Proposed Rule2022-02682
Requesting Disinterment of an Eligible Decedent From a National Cemetery
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 9, 2022
Issuing agencies
Veterans Affairs Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 27 (Wednesday, February 9, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.Regulations.gov">www.Regulations.gov</a>.
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:
<a href="/cdn-cgi/l/email-protection#d796bbb6b9f996bab2bbbeb9b4bcaf97a1b6f9b0b8a1"><span class="__cf_email__" data-cfemail="53123f323d7d123e363f3a3d30382b1325327d343c25">[email protected]</span></a>. 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: <a href="http://www.reginfo.gov/public/do/PRAMain">www.reginfo.gov/public/do/PRAMain</a>.
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--
<bullet> 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;
<bullet> 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;
<bullet> Enhancing the quality, usefulness, and clarity of the
information to be collected; and
<bullet> 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.
<bullet> 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.
<bullet> 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.
<bullet> Description of likely respondents: Personal
representatives and family members of eligible Veterans and other
[[Page 7404]]
eligible individuals who are interred in national cemeteries.
<bullet> Estimated number of respondents: 1,777 in FY2019.
<bullet> Estimated frequency of responses: One time per application
as needed by families.
<bullet> Estimated average burden per response: 10 minutes for
respondents.
<bullet> Estimated total annual reporting and recordkeeping burden:
VA estimates the total annual reporting and recordkeeping burden to be
296 hours.
<bullet> 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
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.