[Federal Register Volume 87, Number 158 (Wednesday, August 17, 2022)]
[Rules and Regulations]
[Pages 50574-50575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-17637]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations governing disinterment of eligible decedents interred in VA 
national cemeteries to clarify that, if the individual who initiated 
the interment does not consent to a disinterment 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.

DATES: This rule is effective September 16, 2022.

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

SUPPLEMENTARY INFORMATION: On February 9, 2022, VA published in the 
Federal Register (87 FR 7402) a proposed rule revising its regulation 
to clarify that disinterment from a national cemetery will be approved 
only when a court order or State instrumentality of competent 
jurisdiction directs the disinterment, or when 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. The public comment period ended on 
April 11, 2022. VA received one comment that generally supported the 
rule but expressed concern about costs associated for claimants 
requesting disinterment. The commenter restated VA's Paperwork 
Reduction Act burden analysis and advised VA to include those costs on 
VA Form 40-4970, Request for Disinterment, to avoid negative outcomes 
for families who would incur those costs. We clarify that the burden 
analysis is required to justify the collection of information and 
inform the public of the time and cost of the public's time in 
providing the information. Those ``costs'' are not transferred to 
individuals seeking to request disinterment through the submission of 
VA Form 40-4970. The revision to the form, which is currently approved 
by the Office of Management and Budget (OMB) under OMB control number 
2900-0365, will not result in any increase or decrease in respondents, 
respondent burden hours, or respondent burden costs. Therefore, VA 
makes no changes based on the comment.

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 final rule will have no 
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 justified because most disinterment 
requests are submitted by families. Although a local court or State 
instrumentality may be involved if all living family members do not 
consent to a contemplated disinterment request, or the individual who 
initiated the interment does not consent to the disinterment or is not 
alive to provide consent, processing and adjudicating a request for 
disinterment as directed by a court order or State instrumentality 
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 final 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 final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

[[Page 50575]]

Paperwork Reduction Act

    This final rule includes provisions constituting a revised 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521) that require approval by the Office of Management and 
Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a 
copy of this rulemaking action to OMB for review and approval. OMB has 
reviewed and approved this revised collection of information and 
assigned OMB control number 2900-0365.

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, 
Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on August 10, 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, VA 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, 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. 2022-17637 Filed 8-16-22; 8:45 am]
BILLING CODE 8320-01-P