§ 2404. — Administration.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 38USC2404]
TITLE 38--VETERANS' BENEFITS
PART II--GENERAL BENEFITS
CHAPTER 24--NATIONAL CEMETERIES AND MEMORIALS
Sec. 2404. Administration
(a) The Secretary is authorized to make all rules and regulations
which are necessary or appropriate to carry out the provisions of this
chapter, and may designate those cemeteries which are considered to be
national cemeteries.
(b) In conjunction with the development and administration of
cemeteries for which the Secretary is responsible, the Secretary shall
provide all necessary facilities including, as necessary,
superintendents' lodges, chapels, crypts, mausoleums, and columbaria.
(c)(1) Subject to paragraph (2), each grave in a national cemetery
shall be marked with an appropriate marker. Such marker shall bear the
name of the person buried, the number of the grave, and such other
information as the Secretary shall by regulation prescribe.
(2) The grave markers referred to in paragraph (1) shall be upright
for interments that occur on or after January 1, 1987, except that--
(A) in the case of any cemetery scheduled to be closed by
September 30, 1991, as indicated in the documents submitted by the
Administrator of Veterans' Affairs to the Congress in justification
for the amounts included for Veterans' Administration programs in
the President's Budget for fiscal year 1987, the Secretary may
provide for flat grave markers;
(B) in the case of any cemetery with a section which has flat
markers on October 28, 1986, the Secretary may continue to provide
for flat grave markers in such section;
(C) in the case of any cemetery located on the grounds of or
adjacent to a Department health-care facility, the Secretary may
provide for flat grave markers; and
(D) in the case of grave sites of cremated remains that are
interred in the ground, the Secretary may provide for flat grave
markers.
(d) There shall be kept in each national cemetery, and at the main
office of the Department, a register of burials in each cemetery setting
forth the name of each person buried in the cemetery, the number of the
grave in which the veteran is buried, and such other information as the
Secretary by regulation may prescribe.
(e) In carrying out the Secretary's responsibilities under this
chapter, the Secretary may contract with responsible persons, firms, or
corporations for the care and maintenance of such cemeteries under the
Secretary's jurisdiction as the Secretary shall choose, under such terms
and conditions as the Secretary may prescribe.
(f)(1) The Secretary is authorized to convey to any State, or
political subdivision thereof, in which any national cemetery is
located, all right, title, and interest of the United States in and to
any Government owned or controlled approach road to such cemetery if,
prior to the delivery of any instrument of conveyance, the State or
political subdivision to which such conveyance is to be made notifies
the Secretary in writing of its willingness to accept and maintain the
road included in such conveyance. Upon the execution and delivery of
such a conveyance, the jurisdiction of the United States over the road
conveyed shall cease and thereafter vest in the State or political
subdivision concerned.
(2) The Secretary may, to the extent of appropriated funds available
for such purpose, make a contribution to local authorities for the
construction of road improvements or traffic controls or other devices
on land adjacent to a national cemetery if the Secretary determines that
such a contribution is essential to ensure safe ingress to or egress
from the cemetery.
(g) Notwithstanding any other provision of law, the Secretary may at
such time as the Secretary deems desirable, relinquish to the State in
which any cemetery, monument, or memorial under the Secretary's
jurisdiction is located, such portion of legislative jurisdiction over
the lands involved as is necessary to establish concurrent jurisdiction
between the Federal Government and the State concerned. Such partial
relinquishment of jurisdiction under the authority of this subsection
may be made by filing with the Governor of the State involved a notice
of such relinquishment and shall take effect upon acceptance thereof by
the State in such manner as its laws may prescribe.
(Added Pub. L. 93-43, Sec. 2(a), June 18, 1973, 87 Stat. 76, Sec. 1004;
amended Pub. L. 99-576, title IV, Sec. 411, title VII, Sec. 701(55),
Oct. 28, 1986, 100 Stat. 3283, 3295; Pub. L. 100-322, title III,
Secs. 341(a), 342, May 20, 1988, 102 Stat. 539, 540; Pub. L. 101-237,
title III, Sec. 313(b)(1), Dec. 18, 1989, 103 Stat. 2077; Pub. L. 102-
54, Sec. 14(b)(21), June 13, 1991, 105 Stat. 284; renumbered Sec. 2404
and amended Pub. L. 102-83, Secs. 4(a)(3), (4), (b)(7), 5(a), Aug. 6,
1991, 105 Stat. 404-406.)
Amendments
1991--Pub. L. 102-83, Sec. 5(a), renumbered section 1004 of this
title as this section.
Subsec. (c)(2)(A). Pub. L. 102-83, Sec. 4(b)(7), substituted
``Administrator of Veterans' Affairs'' for ``Secretary''.
Subsec. (c)(2)(B). Pub. L. 102-54 substituted ``October 28, 1986''
for ``the date of the enactment of the Veterans' Benefits Improvement
and Health-Care Authorization Act of 1986''.
Subsec. (c)(2)(C). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted
``Department'' for ``Veterans' Administration''.
Subsec. (d). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted
``Department'' for ``Veterans' Administration''.
1989--Pub. L. 101-237 substituted ``Secretary'' and ``Secretary's''
for ``Administrator'' and ``Administrator's'', respectively, wherever
appearing.
1988--Subsec. (c)(2)(C), (D). Pub. L. 100-322, Sec. 341(a), added
subpars. (C) and (D).
Subsec. (f). Pub. L. 100-322, Sec. 342, designated existing
provisions as par. (1) and added par. (2).
1986--Subsec. (b). Pub. L. 99-576, Sec. 701(55)(B), substituted
``the Administrator'' for ``he'' before ``is responsible''.
Subsec. (c). Pub. L. 99-576, Sec. 411, designated existing
provisions as par. (1), substituted ``Subject to paragraph (2), each''
for ``Each'', and added par. (2).
Subsec. (d). Pub. L. 99-576, Sec. 701(55)(A), substituted ``the
veteran'' for ``he''.
Subsecs. (e), (g). Pub. L. 99-576, Sec. 701(55)(B), (C), substituted
``the Administrator'' and ``the Administrator's'' for ``he'' and
``his'', respectively, wherever appearing.
Transfer of Functions
Section 6 of Pub. L. 93-43 provided that:
``[Jurisdiction] (a)(1) There are hereby transferred from the
Secretary of the Army to the Administrator of Veterans' Affairs all
jurisdiction over, and responsibility for, (A) all national cemeteries
(except the cemetery at the United States Soldiers' and Airmen's Home
and Arlington National Cemetery), and (B) any other cemetery (including
burial plots), memorial, or monument under the jurisdiction of the
Secretary of the Army immediately preceding the effective date of this
section [see note hereunder] (except the cemetery located at the United
States Military Academy at West Point) which the President determines
would be appropriate in carrying out the purposes of this Act [see
Tables for classification].
``(2) There are hereby transferred from the Secretary of the Navy
and the Secretary of the Air Force to the Administrator of Veterans'
Affairs all jurisdiction over, and responsibility for, any cemetery
(including burial plots), memorial, or monument under the jurisdiction
of either Secretary immediately preceding the effective date of this
section [see note hereunder] (except those cemeteries located at the
United States Naval Academy at Annapolis, the United States Naval Home
Cemetery at Philadelphia, and the United States Air Force Academy at
Colorado Springs) which the President determines would be appropriate in
carrying out the purposes of this Act [see Tables for classification].
``[Personnel; property; records; and funds] (b) So much of the
personnel, property, records, and unexpended balances of appropriations,
allocations, and other funds available to, or under the jurisdiction of,
the Secretary of the Army, the Secretary of the Navy, and the Secretary
of the Air Force, in connection with functions transferred by this Act,
as determined by the Director of the Office of Management and Budget,
are transferred to the Administrator of Veterans' Affairs.
``[Savings provision; offenses, penalties and forfeitures] (c) All
offenses committed and all penalties an forfeitures incurred under any
of the provisions of law amended or repealed by this Act may be
prosecuted and punished in the same manner and with the same effect as
if such amendments or repeals had not been made.
``[Same; rules; regulations, permits, and other privileges] (d) All
rules, regulations, orders, permits, and other privileges issued or
granted by the Secretary of the Army, the Secretary of the Navy, or the
Secretary of the Air Force with respect to the cemeteries, memorials,
and monuments transferred to the Veterans' Administration by this Act,
unless contrary to the provisions of such Act, shall remain in full
force and effect until modified, suspended, overruled, or otherwise
changed by the Administrator of Veterans' Affairs, by any court of
competent jurisdiction, or by operation of law.
``[Abatement of proceedings; proceedings against United States or
officer of Veterans' Administration; judicial orders; continuation of
suits by Administrator] (e) No suit, action, or other proceeding
commenced by or against any officer in his official capacity as an
official of the Department of the Army, the Department of the Navy, or
the Department of the Air Force with respect to functions transferred
under subsection (a) or (c) of this section shall abate by reason of the
enactment of this section. No cause of action by or against any such
department with respect to functions transferred under such subsection
(a) or by or against any officer thereof in his official capacity, shall
abate by reason of the enactment of this section. Causes of actions,
suits, or other proceedings may be asserted by or against the United
States or such officer of the Veterans' Administration as may be
appropriate and, in any litigation pending when this section takes
effect, the court may at any time, upon its own motion or that of any
party, enter an order which will give effect to the provisions of this
subsection. If before the date this section takes effect [see note
hereunder], any such department, or officer thereof in his official
capacity, is a party to a suit with respect to any function so
transferred, such suit shall be continued by the Administrator of
Veterans' Affairs.''
[Section 6 of Pub. L. 93-43 effective Sept. 1, 1973, or such earlier
date as the President may prescribe and publish in the Federal Register,
see section 10(c) of Pub. L. 93-43, set out as an Effective Date note
under section 2306 of this title.]
[The United States Soldiers' and Airmen's Home and the United States
Naval Home were incorporated into the Armed Forces Retirement Home by
section 411 of Title 24, Hospitals and Asylums.]
Use of Flat Grave Markers at Santa Fe National Cemetery, New Mexico
Pub. L. 106-117, title VI, Sec. 612, Nov. 30, 1999, 113 Stat. 1580,
provided that: ``Notwithstanding section 2404(c)(2) of title 38, United
States Code, the Secretary [of Veterans Affairs] may provide for flat
grave markers at the Santa Fe National Cemetery, New Mexico.''
Independent Study on Improvements to Veterans' Cemeteries
Pub. L. 106-117, title VI, Sec. 613, Nov. 30, 1999, 113 Stat. 1581,
provided that:
``(a) Study.--Not later than 180 days after the date of the
enactment of this Act [Nov. 30, 1999], the Secretary [of Veterans
Affairs] shall enter into a contract with one or more qualified
organizations to conduct a study of national cemeteries described in
subsection (b). For purposes of this section, an entity of Federal,
State, or local government is not a qualified organization.
``(b) Matters Studied.--(1) The study conducted pursuant to the
contract entered into under subsection (a) shall include an assessment
of each of the following:
``(A) The one-time repairs required at each national cemetery
under the jurisdiction of the National Cemetery Administration of
the Department of Veterans Affairs to ensure a dignified and
respectful setting appropriate to such cemetery, taking into account
the variety of age, climate, and burial options at individual
national cemeteries.
``(B) The feasibility of making standards of appearance of
active national cemeteries, and the feasibility of making standards
of appearance of closed national cemeteries, commensurate with
standards of appearance of the finest cemeteries in the world.
``(C) The number of additional national cemeteries that will be
required for the interment and memorialization in such cemeteries of
individuals qualified under chapter 24 of title 38, United States
Code, who die after 2005.
``(D) The advantages and disadvantages of the use by the
National Cemetery Administration of flat grave markers and upright
grave markers.
``(E) The current condition of flat grave marker sections at
each of the national cemeteries.
``(2) In presenting the assessment of additional national cemeteries
required under paragraph (1)(C), the report shall identify by five-year
period, beginning with 2005 and ending with 2020, the following:
``(A) The number of additional national cemeteries required
during each such five-year period.
``(B) With respect to each such five-year period, the areas in
the United States with the greatest concentration of veterans whose
needs are not served by national cemeteries or State veterans'
cemeteries.
``(c) Report.--(1) Not later than one year after the date on which a
qualified organization enters into a contract under subsection (a), the
organization shall submit to the Secretary a report setting forth the
results of the study conducted and conclusions of the organization with
respect to such results.
``(2) Not later than 120 days after the date on which a report is
submitted under paragraph (1), the Secretary shall transmit to the
Committees on Veterans' Affairs of the House of Representatives and the
Senate a copy of the report, together with any comments on the report
that the Secretary considers appropriate.''
Grave Markers in Certain Locations
Pub. L. 103-446, title VIII, Sec. 804, Nov. 2, 1994, 108 Stat. 4675,
provided that: ``Notwithstanding section 2404(c)(2) of title 38, United
States Code, the Secretary of Veterans Affairs may provide for flat
grave markers at the Willamette National Cemetery, Oregon.''
Section 11 of Pub. L. 102-54, as amended by Pub. L. 102-83,
Sec. 5(c)(2), Aug. 6, 1991, 105 Stat. 406, provided that:
``Notwithstanding section 2404(c)(2) of title 38, United States Code,
the Secretary may provide for flat grave markers in that section of the
Florida National Cemetery in which preplaced grave liners were installed
before July 30, 1988.''
Section 341(b) of Pub. L. 100-322, as amended by Pub. L. 102-83,
Sec. 5(c)(2), Aug. 6, 1991, 105 Stat. 406, provided that:
``Notwithstanding section 2404(c)(2) of title 38, United States Code,
the Administrator may provide for flat grave markers in the cases of the
national cemeteries in Riverside, California; Bourne, Massachusetts;
Augusta, Michigan; and Indiantown Gap, Pennsylvania; and the proposed
national cemetery approved by the Administrator, as of July 31, 1987,
for Northern California.''
Functions, Powers, and Duties of Secretaries Unaffected
Repeal of sections 271 to 276, 278 to 279d, 281 to 282, 286 to 290,
and 296 of Title 24, Hospitals and Asylums, and enactment of provisions
set out as notes under sections 271 to 276 of Title 24 without effect
upon functions, powers, and duties of secretaries of the military
departments with respect to cemeteries, memorials, or monuments under
the jurisdiction of the secretary concerned to which the transfer
provisions of section 6(a) of Pub. L. 93-43, set out as a note above, do
not apply, see section 7(b) of Pub. L. 93-43, set out as a note under
sections 271 to 276 of Title 24.
Studies; Recommendations to Congress
Section 3 of Pub. L. 93-43 authorized the Administrator to conduct a
comprehensive study concerning the criteria governing the development
and operation of the National Cemetery System, including the concept of
regional cemeteries, the relationship of the National Cemetery System to
other burial benefits provided by Federal and State Governments to
servicemen and veterans, steps taken to conform the existing system to
the recommended criteria, private burial and funeral costs in the United
States, current headstone and marker programs, and the marketing and
sales practices of non-Federal cemeteries and interment facilities, and
to submit his recommendations within twelve months after the convening
of the first session of the Ninety-third Congress and also authorized
the Administrator, in conjunction with the Secretary of Defense, to
conduct a comprehensive study concerning the advisability of including
Arlington National Cemetery within the National Cemetery System, the
appropriateness of maintaining the present eligibility requirements for
burial at Arlington National Cemetery and the advisability of
establishing another national cemetery, and to submit the results of
their joint recommendations within twelve months after the convening of
the first session of the Ninety-third Congress.
Section Referred to in Other Sections
This section is referred to in section 2408 of this title.
