[Code of Federal Regulations]
[Title 38, Volume 2]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR39.3]

[Page 717-720]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
          CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)
 
PART 39--STATE CEMETERY GRANTS--Table of Contents
 
Sec. 39.3  Applications with respect to projects.

    (a) A State seeking Federal assistance for establishment, expansion, 
or improvement of a State veterans' cemetery shall submit SF 424, 
Federal Assistance, with preapplication or application attachments, as 
applicable, to the Secretary for such assistance in compliance with the 
uniform requirements for grants-in-aid to State and local governments 
prescribed by Office of Management and Budget Circular No. A-102, 
Revised. The applicant shall submit as a part of the application or as 
an attachment thereto:
    (1) The amount of the grant requested with respect to such project 
which may not exceed 50 per centum of the estimated cost of construction 
of such project.
    (2) A description of the site for such project.
    (3) Plans and specifications as required by Sec. 39.8 The 
preapplication (part IV) shall include design concept and space outline 
as required by OMB Circular No. A-102, Revised.
    (4) Any comments or recommendations made by State reviewing 
agencies.


(Authority: 38 U.S.C. 2408(a)(1))

    (5) The preapplication submission shall include an environmental 
assessment to determine if an Envionmental Impact Statement is necessary 
for compliance with section 102(2)(C) of the National Environmental 
Policy Act of 1969, as amended. The Environmental Assessment shall 
briefly describe the possible beneficial and/or harmful effects on the 
following impact categories because of the proposed project. If an 
adverse environmental impact is anticipated, the applicant must explain 
what action will be taken to minimize the impact, (i) Transportation, 
(ii) Air Quality, (iii) Noise, (iv) Solid Waste, (v) Utilities, (vi) 
Geology (Soils/Hydrology/Floodplains), (vii) Water Quality, (viii) Land 
Use, (ix) Vegetation, Wildlife, Aquatic, Ecology/Wetlands, etc., (x) 
Economic Activities, (xi) Cultural Resources, (xii) Aesthetics, (xiii) 
Residential Population, (xiv) Community Services and Facilities, (xv) 
Community Plans and Projects, and (xvi) Other. The assessment shall 
comply with the requirements of the National Environmental Policy Act of 
1969, as amended.
    (b) The applicant must furnish written assurance that:
    (1) Any cemetery established, expanded, or improved through 
assistance of this program shall be used exclusively for the interment 
or memorialization of eligible persons, as set forth in Secs. 39.1(h) 
and 39.2(a), whose interment or memorialization is not contrary to the 
conditions of the grant (see Sec. 39.2(d) and 38 U.S.C. 2408 and 2411).
    (2) Title to such site is or will be vested solely in the State.
    (3) It possesses legal authority to apply for the grant, and to 
finance and construct the proposed facilities; that legislative 
authority or similar action has been duly adopted or passed as an 
official act of the applicant's governing body, authorizing the filing 
of the application, including all understandings and assurances 
contained therein, and directing and authorizing the person identified 
as the official representative of the applicant to act in connection 
with the application and to provide such additional information as may 
be required.
    (4) The project conforms to the applicable requirements for the 
implementation, maintenance and enforcement of ambient air quality 
standards adopted pursuant to section 108 of the Clean Air Act, as 
amended (42 U.S.C. 7410); that upon completion, the project will conform 
to the provisions of the conservation rules adopted by VA pursuant to 
E.O. 12185, 3 CFR, 1980 Comp., p., 474; that it will comply with Pub. L. 
90-480, as amended (42 U.S.C. 4151), which provides that certain 
buildings financed with Federal funds are so designed and constructed as 
to be accessible to the physically handicapped; and that, the project 
will comply with provisions of section 504, Rehabilitation Act of 1973, 
Pub. L. 93-112, as amended (29 U.S.C. 794) providing for prevention of 
discrimination against the handicapped in federally assisted programs.
    (5) It will comply with the provisions of: Executive Order 11988, 3 
CFR 1978 Comp., p., 117, relating to floodplain management and Executive 
Order

[[Page 718]]

12088, 3 CFR, 1979, Comp., p. 243, relating to the prevention, control 
and abatement of environmental pollution.
    (6) It will have sufficient funds available to meet the non-Federal 
share of the cost of construction projects. Sufficient funds will be 
available when construction is completed to assure effective operation 
and maintenance of the facility for the purposes constructed.
    (7) It will provide and maintain competent and adequate 
architectural engineering supervision and inspection at the construction 
site to insure that the completed work conforms with the approved plans 
and specifications; that it will furnish progress reports and such other 
information as the Secretary may require.
    (8) It will operate and maintain the facility in accordance with 
standards as prescribed under Sec. 39.5.
    (9) It will give the Secretary and the Comptroller General through 
any authorized representative access to and the right to examine all 
records, books, papers, or documents related to the grant.
    (10) It will require the facility to be designed to comply with the 
``American Standard Specifications for Making Buildings and Facilities 
Accessible to, and Usable by, the Physically Handicapped,'' ANSI A117.1-
1961(R1971), which is incorporated by reference. This incorporation by 
reference was approved by the Director of the Federal Register on 
October 28, 1982. This code is incorporated as it was on the date of 
approval and a notice of any change in this code will be published in 
the Federal Register. Copies are available from the Department of 
Veterans Affairs, Office of Facilities, 810 Vermont Avenue, NW., 
Washington, DC 20420. A copy of this standard is on file at the Office 
of the Federal Register. The applicant will be responsible for 
conducting inspections to insure compliance with these specifications by 
the contractor.
    (11) It will cause work on the project to be commenced within a 
reasonable time after receipt of notification from the Secretary that 
funds have been approved and that the project will be prosecuted with 
reasonable diligence.
    (12) It will not dispose of or encumber its title or other interests 
in the site and facilities.
    (13) It will comply with Title VI of the Civil Rights Act of 1964 
(Pub. L. 88-352) and all regulations adopted by VA pursuant to such 
Title as incorporated in 38 CFR part 18, subpart A. In accordance with 
Title VI of that Act, no person in the United States shall, on the 
grounds of race, color, or national origin, be excluded from 
participation in, be denied the benefits of, or be otherwise subjected 
to discrimination under any program or activity for which the applicant 
receives Federal financial assistance and will immediately take any 
measure necessary to effectuate this agreement. This assurance shall 
obligate the applicant for the period during which the site is operated 
as a State veterans' cemetery. (Prior to approval of financial 
assistance, VA will make a determination as to whether the applicant is 
in compliance with Title VI and the requirements of this part. The basis 
for such a determination shall be the submission of an assurance of 
compliance (VA Form 27-8206, Statement of Assurance of Compliance under 
Title VI, Civil Rights Act of 1964) by the applicant, and any relevant 
compliance review reports on file with the Department. Where a 
determination cannot be made from this data, VA will require the 
submission of necessary additional information and may take additional 
steps. Such additional steps may include, for example, field reviews and 
communicating with local government officials and protected class 
organizations.)
    (14) It will comply with the Age Discrimination in Employment Act of 
1967, as amended (29 U.S.C. 621 et seq.), which prohibits discrimination 
in employment practices on the basis of age and the Age Discrimination 
Act of 1975, as amended (42 U.S.C. 6101 et seq.) which prohibits 
discrimination on the basis of age in programs or activities receiving 
Federal financial assistance.
    (15) It will establish safeguards to prohibit employees from using 
their positions for a purpose that is or gives the appearance of being 
motivated by a desire for private gain for themselves or others, 
particularly those with

[[Page 719]]

whom they have family, business, or other ties.
    (16) It will comply with the requirements of Title II and Title III 
of the Uniform Relocation Assistance and Real Property Acquisition 
Policies Act of 1970 (Pub. L. 91-646) which provides for fair and 
equitable treatment of persons displaced as a result of Federal and 
federally-assisted programs.
    (17) It will comply with all requirements imposed by the Department 
of Veterans Affairs concerning special requirements of law, program 
requirements, and other administrative requirements in accordance with 
OMB Circular A-102, Revised.
    (18) It will comply with the provisions of the Hatch Act which limit 
the political activity of employees.
    (19) It will comply with the applicable minimum wage and maximum 
hours provisions of the Federal Fair Labor Standards Act as they apply 
to employees of State and local governments.
    (20) It will insure that the facilities under its ownership which 
shall be utilized in the accomplishment of the project are not listed on 
the Environmental Protection Agency's (EPA) list of Violating Facilities 
and that it will notify the Department of Veterans Affairs of the 
receipt of any communication from the Director, Office of Federal 
Activities, EPA, indicating that a facility to be utilized in the 
project is under consideration for listing by the EPA.
    (21) It will comply with the requirements of the National 
Environmental Policy Act of 1969, Pub. L. 91-190, as amended (42 U.S.C. 
4321) and Executive orders issued pursuant thereto.
    (22) It will comply with the flood insurance purchase requirements 
of Section 102(a) of the Flood Disaster Protection Act of 1973, Pub. L. 
93-234, 87 Stat. 975, approved December 31, 1973. Section 102(a) 
requires, on and after March 2, 1974, the purchase of flood insurance in 
communities where such insurance is available as a condition for the 
receipt of any Federal financial assistance for construction or 
acquisition purposes for use in any area that has been identified by the 
Director of the Federal Emergency Management Agency as an area having 
special flood hazards.
    (23) It will assist the Department of Veterans Affairs in its 
compliance with section 106 of the National Historic Preservation Act of 
1966 as amended (16 U.S.C. 470f), Executive Order 11593, 3 CFR, 1971-
1975, Comp., p. 559, and the Archeological and Historic Preservation Act 
of 1966 (16 U.S.C. 469a-1 et seq.) by (i) consulting with the State 
Historic Preservation Officer on the conduct of investigations, as 
necessary, to identify properties listed in or eligible for inclusion in 
the National Register of Historic Places that are subject to adverse 
effects (see 36 CFR 800.8) by the activity, and notifying the Department 
of Veterans Affairs of the existence of any such properties, and by (ii) 
complying with all requirements established by the Department of 
Veterans Affairs to avoid or mitigate adverse effects upon such 
properties.
    (24) It will obtain approval by the Secretary of the final working 
drawings and specifications before the project is advertised or placed 
on the market for bidding; it will construct the project, or cause it to 
be constructed, to final completion in accordance with the application 
and approved plans and specifications; it will submit to the Secretary 
for prior approval changes that alter the costs of the project, use of 
space, or functional layout; it will not enter into a construction 
contract(s) for the project or undertake other activities until the 
conditions of the construction grant program(s) have been met.
    (c) The Secretary will approve any such application if the Secretary 
finds that there are sufficient funds available to make the grant 
requested with respect to such project and that:
    (1) It has been determined by the Department of Veterans Affairs 
that the application meets the requirements of paragraphs (a) and (b) of 
this section.
    (2) The plans and specifications for such project are in accordance 
with Sec. 39.8.
    (3) The State has established procedures for determining 
reasonableness, allowability, and allocability of costs in accordance 
with the provisions of OMB Circular No. A-87.

[[Page 720]]

    (4) The State is not receiving more than 20 per centum of the total 
amount appropriated for such grants for such fiscal year.


(Authority: 38 U.S.C. 2408(b)(1))

    (d) The Secretary shall certify approved applications to the 
Secretary of the Treasury in the amount of the grant requested, but in 
no event an amount greater than 50 percent of the estimated cost of the 
project, and shall designate the appropriation from which it shall be 
paid. Funds paid for the establishment, expansion, or improvement of a 
State veterans' cemetery will be used solely for carrying out such 
project as so approved.


(Authority: 38 U.S.C. 2408(c)(2))

    (e) Any amendment of any application, whether or not approved under 
paragraph (c) of this section, will be subject to review and approval 
pursuant to the regulations governing grants to States for 
establishment, expansion, and improvement of State veterans' cemeteries 
in the same manner as an original application.


(Authority: 38 U.S.C. 2408(c)(1))

    (f) Sums provided under paragraph (d) of this section shall remain 
available until the end of the second fiscal year following the fiscal 
year for which they are appropriated. If all funds from a grant have not 
been utilized by a State for the purpose for which the grant was made 
within 3 years after the Secretary has certified the approved 
application for such grant to the Secretary of the Treasury, the United 
States shall be entitled to recover any such unused grant funds from 
such State.


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

(Approved by the Office of Management and Budget under control number 
2900-0375)

[47 FR 49395, Nov. 1, 1982, as amended at 45 FR 34988, Aug. 23, 1989; 67 
FR 62645, Oct. 8, 2002]