placed in a national cemetery ‘‘shall 

bear the name of the person buried, the 

number of the grave, and such other 

information as the Secretary shall by 

regulation prescribe.’’ We considered 

whether we could infer that the 

existence of these statutory criteria for 

national cemeteries meant that Congress 

intended for all graves of individuals 

who are eligible for Governmentfurnished headstones and markers 

should be marked with the same 

inscription information, regardless of 

the location of such graves. 

VA rejected this alternative for two 

reasons. First, Congress has only 

legislated inscription requirements for 

headstones and markers in VA national 

cemeteries. The lack of similar 

inscription requirements for the graves 

of individuals eligible for a 

Government-furnished headstone or 

marker that are located outside national 

cemeteries tends to indicate that 

Congress did not intend to apply these 

standards regardless of the location of 

such graves. See Cook v. Principi, 318 

F.3d 1334, 1339 (Fed. Cir. 2002) (en 

banc) (the expression of one thing in 

statute implies the exclusion of others). 

Indeed, the Government does not have 

jurisdiction over any non-national 

cemeteries. 

Second, Congress has consistently 

limited the provision of headstones and 

markers to only ‘‘unmarked graves,’’ 

first in appropriations language from 

1887 through 1925, and then in 

statutory language beginning in 1925 

that has remained consistent through 

the present day. (See, e.g., 

appropriations language that has 

applied the ‘‘unmarked grave’’ 

limitation at 24 Stat. 534, 25 Stat. 538, 

26 Stat. 400, 27 Stat. 377, 28 Stat. 405, 

29 Stat. 443, 30 Stat. 634, 31 Stat. 630, 

32 Stat. 463, 33 Stat. 495; see, e.g., 

statutory language that applied the 

‘‘unmarked grave’’ limitation at 38 Stat. 

630, 39 Stat. 286, 40 Stat. 130, 41 Stat. 

183, 42 Stat. 756, 43 Stat. 511, 43 Stat. 


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926.) If Congress intended for the 

provision of Government headstones or 

markers for the graves of eligible 

individuals with private headstones or 

markers that lacked certain inscription 

information, it could have expressly 

stated as much, for instance by defining 

the term ‘‘unmarked grave’’ to include a 

grave whose headstone or marker does 

not convey certain identifying 

information about the buried decedent. 

Instead, VA interprets that Congress has 

consistently intended for the term 

‘‘unmarked grave’’ to be an 

administrative limitation of the 

Government headstones and marker 

benefit, as this term was used in 

appropriations language prior to statute, 

as stated above. See Microsoft Corp. v. 

i4i Ltd. P’ship, 564 U.S. 91, 101 (2011) 

(presuming that Congress chose 

language that accurately express its 

legislative purpose). As an 

administrative limitation on a 

Government benefit, the term 

‘‘unmarked grave’’ would have no 

practical effect if it permitted the 

provision of a Government headstone or 

marker for a grave where a privately 

purchased headstone or marker already 

existed, merely because such a 

headstone or marker fails to convey the 

same inscription information as a 

Government headstone or marker. 

Because it would undermine Congress’s 

selected language to interpret the term 

‘‘unmarked grave’’ in a manner that 

would negate its function as a limitation 

on the headstone and marker benefit, 

VA does not believe that the term 

‘‘unmarked grave’’ may be interpreted to 

encompass graves with privately 

purchased headstones or markers that 

merely do not convey the same 

inscription information as Government 

headstones and markers. 

For the reasons expressed above, VA 

does not believe that the existence of 

inscription requirements for national 

cemeteries under 38 U.S.C. 2404(c) 

creates the inference that such 

requirements should apply to graves 

located outside of national cemeteries, 

and we therefore believe that the 

definition of ‘‘unmarked grave’’ in 

proposed § 38.630(c)(6) would be more 

appropriate than this first alternative. 

We reiterate that the definition of 

‘‘unmarked grave’’ in proposed 

§ 38.630(c)(6) would require an 

assessment of whether a privately 

purchased headstone or marker 

reasonably serves to identify the buried 

decedent, such that VA would not find 

the mere existence of any privately 

purchased headstone or marker to mean 

that a grave could not be considered 

unmarked. 

A second alternative to proposed 

§ 38.630(c)(6)(ii) that VA considered 

was that VA would assess whether a 

grave is unmarked by examining the 

past efforts surrounding the placement 

of privately purchased headstones and 

markers, and determining if those efforts 

evidenced an intent to permanently 

memorialize decedents. If there was 

such evidence of intent to permanently 

memorialize decedents, VA would not 

consider the grave to be unmarked 

because VA would not seek to disturb 

those past efforts through the provision 

of Government-furnished headstone or 

markers. Under this alternative, VA 

would examine historical or other 

information that would tend to indicate 

whether the existing privately 

purchased headstones or markers were 

placed to serve as lasting memorials to 

decedents. VA has not chosen to 

propose this alternative for multiple 

reasons. First, we do not interpret that 

there is a basis in applicable statute that 

a third party’s intent to permanently 

memorialize a decedent can extinguish 

that decedent’s eligibility for a 

headstone or marker under 38 U.S.C. 

2306. Next, such intent would seem to 

be too subjective of a standard to 

evaluate, and therefore would not 

support consistent administration of 

benefits. For instance, would intent be 

evaluated based on consideration of all 

past memorialization efforts, or just the 

most recent efforts? Would the past 

memorialization efforts of certain 

groups of individuals (such as family 

members) be given deference over the 

efforts of other individuals? Even if such 

intent were to be a consideration, it 

would seem that VA would have to, in 

any case, assess whether an existing 

privately purchased headstone or 

marker was actually durable to serve as 

a lasting memorialization of the 

decedent. Because the durability of an 

existing privately purchased marker 

would be considered in any assessment 

of whether a grave was ‘‘unmarked,’’ we 

believe that the definition of ‘‘unmarked 

grave’’ in proposed § 38.630(c)(6)(ii) (in 

conjunction with the definition of 

‘‘privately purchased and durable 

marker’’ in proposed § 38.630(c)(5)) is 

more appropriate than this second 

alternative. 

We would lastly revise the statutory 

authority citation for proposed § 38.630. 

This revision would include sec. 203(b) 

of Public Law 110–157, which 

establishes the general applicability date 

(i.e., date of death on or after November 

1, 1990) for the second marker 

authorized under 38 U.S.C. 2306(d). 

§ 38.631 Memorial Headstones and 

Markers 

Proposed § 38.631 would address the 

provision of memorial headstones and 

markers for certain individuals whose 

remains are unavailable for burial, in 

accordance with 38 U.S.C. 2306(b). 

Proposed § 38.631 would move and 

revise information that is located in 

current § 38.630(c) to ensure that 

memorial headstones and markers are in 

a distinct section from burial headstones 

and markers, because eligibility differs 

for these two types of benefits. The title 

would be revised to ‘‘Memorial 

headstones and markers.’’ 

Proposed § 38.631(a) would restate 

from current § 38.630(c)(1) that VA will 

provide upon request a memorial 

headstone or marker for certain eligible 

individuals, and proposed 

§ 38.631(a)(1)(i)–(iii) would list those 

eligible individuals in accordance with 

38 U.S.C. 2306(b)(2)(A)–(C). Section 

2306(b)(2) was recently amended by 

Public Law 115–136, 132 Stat. 343 

(2018) to establish a consistent 

eligibility date for the provision of 

memorial headstones and markers to 

spouses, surviving spouses, and 

dependent children of veterans, where 

such spouses and children must have 

died on or after November 11, 1998. We 

note that VA has been providing these 

memorial benefits as applicable under 

Public Law 115–136 since its 

enactment, and that proposed 

§ 38.631(a)(1)(ii)–(iii) would merely 

conform VA regulation to VA authority 

and practice. 

Proposed § 38.631(a)(2) would newly 

establish in regulation that when VA 

has furnished a burial headstone or 

marker (under proposed 38 CFR 

38.630(a)(1)), VA would, if feasible, add 

a memorial inscription to that burial 

headstone or marker (or provide a 

replacement headstone or marker to 

newly include a memorial inscription) 

rather than furnishing a separate 

memorial headstone or marker for the 

surviving spouse or eligible dependent 

child of such individual, in accordance 

with 38 U.S.C. 2306(g)(1). Proposed 

§ 38.631(a)(3) would newly establish in 

regulation that when VA has furnished 

a memorial headstone or marker (under 

proposed § 38.631(a)(1)), VA would, if 

feasible, add a memorial inscription to 

that headstone or marker (or provide a 

replacement headstones or marker to 

newly include a memorial inscription) 

rather than furnishing a separate 

memorial headstone or marker for the 

surviving spouse or eligible dependent 

child of such individual, in accordance 

with 38 U.S.C. 2306(g)(2). Both 

proposed § 38.631(a)(2) and (3) would 


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be added in this eligibility section 

because they would be exceptions to 

providing a new and separate memorial 

headstone or marker for a veteran’s 

spouse or dependent child, consistent 

with sec. 2306(g)(1) and (2). We note 

that the ‘‘if feasible’’ language in both 

proposed § 38.631(a)(2) and (3), 

consistent with sec. 2306(g)(1) and (2), 

respectively, would allow but not 

mandate VA to follow this practice. 

As with proposed § 38.630(b) for 

burial headstones and markers, 

proposed § 38.631(b) would create a 

‘‘general’’ paragraph for memorial 

headstones and markers to move, 

combine, or newly establish regulatory 

language related to administrative 

aspects of providing Governmentfurnished memorial headstones and 

markers, to include the application 

process, styles and types, and criteria 

for replacement. The structure of 

proposed § 38.631(b)(1)–(5) generally 

mirrors that of proposed § 38.630(b)(1)– 

(5). Rather than reiterating here all of 

the rationale provided to explain 

proposed § 38.630(b)(1)–(5), we affirm 

instead that, where the criteria in 

proposed § 38.631(b)(1)–(5) are 

substantively identical to those in 

proposed § 38.630(b)(1)–(5), even if they 

do not share the exact same numbering, 

the same rationale provided for 

proposed § 38.360(b)(1)–(5) applies to 

§ 38.631(b)(1)–(5). 

The differences between the criteria 

in proposed §§ 38.360(b)(1)–(5) and 

38.361(b)(1)–(5) are the result of the key 

differences between burial and 

memorial headstones and markers, as 

memorial headstones and markers may 

only be provided when remains are 

unavailable for burial (resulting in no 

grave where a burial headstone or 

marker may be placed) in accordance 

with 38 U.S.C. 2306(b)(1). For instance, 

the application process in proposed 

§ 38.631(b)(1) has only one option for 

requesting headstones and markers 

through VA Form 40–1330, unlike in 

proposed § 38.630(b)(1) where the 

application can be made either as part 

of burial arrangements or by request 

through VA Form 40–1330 or VA Form 

40–1330M. Similarly, the certification 

requirement in proposed 

§ 38.630(b)(1)(iii)(A)–(B) (regarding 

headstone or marker placement on or 

near a veteran’s grave in private or local 

government cemeteries) is not 

established in proposed § 38.631(b)(1), 

as there is no grave in the context of a 

Government-furnished memorial 

headstone or marker. Additionally, 

there are no criteria related to 

medallions in proposed § 38.631 

generally, including paragraph (b)(1)– 

(5), as medallions are only related to the 

provision of burial headstones and 

markers under 38 U.S.C. 2306(d)(4). The 

differences between proposed 

§§ 38.631(b)(1)–(5) and 38.630(b)(1)–(5) 

also reflect any particular statutory or 

regulatory requirements that exist for 

memorial but not for burial headstones 

and markers. For instance, proposed 

§ 38.631(b)(2)(ii) and (b)(3)(i)(E)(1) 

would move and restate the requirement 

in current § 38.630(c) related to the 

mandatory inscription of ‘‘In Memory 

Of,’’ which applies only to memorial 

headstones and markers. 

Similar to proposed § 38.630(c) for 

burial headstones and markers, 

proposed § 38.631(c) would establish a 

definitions paragraph to relocate from 

current regulations, as well as newly 

define, those terms related to memorial 

headstones and markers. The definition 

of the term ‘‘applicant’’ for memorial 

headstones and markers in current 

§ 38.600(a)(2) would be moved to 

proposed § 38.631(c)(1) without 

substantive change. Proposed 

§ 38.631(c)(2) would move the 

definition of ‘‘unavailable remains’’ 

from current § 38.630(c)(2) without 

substantive change. 

Finally, the authority citation for 

proposed § 38.631 would be revised in 

accordance with the changes noted 

above. 

§ 38.632 Emblems of Belief 

As stated previously in this 

rulemaking, information related to the 

application process for a Governmentfurnished headstone or marker would be 

removed from current § 38.632(a) and 

(c), and placed in proposed § 38.630 

(related to burial headstones and 

markers) and in proposed § 38.631 

(related to memorial headstones and 

markers). With the proposed removal 

from current § 38.632 of information 

related to the application process for a 

Government-furnished headstone or 

marker, we would further propose to 

rename the § 38.632 header to read 

‘‘Emblems of belief,’’ as the remainder 

of § 38.632 after the proposed removal 

of application information would only 

relate to the process for requesting the 

approval of an emblem of belief to be 

inscribed on a Government-furnished 

headstone or marker. 

Proposed § 38.632(a) would remain a 

‘‘general’’ paragraph, but—with the 

proposed removal of the application 

information for Government-furnished 

headstones and markers—would read, 

‘‘This section contains procedures for 

requesting the inscription of new 

emblems of belief on Governmentfurnished headstones and markers.’’ 

Proposed § 38.632(b) would remain a 

‘‘definitions’’ paragraph with no 

changes. 

With the proposed removal of all 

language in current § 38.632(c) 

pertaining to application for 

Government-furnished headstones and 

markers, and relocation of that language 

to proposed §§ 38.630 and 38.631, 

current § 38.632(c) would be removed 

and § 38.632(d)–(h) would be 

redesignated as § 38.632(c)–(g), 

respectively, with some conforming 

amendments that update crossreferences, but no substantive changes. 

We note a non-substantive change to 

add a paragraph designation for 

language that immediately follows 

current § 38.632(h)(2)(ii) (see language 

immediately following § 38.632(h)(2)(ii), 

related to a 60-day timeframe in the 

emblem of belief process). This language 

related to the 60-day timeframe would 

be designated as proposed 

§ 38.632(g)(3), and current § 38.632(h)(3) 

and (4) would be redesignated to 

proposed § 38.632(g)(4) and (5), 

respectively. No other substantive 

changes are proposed for current 

§ 38.632. 

Conforming Amendments 

To conform to the above changes, we 

would remove the last sentence of 

current § 38.633(a)(2), which states that 

group memorial monuments ‘‘will be 

selected in accordance with policies 

established under 38 CFR 38.630,’’ as 

proposed § 38.630 would not relate to 

the selection of group memorial 

monuments. We would delete this 

sentence instead of proposing to update 

the cross reference to § 38.630, as none 

of the proposed regulatory changes in 

this rulemaking would relate to the 

selection of group memorial monuments 

(although VA does plan to propose such 

criteria in a separate future rulemaking). 

Additionally, cross-references in § 39.10 

will be updated accordingly to reflect 

the proposed changes to § 38.600 in this 

rulemaking. 

Lastly, the authority citation for part 

39 currently cites to, among other 

statutes, 25 U.S.C. 450b(l). This citation 

was included because the statute 

includes definitions relevant to tribal 

authorities to whom VA may make 

grants for veterans’ cemeteries. 

However, 25 U.S.C. 450b(l) has been 

transferred to 25 U.S.C. 5304(l). In 

addition, the pertinent definition is 

established under 38 U.S.C. 3765, which 

is among the other statutes cited in this 

authority citation, making the additional 

reference to title 25 unnecessary. This 

final rule amends the authority citation 

for part 39 by removing the citation to 

25 U.S.C. 450b(l). 


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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 are 

authorized. All VA guidance would be 

read to conform with this proposed 

rulemaking if possible or, if not 

possible, such guidance would be 

superseded by this rulemaking. 

Paperwork Reduction Act 

This proposed rule includes 

provisions that would amend a 

collection of information under the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501–3521) that is currently 

approved by the Office of Management 

and Budget (OMB) under OMB control 

number 2900–0222. Accordingly, under 

44 U.S.C. 3507(d), VA has submitted a 

copy of this rulemaking to OMB for 

review. 

Proposed § 38.630(b)(1)(iii)(A)–(C) 

would require revision of two existing 

certification statements on VA Form 40– 

1330, titled ‘‘Claim for Standard 

Government Headstone or Marker,’’ 

related to placement of a headstone or 

marker and related to following the 

receiving cemetery’s guidelines and 

procedures. The existing certifications 

on VA Form 40–1330 are broad enough 

to encompass proposed 

§ 38.630(b)(1)(iii)(A)–(C), but are not 

fully consistent. We note that the 

language in proposed 

§ 38.630(b)(1)(iii)(A)–(C) would merely 

move language from current § 38.631(a) 

and (e) without substantive change. The 

current certifications on VA Form 40– 

1330 are in a check-box format, which 

would not be changed—only the 

language in the certifications would be 

revised to be more consistent with the 

corresponding certification 

requirements in current and proposed 

regulations. The proposed revisions to 

the certifications further do not affect 

eligibility for a headstone, marker, or 

medallion, and would not increase or 

decrease the number of applicants using 

VA Form 40–1330. Therefore, these 

proposed revisions would not result in 

any increase or decrease in respondents, 

respondent burden hours, or respondent 

burden costs. 

Comments on the revisions to the 

approved collection of information 

contained in this proposed 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, or by email to oira_submission@

omb.eop.gov, 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; or through 

www.Regulations.gov. Comments 

should indicate that they are submitted 

in response to ‘‘RIN 2900–AQ28— 

Government-Furnished Headstones, 

Markers, and Medallions; Unmarked 

Graves.’’ 

OMB is required to make a decision 

concerning the revision of the collection 

of information contained in this 

proposed 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. Notice of OMB 

approval for this revised information 

collection will be published in a future 

Federal Register document. Until VA 

receives approval from OMB to revise 

the information collection, only the 

version of VA Form 40–1330 as a 

currently approved collection under 

OMB control number 2900–0222 will be 

used. 

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. 

Therefore, pursuant to 5 U.S.C. 605(b), 

this rulemaking is exempt from the 

initial and final regulatory flexibility 

analysis requirements of Secs. 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; 

distributive impacts; and equity). 

Executive Order 13563 (Improving 

Regulation and Regulatory Review) 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. Executive Order 

12866 (Regulatory Planning and 

Review) defines a ‘‘significant 

regulatory action,’’ requiring review by 

the OMB, unless OMB waives such 

review, as any regulatory action that is 

likely to result in a rule that may: (1) 

Have an annual effect on the economy 

of $100 million or more or adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local, 

or tribal governments or communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

Materially alter the budgetary impact of 

entitlements, grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) Raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

Order. The economic, interagency, 

budgetary, legal, and policy 

implications of this proposed rule have 

been reviewed, and it has been 

determined not to be a significant 

regulatory action under E.O. 12866. 

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 an 

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. 

List of Subjects 

38 CFR Part 38 

Administrative practice and 

procedure, Cemeteries, Claims, Crime, 

Veterans. 

38 CFR Part 39 

Cemeteries, Grant programs-veterans, 

Veterans. 

Signing Authority 

The Secretary of Veterans Affairs, or 

designee, approved this document and 

authorized the undersigned to sign and 

submit the document to the Office of the 


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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 11, 2019, for 

publication. 

Dated: January 11, 2019. 

Jeffrey M. Martin, 

Assistant Director, Office of Regulation Policy 

& Management, Office of the Secretary, 

Department of Veterans Affairs. 

For the reasons set forth in the 

preamble, 38 CFR parts 38 and 39 are 

proposed to be amended as follows: 

PART 38—NATIONAL CEMETERIES 

OF THE DEPARTMENT OF VETERANS 

AFFAIRS 

■ 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. 

■ 2. Revise § 38.600 to read as follows: 

§ 38.600 Definitions. 

(a) The following definitions apply to 

this part: 

(1) Appropriate State official means a 

State attorney general or other official 

with statewide responsibility for law 

enforcement or penal functions. 

(2) 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. 

(3) 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. 

(4) Federal capital crime means an 

offense under Federal law for which a 

sentence of imprisonment for life or the 

death penalty may be imposed. 

(5) Interment means the burial of 

casketed remains or the placement or 

scattering of cremated remains. 

(6) Life imprisonment means a 

sentence of a Federal or State criminal 

court directing confinement in a penal 

institution for life. 

(7) Memorialization means any action 

taken to honor the memory of a 

deceased individual. 

(8) Personal representative means 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 of 

the remains of or memorialization of a 

deceased individual. 

(9) 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. 

(b) Other terms not defined in 

paragraphs (a)(1) through (9) of this 

section may be defined within and be 

applicable to other sections throughout 

this part. 

(Authority: 38 U.S.C. 2404, 2411). 

■ 3. Amend § 38.620 by adding 

paragraph (j) to read as follows: 

§ 38.620 Persons eligible for burial. 

* * * * * 

(j) Any individual who: 

(1) Was naturalized pursuant to 

section 2(1) of the Hmong Veterans’ 

Nationalization Act of 2000 (Pub. L. 

106–207, 114 Stat. 316; 8 U.S.C. 1423 

note); and 

(2) At the time of the individual’s 

death resided in the United States; and 

(3) Died on or after March 23, 2018. 

* * * * * 

■ 4. Revise § 38.630 to read as follows: 

§ 38.630 Burial headstones and markers; 

medallions. 

(a) Eligibility—(1) Unmarked graves. 

VA will furnish, when requested under 

paragraph (b)(1)(i) or (ii) of this section, 

a burial headstone or marker for the 

unmarked grave of the following 

individuals: 

(i) Any individual buried in a national 

cemetery or in a military post cemetery. 

When more than one individual is 

buried in a single gravesite in a national 

cemetery, VA will, if feasible, include 

inscription information for all such 

individuals on a single headstone or 

marker, rather than furnishing a 

separate headstone or marker for each 

buried individual. 

(ii) The following individuals eligible 

for burial in a national cemetery but 

who are buried elsewhere, where such 

graves may be located in any type of 

non-national cemetery (e.g., state, tribal, 

private, or local government such as 

town or city cemetery): 

(A) Veterans as described in 

§ 38.620(a). 

(B) Members of a Reserve component 

of the Armed Forces, or members of the 

Army National Guard or the Air 

National Guard, whose deaths occurred 

under the conditions described in 

§ 38.620(b). 

(C) Members of the Reserve Officers’ 

Training Corps of the Army, Navy, or 

Air Force, whose deaths occurred under 

the conditions described in § 38.620(c). 

(D) Individuals who separated from 

military service and were entitled to 

retired pay under chapter 1223 of title 

10 [10 U.S.C. 12731 et seq.], as 

described in and subject to § 38.620(g). 

(E) Individuals who served in the 

organized military forces of the 

Government of the Commonwealth of 

the Philippines, or who served in the 

New Philippine Scouts, as described in 

and subject to § 38.620(h). 

(F) Individuals, or spouses of such 

individuals, who were naturalized 

pursuant to sec. 2(1) of the Hmong 

Veterans’ Nationalization Act of 2000, 

as described in and subject to 

§ 38.620(j). 

(iii) Soldiers of the Union and 

Confederate Armies of the Civil War, 

whose graves may be located in any 

type of non-national cemetery (e.g., 

state, tribal, private, or local government 

cemetery). 

(iv) Spouses, surviving spouses, and 

dependent children, as described in and 

subject to § 38.620(e), whose graves are 

located in a veterans’ cemetery owned 

by a State. 

(2) Marked graves. (i) Subject to 

paragraphs (a)(2)(ii) and (iii) of this 

section, VA will furnish, when 

requested under paragraph (b)(1)(ii) of 

this section, a burial headstone or 

marker for the graves of the following 

individuals who are buried in a nonnational cemetery (e.g., state, tribal, 

private, or local government cemetery), 

notwithstanding that such graves are 

already marked by a privately 

purchased headstone or marker. 

(A) Veterans as described in 

§ 38.620(a). 

(B) Members of a Reserve component 

of the Armed Forces, or members of the 

Army National Guard or the Air 

National Guard, whose deaths occurred 

under the conditions described in 

§ 38.620(b). 

(C) Members of the Reserve Officers’ 

Training Corps of the Army, Navy, or 

Air Force whose deaths occurred under 

the conditions described in § 38.620(c). 

(D) Individuals who separated from 

military service and were entitled to 

retired pay under chapter 1223 of title 

10 [10 U.S.C. 12731 et seq.], as 

described in and subject to § 38.620(g). 

(E) Individuals who served in the 

organized military forces of the 

Government of the Commonwealth of 

the Philippines, or who served in the 

New Philippine Scouts, as described in 

and subject to § 38.620(h). 

(F) Individuals, or spouses of such 

individuals, who were naturalized 

pursuant to sec. 2(1) of the Hmong 

Veterans’ Nationalization Act of 2000, 

as described in and subject to 

§ 38.620(j). 

(ii) An individual described in 

paragraph (a)(2)(i) of this section is 

eligible for a headstone or marker 

provided under paragraph (a)(2) of this 

section if: 

(A) The individual died on or after 

November 1, 1990; or 


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(B) They were a Medal of Honor 

recipient and served in the Armed 

Forces on or after April 6, 1917. 

(iii) In lieu of a headstone or marker 

provided under paragraph (a)(2) of this 

section, veterans described in paragraph 

(a)(2)(i)(A) of this section are eligible for 

a medallion to be affixed to their 

privately purchased headstone or 

marker if they served in the Armed 

Forces on or after April 6, 1917. 

(b) General—(1) Application. (i) When 

burial occurs in a cemetery that uses the 

National Cemetery Administration 

(NCA) electronic ordering system (e.g., 

national cemetery, State veterans’ 

cemetery, or military post cemetery), the 

headstone or marker provided under 

paragraph (a)(1) or (a)(2) of this section 

will be ordered by the applicable 

cemetery as part of the process of 

arranging burial. 

(ii) When burial occurs in a cemetery 

that does not use NCA’s electronic 

ordering system (e.g., private or local 

government cemetery), an applicant, as 

defined in paragraph (c)(1) of this 

section, may either: 

(A) Request a burial headstone or 

marker provided under paragraph (a)(1) 

or (2) of this section by completing and 

submitting VA Form 40–1330, Claim for 

Standard Government Headstone or 

Marker; or 

(B) Request a medallion provided 

under paragraph (a)(2)(iii) of this section 

to be affixed to a privately purchased 

headstone or marker, by completing and 

submitting VA Form 40–1330M, Claim 

for Government Medallion for 

Placement in a Private Cemetery. 

(iii) VA Forms 40–1330 and 40– 

1330M include application and 

submission instructions as well as 

additional information related to 

emblems of belief, and are accessible 

through the following links: https://

www.va.gov/vaforms/va/pdf/VA40- 

1330.pdf, and https://www.va.gov/ 

vaforms/va/pdf/VA40-1330M.pdf. 

(A) An applicant for a burial 

headstone or marker for an unmarked 

grave provided under paragraph (a)(1) of 

this section, for placement in a private 

cemetery or a local government 

cemetery, must certify on VA Form 40– 

1330 that such headstone or marker will 

be placed on or at the grave for which 

it is requested. 

(B) An applicant for a burial 

headstone or marker for a marked grave 

provided under paragraph (a)(2) of this 

section, for placement in a private 

cemetery or a local government 

cemetery, must certify on VA Form 40– 

1330 that such headstone or marker will 

be placed on the grave for which it is 

requested, or if such placement is not 

possible or practicable, as close as 

possible to the grave within the grounds 

of the cemetery in which the grave is 

located. 

(C) A representative of a private 

cemetery or local government cemetery 

that accepts delivery of a burial 

headstone or marker provided under 

paragraph (a)(1) or (2) of this section 

must certify on VA Form 40–1330 that 

placement of the headstone or marker 

adheres to the policies or guidelines of 

the cemetery in which the grave is 

located. 

(2) Styles, types, and inscriptions. The 

styles and types of burial headstones 

and markers provided under paragraphs 

(a)(1) and (2) of this section, as well as 

the inscriptions thereon to include an 

emblem of belief, will be provided in 

accordance with VA policy as well as in 

a manner consistent with 38 U.S.C. 

2306(c) and 2404(c). 

(i) The styles and types of burial 

headstones and markers made available 

for selection, as well as the inscriptions 

thereon, may be limited in accordance 

with certain requirements, including but 

not limited to aesthetic or 

administrative requirements of the 

cemetery in which the headstone or 

marker will be placed. 

(ii) The same styles and types of 

headstones and markers made available 

for selection by requestors of headstones 

and markers provided for unmarked 

graves under paragraph (a)(1) of this 

section shall be made available for 

requestors of headstones or markers for 

marked graves provided under 

paragraph (a)(2) of this section. 

(iii) Upon request under paragraph 

(b)(1)(i) or (ii) of this section, a 

headstone, marker, or medallion 

provided under paragraph (a)(1) or (2) of 

this section shall signify the deceased’s 

status as a Medal of Honor recipient as 

applicable. 

(iv) If an emblem of belief is requested 

that is not offered in VA’s inventory of 

images for emblems of belief, additional 

requirements apply under § 38.632. 

(3) Replacement. (i) Upon request, VA 

will replace a Government-furnished 

burial headstone, marker, or medallion, 

if the previously furnished headstone, 

marker, or medallion: 

(A) Is damaged beyond repair; or 

(B) Has deteriorated to the extent it no 

longer serves to identify the buried 

decedent (e.g., identifying elements of 

an inscription are not legible, such as a 

decedent’s name or a grave number for 

an unknown decedent) or, in the case of 

a medallion, no longer serves to identify 

the buried decedent as a veteran or as 

a Medal of Honor recipient if applicable; 

or 

(C) Has been stolen or vandalized; or 

(D) Is the incorrect style or type for 

the veteran’s era of service; or 

(E) Requires changing or adding 

inscription information for the 

following reasons: 

(1) To correct errors in factual 

information (such as name or dates of 

birth or death) provided to VA as part 

of the initial application process; 

(2) To indicate information related to 

the deceased’s military service that is 

provided to VA after the initial 

application process (such as the 

deceased’s posthumous receipt of 

military awards); 

(3) To identify on a single headstone 

or marker multiple decedents who are 

each eligible for a headstone or marker 

and who are buried in the same 

gravesite in a cemetery, to include 

identification of a spouse or dependent 

in accordance with 38 U.S.C. 2306(g)(1); 

or 

(4) To indicate the deceased’s status 

as a Medal of Honor recipient if 

applicable, for a headstone or marker 

provided for a marked grave under 

paragraph (a)(2) of this section, in 

accordance with 38 U.S.C. 

2306(d)(5)(B). 

(5) For any reason not listed in 

paragraphs (b)(3)(i)(E)(1) through (4) of 

this section, if the request to change or 

add inscription information is received 

from the decedent’s next of kin as 

indicated in NCA’s records systems, 

within six months of the initial 

headstone or marker being provided. 

(ii) To the extent practicable, 

replacement burial headstones and 

markers will be of the same style and 

type (to include inscription information) 

as those headstones or markers being 

replaced, except that style, type, or 

inscription information may differ for 

replacements if the reason for 

replacement is correction of the style, 

type, or inscription under one of the 

criteria in paragraphs (b)(3)(i)(D) and (E) 

of this section. 

(iii) Requests to replace Governmentfurnished burial headstones, markers, or 

medallions are made as follows: 

(A) Through NCA’s electronic 

ordering systems, when the headstone, 

marker, or medallion to be replaced is 

located in a cemetery that uses NCA 

electronic ordering systems; or 

(B) By completing and submitting VA 

Form 40–1330 or VA Form 40–1330M, 

when the headstone, marker, or 

medallion to be replaced is located in a 

cemetery that does not use NCA’s 

electronic ordering systems. 

(4) Limitations. (i) VA will not pay 

costs associated with installing a burial 

headstone or marker provided under 

this section for placement in a nonnational cemetery, but VA will deliver 


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such headstone or marker directly to the 

non-national cemetery where the grave 

is located or to a receiving agent for 

delivery to the cemetery. 

(ii) VA will not pay costs associated 

with affixing a medallion provided 

under paragraph (a)(2) of this section to 

a privately purchased headstone or 

marker in a non-national cemetery, but 

VA will deliver such medallion directly 

to the applicant. 

(5) Ownership, alteration, and 

disposition. (i) All Governmentfurnished headstones, markers, and 

medallions remain the property of the 

United States Government in perpetuity 

and should not be defaced or altered in 

any way. Knowingly converting 

Government property to private use 

(such as using whole or partial 

headstones or markers in structures or 

landscaping, or offering such items for 

sale) is a violation of Federal law under 

18 U.S.C. 641. 

(ii) Under 38 CFR 1.218(b)(5), the 

destruction, mutilation, defacement, 

injury, or removal of any monument, 

gravestone, or other structure within the 

limits of any national cemetery is 

prohibited, with an associated fine of 

$500. Under 18 U.S.C. 1361, willful 

depredation of any property of the 

United States (i.e., a headstone or 

marker in a non-national cemetery) shall 

be punishable by a fine or imprisonment 

under title 18, U.S.C. 

(iii) When a Government-furnished 

burial headstone, marker, or medallion 

is removed from any cemetery it should 

be properly disposed. Unless a 

headstone or marker that has been 

removed from a cemetery would be 

maintained by NCA for historic 

purposes, or in cases of disinterment 

would be relocated to a different 

gravesite, such headstones or markers 

made of stone must be physically 

broken into small enough pieces to 

ensure no portion of the inscription is 

legible and to ensure no part is available 

for any private, personal, or commercial 

use, and those made of bronze must be 

returned to VA for recycling. 

(c) Definitions—(1) Applicant. An 

applicant for a burial headstone or 

marker for an eligible deceased 

individual, or an applicant for a 

medallion to be affixed to a privately 

purchased headstone or marker, may be: 

(i) A decedent’s family member, 

which includes the decedent’s spouse or 

individual who was in a legal union as 

defined in 38 CFR 3.1702(b)(1)(ii) with 

the decedent; a child, parent, or sibling 

of the decedent, whether biological, 

adopted, or step relation; and any lineal 

or collateral descendant of the decedent; 

(ii) A personal representative, as 

defined in § 38.600(a)(8); 

(iii) A representative of a 

congressionally chartered Veterans 

Service Organization; 

(iv) An individual employed by the 

relevant state or local government 

whose official responsibilities include 

serving veterans and families of 

veterans, such as a state or county 

veterans service officer; 

(v) Any individual who is 

responsible, under the laws of the 

relevant state or locality, for the 

disposition of the unclaimed remains of 

the decedent or for other matters 

relating to the interment or 

memorialization of the decedent; or 

(vi) Any individual, if the dates of 

service of the veteran to be 

memorialized, or on whose service the 

eligibility of another individual for 

memorialization is based, ended prior to 

April 6, 1917. 

(2) Ascertainable. Ascertainable 

means inscribed on the headstone or 

marker or discoverable from some 

inscription on the headstone or marker 

that corresponds to information that is 

reasonably accessible by the public (e.g., 

a corresponding burial ledger at the 

cemetery, or publicly available burial 

information accessible on the internet). 

(3) Local government. Local 

government means the administrative 

body of a geographic area that is not a 

state, such as a county, city, or town. 

(4) Medal of Honor recipient. Medal of 

Honor recipient means an individual 

who is awarded the Medal of Honor 

under sec. 3741, 6241, or 8741 of title 

10 or sec. 491 of title 14, United States 

Code. 

(5) Privately purchased and durable 

headstone or marker. Privately 

purchased and durable headstone or 

marker means a headstone or marker 

that was not purchased or provided by 

the Government, and that is made of a 

material (such as but not limited to 

stone) that is lasting and not anticipated 

to unduly degrade under exposure to 

the environment in which it is placed. 

(6) Unmarked grave. Unmarked grave 

means a grave in a cemetery where: 

(i) A Government-furnished 

headstone or marker has not been 

erected or installed at the grave, or the 

condition of a Government-furnished 

headstone or marker erected or installed 

at the grave warrants replacement under 

paragraph (b)(3) of this section; and 

(ii) A privately purchased and durable 

headstone or marker, from which the 

buried individual’s name (if known) is 

ascertainable: 

(A) Has not been erected or installed 

at the grave; or 

(B) Is damaged beyond repair; or 

(C) Has deteriorated to the extent it no 

longer serves to identify the buried 

decedent (e.g., identifying elements of 

an inscription are not legible); or 

(D) Has been stolen or vandalized. 

(Authority: 38 U.S.C. 2306, 2402, 2404; sec. 

203(b), Pub. L. 110–157, 121 Stat. 1831). 

(The Office of Management and Budget 

has approved the information collection 

requirements in this section under 

control number 2900–0222.) 

■ 5. Revise § 38.361 to read as follows: 

§ 38.631 Memorial headstones and 

markers. 

(a) Eligibility. (1) VA will furnish, 

when requested under paragraph (b)(1) 

of this section, a memorial headstone or 

marker to commemorate the following 

individuals whose remains are 

unavailable: 

(i) A veteran (which includes an 

individual who dies in the active 

military, naval, or air service), where the 

headstone or marker may be provided 

for a national cemetery, State veterans 

cemetery, a private cemetery, or local 

government cemetery; 

(ii) A veteran’s spouse or surviving 

spouse (which includes a surviving 

spouse who had a subsequent 

remarriage) who died on or after 

November 11, 1998, where the 

headstone or marker may be provided 

for a national cemetery or a State 

veterans cemetery; 

(iii) A veteran’s dependent child who 

died on or after November 11, 1998, 

where that headstone or marker may be 

provided for a national cemetery or a 

State veterans cemetery, if that 

dependent child is: 

(A) Under the age of 21 years; 

(B) Under the age of 23 years if 

pursuing a course of instruction at an 

approved educational institution; or 

(C) Unmarried and became 

permanently physically or mentally 

disabled and incapable of self-support 

before reaching the age of 21 years, or 

before reaching the age of 23 years if 

pursuing a course of instruction at an 

approved educational institution. 

(2) When VA has furnished a burial 

headstone or marker under 

§ 38.630(a)(1), VA will, if feasible, add 

a memorial inscription to that headstone 

or marker (or provide a replacement 

headstone or marker to newly include a 

memorial inscription) rather than 

furnishing a separate memorial 

headstone or marker for the surviving 

spouse or eligible dependent child of 

such individual, in accordance with 38 

U.S.C. 2306(g)(1). 

(3) When VA has furnished a 

memorial headstone or marker under 

paragraph (a)(1) of this section for 

purposes of commemorating a veteran 

or an individual who died in the active 


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military, naval, or air service, VA will, 

if feasible, add a memorial inscription to 

that headstone or marker (or provide a 

replacement headstone or marker to 

newly include a memorial inscription) 

rather than furnishing a separate 

memorial headstone or marker for the 

surviving spouse or eligible dependent 

child of such individual, in accordance 

with 38 U.S.C. 2306(g)(2). 

(b) General—(1) Application. (i) An 

applicant, as defined in paragraph (c)(1) 

of this section, may request a memorial 

headstone or marker by completing and 

submitting VA Form 40–1330, Claim for 

Standard Government Headstone or 

Marker. VA Form 40–1330 includes 

application and submission instructions 

and is accessible through the following 

link: https://www.va.gov/vaforms/va/ 

pdf/VA40-1330.pdf. 

(ii) A representative of a private 

cemetery or local government cemetery 

that accepts delivery of a memorial 

headstone or marker must certify on VA 

Form 40–1330 that placement of the 

headstone or marker adheres to the 

policies or guidelines of the cemetery in 

which the grave is located. 

(2) Styles, types, and inscriptions. The 

styles and types of memorial headstones 

and markers provided under this 

section, as well as the inscriptions 

thereon to include emblems of belief, 

will be provided in accordance with VA 

policy as well as in a manner consistent 

with 38 U.S.C. 2306(c). 

(i) The styles and types of memorial 

headstones and markers made available 

for selection, as well as the inscriptions 

thereon, may be limited in accordance 

with certain requirements, including but 

not limited to aesthetic or 

administrative requirements of a 

cemetery. 

(ii) All inscriptions for memorial 

headstones and markers must be 

preceded by the phrase ‘‘In Memory 

Of’’. 

(iii) If an emblem of belief is 

requested that is not offered in VA’s 

inventory of images for emblems of 

belief, additional requirements apply 

under § 38.632. 

(3) Replacement. (i) Upon request, VA 

will replace a Government-furnished 

memorial headstone or marker, if the 

previously furnished headstone or 

marker: 

(A) Is damaged beyond repair; or 

(B) Has deteriorated to the extent it no 

longer serves to identify the decedent 

(e.g., identifying elements of an 

inscription are not legible, such as a 

decedent’s name); or 

(C) Has been stolen or vandalized; or 

(D) Is the incorrect style or type for 

the veteran’s era of service; or 

(E) Requires changing or adding 

inscription information for the 

following reasons: 

(1) The inscription is not preceded by 

the phrase ‘‘In Memory Of’’; or 

(2) To correct errors in factual 

information (such as name or dates of 

birth or death) provided to VA as part 

of the initial application process; or 

(3) To indicate information related to 

the deceased’s military service that is 

provided to VA after the initial 

application process (such as the 

deceased’s posthumous receipt of 

military awards); or 

(4) To identify a spouse or dependent 

in accordance with 38 U.S.C. 2306(g)(2); 

or 

(5) For any reason not listed in 

paragraphs (b)(3)(i)(E)(1) through (4) of 

this section, if the request to add or 

change inscription information is 

received from the decedent’s next of kin 

as indicated in NCA’s records systems, 

within six months of the headstone or 

marker initially being provided. 

(ii) To the extent practicable, 

replacement memorial headstones and 

markers will be of the same style and 

type (to include inscription information) 

as those being replaced, except that 

style, type, or inscription content may 

differ for replacement headstones and 

markers if one of the criteria under 

paragraphs (b)(3)(i)(D) and (E) of this 

section is the reason for replacement. 

(iii) Requests to replace Governmentfurnished memorial headstones and 

markers are made as follows: 

(A) Through NCA’s electronic 

ordering systems, when the headstone 

or marker to be replaced is located in a 

cemetery that uses NCA electronic 

ordering systems; or 

(B) By completing and submitting VA 

Form 40–1330, when the headstone or 

marker to be replaced is located in a 

cemetery that does not use NCA’s 

electronic ordering systems. 

(4) Limitations. VA will not pay the 

cost of installing a memorial headstone 

or marker provided under this section 

for placement in any cemetery that is 

not a national cemetery, but will deliver 

the headstone or marker directly to such 

cemetery or to a receiving agent for 

delivery to the cemetery. 

(5) Ownership, alteration, and 

disposition. (i) All Governmentfurnished memorial headstones and 

markers remain the property of the 

United States Government in perpetuity, 

and should not be defaced or altered in 

any way. Knowingly converting 

Government property to private use 

(such as using whole or partial 

headstones or markers in structures or 

landscaping, or offering such items for 

sale) is a violation of Federal law under 

18 U.S.C. 641. 

(ii) Under 38 CFR 1.218(b)(5), the 

destruction, mutilation, defacement, 

injury, or removal of any monument, 

gravestone, or other structure within the 

limits of any national cemetery is 

prohibited, with an associated fine of 

$500. Under 18 U.S.C. 1361, willful 

depredation of any property of the 

United States (i.e., a headstone or 

marker in a non-national cemetery) shall 

be punishable by a fine or imprisonment 

under title 18, U.S.C. 

(iii) When a Government-furnished 

memorial headstone or marker is 

removed from any cemetery (due to it 

warranting replacement under 

paragraph (b)(3) of this section), it 

should be properly disposed. Unless a 

memorial headstone or marker that has 

been removed from a cemetery would be 

maintained by NCA for historic 

purposes, such headstones and markers 

made of stone must be physically 

broken into small enough pieces to 

ensure no portion of the inscription is 

legible and to ensure no part is available 

for any private, personal, or commercial 

use, and those made of bronze must be 

returned to VA for recycling. 

(c) Definitions—(1) Applicant. An 

applicant for a memorial headstone or 

marker, to commemorate an eligible 

individual under paragraph (a)(1) of this 

section, must be a member of the 

decedent’s family, which includes: The 

decedent’s spouse or individual who 

was in a legal union as defined in 38 

CFR 3.1702(b)(1)(ii) with the decedent; 

a child, parent, or sibling of the 

decedent, whether biological, adopted, 

or step relation; and any lineal or 

collateral descendant of the decedent. 

(2) Unavailable remains. An 

individual’s remains are considered 

unavailable if they: 

(i) Have not been recovered or 

identified; or 

(ii) Were buried at sea, whether by the 

individual’s own choice or otherwise; or 

(iii) Were donated to science; or 

(iv) Were cremated and the ashes 

scattered without interment of any 

portion of the ashes. 

(Authority: 38 U.S.C. 2306, 2402, 2404). 

■ 6. Amend § 38.632 by: 

■ a. Revising the section heading and 

paragraph (a). 

■ b. Removing paragraph (c). 

■ c. Redesignating paragraphs (d) 

through (h) as paragraphs (c) through 

(g), respectively. 

■ d. In newly redesignated paragraph 

(c), revising the table. 

■ e. In newly redesignated paragraph (f), 

revising paragraphs (f)(2) and (5). 

■ f. In newly redesignated paragraph (g): 


amozie on DSK3GDR082PROD with PROPOSALS1
Federal Register / Vol. 84, No. 25 / Wednesday, February 6, 2019 / Proposed Rules 2109 

■ i. Revising paragraphs (g)(1) and (2). 

■ ii. Redesignating paragraphs (g)(3) and 

(4) as paragraphs (g)(4) and (5), 

respectively. 

■ iii. Adding new paragraph (g)(3). 

The revisions and addition read as 

follows: 

§ 38.632 Emblems of belief. 

(a) General. This section contains 

procedures for requesting the 

inscription of new emblems of belief on 

Government-furnished headstones and 

markers. 

* * * * * 

(c) * * * 

If the burial or memorialization of an eligible individual is in a: The applicant must: 

(1) Federally-administered cemetery or a State veterans cemetery that 

uses the NCA electronic ordering system.

(i) Submit a written request to the director of the cemetery where burial 

is requested indicating that a new emblem of belief is desired for inscription on a Government-furnished headstone or marker; and 

(ii) Provide the information specified in paragraph (d) of this section to 

the NCA Director of Memorial Programs Service. 

(2) Private cemetery (deceased eligible veterans only), Federally-administered cemetery, or a State veterans cemetery that does not use 

the NCA electronic ordering system.

(i) Submit a completed VA Form 40–1330 to the NCA Director of Memorial Programs Service, indicating in the REMARKS section of the 

form that a new emblem of belief is desired; and 

(ii) Provide the information specified in paragraph (d) of this section to 

the NCA Director of Memorial Programs Service. 

* * * * * 

(f) * * * 

(2) The applicant has submitted a 

certification concerning the emblem that 

meets the requirements of paragraph 

(d)(1) of this section. 

(i) In the absence of evidence to the 

contrary, VA will accept as genuine an 

applicant’s statement regarding the 

sincerity of the religious or functionally 

equivalent belief system of a deceased 

eligible individual. If a factual dispute 

arises concerning whether the requested 

emblem represents the sincerely held 

religious or functionally equivalent 

belief of the decedent, the Director will 

evaluate whether the decedent gave 

specific instructions regarding the 

appropriate emblem during his or her 

life and the Under Secretary will resolve 

the dispute on that basis. 

(ii) In the absence of such 

instructions, the Under Secretary will 

resolve the dispute in accordance with 

the instructions of the decedent’s 

surviving spouse. If the decedent is not 

survived by a spouse, the Under 

Secretary will resolve the dispute in 

accordance with the agreement and 

written consent of the decedent’s living 

next-of-kin. For purposes of resolving 

such disputes under this section, nextof-kin means the living person(s) first 

listed as follows: 

(A) The decedent’s children 18 years 

of age or older, or if the decedent does 

not have children; then 

(B) The decedent’s parents, or if the 

decedent has no surviving parents; then 

(C) The decedent’s siblings. 

* * * * * 

(5) The emblem meets the technical 

requirements for inscription specified in 

paragraph (d)(2) of this section. 

(g) * * * (1) A decision will be made 

on all complete applications. A request 

to inscribe a new emblem on a 

Government-furnished headstone or 

marker shall be granted if the Under 

Secretary for Memorial Affairs finds that 

the request meets each of the applicable 

criteria in paragraph (f) of this section. 

In making that determination, if there is 

an approximate balance between the 

positive and negative evidence 

concerning any fact material to making 

that determination, the Under Secretary 

shall give the benefit of the doubt to the 

applicant. The Under Secretary shall 

consider the recommendation of the 

Director of NCA’s Office of Field 

Programs and may consider information 

from any source. 

(2) If the Under Secretary for 

Memorial Affairs determines that 

allowing the inscription of a particular 

proposed emblem would adversely 

affect the dignity and solemnity of the 

cemetery environment or that the 

emblem does not meet the technical 

requirements for inscription, the Under 

Secretary shall notify the applicant in 

writing and offer to the applicant the 

option of either: 

(i) Omitting the part of the emblem 

that is problematic while retaining the 

remainder of the emblem, if this is 

feasible; or 

(ii) Choosing a different emblem to 

represent the religious or functionally 

equivalent belief that does not have 

such an adverse impact. 

(3) Applicants will have 60 days from 

the date of the notice to cure any 

adverse impact or technical defect 

identified by the Under Secretary. Only 

if neither option is acceptable to the 

applicant, the applicant’s requested 

alternative is also unacceptable, or the 

applicant does not respond within the 

60-day period, will the Under Secretary 

ultimately deny the application. 

* * * * * 

§ 38.633 [Amended] 

■ 7. Amend § 38.633 by removing the 

last sentence in paragraph (a)(2). 

PART 39—AID FOR THE 

ESTABLISHMENT, EXPANSION, AND 

IMPROVEMENT, OR OPERATION AND 

MAINTENANCE, OF VETERANS 

CEMETERIES 

■ 8. The authority citation for part 39 is 

revised to read as follows: 

Authority: 38 U.S.C. 101, 501, 2408, 2411, 

3765. 

Subpart A—General Provisions 

§ 39.10 [Amended] 

■ 9. Amend § 39.10 by removing ‘‘38 

CFR 38.600(b)’’ every place it currently 

appears and adding ‘‘38 CFR 38.600(a)’’ 

in its place. 

[FR Doc. 2019–00375 Filed 2–5–19; 8:45 am] 

BILLING CODE 8320–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R04–OAR–2018–0301; FRL–9988–99– 

Region 4] 

Air Plan Approval; NC: Readoption of 

Air Quality Rules and Removal of 

Oxygenated Gasoline Rules 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to approve 

several State Implementation Plan (SIP) 

revisions submitted by the North 

Carolina Department of Environmental 

Quality, Division of Air Quality (DAQ), 

on March 21, 2018, readopting and 

amending several air quality rules, and 

requesting to remove the rules for the 

oxygenated gasoline program. One of 

these SIP revisions also contains a noninterference demonstration, which 


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