4768 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

(i) In title 18, section 111, 112(b) 

involving intimidation or threat, 113, 

115, 245, 247, 248 unless the offense 

involves only a nonviolent physical 

obstruction and is not a felony, 351, 

594, 1153 involving assault against an 

individual who has not attained the age 

of 16 years, 1361, 1368, the second 

paragraph of 1501, 1509, 1751, 1991, or 

2194 involving force or threat. 

(ii) In title 16, section 773g if the 

offense involves a violation of section 

773e(a)(3), 1859 if the offense involves 

a violation of section 1857(1)(E), 3637(c) 

if the offense involves a violation of 

section 3637(a)(3), or 5010(b) if the 

offense involves a violation of section 

5009(6). 

(iii) In title 26, section 7212. 

(iv) In title 30, section 1463 if the 

offense involves a violation of section 

1461(4). 

(v) In title 40, section 5109 if the 

offense involves a violation or 

attempted violation of section 

5104(e)(2)(F). 

(vi) In title 42, section 2283, 3631, or 

9152(d) if the offense involves a 

violation of section 9151(3). 

(vii) In title 43, section 1063 involving 

force, threat, or intimidation. 

(viii) In title 47, section 606(b). 

(ix) In title 49, section 46506(1) unless 

the offense involves only an act that 

would violate section 661 or 662 of title 

18 and would not be a felony if 

committed in the special maritime and 

territorial jurisdiction of the United 

States. 

(4) Any offense that is an attempt or 

conspiracy to commit any of the 

foregoing offenses, even if not a felony. 

(c) An offense that was or would have 

been a qualifying Federal offense as 

defined in this section at the time of 

conviction, such as an offense under 18 

U.S.C. 2031 or 2032, remains a 

qualifying Federal offense even if the 

provision or provisions defining the 

offense or assigning its penalties have 

subsequently been repealed, 

superseded, or modified.

Dated: January 25, 2005. 

John Ashcroft, 

Attorney General.

[FR Doc. 05–1691 Filed 1–28–05; 8:45 am] 

BILLING CODE 4410–19–P

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Parts 1 and 38 

RIN 2900–AM10 

Relocation of National Cemetery 

Administration Regulations

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: Previously the regulations 

administered by the National Cemetery 

Administration (NCA) of the 

Department of Veterans Affairs (VA) 

were set forth in Part 1 of Title 38 of the 

Code of Federal Regulations. Recently, 

NCA was assigned Part 38 of Title 38 for 

its regulations. Accordingly, we are 

moving the regulations administered by 

NCA and located in Part 1 to new Part 

38. We have made non-substantive 

changes to headings of regulations, but 

we have not made any changes to the 

text other than conforming changes to 

section numbers.

DATES: Effective Date: January 31, 2005.

FOR FURTHER INFORMATION CONTACT:

Karen Barber, Program Analyst, 

Legislative and Regulatory Division 

(41C3), National Cemetery 

Administration (NCA), Department of 

Veterans Affairs, 810 Vermont Avenue, 

NW., Washington, DC 20420; telephone: 

(202) 273–5183 (this is not a toll-free 

number).

SUPPLEMENTARY INFORMATION:

Regulations administered by NCA are 

currently located in Part 1 of Title 38 of 

the Code of Federal Regulations along 

with general provisions that are 

applicable to VA offices and programs 

other than NCA. The current placement 

of NCA regulations in Part 1 with 

regulations that are not particular to 

NCA programs may be confusing to 

users who want to quickly and easily 

reference information about NCA 

benefits. Additionally, as NCA expands 

its body of regulations, users will find 

it increasingly more difficult to 

reference information about NCA 

benefits unless NCA regulations are relocated and consolidated in a separate 

part of Title 38. 

NCA was recently assigned new Part 

38 of Title 38 for its regulations. 

Relocation and consolidation of NCA 

regulations in a separate Part is 

intended to help readers reference 

information about NCA benefits more 

easily. Although certain headings are 

being changed and conforming changes 

to section numbers are being made, the 

amendments made by this notice are 

non-substantive and will not affect 

benefits entitlement or otherwise result 

in new costs. This final rule merely 

moves NCA regulations to a new 

location in the Code of Federal 

Regulations without any substantive 

changes. 

Administrative Procedure Act 

We are publishing this document as a 

final rule without prior notice and 

comment and without a delayed 

effective date. This document contains 

only non-substantive changes. Because 

this document merely restates existing 

regulations without substantive change, 

it is exempt from those procedures 

under 5 U.S.C. 553(b)(3)(A) and (d)(2). 

Additionally, VA has determined that 

there is good cause under 5 U.S.C. 

553(b)(3)(B) and (d)(3) for dispensing 

with those procedures, because a 

comment period and a delayed effective 

date are unnecessary in the absence of 

any substantive change to existing 

regulations. 

Unfunded Mandates 

The Unfunded Mandates Reform Act 

requires, at 2 U.S.C. 1532, that agencies 

prepare an assessment of anticipated 

costs and benefits before developing 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 in any given 

year. This rule would have no such 

effect on State, local, or tribal 

governments, or the private sector. 

Paperwork Reduction Act 

This document does not contain new 

provisions constituting a collection of 

information under the Paperwork 

Reduction Act (44 U.S.C. 3501–3521). 

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. Only individual 

VA beneficiaries could be directly 

affected. Therefore, pursuant to 5 U.S.C. 

605(b), this final rule is exempt from the 

initial and final regulatory flexibility 

analyses requirements of sections 603 

and 604. 

Catalog of Federal Domestic Assistance 

The Catalog of Federal Domestic 

Assistance program numbers for this 

document are 64.201 and 64.202.

List of Subjects in 38 CFR Parts 1 and 

38 

Administrative practice and 

procedure, Cemeteries, Veterans, 

Claims, Crime, Criminal offenses.

Approved: December 14, 2004. 

Anthony J. Principi, 

Secretary of Veterans Affairs.

■ For the reasons set out in the preamble, 

we are amending 38 CFR Chapter 1 as 

follows:

PART 1—GENERAL PROVISIONS

■ 1. The authority citation for part 1 

continues to read as follows:

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4769

Authority: 38 U.S.C. 501(a), unless 

otherwise noted.

§§ 1.600–1.633 [Removed]

■ 2. Remove §§ 1.600 through 1.633 and 

the undesignated center heading and 

authority citation immediately 

preceding those sections.

■ 3. A new part 38 is added to read as 

follows:

PART 38—NATIONAL CEMETERIES 

OF THE DEPARTMENT OF VETERANS 

AFFAIRS

Sec. 

38.600 Definitions. 

38.601 Advisory Committee on Cemeteries 

and Memorials. 

38.602 Names for national cemeteries and 

features. 

38.603 Gifts and donations. 

38.617 Prohibition of interment or 

memorialization of persons who have 

been convicted of Federal or State capital 

crimes. 

38.618 Findings concerning commission of 

a capital crime where a person has not 

been convicted due to death or flight to 

avoid prosecution. 

38.620 Persons eligible for burial. 

38.621 Disinterments. 

38.629 Outer burial receptacle allowance. 

38.630 Headstones and markers. 

38.631 Graves marked with a private 

headstone or marker. 

38.632 Headstone and marker application 

process. 

38.633 Group memorial monuments.

Authority: 38 U.S.C. 107, 501, 512, chapter 

24, 7105, and as noted in specific sections.

§ 38.600 Definitions. 

(a) [Reserved] 

(b) Definitions. For purposes of 

§§ 38.617 and 38.618: 

Appropriate State official means a 

State attorney general or other official 

with statewide responsibility for law 

enforcement or penal functions. 

Clear and convincing evidence means 

that degree of proof which produces in 

the mind of the fact-finder a firm belief 

regarding the question at issue. 

Convicted means a finding of guilt by 

a judgment or verdict or based on a plea 

of guilty, by a Federal or State criminal 

court. 

Federal capital crime means an 

offense under Federal law for which the 

death penalty or life imprisonment may 

be imposed. 

Interment means the burial of 

casketed remains or the placement or 

scattering of cremated remains. 

Life imprisonment means a sentence 

of a Federal or State criminal court 

directing confinement in a penal 

institution for life. 

Memorialization means any action 

taken to honor the memory of a 

deceased individual. 

Personal representative means a 

family member or other individual who 

has identified himself or herself to the 

National Cemetery Administration 

cemetery director as the person 

responsible for making decisions 

concerning the interment of the remains 

of or memorialization of a deceased 

individual. 

State capital crime means, under 

State law, the willful, deliberate, or 

premeditated unlawful killing of 

another human being for which the 

death penalty or life imprisonment 

without parole may be imposed. 

(Authority: 38 U.S.C. 2408, 2411)

§ 38.601 Advisory Committee on 

Cemeteries and Memorials. 

Responsibilities in connection with 

Committee authorized by 38 U.S.C. 

chapter 24 are as follows: 

(a) The Under Secretary for Memorial 

Affairs will schedule the frequency of 

meetings, make presentations before the 

Committee, participate when requested 

by the Committee, evaluate Committee 

reports and recommendations and make 

recommendations to the Secretary based 

on Committee actions. 

(b) The Committee will evaluate and 

study cemeterial, memorial and burial 

benefits proposals or problems 

submitted by the Secretary or Under 

Secretary for Memorial Affairs, and 

make recommendations as to course of 

action or solution. Reports and 

recommendations will be submitted to 

the Secretary for transmission to 

Congress.

§ 38.602 Names for national cemeteries 

and features. 

(a) Responsibility. The Secretary is 

responsible for naming national 

cemeteries. The Under Secretary for 

Memorial Affairs, is responsible for 

naming activities and features therein, 

such as drives, walks, or special 

structures. 

(b) Basis for names. The names of 

national cemetery activities may be 

based on physical and area 

characteristics, the nearest important 

city (town), or a historical characteristic 

related to the area. Newly constructed 

interior thoroughfares for vehicular 

traffic in national cemetery activities 

will be known as drives. To facilitate 

location of graves by visitors, drives will 

be named after cities, counties or States 

or after historically notable persons, 

places or events.

§ 38.603 Gifts and donations. 

(a) Gifts and donations will be 

accepted only after it has been 

determined that the donor has a clear 

understanding that title thereto passes 

to, and is vested in, the United States, 

and that the donor relinquishes all 

control over the future use or 

disposition of the gift or donation, with 

the following exceptions: 

(1) Carillons will be accepted with the 

condition that the donor will provide 

the maintenance and the operator or the 

mechanical means of operation. The 

time of operation and the maintenance 

will be coordinated with the 

superintendent of the national cemetery. 

(2) Articles donated for a specific 

purpose and which are usable only for 

that purpose may be returned to the 

donor if the purpose for which the 

articles were donated cannot be 

accomplished. 

(3) If the donor directs that the gift is 

donated for a particular use, those 

directions will be carried out insofar as 

they are proper and practicable and not 

in violation of Department of Veterans 

Affairs policy. 

(4) When considered appropriate and 

not in conflict with the purpose of the 

national cemetery, the donor may be 

recognized by a suitable inscription on 

those gifts. In no case will the 

inscription give the impression that the 

gift is owned by, or that its future use 

is controlled by, the donor. Any tablet 

or plaque, containing an inscription will 

be of such size and design as will 

harmonize with the general nature and 

design of the gift. 

(b) Officials and employees of the 

Department of Veterans Affairs will not 

solicit contributions from the public nor 

will they authorize the use of their 

names, the name of the Secretary, or the 

name of the Department of Veterans 

Affairs by an individual or organization 

in any campaign or drive for money or 

articles for the purpose of making a 

donation to the Department of Veterans 

Affairs. This restriction does not 

preclude discussion with the individual 

offering the gift relative to the 

appropriateness of the gift offered.

§ 38.617 Prohibition of interment or 

memorialization of persons who have been 

convicted of Federal or State capital crimes. 

(a) Prohibition. The interment in a 

national cemetery under the control of 

the National Cemetery Administration 

of the remains, or the memorialization, 

of any of the following persons is 

prohibited: 

(1) Any person identified to the 

Secretary of Veterans Affairs by the 

United States Attorney General, prior to 

approval of interment or 

memorialization, as an individual who 

has been convicted of a Federal capital 

crime and sentenced to death or life 

imprisonment as a result of such crime.

4770 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

(2) Any person identified to the 

Secretary of Veterans Affairs by an 

appropriate State official, prior to 

approval of interment or 

memorialization, as an individual who 

has been convicted of a State capital 

crime and sentenced to death or life 

imprisonment without parole as a result 

of such crime. 

(3) Any person found under 

procedures specified in § 38.618 to have 

committed a Federal or State capital 

crime but have avoided conviction of 

such crime by reason of unavailability 

for trial due to death or flight to avoid 

prosecution. 

(b) Notice. The prohibition referred to 

in paragraph (a)(3) of this section is not 

contingent on receipt by the Secretary of 

Veterans Affairs or any other VA official 

of notice from any Federal or State 

official. 

(c) Receipt of notification. The Under 

Secretary for Memorial Affairs is 

delegated authority to receive from the 

United States Attorney General and 

appropriate State officials on behalf of 

the Secretary of Veterans Affairs the 

notification of conviction of capital 

crimes referred to in paragraphs (a)(1) 

and (2) of this section. 

(d) Decision where notification 

previously received. Upon receipt of a 

request for interment or 

memorialization, where the Secretary of 

Veterans Affairs has received the 

notification referred to in paragraph 

(a)(1) or (2) of this section with regard 

to the deceased, the cemetery director 

will make a decision on the request for 

interment or memorialization pursuant 

to 38 U.S.C. 2411. 

(e) Inquiry. (1) Upon receipt of a 

request for interment or 

memorialization, where the Secretary of 

Veterans Affairs has not received the 

notification referred to in paragraph 

(a)(1) or (a)(2) of this section with regard 

to the deceased, but the cemetery 

director has reason to believe that the 

deceased may have been convicted of a 

Federal or State capital crime, the 

cemetery director will initiate an 

inquiry to either: 

(i) The United States Attorney 

General, in the case of a Federal capital 

crime, requesting notification of 

whether the deceased has been 

convicted of a Federal capital crime for 

which the deceased was sentenced to 

death or life imprisonment; or 

(ii) An appropriate State official, in 

the case of a State capital crime, 

requesting notification of whether the 

deceased has been convicted of a State 

capital crime for which the deceased 

was sentenced to death or life 

imprisonment without parole. 

(2) The cemetery director will defer 

decision on whether to approve 

interment or memorialization until after 

a response is received from the Attorney 

General or appropriate State official. 

(f) Decision after inquiry. Where an 

inquiry has been initiated under 

paragraph (e) of this section, the 

cemetery director will make a decision 

on the request for interment or 

memorialization pursuant to 38 U.S.C. 

2411 upon receipt of the notification 

requested under that paragraph, unless 

the cemetery director initiates an 

inquiry pursuant to § 38.618(a). 

(g) Notice of decision. Written notice 

of a decision under paragraph (d) or (f) 

of this section will be provided by the 

cemetery director to the personal 

representative of the deceased, along 

with written notice of appellate rights in 

accordance with § 19.25 of this title. 

This notice of appellate rights will 

include notice of the opportunity to file 

a notice of disagreement with the 

decision of the cemetery director. 

Action following receipt of a notice of 

disagreement with a denial of eligibility 

for interment or memorialization under 

this section will be in accordance with 

§§ 19.26 through 19.38 of this title. 

(Authority: 38 U.S.C. 512, 2411, 7105)

§ 38.618 Findings concerning commission 

of a capital crime where a person has not 

been convicted due to death or flight to 

avoid prosecution. 

(a) Inquiry. With respect to a request 

for interment or memorialization, if a 

cemetery director has reason to believe 

that a deceased individual who is 

otherwise eligible for interment or 

memorialization may have committed a 

Federal or State capital crime, but 

avoided conviction of such crime by 

reason of unavailability for trial due to 

death or flight to avoid prosecution, the 

cemetery director, with the assistance of 

the VA regional counsel, as necessary, 

will initiate an inquiry seeking 

information from Federal, State, or local 

law enforcement officials, or other 

sources of potentially relevant 

information. After completion of this 

inquiry and any further measures 

required under paragraphs (c), (d), (e), 

and (f) of this section, the cemetery 

director will make a decision on the 

request for interment or 

memorialization in accordance with 

paragraph (b), (e), or (g) of this section. 

(b) Decision approving request 

without a proceeding or termination of 

a claim by personal representative 

without a proceeding. (1) If, after 

conducting the inquiry described in 

paragraph (a) of this section, the 

cemetery director determines that there 

is no clear and convincing evidence that 

the deceased committed a Federal or 

State capital crime of which he or she 

was not convicted due to death or flight 

to avoid prosecution, and the deceased 

remains otherwise eligible, the cemetery 

director will make a decision approving 

the interment or memorialization. 

(2) If the personal representative 

elects for burial at a location other than 

a VA national cemetery, or makes 

alternate arrangements for burial at a 

location other than a VA national 

cemetery, the request for interment or 

memorialization will be considered 

withdrawn and action on the request 

will be terminated. 

(c) Initiation of a proceeding. (1) If, 

after conducting the inquiry described 

in paragraph (a) of this section, the 

cemetery director determines that there 

appears to be clear and convincing 

evidence that the deceased has 

committed a Federal or State capital 

crime of which he or she was not 

convicted by reason of unavailability for 

trial due to death or flight to avoid 

prosecution, the cemetery director will 

provide the personal representative of 

the deceased with a written summary of 

the evidence of record and a written 

notice of procedural options. 

(2) The notice of procedural options 

will inform the personal representative 

that he or she may, within 15 days of 

receipt of the notice: 

(i) Request a hearing on the matter; 

(ii) Submit a written statement, with 

or without supporting documentation, 

for inclusion in the record; 

(iii) Waive a hearing and submission 

of a written statement and have the 

matter forwarded immediately to the 

Under Secretary for Memorial Affairs for 

a finding; or 

(iv) Notify the cemetery director that 

the personal representative is 

withdrawing the request for interment 

or memorialization, thereby, closing the 

claim. 

(3) The notice of procedural options 

will also inform the personal 

representative that, if he or she does not 

exercise one or more of the stated 

options within the prescribed period, 

the matter will be forwarded to the 

Under Secretary for Memorial Affairs for 

a finding based on the existing record. 

(d) Hearing. If a hearing is requested, 

the Director, Memorial Services 

Network will conduct the hearing. The 

purpose of the hearing is to permit the 

personal representative of the deceased 

to present evidence concerning whether 

the deceased committed a crime which 

would render the deceased ineligible for 

interment or memorialization in a 

national cemetery. Testimony at the 

hearing will be presented under oath, 

and the personal representative will 

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4771

have the right to representation by 

counsel and the right to call witnesses. 

The VA official conducting the hearing 

will have the authority to administer 

oaths. The hearing will be conducted in 

an informal manner and court rules of 

evidence will not apply. The hearing 

will be recorded on audiotape and, 

unless the personal representative 

waives transcription, a transcript of the 

hearing will be produced and included 

in the record.

(e) Decision of approval or referral for 

a finding after a proceeding. Following 

a hearing or the timely submission of a 

written statement, or in the event a 

hearing is waived or no hearing is 

requested and no written statement is 

submitted within the time specified: 

(1) If the cemetery director determines 

that it has not been established by clear 

and convincing evidence that the 

deceased committed a Federal or State 

capital crime of which he or she was not 

convicted due to death or flight to avoid 

prosecution, and the deceased remains 

otherwise eligible, the cemetery director 

will make a decision approving 

interment or memorialization; or 

(2) If the cemetery director believes 

that there is clear and convincing 

evidence that the deceased committed a 

Federal or State capital crime of which 

he or she was not convicted due to 

death or flight to avoid prosecution, the 

cemetery director will forward a request 

for a finding on that issue, together with 

the cemetery director’s recommendation 

and a copy of the record to the Under 

Secretary for Memorial Affairs. 

(f) Finding by the Under Secretary for 

Memorial Affairs. Upon receipt of a 

request from the cemetery director 

under paragraph (e) of this section, the 

Under Secretary for Memorial Affairs 

will make a finding concerning whether 

the deceased committed a Federal or 

State capital crime of which he or she 

was not convicted by reason of 

unavailability for trial due to death or 

flight to avoid prosecution. The finding 

will be based on consideration of the 

cemetery director’s recommendation 

and the record supplied by the cemetery 

director. 

(1) A finding that the deceased 

committed a crime referred to in 

paragraph (f) of this section must be 

based on clear and convincing evidence. 

(2) The cemetery director will be 

provided with written notification of the 

finding of the Under Secretary for 

Memorial Affairs. 

(g) Decision after finding. Upon 

receipt of notification of the finding of 

the Under Secretary for Memorial 

Affairs, the cemetery director will make 

a decision on the request for interment 

or memorialization pursuant to 38 

U.S.C. 2411. In making that decision, 

the cemetery director will be bound by 

the finding of the Under Secretary for 

Memorial Affairs. 

(h) Notice of decision. The cemetery 

director will provide written notice of 

the finding of the Under Secretary for 

Memorial Affairs and of a decision 

under paragraph (b), (e)(1), or (g) of this 

section. With notice of any decision 

denying a request for interment or 

memorialization, the cemetery director 

will provide written notice of appellate 

rights to the personal representative of 

the deceased, in accordance with 

§ 19.25 of this title. This will include 

notice of the opportunity to file a notice 

of disagreement with the decision of the 

cemetery director and the finding of the 

Under Secretary for Memorial Affairs. 

Action following receipt of a notice of 

disagreement with a denial of eligibility 

for interment or memorialization under 

this section will be in accordance with 

§§ 19.26 through 19.38 of this title. 

(Authority: 38 U.S.C. 512, 2411)

§ 38.620 Persons eligible for burial. 

The following is a list of those 

individuals who are eligible for burial in 

a national cemetery: 

(a) Any veteran (which for purposes 

of this section includes a person who 

died in the active military, naval, or air 

service). 

(b) Any member of a Reserve 

component of the Armed Forces, and 

any member of the Army National 

Guard or the Air National Guard, whose 

death occurs under honorable 

conditions while such member is 

hospitalized or undergoing treatment, at 

the expense of the United States, for 

injury or disease contracted or incurred 

under honorable conditions while such 

member is performing active duty for 

training, inactive duty training, or 

undergoing that hospitalization or 

treatment at the expense of the United 

States. 

(c) Any Member of the Reserve 

Officers’ Training Corps of the Army, 

Navy, or Air Force whose death occurs 

under honorable conditions while such 

member is—

(1) Attending an authorized training 

camp or on an authorized practice 

cruise; 

(2) Performing authorized travel to or 

from that camp or cruise; or 

(3) Hospitalized or undergoing 

treatment, at the expense of the United 

States, for injury or disease contracted 

or incurred under honorable conditions 

while such member is—

(i) Attending that camp or on that 

cruise; 

(ii) Performing that travel; or 

(iii) Undergoing that hospitalization 

or treatment at the expense of the 

United States. 

(d) Any person who, during any war 

in which the United States is or has 

been engaged, served in the armed 

forces of any government allied with the 

United States during that war, whose 

last such service terminated honorably, 

and who was a citizen of the United 

States at the time of entry on such 

service and at the time of his or her 

death. 

(e) The spouse, surviving spouse, 

minor child, or unmarried adult child of 

a person eligible under paragraph (a), 

(b), (c), (d), or (g) of this section. For 

purposes of this section—

(1) A surviving spouse includes a 

surviving spouse who had a subsequent 

remarriage; 

(2) A minor child means an 

unmarried child under 21 years of age, 

or under 23 years of age if pursuing a 

full-time course of instruction at an 

approved educational institution; and 

(3) An unmarried adult child means a 

child who became permanently 

physically or mentally disabled and 

incapable of self-support before 

reaching 21 years of age, or before 

reaching 23 years of age if pursuing a 

full-time course of instruction at an 

approved educational institution.

(f) Such other persons or classes of 

persons as may be designated by the 

Secretary. 

(g) Any person who at the time of 

death was entitled to retired pay under 

chapter 1223 of title 10, United States 

Code, or would have been entitled to 

retired pay under that chapter but for 

the fact that the person was under 60 

years of age. 

(h) Any person who: 

(1) Was a citizen of the United States 

or an alien lawfully admitted for 

permanent residence in the United 

States at the time of their death; and 

(2) Resided in the United States at the 

time of their death; and 

(3) Either was a—

(i) Commonwealth Army veteran or 

member of the organized guerillas—a 

person who served before July 1, 1946, 

in the organized military forces of the 

Government of the Commonwealth of 

the Philippines, while such forces were 

in the service of the Armed Forces of the 

United States pursuant to the military 

order of the President dated July 26, 

1941, including organized guerilla 

forces under commanders appointed, 

designated, or subsequently recognized 

by the Commander in Chief, Southwest 

Pacific Area, or other competent 

authority in the Army of the United 

States, and who died on or after 

November 1, 2000; or 

4772 Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 

(ii) New Philippine Scout—a person 

who enlisted between October 6, 1945, 

and June 30, 1947, with the Armed 

Forces of the United States with the 

consent of the Philippine government, 

pursuant to section 14 of the Armed 

Forces Voluntary Recruitment Act of 

1945, and who died on or after 

December 16, 2003. 

(Authority: 38 U.S.C. 107, 501, 2402)

§ 38.621 Disinterments. 

(a) Interments of eligible decedents in 

national cemeteries are considered 

permanent and final. Disinterment will 

be permitted only for cogent reasons 

and with the prior written authorization 

of the National Cemetery Area Office 

Director or Cemetery Director 

responsible for the cemetery involved. 

Disinterment from a national cemetery 

will be approved only when all living 

immediate family members of the 

decedent, and the person who initiated 

the interment (whether or not he or she 

is a member of the immediate family), 

give their written consent, or when a 

court order or State instrumentality of 

competent jurisdiction directs the 

disinterment. For purposes of this 

section, ‘‘immediate family members’’

are defined as surviving spouse, 

whether or not he or she is remarried; 

all adult children of the decedent; the 

appointed guardian(s) of minor 

children; and the appointed guardian(s) 

of the surviving spouse or of the adult 

child(ren) of the decedent. If the 

surviving spouse and all of the children 

of the decedent are deceased, the 

decedent’s parents will be considered 

‘‘immediate family members.’’

(b) All requests for authority to 

disinter remains will be submitted on 

VA Form 40–4970, Request for 

Disinterment, and will include the 

following information: 

(1) A full statement of reasons for the 

proposed disinterment. 

(2) Notarized statement(s) by all living 

immediate family members of the 

decedent, and the person who initiated 

the interment (whether or not he or she 

is a member of the immediate family), 

that they consent to the proposed 

disinterment. 

(3) A notarized statement, by the 

person requesting the disinterment that 

those who supplied affidavits comprise 

all the living immediate family members 

of the deceased. 

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

(c) In lieu of the documents required 

in paragraph (b) of this section, an order 

of a court of competent jurisdiction will 

be considered. 

(d) Any disinterment that may be 

authorized under this section must be 

accomplished without expense to the 

Government.

(The reporting and recordkeeping 

requirements contained in paragraph (b) have 

been approved by the Office of Management 

and Budget under OMB control number 

2900–0365)

§ 38.629 Outer Burial Receptacle 

Allowance. 

(a) Definitions—Outer burial 

receptacle. For purposes of this section, 

an outer burial receptacle means a 

graveliner, burial vault, or other similar 

type of container for a casket. 

(b) Purpose. This section provides for 

payment of a monetary allowance for an 

outer burial receptacle for any interment 

in a VA national cemetery where a 

privately-purchased outer burial 

receptacle has been used in lieu of a 

Government-furnished graveliner. 

(c) Second interments. In burials 

where a casket already exists in a grave 

with or without a graveliner, placement 

of a second casket in an outer burial 

receptacle will not be permitted in the 

same grave unless the national cemetery 

director determines that the already 

interred casket will not be damaged. 

(d) Payment of monetary allowance.

VA will pay a monetary allowance for 

each burial in a VA national cemetery 

where a privately-purchased outer 

burial receptacle was used on and after 

October 9, 1996. For burials on and after 

January 1, 2000, the person identified in 

records contained in the National 

Cemetery Administration Burial 

Operations Support System as the 

person who privately purchased the 

outer burial receptacle will be paid the 

monetary allowance. For burials during 

the period October 9, 1996 through 

December 31, 1999, the allowance will 

be paid to the person identified as the 

next of kin in records contained in the 

National Cemetery Administration 

Burial Operations Support System based 

on the presumption that such person 

privately purchased the outer burial 

receptacle (however, if a person who is 

not listed as the next of kin provides 

evidence that he or she privately 

purchased the outer burial receptacle, 

the allowance will be paid instead to 

that person). No application is required 

to receive payment of a monetary 

allowance. 

(e) Amount of the allowance. (1) For 

calendar year 2000 and each calendar 

year thereafter, the allowance will be 

the average cost, as determined by VA, 

of Government-furnished graveliners, 

less the administrative costs incurred by 

VA in processing and paying the 

allowance. 

(i) The average cost of Governmentfurnished graveliners will be based 

upon the actual average cost to the 

Government of such graveliners during 

the most recent fiscal year ending prior 

to the start of the calendar year for 

which the amount of the allowance will 

be used. This average cost will be 

determined by taking VA’s total cost 

during that fiscal year for single-depth 

graveliners which were procured for 

placement at the time of interment and 

dividing it by the total number of such 

graveliners procured by VA during that 

fiscal year. The calculation shall 

exclude both graveliners procured and 

pre-placed in gravesites as part of 

cemetery gravesite development projects 

and all double-depth graveliners. 

(ii) The administrative costs incurred 

by VA will consist of those costs that 

relate to processing and paying an 

allowance, as determined by VA, for the 

calendar year ending prior to the start of 

the calendar year for which the amount 

of the allowance will be used. 

(2) For calendar year 2000 and each 

calendar year thereafter, the amount of 

the allowance for each calendar year 

will be published in the ‘‘Notices’’

section of the Federal Register. The 

Federal Register notice will also 

provide, as information, the determined 

average cost of Government-furnished 

graveliners and the determined amount 

of the administrative costs to be 

deducted. 

(3) The published allowance amount 

for interments which occur during 

calendar year 2000 will also be used for 

payment of any allowances for 

interments which occurred during the 

period from October 9, 1996 through 

December 31, 1999. 

(Authority: 38 U.S.C. 2306(d))

§ 38.630 Headstones and markers. 

(a) Types of Government headstones 

and markers and inscriptions will be in 

accordance with policies approved by 

the Secretary. 

(b) Inscriptions on Government 

headstones, markers, and private 

monuments will be in accordance with 

policies and specifications of the Under 

Secretary for Memorial Affairs. 

(c) A memorial headstone or marker 

furnished for a deceased veteran by the 

Government may be erected in a private 

cemetery or in a national cemetery 

section established for this purpose. The 

headstones or markers for national 

cemeteries will be of the standard 

design authorized for the cemetery in 

which they are to be erected. In addition 

to the authorized inscription, the words 

‘‘In Memory Of’’ are mandatory. 

(Authority: 38 U.S.C. 501)

Federal Register / Vol. 70, No. 19 / Monday, January 31, 2005 / Rules and Regulations 4773

§ 38.631 Graves marked with a private 

headstone or marker. 

(a) VA will furnish an appropriate 

Government marker for the grave of a 

decedent described in paragraph (b) of 

this section, but only if the individual 

requesting the marker certifies 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. 

(b) The decedent referred to in 

paragraph (a) of this section is one who: 

(1) Died on or after September 11, 

2001; 

(2) Is buried in a private cemetery; 

and 

(3) Was eligible for burial in a 

national cemetery, but is not an 

individual described in 38 U.S.C. 

2402(4), (5), or (6). 

(c) VA will deliver the marker directly 

to the cemetery where the grave is 

located or to a receiving agent for 

delivery to the cemetery. 

(d) VA will not pay the cost of 

installing a Government marker in a 

private cemetery. 

(e) The applicant must obtain 

certification on VA Form 40–1330 from 

a cemetery representative that the type 

and placement of the marker requested 

adheres to the policies and guidelines of 

the selected private cemetery. 

(f) VA will furnish its full product 

line of Government markers for private 

cemeteries. 

(g) The authority to furnish a marker 

under this section expires on December 

31, 2006. 

(Authority: 38 U.S.C. 501, 2306)

(The Office of Management and Budget has 

approved the information collection 

requirements in this section under control 

number 2900–0222.)

§ 38.632 Headstone and marker 

application process. 

(a) Headstones and markers for graves 

in national cemeteries shall be ordered 

from the Record of Interment (VA Form 

40–4956) prepared by the national 

cemetery superintendent at the time of 

interment. No further application is 

required. 

(b) Submission of VA Form 40–1330, 

Application for Headstone or Marker, is 

required for the purpose of: 

(1) Ordering a Government headstone 

or marker for any unmarked grave of 

any eligible veteran buried in a private 

or local cemetery. 

(2) Ordering a Government headstone 

or marker for any unmarked grave in a 

post cemetery of the Armed Forces. 

(3) Ordering a Government memorial 

headstone or marker for placement in a 

national cemetery, in a private or local 

cemetery and any post cemetery of the 

Armed Forces.

§ 38.633 Group memorial monuments. 

(a) Definitions of terms. For the 

purpose of this section, the following 

definitions apply: 

(1) Group—all the known and 

unknown dead who perished in a 

common military event. 

(2) Memorial Monument—a 

monument commemorating veterans, 

whose remains have not been recovered 

or identified. Monuments will be 

selected in accordance with policies 

established under 38 CFR 38.630. 

(3) Next of kin—recognized in order: 

Surviving spouse; children, according to 

age; parents, including adoptive, 

stepparents, and foster parents; brothers 

or sisters, including half or stepbrothers 

and stepsisters; grandparents; 

grandchildren; uncles or aunts; 

nephews or nieces; cousins; and/or 

other lineal descendent. 

(4) Documentary evidence—Official 

documents, records, or correspondence 

signed by an Armed Services branch 

historical center representative attesting 

to the accuracy of the evidence. 

(b) The Secretary may furnish at 

government expense a group memorial 

monument upon request of next of kin. 

The group memorial monument will 

commemorate two or more identified 

members of the Armed Forces, 

including their reserve components, 

who died in a sanctioned common 

military event, (e.g., battle or other 

hostile action, bombing or other 

explosion, disappearance of aircraft, 

vessel or other vehicle) while in active 

military, naval or air service, and whose 

remains were not recovered or 

identified, were buried at sea, or are 

otherwise unavailable for interment. 

(c) A group memorial monument 

furnished by VA may be placed only in 

a national cemetery in an area reserved 

for such purpose. If a group memorial 

monument has already been provided 

under this regulation or by any 

governmental body, e.g., the American 

Battle Monuments Commission, to 

commemorate the dead from a common 

military event, an additional group 

memorial monument will not be 

provided by VA for the same purpose. 

(d) Application for a group memorial 

monument shall be submitted in a 

manner specified by the Secretary. 

Evidence used to establish and 

determine eligibility for a group 

memorial monument will conform to 

paragraph (a)(4) of this section. 

(Authority: 38 U.S.C. 501, 2403)

[FR Doc. 05–1705 Filed 1–28–05; 8:45 am] 

BILLING CODE 8320–01–P

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[Region II Docket No. R02–OAR–2004–NY–

0002, FRL–7851–1] 

Approval and Promulgation of 

Implementation Plans; New York; Low 

Emission Vehicle Program

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection 

Agency is approving a New York State 

State Implementation Plan (SIP) 

revision to revise its existing low 

emission vehicle (LEV) program. The 

State’s revision adopts California’s 

second generation low emission vehicle 

program for light-duty vehicles (LEV II). 

New York has revised its LEV rule to 

include a non-methane hydrocarbon 

standard and various administrative and 

grammatical changes to make its 

existing LEV rule identical to 

California’s LEV II program. The 

intended effect of this rulemaking is to 

approve a control strategy which will 

result in emissions reductions that will 

help achieve attainment of national 

ambient air quality standards for ozone.

DATES: Effective Date: This rule will be 

effective March 2, 2005.

ADDRESSES: Copies of the state submittal 

are available at the following addresses 

for inspection during normal business 

hours:

Environmental Protection Agency, 

Region 2 Office, Air Programs Branch, 

290 Broadway, 25th Floor, New York, 

New York 10007–1866. 

Environmental Protection Agency, Air 

and Radiation Docket and Information 

Center, Air Docket (6102), 401 M 

Street, SW., Washington, DC 20460. 

New York State Department of 

Environmental Conservation, Office of 

Air and Waste Management, 14th 

Floor, 625 Broadway, Albany, New 

York 12233–1010.

FOR FURTHER INFORMATION CONTACT:

David Risley, Air Programs Branch, 

Environmental Protection Agency, 290 

Broadway, 25th Floor, New York, New 

York 10007–1866, (212) 637–4249 or 

risley.david@epa.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents 

I. Description of the SIP Revision