Reconsideration of Prior Interment and Memorialization Decisions
| Published date | 17 July 2024 |
| Record Number | 2024-15532 |
| Citation | 89 FR 58067 |
| Court | Veterans Affairs Department |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 137 (Wednesday, July 17, 2024)
[Federal Register Volume 89, Number 137 (Wednesday, July 17, 2024)]
[Rules and Regulations]
[Pages 58067-58071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-15532]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 38
RIN 2900-AR37
Reconsideration of Prior Interment and Memorialization Decisions
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: The Department of Veterans Affairs (VA) amends its regulations
to implement the statute authorizing VA to reconsider a prior decision
to inter or honor the memory of a person in a VA national cemetery. As
of December 20, 2013, VA was authorized to reconsider a prior decision
to inter or memorialize an individual who was convicted of a Federal or
State capital crime or a Federal or State crime that caused the
individual to be a tier III sex offender for purposes of the Sex
Offender Registration and Notification Act. In addition, VA was
authorized to reconsider a prior decision to inter or memorialize an
individual who committed a Federal or State capital crime but was not
convicted of such crime because that individual was not available for
trial due to death or flight to avoid prosecution. As of January 5,
2023, VA was authorized to reconsider a prior decision to inter or
memorialize an individual who committed a Federal or State crime that
would cause the person to be a tier III sex offender but was not
convicted of such crime because that individual was not available for
trial due to death or flight to avoid prosecution. This rulemaking
implements review criteria and procedures for reconsideration of prior
interment or memorialization decisions within VA regulations.
DATES: This rule is effective August 16, 2024.
FOR FURTHER INFORMATION CONTACT: Artis Parker, Executive Director,
Office
[[Page 58068]]
of Field Programs, National Cemetery Administration, Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420.
Telephone: (314) 416-6304 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION: On February 27, 2023, VA published a
proposed rule in the Federal Register (88 FR 12296) that would
implement review criteria and procedures for reconsideration of prior
interment or memorialization decisions. The public comment period ended
on April 28, 2023, and VA received 3 comments in response to the
proposed rule. VA will make no changes to the rulemaking based on the
comments received on the proposed rule.
However, VA is making changes to the regulatory text to conform to
new statutory authority. Specifically, VA revises paragraphs (c) and
(d) in 38 CFR 38.622 to reflect changes to 38 U.S.C. 2411 made by
section 6 of Public Law 117-355. The update in the statute, along with
the corresponding changes in the regulatory text, allows VA to
reconsider interment or memorialization of an individual who committed
a Federal or State crime that would cause the person to be a tier III
sex offender but was not convicted of such crime due to death or flight
to avoid prosecution. We are revising the heading of proposed Sec.
38.622(c) from ``Avoidance of Capital Crime Conviction Due to Death or
Flight'' to ``Avoidance of Conviction Due to Death or Flight'' and
revising proposed paragraphs (c)(1), (c)(2), (d)(2), and (d)(2)(iii) to
include a person who committed or may have committed (depending on the
paragraph) ``a Federal or State crime that would cause the person to be
a tier III sex offender under 38 U.S.C. 2411(b)(5)''. These revisions
are a logical outgrowth of the proposed rule and do not change the
procedure for reconsideration cases set out in the proposed rule.
Rather, the revisions merely incorporate Congress's amendments to the
statute in adding the additional class of cases subject to
reconsideration. Therefore, an additional opportunity for notice and
public comment before promulgating this final rule is not necessary.
See Veterans Justice Grp. v. Sec'y of Veterans Affs., 818 F.3d 1336,
1343-45 (Fed. Cir. 2016) (holding that additional notice and
opportunity for comment were not required where modifications contained
in a final rule were a logical outgrowth of the proposed rule).
Additionally, VA is revising the regulatory text to clarify the
proper regulations governing appeals to the Board of Veterans' Appeals
and to emphasize the restrictions for appeal under the statute. In
Sec. 38.622(d)(1) and (d)(2)(iii), we change references to 38 CFR
19.25 (which governs decisions issued prior to February 19, 2019), see
Veterans Appeals Improvement and Modernization Act of 2017 (AMA),
Public Law 115-55, to 38 CFR 20.200 (which governs post-AMA decisions).
Similarly, in Sec. 38.622(d)(3), we change the reference to part 19,
which governs the legacy appeals system, to part 20, which governs
post-AMA appeals. As of the date of publication of this final rule, all
pending reconsideration cases involve reconsideration decisions made
after February 19, 2019, the effective date of the AMA. Therefore, VA
expects that the Board of Veterans' Appeals will adjudicate any appeals
of reconsiderations under the AMA regulations, rather than the legacy
appeals regulations.
VA revises proposed paragraph (d)(3) to clarify the unique
restrictions on appeals imposed by 38 U.S.C. 2411(d)(3). Specifically,
VA adds language to emphasize that the notice of disagreement must be
filed within 60 days from the date of the notice of decision and that
the only available method of appeal from a notice of decision issued by
the Under Secretary for Memorial Affairs is through review by the Board
of Veterans' Appeals. The clear language of sec. 2411(d)(3)(A) imposes
the 60-day deadline ``[n]otwithstanding any other provision of law.''
VA is removing language in proposed Sec. 38.622(d)(1) and (d)(2)(iii)
regarding the 60-day deadline, as that information now appears in
paragraph (d)(3). Additionally, sec. 2411(d)(3) only allows appeals
through the filing of a notice of disagreement to initiate review by
the Board of Veterans' Appeals ``in accordance with the provisions of
chapter 71.'' The language of sec. 2411(d)(3) predates the 2017
enactment of the AMA, which generally expanded the range of appeal
options for VA benefit decisions. However, Congress has not amended the
restrictive language of sec. 2411(d)(3), which only allows individuals
to appeal to the Board of Veterans' Appeals by filing a notice of
disagreement.
Regarding the comments received in response to the proposed rule,
one commenter mentioned supporting reconsideration of interment or
memorialization if proven beyond a reasonable doubt that an individual
committed a Federal or State capital crime or committed a Federal or
State crime that would have caused the person to be a tier III sex
offender, whether the individual was convicted or not. As stated in the
proposed rule, application of the reconsideration authority to bar
benefits is based on 38 U.S.C. 2411(d) and (e). Under 38 U.S.C.
2411(d)(2)(A)(i), if there is evidence of a final conviction, then the
bar to burial and memorial benefits would apply. When reconsidering
whether to apply the bar to benefits in cases where the decedent
committed a Federal or State capital crime or a Federal or State crime
that would cause the person to be a tier III sex offender but was not
convicted of such crime due to death or flight, VA has no authority to
apply a standard other than the ``clear and convincing evidence''
standard, as is required under Sec. 2411(d)(2)(A)(ii). VA will make no
changes based on this comment.
The same commenter also expressed support for the intent of the
proposed rule to preserve the legacy of veterans and their families by
reconsidering interment or memorialization of an individual who
committed a Federal or State capital crime or committed a Federal or
State crime that would have caused the person to be a tier III sex
offender but was not convicted of such crime due to death or flight to
avoid prosecution. VA appreciates the commenter's support and feedback
but will make no changes to the regulatory text based on this comment.
Another commenter expressed concerns regarding whether families
would be able to afford the cost burden of disinterment and whether the
cost would cause undue harm. The commenter suggested an alternative
approach for VA to pay costs associated with the reinterment of remains
unless the next of kin makes their own arrangements for disposition at
their expense. As explained in the proposed rule, VA will provide
notice to families about a proposed disinterment or removal of a
headstone or marker, prior to taking such actions. The notice provides
two options. While not required to do so, a family may choose to claim
their loved one's remains and determine the final resting place and
manner in which to memorialize their loved one at the family's expense.
If a decedent's family does not make arrangements to take possession of
the remains, VA will arrange for the disinterment at the Government's
expense. VA will determine a suitable cemetery for the disposition of
the decedent's remains and will make all necessary arrangements to
disinter, transport, reinter, and mark the decedent's grave with a non-
Government headstone or marker. VA will notify the decedent's family
once these steps are completed. Because VA will provide an option that
alleviates families of the financial burden
[[Page 58069]]
associated with disinterment or removal of a headstone or marker, VA
will make no changes based on the commenter's expressed concerns.
Finally, VA addresses a comment that contended the Sex Offender
Registration and Notification Act (SORNA) is unconstitutional and
violates Article III of the United States Constitution, because the
requirement to register as a sex offender constitutes a reopening of
final judgments entered before the enactment of the SORNA. VA
respectfully disagrees with the commenter because the reconsideration
authority under sec. 2411 only affects VA's prior adjudication of an
interment or memorialization claim and is not a reopening of the
decedent's criminal case, as the commenter suggests. As explained in
the proposed rule, sec. 2411 requires VA to consider a court's final
conviction for Federal or State sex offenses and if that results in
VA's finding that the individual meets the criteria to be categorized
as a tier III sex offender under the SORNA, we must impose the bar to
interment or memorialization in a national cemetery. The
reconsideration authority is predicated on this analysis, which only
draws on information about a person's criminal convictions but does not
impose further criminal penalties. The bar to benefits under sec. 2411
is not a criminal penalty because it only affects a person's ability to
receive otherwise entitled benefits based on qualifying military
service. Further, we clarify that the reconsideration authority applies
to individuals interred or memorialized after December 20, 2013, see
Public Law 113-65, sec. 2, and is unrelated to the enactment of the
SORNA in 2006. We considered this commenter's analysis but will make no
changes to the rulemaking.
We make some clarifying revisions to Sec. 38.622(b)(1) and (b)(2)
by revising the proposed reference to ``a Federal or State tier III sex
offense'' to more accurately refer to ``a Federal or State crime
causing the person to be a tier III sex offender''. We similarly revise
Sec. 38.622(d)(1) by changing the reference to ``a tier III sexual
offense'' to ``a Federal or State crime that would cause the person to
be a tier III sex offender under 38 U.S.C. 2411(b)(5)''. As discussed
above, VA is not making any changes to the rulemaking based on the
comments received on the proposed rule but is making some changes to
implement recent statutory amendments.
Executive Orders 12866, 13563 and 14094
Executive Order 12866 (Regulatory Planning and Review) directs
agencies to assess the costs and benefits of available regulatory
alternatives and, when regulation is necessary, to select regulatory
approaches that maximize net benefits (including potential economic,
environmental, public health and safety effects, and other advantages;
distributive impacts; and equity). Executive Order 13563 (Improving
Regulation and Regulatory Review) emphasizes the importance of
quantifying both costs and benefits, reducing costs, harmonizing rules,
and promoting flexibility. Executive Order 14094 (Modernizing
Regulatory Review) supplements and reaffirms the principles,
structures, and definitions governing contemporary regulatory review
established in Executive Orders 12866 and 13563. The Office of
Information and Regulatory Affairs has determined that this rulemaking
is not a significant regulatory action under Executive Order 12866, as
amended by Executive Order 14094. 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, because the number of claims and the amounts involved are expected
to be small. This final rule will directly affect the individuals and
establishments that may be involved with the transfer of remains
process (e.g., next of kin or personal representative of the decedent
and funeral homes). However, based on the anticipated aggregate number
of cases involving disinterment or removal of memorialization
headstones or markers, this final rule will not impact a substantial
number of small entities. Since the 2013 enactment of the
reconsideration authority in 38 U.S.C. 2411, VA has only reviewed 7
reconsideration decisions in total. Therefore, pursuant to 5 U.S.C.
605(b), the initial and final regulatory flexibility analysis
requirements of sections 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
This final rule contains no provisions constituting a collection of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
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).
List of Subjects in 38 CFR Part 38
Administrative practice and procedure, Cemeteries, Claims, Crime,
Grants programs--veterans, Veterans.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved and signed
this document on July 3, 2024, 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,
Regulation Development Coordinator, Office of Regulation Policy &
Management, Office of General Counsel, Department of Veterans Affairs.
For the reasons stated in the preamble, the Department of Veterans
Affairs amends 38 CFR part 38 as set forth below:
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, 2400, 2402, 2403,
2404, 2407, 2408, 2411, 7105.
0
2. Add Sec. 38.622 to read as follows:
Sec. 38.622 Reconsideration of prior interment and memorialization
decisions.
(a) General. (1) The Under Secretary for Memorial Affairs (USMA) is
the appropriate Federal official who may reconsider a prior decision to
inter the remains or honor the memory of a person in a national
cemetery.
(2) This section sets out the evaluative criteria and procedures
for VA to reconsider prior interment and memorialization decisions for
decedents
[[Page 58070]]
who are subsequently found to have committed or to have been convicted
of certain criminal acts that would prohibit them from receiving
benefits to which they are otherwise entitled.
(b) Capital Crime or Sex Offense Conviction. (1) Upon written
notification from the United States Attorney General or an appropriate
State official that a person interred or memorialized in a national
cemetery after December 20, 2013, was convicted of a Federal or State
capital crime and whose conviction meets the requirements of 38 U.S.C.
2411(b)(1) or (2), respectively, or was convicted of a Federal or State
crime causing the person to be a tier III sex offender and meets the
requirements of 38 U.S.C. 2411(b)(4), the USMA may, upon
reconsideration, decide to disinter the remains or remove the memorial
headstone or marker of such person from the cemetery.
(2) If VA has not initially received notification referred to in
paragraph (b)(1) of this section, but a cemetery director has reason to
believe that a person interred or memorialized in a national cemetery
after December 20, 2013, may have been convicted of a Federal or State
capital crime meeting the requirements of 38 U.S.C. 2411(b)(1) or (2),
respectively, or may have been convicted of a Federal or State crime
causing the person to be a tier III sex offender and meets the
requirements of 38 U.S.C. 2411(b)(4), the cemetery director will
initiate an inquiry to the United States Attorney General or
appropriate State official for confirmation and provide the results of
such inquiry to the USMA in cases where a conviction is confirmed,
which will initiate a reconsideration. The USMA will render a decision
on disinterment or memorial headstone or marker removal after reviewing
the results of the inquiry submitted by the cemetery director.
(c) Avoidance of Conviction Due to Death or Flight. (1) If a
cemetery director has reason to believe that a person interred or
memorialized in a national cemetery after December 20, 2013, may have
committed a Federal or State capital crime or may have committed a
Federal or State crime that would cause the person to be a tier III sex
offender under 38 U.S.C. 2411(b)(5), but avoided conviction of such
crime by reason of unavailability for trial due to death or flight to
avoid prosecution, the cemetery director will initiate an official
inquiry seeking information from Federal, State, or local law
enforcement officials, or other sources of potentially relevant
information.
(2) If, after conducting the inquiry, the cemetery director
determines that there appears to be clear and convincing evidence that
the decedent committed a Federal or State capital crime or committed a
Federal or State crime that would cause the person to be a tier III sex
offender under 38 U.S.C. 2411(b)(5), for which the decedent was not
convicted because the decedent was unavailable for trial due to death
or flight to avoid prosecution, the cemetery director will provide this
information to the USMA who will decide whether to reconsider the prior
decision to inter or memorialize the decedent. If the USMA decides to
reconsider the prior interment or memorialization decision, the USMA
will provide notice of procedural options and follow the procedures in
paragraph (d)(2).
(d) VA Notice of Decision. (1) For cases involving a conviction of
a Federal or State capital crime or conviction of a Federal or State
crime that would cause the person to be a tier III sex offender under
38 U.S.C. 2411(b)(5), where the USMA decides to disinter or remove a
memorial headstone or marker, NCA will provide written notice of that
decision to the decedent's next of kin or personal representative. The
written notice of decision will be in accordance with 38 U.S.C. 5104
and will include a notice of appellate rights in accordance with 38 CFR
20.200.
(2) In cases in which a cemetery director has reason to believe
that a person interred or memorialized in a national cemetery after
December 20, 2013, may have committed a Federal or State capital crime,
as described in 38 U.S.C. 2411(f)(1) and (2), or may have committed a
Federal or State crime that would cause the person to be a tier III sex
offender under U.S.C. 2411(b)(5), but avoided conviction of such crime
by reason of unavailability for trial due to death or flight to avoid
prosecution, should the USMA decide to reconsider the prior interment
or memorialization, prior to rendering written notice of final
decision, VA will follow the following process:
(i) NCA will provide a notice of procedural options, which will
inform the decedent's next of kin or personal representative that VA is
reconsidering the prior interment or memorialization of the decedent
and that they may, within 15 days of receipt of notice: request a
hearing on the matter; submit a written statement, with or without
supporting documentation, for inclusion in the record; or waive a
hearing and submission of a written statement.
(ii) If a hearing is requested, the District Executive Director
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 that 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 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.
(iii) 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, the USMA will decide whether there is clear and convincing
evidence that the decedent committed a Federal or State capital crime
or a Federal or State crime that would cause the person to be a tier
III sex offender under 38 U.S.C. 2411(b)(5), for which the decedent was
not convicted due to the decedent's unavailability for trial due to
death or flight to avoid prosecution. If the USMA decides that clear
and convincing evidence does not exist, the USMA will notify the next
of kin or personal representative that the decedent may remain interred
or that the decedent's memorial headstone or marker may remain in the
national cemetery. If the USMA decides that clear and convincing
evidence exists, the USMA will provide written notice of the decision
to disinter the decedent or remove the decedent's memorial headstone or
marker. The written notice of decision will be in accordance with 38
U.S.C. 5104 and will include a notice of appellate rights in accordance
with 38 CFR 20.200.
(3) Notwithstanding any other provision of this chapter, a notice
of disagreement with the decision of the USMA must be filed within 60
days from the date of the notice of decision, and the only method of
appeal from a notice of decision issued under this section is through
review by the Board of Veterans' Appeals. Action following receipt of a
notice of disagreement with reversal of an interment or memorialization
decision under this section will be in accordance with 38 CFR part 20.
(e) Disinterment or removal of memorialization. A decision to
disinter
[[Page 58071]]
the remains or remove a memorial headstone or marker becomes final
either by failure of the next of kin or personal representative to
appeal the decision or by final disposition of the appeal. In such
cases, the cemetery director shall take the following actions:
(1) In the case of disinterment, the cemetery director will contact
the next of kin or personal representative to coordinate the transfer
of remains from the national cemetery to another location. The next of
kin or personal representative will have 30 days to respond to the
cemetery director.
(i) If the next of kin or personal representative responds to the
notice within the 30-day period, the cemetery director will coordinate
a date and time for the disinterment and release of the decedent's
remains to the next of kin or personal representative for transport
from the national cemetery to a place determined by the next of kin or
personal representative. The cemetery director will perform the
disinterment. The next of kin or personal representative will bear
responsibility and cost for transportation of the remains from the
cemetery, including compliance with applicable state laws concerning
the disinterment and transport of remains from the national cemetery,
and any costs associated with the subsequent disposition of remains.
(ii) If the next of kin or personal representative does not respond
to the notice within the 30-day period, indicates refusal to accept the
decedent's remains, or fails to appear, the cemetery director will
determine a suitable cemetery for the disposition of the decedent's
remains and, at government expense, will make all necessary
arrangements to disinter, transport, reinter, and mark the grave of the
decedent with a non-government headstone or marker within a reasonable
time frame. The non-government headstone or marker will include the
decedent's name, date of birth, and date of death. The cemetery
director will then notify the next of kin or personal representative of
the date and time on which the disinterment was performed and the new
location of the decedent's remains.
(2) In the case of a memorial headstone or marker, the cemetery
director will remove the headstone or marker from the cemetery and
notify the next of kin or personal representative of the date on which
this action was taken.
(Authority: 38 U.S.C. 512, 2411)
[FR Doc. 2024-15532 Filed 7-16-24; 8:45 am]
BILLING CODE 8320-01-P
