[Federal Register Volume 86, Number 149 (Friday, August 6, 2021)]
[Rules and Regulations]
[Pages 43091-43102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16660]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its regulations

[[Page 43092]]

regarding the provision of Government-furnished headstones, markers, 
and medallions to eligible individuals. These revisions clarify 
eligibility for headstones, markers, or medallions, establish 
replacement criteria for such headstones, markers, and medallions 
consistent with VA policy, define the term ``unmarked grave'' 
consistent with VA policy, and generally reorganize and simplify 
current regulatory language for ease of understanding.

DATES: The final rule is effective September 7, 2021.

FOR FURTHER INFORMATION CONTACT: Artis L. Parker, Executive Director, 
Office of Field Programs, National Cemetery Administration (NCA), 
Department of Veterans Affairs, 4850 Lemay Ferry Road, Suite 205, St. 
Louis, MO 63129. Telephone: 314-416-6304 (this is not a toll-free 
number).

SUPPLEMENTARY INFORMATION: In a document published on February 6, 2019 
(84 FR 2093), VA proposed revising its regulations governing the 
provision of Government headstones, markers, and medallions to eligible 
individuals. The public comment period ended on April 8, 2019. VA 
received 66 comments from interested individuals, which we address in 
categories below.

Introductory Matters

    In the proposed rule, VA specifically requested public comments on 
proposed 38 CFR 38.630(b)(3)(i)(E)(1), which would allow VA to replace 
existing Government-furnished headstones and markers to correct factual 
information provided to VA as part of the initial application process. 
As VA was not part of the application process until 1973, we noted in 
the preamble to this proposed rule that this provision would not apply 
to Government-furnished headstones or markers provided prior to 1973. 
VA received no comments about this provision. Therefore, VA makes no 
changes to this provision.
    VA also received no comments on the proposed reorganization of a 
large portion of current Part 38 regulations. The new regulatory 
framework is reflected in the following chart:

------------------------------------------------------------------------
                                              Location of applicable
           Current regulation                provisions in the final
                                                    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)-(a)(9).
Sec.   38.630(a) and (b)...............  Sec.   38.630(b)(2) and Sec.
                                          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.   38.361(a)(1)(i)-(ii).
Sec.   38.631(a).......................  Sec.   38.630(a)(2)(i) and
                                          (b)(1)(iii)(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.   38.630(b)(4)(i).
                                         Sec.   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.   38.630(b)(1).
                                         Sec.   38.631(b)(1).
                                         Sec.   38.632(a).
Sec.   38.632(b).......................  Sec.   38.632(b).
Sec.   38.632(c).......................  Sec.   38.630(b)(1).
                                         Sec.   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).
------------------------------------------------------------------------

    Similarly, VA received no comments on proposed Sec.  38.620(j), 
which proposed to add burial eligibility criteria for a group of 
individuals to reflect statutory changes that were made by Public Law 
115-141. That Public Law amended 38 U.S.C. 2402(a) to establish 
eligibility for certain individuals naturalized pursuant to the Hmong 
Veterans' Naturalization Act of 2000 (Pub. L. 106-207)--those who 
served on behalf of the United States during the Vietnam War and who 
were residing in the United States at the time of the individual's 
death, which must have occurred on or after March 23, 2018, the 
effective date of the law. However, upon review, the pertinent public 
laws do not render spouses and surviving spouses of these Hmong 
fighters eligible for burial or memorialization. To align our previous 
proposal to public law, this final rule does not include the proposed 
inclusion of the phrase ``or spouses of such individuals'' in Sec.  
38.630(a)(1)(ii)(F) and (a)(2)(i)(F). Because this change merely brings 
the regulation in conformance with the statutory authority, it is 
unnecessary to solicit public comment on the change.
    On December 31, 2018, before the proposed rule was published in the 
Federal Register, the President signed Public Law 115-407, which 
revised 38 U.S.C. 2306 and 2402(a)(5). Section 201 of the public law 
authorized VA to extend certain burial benefits to eligible spouses and 
dependents buried in a Tribal Veterans' cemetery. Section 202 of the 
public law authorized VA to extend certain burial benefits and national 
cemetery interment to eligible spouses and dependents of active duty 
Servicemembers serving under conditions other than dishonorable, as 
shown by a statement from a general court-martial convening authority, 
at the time of the spouse's or dependent's death that occurs prior to 
October 1, 2024.
    To reflect these new statutory authorities, this final rule amends 
VA's regulation on burial eligibility, Sec.  38.620, by adding 
paragraph (k) to authorize VA to inter the spouse, minor child, and 
unmarried adult child of a member of

[[Page 43093]]

the Armed Forces serving on active duty under conditions other than 
dishonorable, as shown by a statement from a general court-martial 
convening authority, at the time of the spouse's or child's death if it 
occurs before October 1, 2024. The definitions of minor child and 
unmarried adult child provided in Sec.  38.620(e)(2) and (3) will apply 
to this paragraph. The statutory changes are also reflected in 
amendments to Sec.  38.630(a)(1)(iv) for burial headstones and markers 
and Sec.  38.631(a)(1) for memorial headstones and markers, which 
extend eligibility to spouses and dependent children covered by Public 
Law 115-407.

General Comments

    Regarding the comments received, only two specifically noted 
support for the rulemaking. One commenter expressed general support for 
the proposed rule that recognizes the sacrifice of the men and women 
who served. A second commenter expressed specific support for the 
provisions regarding durability of headstones and requested that VA 
update Form 40-1330 to reflect these changes. We discuss the need for 
changes to Form 40-1330 below, in the section regarding the Paperwork 
Reduction Act. We thank these commenters for their support and input.
    Although other commenters generally expressed negative opinions 
about the rulemaking, including suggesting that VA should abandon the 
effort, many of them did not specify ways in which VA should change any 
particular proposed provision or suggest an overall change to the rule, 
short of withdrawing it. We thank all the commenters who took time to 
submit comments on the proposed rule; however, without more information 
regarding the changes certain commenters would like to see or the 
provisions with which they take exception, we cannot respond except to 
say that VA believes the rule is necessary and provides needed guidance 
to the public regarding its headstone and marker program.
    Two commenters submitted information relating to specific unmarked 
graves and questioned the application of the rule to these 
circumstances. One of the commenters provided photographs of existing 
markings as examples of worn and broken block grave markers. Comments 
regarding specific claims are beyond the scope of this rulemaking. 
Because the circumstances regarding each claim for benefits are unique, 
and VA assesses claims on a case-by-case basis, we cannot speculate on 
the potential merits of the information provided regarding specific 
claims or potential claims.

Comments That the Rule Is Attempting To Alter or Is Inconsistent With 
Statutory Authority

    The first category of comments received generally asserted that VA 
was changing, or at least was being inconsistent with, the statutory 
authority for the headstone and marker program, as provided by Congress 
in 38 U.S.C. 2306. Several of these comments asserted that VA must 
provide headstones and markers for ``all soldiers' graves'' or ``all 
veterans' graves'' or just ``all graves.'' One commenter suggested that 
VA must provide a headstone to mark ``any'' grave for ``any'' veteran 
of ``any'' war. Another suggested that VA adopt a ``One-Vet-One-Stone'' 
approach and provide a headstone regardless of whether the remains are 
unmarked or marked. We appreciate the input from these commenters; 
however, we clarify that our authority is circumscribed by section 
2306. That statute prescribes eligibility for a Government headstone or 
marker depending on the type of individual and type of cemetery at 
issue. VA assures these commenters, and the public, that VA is not 
changing or departing from any of the eligibility categories set forth 
in current 38 U.S.C. 2306; as several commenters pointed out, VA has no 
authority to change a statutory provision. VA's responsibility is to 
provide benefits as authorized by Congress and, where Congress has left 
some ambiguity, to implement reasonable regulations consistent with the 
statute. VA's regulation includes all the categories of individuals who 
are eligible for headstones, markers, or medallions as established by 
Congress, including specific criteria for placement where applicable 
(for example, some individuals may be eligible for a headstone only 
when buried in a national cemetery).
    Several commenters suggested withdrawal of the proposal because it 
was inconsistent with the normal use of the term ``marked.'' We 
disagree. Section 2306 authorizes VA to furnish headstones or markers 
for ``unmarked graves''; the common definition of ``marked'' is 
``having an identifying mark''; and the common definition of 
``unmarked'' is ``not having an identifying mark or distinctive 
notation.'' See ``Marked'' and ``Unmarked,'' Merriam-Webster.com 
Dictionary, https://www.merriam-webster.com/dictionary (last visited 
June 24, 2020). It would contravene these common definitions to 
consider graves with private, durable headstones containing a legible, 
identifying notation (even if that notation is simply a name--or even a 
number that corresponds to a name) as ``unmarked.''
    Several additional commenters stated that the proposed definition 
of ``unmarked grave'' is not a reasonable construction of the statutory 
term and is inconsistent with Congress's intent to ``furnish headstones 
or markers for the graves of all'' veterans. S. Rep. No. 80-1453, at 2 
(1948). The Senate Report cited in these comments was addressing the 
bill that would become Public Law 80-871 (1948), 62 Stat. 1215. This 
public law authorized Government headstones or markers for the 
``unmarked graves'' of Union and Confederate soldiers, the ``unmarked 
graves'' of members of the Armed Forces who died in service or whose 
last service terminated honorably, and ``all unmarked graves'' in post 
and national cemeteries. 62 Stat. 1216.
    Thus, while the Senate Report spoke in terms of headstones or 
markers for ``all'' veterans, S. Rep. 80-1453, at 2, the bill being 
recommended--and the Act which Congress passed--consistently restricted 
the furnishing of Government headstones or makers to ``unmarked 
graves.'' See id. at 1. Overall, the goal was not to ensure any 
specific content on the mark--just that all graves be marked. And 
neither the Senate Report nor the Public Law prescribed or suggested a 
definition of ``unmarked.'' As such, the definition of ``unmarked'' 
provided in this rule is consistent with the 1948 Congress's intent, 
and we make no changes based on these comments.
    One commenter stated that veterans of all races and sexes who 
served in the military have a right to be remembered and honored with a 
headstone. Because section 2306 does not address race or sex in 
eligibility criteria, neither does VA's regulation. VA is committed to 
providing all of the many burial benefits, including headstones, 
markers, and medallions, to all persons eligible to receive them, 
without regard to a person's race, sex, or any other characteristics 
that are not enumerated in law.
    Another commenter asserted that the proposal reflected an intent to 
deny headstones to veterans who served prior to World War I and who are 
interred in cemeteries that keep records of burials. This comment seems 
to conflate two provisions of the proposed regulation, one regarding a 
statutorily mandated eligibility date and one addressing when 
information about a decedent is ``ascertainable'' from the headstone or 
marker. We discuss the term ``ascertainable'' below. As to World War I, 
we note that this war was not

[[Page 43094]]

referenced in the proposed rulemaking, but the regulation does contain 
three references to April 6, 1917, the date on which the United States 
entered World War I. One of these references, in proposed Sec.  
38.630(c)(1)(vi), defines ``Applicant'' to include any individual if 
the veteran's service ended prior to April 6, 1917--so that provision 
does not exclude veterans who served prior to World War I. The other 
two references, in proposed Sec.  38.630(a)(2)(ii) and (iii), 
correspond to statutory references to that date in 38 U.S.C. 2306(d)(4) 
and (5). We make no changes based on this comment.
    We also received a comment that our proposed regulation did not 
focus on defining headstones, markers, or medallions, but rather on 
determining ``whether a veteran deserves any of those'' benefits. The 
commenter asserted that this allowed VA to establish a ``criteria for 
worthiness.'' As indicated above, Congress decides which categories of 
individuals should receive a headstone or marker. Congress also 
established, mostly in 38 U.S.C. 101, the definitions that shape these 
categories, by defining, for example, when service in the military 
constitutes ``active duty'' and who may be considered a ``veteran'' for 
purposes of VA benefits. VA's responsibility is to determine whether a 
decedent meets the requisite criteria before providing a headstone or 
marker. We do not consider this determination to be an assessment of 
anyone's ``worth''; it is merely a factual determination whether the 
decedent meets the criteria.
    As noted above, VA received one comment suggesting a one-veteran-
one-headstone rule, regardless of placement in a national or private 
cemetery, and irrespective of whether the remains are marked, unmarked, 
or on a collective monument. We thank the commenter for giving serious 
consideration to the issue of marking graves and suggesting an 
alternative. However, as previously explained, VA's regulation must 
remain within the authorities provided by Congress, which currently 
restrict who is eligible to receive a Government headstone or marker 
based on the nature of service, the type of cemetery at issue, and 
whether the grave is ``unmarked.'' VA makes no changes based on this 
comment.

Comments That the Rule Is Not Consistent With VA Practice or Will 
Prevent Provision of Headstones and Markers

    Several commenters suggested that the content of the proposed rule 
was ``changing'' or not consistent with VA's current or past practice 
in providing headstones and markers for unmarked graves. Many of the 
comments urged VA to remove the rulemaking from the docket because the 
commenters believe it is unnecessary and would have far-ranging 
negative effects that would curtail an ordinary citizen's ability to 
honor and preserve the graves of veterans of all eras. Some commenters 
predicted dire results, stating that the regulation would result in VA 
no longer providing ``individual'' headstones--or any headstones at 
all--in the future, even if a grave is newly discovered. Several 
commenters specifically suggested that VA's rule would result in VA 
never providing a headstone for the grave of anyone who served in the 
Civil War, whether for the Union or the Confederacy. One commenter 
noted that several of VA's national cemeteries contain graves of enemy 
prisoners of war for which VA has provided headstones and stated that 
VA should show the same respect for ``our own American veterans.''
    While these commenters hypothesized possible effects of the 
proposed rulemaking, most did not specify the provisions of the 
proposed rule that would lead to these dire results. As indicated 
above, without a clear indication of what provision a commenter finds 
problematic, VA cannot respond as to why VA believes otherwise. We 
clarify for these commenters, however, that VA will indeed continue to 
provide headstones and markers for eligible veterans and others as 
required by section 2306. As to the particular categories that were 
mentioned, we note that the statute requires VA to provide headstones 
for ``individual[s] buried in a national cemetery,'' which would 
include enemy prisoners of war buried in national cemeteries, as well 
as ``[s]oldiers of the Union and Confederate Armies,'' who are eligible 
for headstones or makers for their unmarked graves within or outside VA 
national cemeteries. Both categories of individuals are reflected in 
the regulation.
    To the extent the commenters' apprehension is related to the 
proposed definition of ``unmarked grave,'' the preamble to the proposed 
rulemaking addressed this issue. Although the definition had never 
before been included in VA regulations, the content of the definition 
is consistent with VA's longstanding policy and guidance in VA 
Department of Memorial Affairs Headstone and Marker Manual M40-3, which 
itself is consistent with Department of the Army regulation (32 CFR 
536.57(b)(3) (1961)) and policy predating VA's assumption of 
responsibility for managing the national cemeteries, and the headstone 
and marker program, which occurred in 1973. We assure these commenters 
that the content of the rule is consistent with our current and past 
practice, despite the possibility that there may have been individual 
instances of inconsistent application in the past. Publication of the 
rule will assist in preventing such inconsistencies in the future. We 
believe that publication of the rule will establish consistency in VA's 
provision of headstone, marker, and medallion benefits within the scope 
of its statutory authority.
    Finally, to the extent the commenters' concern is that VA will no 
longer furnish headstones or markers so long as the decedent interred 
in the grave can be ascertained through research or a cemetery office 
ledger, that is not the case. If there is no durable headstone or 
marker at or by the grave, that grave is ``unmarked'' under this rule, 
Sec.  38.630(c)(6), and VA would therefore furnish a headstone or 
marker if eligibility criteria are met. Moreover, if a headstone or 
marker is damaged beyond repair, lacks a legible inscription that can 
lead to identification of the decedent, or has been stolen or 
vandalized, that grave is ``unmarked'' under this rule, id., and VA 
would therefore furnish a headstone or marker if eligibility criteria 
are met. In sum, a cemetery's maintenance of a ledger does not preclude 
consideration of a grave as ``unmarked.'' That said, where the 
inscription on a durable headstone or marker, in conjunction with a 
cemetery ledger or other reasonably accessible source, serves to 
identify the decedent, the grave is considered ``marked'' under the 
proposed rule and this final rule.

Comments on Content of Inscriptions

    Two commenters suggested that graves should be considered 
``unmarked'' if a headstone or marker does not contain a ``proper 
inscription,'' including name, rank, and other service information. 
Others asserted that a number on a headstone, corresponding to a book 
or list, was not sufficient to mark a grave or honor a veteran. Another 
stated that the definition of ``marked'' should be the same regardless 
of the type of cemetery at issue.
    At the outset, it must be noted that VA cannot change a private 
choice in a private cemetery to place only a name or number on a 
headstone. While one commenter stated that no ``one should ever have to 
settle for just being a number,'' some private purchasers chose and 
private cemeteries permit such a practice, and VA cannot prohibit it. 
The critical question, for purposes of

[[Page 43095]]

VA's statutory authority to furnish headstones or markers, is whether 
such a grave is ``unmarked.'' And in our proposal, we posited a 
definition of ``unmarked'' that can be consistently applied, regardless 
of the type of cemetery at issue.
    As discussed in the preamble to the proposed rule, VA considered 
including as ``unmarked'' privately purchased headstones that do not 
meet the minimum inscription criteria that Congress set for an 
``appropriate marker'' in VA national cemeteries at 38 U.S.C. 2404(c). 
Those minimum criteria are the name of the decedent, the number of the 
grave, and other information that VA shall prescribe, id., which 
currently is branch of service and years of birth and death, see VA 
Form 40-1330 (Inscription Information). However, we continue to reject 
that alternative, because there is no indication that Congress intended 
its view of what is ``appropriate'' for markers in national cemeteries 
as the barometer for what is marked or ``unmarked'' in other 
cemeteries. In other words, Congress's use of the term ``appropriate 
marker'' in section 2404(c) indicates that some graves having a 
``marker'' that is not ``appropriate'' for a national cemetery are 
nevertheless marked. In any event, it is incongruous to use section 
2404(c)'s definition of ``appropriate marker'' under the national 
cemetery administration program as a definition for ``unmarked graves'' 
in the headstone and marker program of section 2306. The predecessor to 
section 2404(c), for example, required that national cemetery 
headstones contain the State of the decedent, 24 U.S.C. 279 (1970); but 
that does not mean that Congress considered a headstone not chronicling 
a State in a private cemetery as ``unmarked.'' And VA believes that if 
Congress were later to determine that the use of nicknames on 
headstones is not ``appropriate'' for national cemeteries, that would 
not mean that a headstone with a nickname in a private cemetery is 
``unmarked. Although Congress mandated certain information be on 
headstones in national cemeteries, there is no indication that it 
intended section 2404(c) to be a definition of ``marked.'' Accordingly, 
the rule here focuses the ``unmarked'' inquiry not on what is 
``appropriate'' for national cemeteries, but on whether there is a 
durable headstone or marker with a legible inscription that, in 
conjunction with a cemetery ledger or other reasonably accessible 
source, serves to identify the decedent. We make no changes based on 
these comments.
    One commenter suggested that VA determine, on a ``case by case'' 
basis, whether a grave was marked based on the content of the 
inscription of an existing headstone or marker. The commenter provided 
hypothetical examples of the application of this ``test.'' We 
appreciate the considerable thought put into the comment and note that 
VA does undertake some of the analysis suggested when determining 
whether a Government-furnished headstone or marker should be replaced 
based on newly discovered information. This is reflected in the rule at 
Sec.  38.630(b)(3)(E) for burial headstones or markers and Sec.  
38.631(b)(3)(E) for memorial headstones or markers. We thank the 
commenter, but because, as explained above, the content of the 
inscription is not determinative of whether a grave is considered 
unmarked, we make no changes based on this comment.
    Another commenter interpreted the proposal to mean that, if a 
headstone were unreadable, but identification could be made through 
research, VA would not provide a headstone or marker. This is not the 
case. Under Sec.  38.630(c)(6)(ii)(C), where the identifying elements 
of an inscription on the headstone or marker are no longer legible, the 
grave is ``unmarked.'' The commenter then raised an issue that seems to 
pertain to whether information is ``ascertainable'' by citing a lack of 
services available at some cemeteries, which may make timely 
identification difficult. While we are sympathetic to this concern, we 
note again that VA's mandate is to furnish headstones or markers for 
the unmarked graves of veterans. We cannot extend our authority to 
address the lack of customer service provided by private entities by 
providing a headstone or marker where one already exists. Nevertheless, 
the definition of ``ascertainable'' addresses this issue by requiring 
the decedent's name to be ``reasonably accessible,'' which may involve 
a case-by-case consideration of the availability of the private 
cemetery's ledger or other sources.
    On a similar note, one commenter argued that a grave is not 
``marked'' if a visitor has to review a cemetery ledger to learn of the 
decedent's name. But Congress has authorized VA to furnish headstones 
or markers for ``unmarked graves,'' not marked graves lacking certain 
information. Again, while we are sympathetic to the burden on visitors 
when a headstone or marker itself conveys little information about a 
decedent, that does not mean that the grave is ``unmarked.''

Comments Regarding Confederate Headstones and Oakwood Cemetery

    Many comments VA received, including several noted previously, were 
concerned about the application of this rule to the provision of 
headstones and markers for individuals who served in the Confederate 
armed forces during the Civil War, and particularly those who are 
buried in Oakwood Cemetery in Richmond, Virginia. We understand that 
readers of any rulemaking document will understand its contents through 
their own experiences and circumstances. But this rule was drafted to 
apply to the myriad circumstances, both historic and contemporary, that 
VA navigates in deciding claims for headstones and markers. The rule 
provides VA with the flexibility to provide headstones or markers in 
numerous situations, without dictating how private individuals must 
mark or should have marked a grave.
    Some of these commenters expressed a belief that the rulemaking 
reflected a political bias against those who served in the Confederate 
armed forces and is an attempt to limit provision of headstones to mark 
graves of Confederate soldiers. We affirmatively state that the 
regulation was not created to advance any political agenda or to deny 
any group of individuals the benefit to which they are entitled. 
Consistent with section 2306(a), this rule treats Confederate soldiers 
the same as Union soldiers and most others eligible for burial in a 
national cemetery. The regulation will provide VA with a consistent 
method for determining eligibility for the headstone, marker, and 
medallion benefits within the scope of its statutory authority. As 
acknowledged above, to the extent VA's past implementation may have 
been inconsistent at times, VA intends with this regulation to create a 
clear and effective method by which the headstone, marker, and 
medallion program will be managed.
    Commenters also asserted that VA's proposal is inconsistent with 
Public Law 80-871 (1948), because the Senate characterized the bill 
that would become this Public Law as authorizing Government headstones 
or markers for ``the graves of all persons who served honorably in the 
armed forces of the United States, including the Union and Confederate 
Armies.'' S. Rep. 80-1453, at 2. As stated above, 38 U.S.C. 2306(a)(3) 
provides eligibility for headstones or markers for individuals who 
served in the Union and Confederate Armies, and this rule similarly 
includes them as eligible at Sec.  38.630(a)(1)(iii). We reiterate,

[[Page 43096]]

however, that, while that part of the Senate report cited by the 
commenters referred only to ``graves,'' without the ``unmarked'' 
qualifier, other parts of the report--and the public law itself--
limited this furnishing to graves (of those who served in the Union and 
Confederate Armies and all others) that were ``unmarked.'' This remains 
the language of the law (in section 2306) today. As noted above, 
Congress did not provide, in Public Law 80-871 or any other law since, 
a definition of the term ``unmarked.''
    At least one commenter asserted that, under the 1948 law, Congress 
intended that VA provide headstones which display the veteran's name 
and other pertinent information. To the contrary, that topic was not 
addressed in Public Law 80-871. And, as noted above, Congress has never 
declared that the content on a headstone or marker is the barometer for 
assessing whether a grave is ``unmarked.'' Indeed, Congress has 
strongly suggested that the provision of headstones or markers for 
already-marked private graves requires specific statutory authority: 
Congress added paragraph (d) to section 2306, see Public Law 107-103, 
502 (2001), with the understanding that ``VA is restricted by statute 
from providing a headstone or marker for an already marked grave'' 
absent Congressional allowance. S. Rep. 107-86, at 23 (2001). Overall, 
as discussed above, while section 2404 requires that certain 
information be inscribed on headstones or markers in order to be an 
``appropriate marker'' for graves in national cemeteries, this 
requirement is not related to VA's authority to furnish headstones or 
markers on unmarked graves outside national cemeteries.
    Several commenters specifically referenced the effect the 
regulation may have on VA's provision of headstones for those interred 
in Oakwood Cemetery in Richmond, Virginia. One commenter cited to a 
specific headstone request for placement at Oakwood Cemetery and 
another commenter cited to legal challenges to VA's previous denials of 
claims for headstones for graves in Oakwood's Confederate section. 
Other comments stated support for providing headstones at Oakwood. As 
previously indicated, we cannot address specific claims within this 
rulemaking. We also clarify that the effect of this rulemaking is not 
to address specific gravesites or cemeteries, such as Confederates 
interred in Oakwood Cemetery. To the extent that the litigation 
regarding headstones at Oakwood Cemetery informed this regulation, it 
reinforced the importance of VA publishing a regulation with consistent 
standards and inviting public comment, to ensure the public is aware 
of, and able to provide input on, VA's interpretation of its statutory 
authority. The content of the regulation was not drafted with any 
intent of addressing specific previous or potential future claims at 
Oakwood or any other cemetery; as noted above, the regulation was 
drafted to provide a clear and effective method by which the headstone, 
marker, and medallion program will be managed in accordance with VA's 
interpretation of the authority provided by Congress.
    One commenter asserted that VA-furnished headstones for 
Confederates at Oakwood Cemetery are incorrect or duplicative and 
questioned the accuracy of burial lists for graves at Oakwood. VA 
appreciates the commenter's concerns; however, these comments are case-
specific scenarios or issues that should be raised in the claim 
adjudication context, and not as part of a rulemaking.
    Some of the commenters discussing Oakwood Cemetery referenced a 
``statement submitted to [the Office of Management and Budget (OMB)] in 
2017 by James B. Laidler.'' We attempted to obtain the full text of Mr. 
Laidler's 2017 comment that presumably would have been submitted to OMB 
regarding proposed changes to VA Form 40-1330, Claim for Standard 
Government Headstone or Marker. We conducted an internal search of 
files, trying to locate the full content of Mr. Laidler's 2017 comment, 
but we have no record of having received such comment. Because the 
commenters indicated it was submitted to OMB, we reviewed the online 
portal at www.regulations.gov but did not find any comment submitted by 
Mr. Laidler. Finally, we also asked OMB if they could provide the 
comment to us; however, OMB staff informed us that they also had no 
record of Mr. Laidler's submission.
    Without the benefit of reviewing Mr. Laidler's actual comment in 
full, it is difficult to evaluate the relevance of his input to this 
regulation specifically. However, we can address the arguments conveyed 
by the commenters, which allegedly originated from this 2017 
submission. The commenters asserted that VA's proposal would rely on a 
``block-and-ledger'' system to determine whether a grave is 
``unmarked'' and that, because all cemeteries use such a system, this 
would essentially result in VA never providing a Government headstone 
for any graves. To the extent the commenters are referring to a grave 
location system that marks sections and rows of graves within a large 
cemetery, this is indeed a system used in many, if not all, cemeteries, 
including VA's national cemeteries. However, VA did not propose that a 
grave is ``marked'' so long as the cemetery has a system for locating 
graves. Under the proposed rule and final rule, a grave lacking a 
durable headstone or marker is ``unmarked''; a grave with a damaged, 
stolen, or vandalized headstone or marker is ``unmarked''; and a grave 
without a legible inscription on a headstone or marker is ``unmarked.'' 
As explained in the preamble to the proposed rule, this definition is 
based on VA's long-standing policy, which, in turn, is based on the 
policy that the Department of the Army had used prior to the transfer 
of the national cemeteries and the headstone and marker program to VA 
in 1973. VA makes no change to the regulation based on these comments, 
including, to the extent it was capable of consideration, Mr. Laidler's 
2017 comment.

Clarification and Technical Edits

    One commenter requested clarification as to whether a headstone or 
marker has to be individualized for the grave to be considered marked, 
i.e., whether a headstone or marker for ``a block of graves or a row of 
many graves'' suffices. Similarly, another stated that a grave should 
be considered ``unmarked'' if ``no individual marker is present at the 
soldier's actual burial site.'' To clarify VA's position on the matter, 
if there is a marker for a block or row of graves that serves to 
identify the decedent (and is durable, not damaged beyond repair, 
etc.), VA considers the grave to be marked. As noted above, VA has no 
authority to control how private cemeteries historically chose to mark 
graves, and the choice to mark multiple graves with one block in 
proximity to those graves does not render them ``unmarked.'' To the 
extent the proposed regulatory text was unclear on the matter, we are 
replacing ``at the grave'' in proposed Sec.  38.630(c)(6) with ``at or 
by the grave'' in final Sec.  38.630(c)(6).
    Beyond the changes noted above, VA also makes a few technical edits 
in this final rule, including the correction of cross-references, 
addition of medallions to the replacement provisions in Sec.  
38.630(b)(3)(ii), and updating statutory citations in Sec.  
38.630(c)(4) to reflect renumbering in titles 10 and 14 of the United 
States Code.

Executive Orders 12866 and 13563

    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,

[[Page 43097]]

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. The Office of Information and Regulatory 
Affairs has determined that this rule is a significant regulatory 
action under Executive Order 12866.
    The Regulatory Impact Analysis associated with this rulemaking can 
be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This rulemaking does not change VA's policy regarding small 
businesses, does not have an economic impact to individual businesses, 
and there are no increased or decreased costs to small business 
entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final 
regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do 
not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (at 44 U.S.C. 3507) requires 
that VA consider the impact of paperwork and other information 
collection burdens imposed on the public. Under 44 U.S.C. 3507(a), an 
agency may not collect or sponsor the collection of information, nor 
may it impose an information collection requirement unless it displays 
a currently valid Office of Management and Budget (OMB) control number. 
See also 5 CFR 1320.8(b)(3)(vi).
    This final rule will impose the following revised information 
collection requirement that was previously approved by OMB. Of the 66 
public comments received for the proposed rule, VA received no comments 
on proposed Sec.  38.630(b)(1)(iii)(A)-(C) that revised 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 in a private or local cemetery and related to 
following the receiving cemetery's guidelines and procedures. VA 
incorporated one change to the form based on a comment to add the text 
``permanent and durable'' to describe graves that are currently marked 
with a privately purchased headstone or marker. This change merely 
implements the language in Sec.  38.630(c)(5) that defines a privately 
purchased, durable headstone or marker as ``lasting'' and not 
anticipated to unduly degrade under exposure to the environment in 
which it is placed. The collection of information is necessary for VA 
to sufficiently determine that a Government-furnished headstone or 
marker can be placed in a private or a local government cemetery in 
close proximity to the grave and in accordance with cemetery 
guidelines. VA will use this information to ensure proper issuance of 
the requested headstone or marker. 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. As required by the Paperwork 
Reduction Act of 1995 (at 44 U.S.C. 3507(d)), VA will submit 
information collection 2900-0222 to OMB for its review and approval on 
the revised collection.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a major rule, as defined by 5 U.S.C. 804(2).

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 Veterans Cemetery Grants Program.

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

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on June 23, 2021, and authorized the undersigned to sign and 
submit the document to the Office of the Federal Register for 
publication electronically as an official document of the Department of 
Veterans Affairs.

Luvenia Potts,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, the Department of 
Veterans Affairs amends 38 CFR parts 38 and 39 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:
    Appropriate State official means a State attorney general or other 
official with statewide responsibility for law enforcement or penal 
functions.
    Clear and convincing evidence means that degree of proof which 
produces in the mind of the fact-finder a firm belief regarding the 
question at issue.
    Convicted means a finding of guilt by a judgment or verdict or 
based on a plea of guilty, by a Federal or State criminal court.
    Federal capital crime means an offense under Federal law for which 
a sentence of imprisonment for life or the death penalty may be 
imposed.
    Interment means the burial of casketed remains or the placement or 
scattering of cremated remains.
    Life imprisonment means a sentence of a Federal or State criminal 
court directing confinement in a penal institution for life.
    Memorialization means any action taken to honor the memory of a 
deceased individual.
    Personal representative means a family member or other individual 
who has identified himself or herself to the National Cemetery 
Administration as the person responsible for making decisions 
concerning the interment of

[[Page 43098]]

the remains of or memorialization of a deceased individual.
    State capital crime means, under State law, the willful, 
deliberate, or premeditated unlawful killing of another human being for 
which a sentence of imprisonment for life or the death penalty may be 
imposed.
    (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 paragraphs (j) and (k) 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' 
Naturalization 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.
    (k) The spouse, minor child, and unmarried adult child of a member 
of the Armed Forces serving on active duty under conditions other than 
dishonorable, as shown by a statement from a general court-martial 
convening authority, at the time of the spouse's or child's death if 
such death occurs before October 1, 2024. Paragraphs (e)(2) and (3) of 
this section provide the applicable definitions for ``minor child'' and 
``unmarried adult child.''

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 who were naturalized pursuant to sec. 2(1) of the 
Hmong Veterans' Naturalization 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) or Sec.  38.620(k), whose 
graves are located in a veterans' cemetery owned by a State, or a 
veterans' cemetery owned by a Tribal Organization or on land owned by 
or held in trust for a Tribal Organization.
    (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 who were naturalized pursuant to sec. 2(1) of the 
Hmong Veterans' Naturalization 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 this paragraph 
(a)(2) if:
    (A) The individual died on or after November 1, 1990; or
    (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 this 
paragraph (a)(2), 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 (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

[[Page 43099]]

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 date 
of birth or death) provided to VA as part of the initial application 
process; or
    (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); or
    (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, 
markers, and medallions will be of the same style and type (to include 
inscription information) as those headstones, markers, or medallions 
being replaced, except that style, type, or inscription information may 
differ for replacements if one of the criteria in paragraph 
(b)(3)(i)(D) or (E) is the reason for replacement.
    (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 paragraph (a)(1) 
or (2) of this section for placement in a non-national cemetery, but VA 
will deliver 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 of the United States Code.
    (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.

[[Page 43100]]

    (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. 7271, 8291, or 
9271 of title 10 or sec. 2732 of title 14 of the United States Code, or 
corresponding predecessor provisions.
    (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 or by the grave, or the condition of a Government-
furnished headstone or marker erected or installed at or by 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 or by 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, a State, local, or private cemetery, 
a veterans' cemetery owned by a State, or a veterans' cemetery owned by 
a tribal organization or on land owned by or held in trust for a tribal 
organization.
    (ii) An individual who dies on or after November 11, 1998, who is 
the spouse or surviving spouse of a veteran (which includes a surviving 
spouse who had a subsequent remarriage), or the spouse of a member of 
the Armed Forces serving on active duty under conditions other than 
dishonorable, as shown by a statement from a general court-martial 
convening authority, at the time of the spouse's death if such death 
occurs before October 1, 2024--where the headstone or marker may be 
provided for a national cemetery, a veterans' cemetery owned by a 
State, or a veterans' cemetery of a Tribal Organization or on land 
owned by or held in trust for a Tribal Organization;
    (iii) An individual who dies on or after November 11, 1998, who is 
an eligible dependent child of a veteran, or the eligible dependent 
child of a member of the Armed Forces serving on active duty under 
conditions other than dishonorable, as shown by a statement from a 
general court-martial convening authority, at the time of the child's 
death if such death occurs before October 1, 2024--where the headstone 
or marker may be provided for a national cemetery, a veterans' cemetery 
owned by a State, or a veterans' cemetery of a Tribal Organization or 
on land owned by or held in trust for a Tribal Organization--if that 
dependent child is:
    (A) Under the age of 21 years; or
    (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 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)(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 military, naval, or air 
service, VA will, 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).
    (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

[[Page 43101]]

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 date 
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 of the United States Code.
    (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;
    (ii) Were buried at sea, whether by the individual's own choice or 
otherwise;
    (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. Revising newly redesignated paragraphs (c)(1) and (2);
0
e. Revising newly redesignated paragraphs (f)(2) and (5) and (g)(1) and 
(2);
0
f. Redesignating newly redesignated paragraphs (g)(3) and (4) as 
paragraphs (g)(4) and (5), respectively; and
0
g. 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) * * *

[[Page 43102]]



------------------------------------------------------------------------
 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) Decision by the Under Secretary for Memorial Affairs. (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 Director of NCA's Office of Field Programs' recommendation 
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
9. The authority citation for part 39 continues to read as follows:

    Authority:  38 U.S.C 101, 501, 2408, 2411, 3765.

Subpart A--General Provisions


Sec.  39.10   [Amended]

0
10. Amend Sec.  39.10 by removing ``38 CFR 38.600(b)'' wherever it 
appears in paragraphs (b)(1) through (3) and adding ``38 CFR 
38.600(a)'' in its place.

[FR Doc. 2021-16660 Filed 8-5-21; 8:45 am]
BILLING CODE 8320-01-P