[Federal Register Volume 84, Number 25 (Wednesday, February 6, 2019)]
[Proposed Rules]
[Pages 2093-2109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-00375]


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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.

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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 hand-delivery to the Director, 
Regulations Management (00REG), Department of Veterans Affairs, 810 
Vermont Ave. NW, Room 1063B, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-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 
Sec. Sec.  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

[[Page 2094]]

(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 Sec. Sec.  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:

------------------------------------------------------------------------
                                              Location of applicable
           Current regulation                provisions in  proposed
                                                    regulation
------------------------------------------------------------------------
Sec.   38.600(a)(1)....................  Sec.   38.630(c)(1).
Sec.   38.600(a)(2)....................  Sec.   38.631(c)(1).
Sec.   38.600(b).......................  Sec.   38.600(a)(1)-(9).
Sec.   38.630(a) and (b)...............  Sec.  Sec.   38.630(b)(2) and
                                          38.631(b)(2).
Sec.   38.630(c).......................  Sec.   38.631(a) and (b)(2)(i)-
                                          (ii).
Sec.   38.630(c)(1)....................  Sec.   38.631(a).
Sec.   38.630(c)(1)(i)-(iii)...........  Sec.   38.631(a)(1)(i)-(iii).
Sec.   38.630(c)(2)....................  Sec.   38.631(c)(2).
Sec.   38.630(c)(3)(i)-(ii)............  Sec.   38.631(a)(1)(i)-(ii).
Sec.   38.631(a).......................  Sec.   38.630(a)(2)(i) and
                                          (b)(1)(iii)(A)-(B).
Sec.   38.631(b)(1)....................  Sec.   38.630(a)(2)(ii)(A).
Sec.   38.361(b)(2)....................  Sec.   38.630(a)(2)(i).
Sec.   38.631(b)(3)....................  Sec.   38.630(a)(2)(i)(A)-(F).
Sec.   38.631(c) and (d)...............  Sec.  Sec.   38.630(b)(4)(i)
                                          and 38.631(b)(4).
Sec.   38.631(e).......................  Sec.   38.630(b)(1)(iii)(C).
Sec.   38.631(f).......................  Sec.   38.630(b)(2)(ii).
Sec.   38.632(a).......................  Sec.  Sec.   38.630(b)(1),
                                          38.631(b)(1), and 38.632(a).
Sec.   38.632(b).......................  Sec.   38.632(b).
Sec.   38.632(c).......................  Sec.  Sec.   38.630(b)(1) and
                                          38.631(b)(1).
Sec.   38.632(d).......................  Sec.   38.632(c).
Sec.   38.632(e).......................  Sec.   38.632(d).
Sec.   38.632(f).......................  Sec.   38.632(e).
Sec.   38.632(g).......................  Sec.   38.632(f).
Sec.   38.632(h).......................  Sec.   38.632(g).
------------------------------------------------------------------------

Sec.  38.600 Definitions

    Current Sec.  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 Sec.  38.600(a)(1) and (2) and relocate them to proposed 
Sec. Sec.  38.630(c)(1) and 38.631(c)(1), respectively. The definition 
of ``applicant'' in current Sec.  38.600(a)(1) relates to burial 
headstones and markers, and its relocation to proposed Sec.  
38.630(c)(1) would be consistent with the proposed reorganization and 
revision of Sec.  38.630 to address burial headstones and markers as 
explained later in this rulemaking. The definition of ``applicant'' in 
current Sec.  38.600(a)(2) relates to memorial headstones and markers, 
and its relocation to proposed Sec.  38.631(c)(1) would be consistent 
with the proposed reorganization and revision of Sec.  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 Sec.  38.600(a)(1) and (2), proposed Sec.  
38.600(a) would state that the definitions in proposed Sec.  38.600 
apply to 38 CFR part 38. The definitions in current Sec.  38.600(b) 
would then be numbered in proposed Sec.  38.600(a)(1)-(9) without any 
proposed revisions, and we would revise Sec.  38.600(b) to clarify that 
other terms not defined in proposed Sec.  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 Sec.  38.629(a) and ``emblem of belief'' in Sec.  
38.632(b)(2)). The authority citation for Sec.  38.600 would also be 
revised.

Sec.  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 Sec.  38.620 to reflect this expanded eligibility for 
interment in a national cemetery, consistent with 38 U.S.C. 
2402(a)(10).

Sec.  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 Sec.  38.630, with the new title ``Burial 
headstones and markers; medallions.''
    New proposed Sec.  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 
Sec.  38.630(a)(1)(i)-(iv) would list those eligible individuals in 
accordance with sec. 2306(a)(1)-(5).
    Proposed Sec.  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

[[Page 2095]]

``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 Sec.  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 Sec.  
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 Sec.  
38.630(a)(1)(ii)). Proposed Sec.  38.630(a)(1)(ii)(A)-(F) would 
additionally reference relevant VA regulations related to eligibility 
for burial in a national cemetery in current Sec.  38.620, as well as 
in proposed Sec.  38.620(j). Finally, proposed Sec.  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 Sec.  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 Sec.  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 Sec.  38.630(a)(1)(i).
    Proposed Sec.  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 Sec.  38.630(a)(2) would move and revise 
information that is located in current Sec.  38.631 related to the 
provision of headstones and markers for marked graves located in 
private cemeteries. By moving language from current and standalone 
Sec.  38.631, to proposed Sec.  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 Sec.  38.630(a)(2), would 
distinguish it from the burial headstones and markers provided for 
``unmarked graves'' in proposed Sec.  38.630(a)(1). Proposed Sec.  
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 Sec.  
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 Government-furnished 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 Government-furnished 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 Government-furnished 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)

[[Page 2096]]

under this broader interpretation and does not intend to apply a more 
restrictive interpretation in this proposed rule. Proposed Sec.  
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 Sec.  38.630(a)(2)(ii)(A) would restate from current Sec.  
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 
Sec.  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 Sec.  38.630(a)(2)(ii)(B) and (iii) would merely conform VA 
regulation to VA authority and practice.
    Proposed Sec.  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 Sec.  38.630(b)(1)(i) and 
(ii) would move and revise language that is currently located in Sec.  
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 Sec.  38.630(b)(1)(i) would relocate the process in current 
Sec.  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 Sec.  
38.630(b)(1) would make non-substantive language changes from current 
Sec.  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 
Sec.  38.630(b)(1)(ii) would relocate the process in current Sec.  
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 Sec.  38.630(b)(1)(ii)(A) would restate the 
requirement from current Sec.  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 Sec.  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 Sec.  38.630(b)(1)(iii) would relocate and simplify 
language in current Sec.  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 Sec.  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 Sec.  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 Sec.  38.630(b)(1)(iii)(B) would move and revise language 
from current Sec.  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 Sec.  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 Sec.  38.630(b)(1)(iii)(C) would move and revise language 
from current Sec.  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

[[Page 2097]]

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 
Sec.  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 Sec.  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 Sec.  38.630(b)(2) would establish a paragraph related to 
the styles and types of Government-furnished headstones and markers, as 
well as their inscriptions, and would move and revise language from 
current Sec.  38.630(a) and (b). Current Sec.  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 Sec.  38.630(a) 
relates to the Secretary of Veterans Affairs establishing policy for 
headstone and marker materials as well as inscriptions, whereas current 
Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  38.630(b)(2)(ii) would move and revise language from 
current Sec.  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 Sec.  
38.630(b)(2)(ii) would clarify this interpretation.
    Proposed Sec.  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 
Sec.  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 Sec.  38.630(b)(2)(iii) would 
clarify this interpretation.
    Proposed Sec.  38.630(b)(2)(iv) would restate the portion of 
current Sec.  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 Sec.  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 Sec.  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 Government-furnished 
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 Sec.  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

[[Page 2098]]

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 
Government-furnished 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 non-exhaustive 
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 Government-furnished headstone or 
marker. Because VA took control of Government-furnished 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 Government-
furnished 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 non-exhaustive 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 non-national 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 Government-furnished 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

[[Page 2099]]

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 
Government-furnished 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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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 Sec.  38.630(b)(4) would newly establish a ``limitations'' 
paragraph in regulation, and proposed paragraph (b)(4)(i) would 
relocate language from current Sec.  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 Sec.  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 Sec.  38.631, proposed Sec.  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 
Sec.  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 Sec.  38.630(b)(5) would newly establish in regulation the 
existing NCA policy related to ownership, alteration, and disposition 
of Government-furnished headstones, markers, and medallions, in 
accordance with NCA Notice 2011-05 and applicable Federal statutes. 
Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  38.630(b)(5)(iii) would establish 
that when a Government-furnished 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 Sec.  
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

[[Page 2100]]

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 Sec.  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 
Sec.  38.600(a)(1) would be moved to proposed Sec.  38.630(c)(1). We 
would also propose a minor revision to the current definition of 
``applicant'' in Sec.  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 Sec.  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 Sec.  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 Sec.  
38.600(a)(1)(i)-(vi).
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  38.630(a) and (b), and proposed Sec.  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 Sec.  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 Sec.  38.630(a)(2).
    Proposed Sec.  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 non-national 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 Sec.  
38.630(c)(6) would affect whether VA could provide a burial headstone 
or marker under proposed Sec.  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); Sec.  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 Sec.  
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

[[Page 2101]]

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 Sec.  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 Sec.  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 Sec.  38.630(c)(6), and proposed 
Sec.  38.630(c)(6) would read as set out in the regulatory text below. 
The portion of the definition of ``unmarked grave'' in proposed Sec.  
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 Sec.  38.630(c)(6)(i) would additionally cross 
reference proposed Sec.  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 Sec.  
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 Sec.  
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 Sec.  
38.630(c)(6)(ii) that VA considered but ultimately did not propose.
    One alternative to proposed Sec.  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 Government-
furnished 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.

[[Page 2102]]

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 
Sec.  38.630(c)(6) would be more appropriate than this first 
alternative. We reiterate that the definition of ``unmarked grave'' in 
proposed Sec.  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 Sec.  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 Sec.  
38.630(c)(6)(ii) (in conjunction with the definition of ``privately 
purchased and durable marker'' in proposed Sec.  38.630(c)(5)) is more 
appropriate than this second alternative.
    We would lastly revise the statutory authority citation for 
proposed Sec.  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).

Sec.  38.631 Memorial Headstones and Markers

    Proposed Sec.  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 
Sec.  38.631 would move and revise information that is located in 
current Sec.  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 Sec.  38.631(a) would restate from current Sec.  
38.630(c)(1) that VA will provide upon request a memorial headstone or 
marker for certain eligible individuals, and proposed Sec.  
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 Sec.  38.631(a)(1)(ii)-(iii) would merely 
conform VA regulation to VA authority and practice.
    Proposed Sec.  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 Sec.  38.631(a)(3) would newly 
establish in regulation that when VA has furnished a memorial headstone 
or marker (under proposed Sec.  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 
Sec.  38.631(a)(2) and (3) would

[[Page 2103]]

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 
Sec.  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 Sec.  38.630(b) for burial headstones and markers, 
proposed Sec.  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 
Government-furnished memorial headstones and markers, to include the 
application process, styles and types, and criteria for replacement. 
The structure of proposed Sec.  38.631(b)(1)-(5) generally mirrors that 
of proposed Sec.  38.630(b)(1)-(5). Rather than reiterating here all of 
the rationale provided to explain proposed Sec.  38.630(b)(1)-(5), we 
affirm instead that, where the criteria in proposed Sec.  38.631(b)(1)-
(5) are substantively identical to those in proposed Sec.  
38.630(b)(1)-(5), even if they do not share the exact same numbering, 
the same rationale provided for proposed Sec.  38.360(b)(1)-(5) applies 
to Sec.  38.631(b)(1)-(5).
    The differences between the criteria in proposed Sec. Sec.  
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 Sec.  38.631(b)(1) has 
only one option for requesting headstones and markers through VA Form 
40-1330, unlike in proposed Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec. Sec.  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 Sec.  38.631(b)(2)(ii) and 
(b)(3)(i)(E)(1) would move and restate the requirement in current Sec.  
38.630(c) related to the mandatory inscription of ``In Memory Of,'' 
which applies only to memorial headstones and markers.
    Similar to proposed Sec.  38.630(c) for burial headstones and 
markers, proposed Sec.  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 Sec.  38.600(a)(2) would be moved to proposed Sec.  
38.631(c)(1) without substantive change. Proposed Sec.  38.631(c)(2) 
would move the definition of ``unavailable remains'' from current Sec.  
38.630(c)(2) without substantive change.
    Finally, the authority citation for proposed Sec.  38.631 would be 
revised in accordance with the changes noted above.

Sec.  38.632 Emblems of Belief

    As stated previously in this rulemaking, information related to the 
application process for a Government-furnished headstone or marker 
would be removed from current Sec.  38.632(a) and (c), and placed in 
proposed Sec.  38.630 (related to burial headstones and markers) and in 
proposed Sec.  38.631 (related to memorial headstones and markers). 
With the proposed removal from current Sec.  38.632 of information 
related to the application process for a Government-furnished headstone 
or marker, we would further propose to rename the Sec.  38.632 header 
to read ``Emblems of belief,'' as the remainder of Sec.  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 Sec.  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 Government-furnished headstones and markers.''
    Proposed Sec.  38.632(b) would remain a ``definitions'' paragraph 
with no changes.
    With the proposed removal of all language in current Sec.  
38.632(c) pertaining to application for Government-furnished headstones 
and markers, and relocation of that language to proposed Sec. Sec.  
38.630 and 38.631, current Sec.  38.632(c) would be removed and Sec.  
38.632(d)-(h) would be redesignated as Sec.  38.632(c)-(g), 
respectively, with some conforming amendments that update cross-
references, but no substantive changes. We note a non-substantive 
change to add a paragraph designation for language that immediately 
follows current Sec.  38.632(h)(2)(ii) (see language immediately 
following Sec.  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 Sec.  38.632(g)(3), and 
current Sec.  38.632(h)(3) and (4) would be redesignated to proposed 
Sec.  38.632(g)(4) and (5), respectively. No other substantive changes 
are proposed for current Sec.  38.632.

Conforming Amendments

    To conform to the above changes, we would remove the last sentence 
of current Sec.  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 Sec.  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 Sec.  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 Sec.  39.10 will be updated accordingly to reflect 
the proposed changes to Sec.  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).

[[Page 2104]]

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 Sec.  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 Sec.  38.630(b)(1)(iii)(A)-(C), but are not fully consistent. 
We note that the language in proposed Sec.  38.630(b)(1)(iii)(A)-(C) 
would merely move language from current Sec.  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 <a href="/cdn-cgi/l/email-protection#117e7863704e6264737c786262787e7f517e7c733f747e613f767e67"><span class="__cf_email__" data-cfemail="5f30362d3e002c2a3d32362c2c3630311f30323d713a302f71383029">[email protected]</span></a>, 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

[[Page 2105]]

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

0
1. The authority citation for part 38 continues to read as follows:

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

0
2. Revise Sec.  38.600 to read as follows:


Sec.  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).

0
3. Amend Sec.  38.620 by adding paragraph (j) to read as follows:


Sec.  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.
* * * * *
0
4. Revise Sec.  38.630 to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 non-national 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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

[[Page 2106]]

    (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 Sec.  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 Government-furnished 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 non-national cemetery, but VA will deliver

[[Page 2107]]

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 Government-
furnished 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 Sec.  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.)

0
5. Revise Sec.  38.361 to read as follows:


Sec.  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 Sec.  
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

[[Page 2108]]

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 Sec.  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 Government-furnished 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 Government-
furnished 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).


0
6. Amend Sec.  38.632 by:
0
a. Revising the section heading and paragraph (a).
0
b. Removing paragraph (c).
0
c. Redesignating paragraphs (d) through (h) as paragraphs (c) through 
(g), respectively.
0
d. In newly redesignated paragraph (c), revising the table.
0
e. In newly redesignated paragraph (f), revising paragraphs (f)(2) and 
(5).
0
f. In newly redesignated paragraph (g):

[[Page 2109]]

0
i. Revising paragraphs (g)(1) and (2).
0
ii. Redesignating paragraphs (g)(3) and (4) as paragraphs (g)(4) and 
(5), respectively.
0
iii. Adding new paragraph (g)(3).
    The revisions and addition read as follows:


Sec.  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   (i) Submit a written request to
 a State veterans cemetery that uses      the director of the cemetery
 the NCA electronic ordering system.      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  (i) Submit a completed VA Form
 veterans only), Federally-administered   40-1330 to the NCA Director of
 cemetery, or a State veterans cemetery   Memorial Programs Service,
 that does not use the NCA electronic     indicating in the REMARKS
 ordering system.                         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, next-of-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.
* * * * *


Sec.  38.633   [Amended]

0
7. Amend Sec.  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

0
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


Sec.  39.10   [Amended]

0
9. Amend Sec.  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


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