[Federal Register Volume 87, Number 27 (Wednesday, February 9, 2022)]
[Proposed Rules]
[Pages 7402-7404]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02682]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AR43


Requesting Disinterment of an Eligible Decedent From a National 
Cemetery

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend 
regulations governing disinterment of eligible decedents interred in VA 
national cemeteries. The amendment is necessary to clarify the 
requirements that must be met before VA can decide a disinterment 
request. Clarification of the requirements will help ensure consistent 
administration of disinterment requests at all VA national cemeteries.
    Current regulations permit disinterment only when all living 
immediate family members of the decedent, and the person who initiated 
the interment (whether or not such person is a member of the immediate 
family), all give their written consent, or when VA receives an order 
from a court or State instrumentality of competent jurisdiction 
directing the disinterment. We propose to clarify that if the 
individual who initiated the interment does not consent, or is not 
alive to provide consent, or all living immediate family members are 
not in agreement, anyone seeking disinterment of an eligible decedent 
must obtain an order from a court or State instrumentality of competent 
jurisdiction to direct the disinterment. This clarification will 
support the regulatory principle that all burials in national 
cemeteries are considered permanent and final and that a disinterment 
will be permitted only for cogent reasons, preserve the intent of the 
individual who initiated the interment, and ensure that a court or 
other appropriate entity rather than VA will adjudicate family 
disputes.

DATES: Comments must be received by VA on or before April 11, 2022.

ADDRESSES: Comments may be submitted through www.Regulations.gov. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AR43--Requesting Disinterment of an Eligible Decedent from a 
National Cemetery.'' Comments received will be available at 
www.regulations.gov for public viewing, inspection, or copies.

FOR FURTHER INFORMATION CONTACT: Alan Amelinckx, Management and Program 
Analyst, National Cemetery Administration, Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420. Email: 
[email protected]. Telephone: 202-461-5658 (this is not a toll-free 
number).

SUPPLEMENTARY INFORMATION: Section 2400(a) of title 38, United States 
Code (U.S.C.), provides that NCA is responsible for the interment of 
deceased servicemembers and veterans. The authority to disinter, if 
appropriate, is a necessary and corresponding component of VA's 
responsibility to inter eligible veterans or other eligible persons in 
a national cemetery. Interment of an eligible decedent in a national 
cemetery is considered permanent and final, and disinterment is 
approved only in limited circumstances.
    Currently, VA disinterment request and review criteria are codified 
in 38 CFR 38.621, which states that ``[d]isinterment 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.'' 38 CFR 38.621(a).
    The regulation is not clear whether the condition of ``living'' 
also extends to the person who initiated the interment, as it does to 
immediate family members. Therefore, it could be interpreted that if 
the individual who initiated the interment is deceased and thus cannot 
provide written consent, VA could consider a family's disinterment 
request without a court order or direction from a State instrumentality 
of competent jurisdiction if all living immediate family members of the 
decedent give their written consent.
    To eliminate ambiguity, VA proposes to clarify in Sec.  38.621(a) 
and (b) that if the individual who initiated the interment does not 
consent, or is not alive to provide consent, or all living immediate 
family members are not in agreement, anyone seeking disinterment of an 
eligible decedent must seek a court order or State instrumentality of 
competent jurisdiction to direct the disinterment. This change supports 
the regulatory principle that all burials in national cemeteries are 
considered permanent and final and that a disinterment will be 
permitted only for cogent reasons, preserves the intent of the 
individual who initiated the interment, and ensures a deliberative 
court or administrative process that is better suited than VA to 
adjudicate family disputes.
    In addition to revising the regulatory text for disinterment 
requests, VA would revise VA Form 40-4970, Request for Disinterment, to 
reflect the changes to the regulatory text. VA also proposes to add a 
provision in Sec.  38.621(b)(2) stating: ``If the person provides a 
false certification on VA Form 40-4970, he or she may be subject to 
penalties, to include fine or imprisonment or both.'' VA would revise 
VA Form 40-4970 to include such a penalty statement. This change is 
necessary because VA Form 40-4970 does not contain this penalty 
statement, which appears on most other burial and memorialization 
forms. In addition to making it consistent with other forms, the 
addition of the penalty statement to VA Form 40-4970 would help 
dissuade requestors from submitting the form without the required 
endorsement of the individual who initiated the interment and all 
living family members.
    We also note the current version of 38 CFR 38.621 uses the title 
``National Cemetery Area Office Director,'' but since 1998, that title 
has not been used and has been replaced by the current title ``National 
Cemetery District

[[Page 7403]]

Executive Director,'' which would be used in the updated regulation.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866. The Regulatory Impact Analysis associated with this rulemaking 
can be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not 
have a significant economic impact on a substantial number of small 
entities as they are defined in the Regulatory Flexibility Act (5 
U.S.C. 601-612). This certification is based on the fact that most 
disinterment requests are submitted by families. Although local courts 
and State instrumentalities may be involved if family members differ on 
a contemplated disinterment action, processing and adjudicating those 
requests for a court-ordered disinterment would likely be rare and 
would be conducted as part of that entity's routine operations. VA 
cannot estimate the number of entities that may be affected by this 
proposed rule given that each disinterment case is based on the unique 
needs of families. Therefore, pursuant to 5 U.S.C. 605(b), the initial 
and final regulatory flexibility analysis requirements of 5 U.S.C. 603 
and 604 do not apply.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in an 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 proposed rule would have no such 
effect on State, local, and tribal governments, or on the private 
sector.

Paperwork Reduction Act

    This proposed rule includes provisions that would amend a 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521) that is currently approved by the Office of 
Management and Budget (OMB) under OMB control number 2900-0365. 
Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this 
rulemaking to OMB for review and approval.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. If OMB does not approve the 
collection of information as requested, VA will immediately remove the 
provisions containing the collection of information or take such other 
action as is directed by OMB.
    Proposed Sec.  38.621 would require revision of the instructions on 
VA Form 40-4970 to require an order from a court or State 
instrumentality of competent jurisdiction if a living immediate family 
member will not provide consent to the disinterment, or if the person 
who initiated the decedent's burial request will not provide consent to 
the disinterment or is deceased and cannot provide consent to the 
disinterment. The proposed rule would also revise the form to add a 
penalty statement for false certifications on the form.
    The proposed revision to the form instructions and addition of a 
penalty statement would not increase or decrease the number of 
respondents using VA Form 40-4970. Therefore, these proposed revisions 
would not result in any increase or decrease in respondents, respondent 
burden hours, or respondent burden costs.
    Comments on the revised collection of information contained in this 
rulemaking should be submitted through www.regulations.gov. Comments 
should indicate that they are submitted in response to ``RIN 2900-AR43, 
Requesting Disinterment of an Eligible Decedent from a National 
Cemetery'' and should be sent within 60 days of publication of this 
rulemaking. The collection of information associated with this 
rulemaking can be viewed at: www.reginfo.gov/public/do/PRAMain.
    OMB is required to make a decision concerning the collection of 
information contained in this rulemaking between 30 and 60 days after 
publication of this rulemaking in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the provisions of this 
rulemaking.
    The Department considers comments by the public on a revised 
collection of information in--
     Evaluating whether the revised collection of information 
is necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the revised collection of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The collection of information associated with this rulemaking 
contained in 38 CFR 38.621 is described immediately following this 
paragraph, under its respective title.
    Title: Request for Disinterment.
    OMB Control No: 2900-0365.
    CFR Provision: 38 CFR 38.621.
     Summary of collection of information: The revised 
collection of information in proposed 38 CFR 38.621 would require an 
individual requesting disinterment to obtain consent from all living 
immediate family members of an eligible decedent and from the 
individual who originally requested the decedent's burial. If a living 
immediate family member will not provide consent to the disinterment, 
or the individual who requested the decedent's burial will not provide 
consent to the disinterment or is deceased and cannot provide consent 
to the disinterment request, the requester would be required to obtain 
an order from a court or State instrumentality of competent 
jurisdiction to direct disinterment. The proposed rule would also 
revise the form to include a penalty statement for false 
certifications.
     Description of need for information and proposed use of 
information: The information will be used by VA to determine whether to 
approve a disinterment request.
     Description of likely respondents: Personal 
representatives and family members of eligible Veterans and other

[[Page 7404]]

eligible individuals who are interred in national cemeteries.
     Estimated number of respondents: 1,777 in FY2019.
     Estimated frequency of responses: One time per application 
as needed by families.
     Estimated average burden per response: 10 minutes for 
respondents.
     Estimated total annual reporting and recordkeeping burden: 
VA estimates the total annual reporting and recordkeeping burden to be 
296 hours.
     Estimated cost to respondents per year: VA estimates the 
annual cost to respondents to be $8,012 (296 burden hours for 
respondents x (multiplied by) $27.07 per hour).

Assistance Listing

    The Assistance Listing number and title for the programs affected 
by this document are 64.201, National Cemeteries.

List of Subjects in 38 CFR part 38

    Administrative practice and procedure, Cemeteries, Claims, Crime, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on February 1, 2022, 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 set forth in the preamble, 38 CFR part 38 is 
proposed to be amended as follows:

PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

0
1. The authority citation for part 38 continues to read as follows:

    Authority:  38 U.S.C. 107, 501, 512, 2306, 2400, 2402, 2403, 
2404, 2407, 2408, 2411, 7105.

0
2. Revise Sec.  38.621 to read as follows:


Sec.  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 District Executive Director or Cemetery Director responsible 
for the cemetery involved. Disinterment from a national cemetery will 
be approved only when:
    (1) A court order or State instrumentality of competent 
jurisdiction directs the disinterment; or
    (2) All living immediate family members of the decedent, and the 
individual who initiated the interment (whether or not the individual 
is a member of the immediate family), give their written consent.
    (i) If the individual who initiated the interment does not consent, 
or is not alive to provide consent, or all living immediate family 
members are not in agreement, anyone seeking disinterment of an 
eligible decedent must provide VA with an order from a court or State 
instrumentality of competent jurisdiction to direct the disinterment as 
provided in paragraph (a)(1) of this section.
    (ii) For purposes of this section, ``immediate family members'' are 
defined as surviving spouse, whether or not he or she is or was 
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)(1) All requests to disinter remains as described in paragraph 
(a)(2) of this section must be submitted on VA Form 40-4970, Request 
for Disinterment, and must include the following information:
    (i) A full statement of reasons for the proposed disinterment.
    (ii) Notarized statement(s) by all living immediate family members 
of the decedent, and by the person who initiated the interment (whether 
or not the individual is a member of the immediate family), that all 
parties consent to the proposed disinterment.
    (iii) A notarized statement by the person requesting the 
disinterment that those who supplied affidavits comprise all the living 
immediate family members of the deceased and the individual who 
initiated the interment.
    (2) If the person provides a false certification on VA Form 40-
4970, he or she may be subject to penalties, to include fine or 
imprisonment or both.
    (c) Any VA-approved disinterment in this section must be 
accomplished without expense to the Government.
    (The reporting and recordkeeping requirements contained in 
paragraph (b) of this section have been approved by the Office of 
Management and Budget under OMB control number 2900-0365)

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

[FR Doc. 2022-02682 Filed 2-8-22; 8:45 am]
BILLING CODE 8320-01-P