[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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