Reconsideration of Prior Interment and Memorialization Decisions

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Part 38</CFR> <RIN>RIN 2900-AR37</RIN> <SUBJECT>Reconsideration of Prior Interment and Memorialization Decisions</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective August 16, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Artis Parker, Executive Director, Office 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). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> On February 27, 2023, VA published a proposed rule in the <E T="04">Federal Register</E> (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 § 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. <E T="03">See Veterans Justice Grp.</E> v. <E T="03">Sec'y of Veterans Affs.,</E> 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 § 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 § 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 § 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 § 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 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 ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 27k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━