Reconsideration of Prior Interment and Memorialization Decisions, 12296-12300 [2023-03942]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 88, Number 38 (Monday, February 27, 2023)]
[Proposed Rules]
[Pages 12296-12300]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03942]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AR37


Reconsideration of Prior Interment and Memorialization Decisions

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend its 
regulations to implement VA's authority 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 tier III sex offense. 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. This proposed rule 
would implement review criteria and procedures for reconsideration of 
prior interment or memorialization decisions.

DATES: Written comments must be received on or before April 28, 2023.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: https://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter will take actions to harm 
the individual. VA encourages individuals not to submit duplicative 
comments. We will post acceptable comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments. Any public

[[Page 12297]]

comment received after the comment period's closing date is considered 
late and will not be considered in the final rulemaking.

FOR FURTHER INFORMATION CONTACT: 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).

SUPPLEMENTARY INFORMATION: On June 5, 2012, the National Cemetery 
Administration (NCA) found Michael LaShawn Anderson eligible for burial 
at Fort Custer National Cemetery and buried him on June 7, 2012. On 
July 27, 2012, NCA was informed by a concerned individual that before 
Mr. Anderson died, he shot and killed Ms. Alicia Koehl before he killed 
himself. At that time, VA had no authority to reconsider burial 
decisions for eligible individuals, which were considered permanent and 
final.
    On December 20, 2013, the Alicia Dawn Koehl Respect for National 
Cemeteries Act (the ``Act''), Public Law 113-65, was enacted, which 
specifically authorized VA to disinter the remains of Michael LaShawn 
Anderson from Fort Custer National Cemetery. VA was required to notify 
Mr. Anderson's next of kin of record of the impending disinterment of 
his remains and, upon disinterment, relinquish the remains to the next 
of kin of record or arrange for an appropriate disposition of remains 
if the next of kin of record is unavailable.
    In addition, the Act amended 38 U.S.C. 2411 to authorize VA to 
reconsider prior decisions to inter or memorialize individuals who were 
convicted of a Federal capital crime, a State capital crime, or a 
Federal or State tier III sex offense, in which the conviction was 
final. VA may also reconsider prior decisions to inter or memorialize 
individuals who were later found to have committed a Federal or State 
capital crime but were not convicted due to death or flight to avoid 
prosecution. The term ``Federal capital crime'' is defined at section 
2411(f)(1) to mean ``an offense under Federal law for which a sentence 
of imprisonment for life or the death penalty may be imposed.'' The 
term ``State capital crime'' is defined at section 2411(f)(2) to mean, 
``under State law, the willful, deliberate, or premeditated unlawful 
killing of another human being for which a sentence of imprisonment for 
life or the death penalty may be imposed.'' The term ``tier III sex 
offense'' is defined at section 2411(b)(4) to mean ``a Federal or State 
crime causing the person to be a tier III sex offender for purposes of 
the Sex Offender Registration and Notification Act'' (now found at 34 
U.S.C. 20901 et seq.). An individual who was convicted of a Federal or 
State tier III sex offense must also have been sentenced to a minimum 
of life imprisonment. VA's reconsideration authority applies to any 
interment or memorialization in a VA national cemetery after the date 
of the Act's enactment on December 20, 2013.
    VA proposes to add new 38 CFR 38.622 to implement this statutory 
reconsideration authority. Section 38.622(a) would provide general 
information about the reconsideration authority and designate the Under 
Secretary for Memorial Affairs (USMA) as the appropriate Federal 
official who may reconsider prior interment and memorialization 
decisions. This level of decision-making authority for reconsideration 
purposes would be consistent with existing authority for cases 
involving application of the section 2411 bar for interment and 
memorialization at national cemeteries. See 38 CFR 38.617 (referring to 
``the affected cemetery director, or the [USMA], or his or her 
designee'' to make determinations involving the section 2411 bar); 
38.618 (requiring the USMA to make a finding of whether a deceased 
individual committed a Federal or State capital crime for which he or 
she was not convicted due to death or flight).
    Proposed Sec.  38.622(b) and (c) would describe instances that may 
result in reconsideration of prior interment and memorialization 
decisions under criteria defined in 38 U.S.C. 2411(d)(2)(A). In the 
analysis that follows, we explain each circumstance in which VA would 
reconsider a prior interment or memorialization decision and include 
references to the applicable statutory provision that imposes the bar 
to benefits. We propose, to the extent practicable, to continue to 
apply existing standards and procedures relating to the bar to 
interment and memorialization benefits under section 2411 to implement 
the reconsideration authority to maintain clarity and consistency in 
VA's decision-making.

Basis for Application of the Reconsideration Authority

    Proposed Sec.  38.622(b) would describe two scenarios where 
reconsideration of a prior interment or memorialization decision may be 
established by a Federal or State criminal conviction. Under proposed 
Sec.  38.622(b)(1), VA may reconsider a prior interment decision if VA 
receives written notification (38 U.S.C. 2411(a)(2), (d)(1), (e)(1)(A)) 
from the United States Attorney General or an appropriate State 
official of a final conviction of a person interred or memorialized in 
a national cemetery who was convicted of a Federal capital crime (38 
U.S.C. 2411(b)(1)), a State capital crime (38 U.S.C. 2411(b)(2)), or a 
Federal or State tier III sex offense meeting the requirements of 38 
U.S.C. 2411(b)(4).
    Under proposed Sec.  38.622(b)(2), VA may reconsider a prior 
interment or memorialization decision if VA has not received 
notification described in Sec.  38.622(b)(1), but VA has reason to 
believe that a person interred or memorialized in a national cemetery 
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 tier III sex offense meeting the 
requirements of 38 U.S.C. 2411(b)(4). These proposed provisions for 
reconsidering a prior interment or memorialization decision correspond 
to the two bases for applying the section 2411 bar to decedents 
convicted of a Federal or State capital crime or sex offense.
    In proposed Sec.  38.622(c), VA may reconsider a prior interment or 
memorialization decision when a cemetery director, after completing an 
official inquiry, determines that there appears to be clear and 
convincing evidence that a person interred or memorialized in a 
national cemetery committed a Federal or State capital crime but was 
not convicted due to death or flight to avoid prosecution (38 U.S.C. 
2411(b)(3) and (c)). In such a case, the cemetery director would 
recommend that the USMA reconsider VA's decision to inter or 
memorialize the decedent. This proposed provision for reconsideration 
of prior interment or memorialization decisions would correspond to 
application of the statutory bar to benefits for decedents who avoided 
prosecution and conviction of a Federal or State capital crime due to 
death or flight.
    When a cemetery director forwards a case to the USMA for decision, 
for one of the three circumstances described in Sec.  38.622(b)(1), 
(b)(2), or (c), and the USMA decides to reconsider VA's prior interment 
or memorialization decision, the USMA must provide written notification 
as proposed in Sec.  38.622(d).

Procedural Guidance for Reconsideration of Prior Interment and 
Memorialization Decisions--Conviction

    Under proposed Sec.  38.622(d)(1), if VA learns that the deceased 
was convicted of a Federal or State capital crime or sexual offense, 
either based on notification of the conviction

[[Page 12298]]

(Sec.  38.622(b)(1)) or after an inquiry (Sec.  38.622(b)(2)), and if 
the USMA decides to disinter or remove a memorial headstone or marker, 
NCA would provide a copy of the written notice of the USMA's reversal 
decision to the decedent's next of kin or other person authorized to 
arrange for the interment or memorialization of the decedent (i.e., 
personal representative) (38 U.S.C. 2411(d)(2)(A)(i)). The USMA's 
written notice of decision would be in accordance with 38 U.S.C. 5104 
(Decisions and notices of decisions) and include the following 
information: (1) identification of the issues adjudicated; (2) a 
summary of the evidence considered by the USMA; (3) a summary of the 
applicable laws and regulations; (4) identification of findings 
favorable to the claimant; (5) identification of elements leading to 
the decision to disinter; (6) an explanation of how to obtain or access 
evidence used in making the decision; and (7) an explanation of appeal 
rights, which includes the notice of the opportunity to file a notice 
of disagreement with the decision of the USMA within 60 days from the 
date of the notice (38 U.S.C. 2411(d)(2)(B) and (3)(A)).

Procedural Guidance for Reconsideration of Prior Interment and 
Memorialization Decisions--Death or Flight

    Proposed Sec.  38.622(d)(2) would outline the process that VA would 
follow for cases where the cemetery director determines that there 
appears to be clear and convincing evidence that the decedent avoided 
being convicted for a Federal or State capital crime due to death or 
flight. In these instances, if the USMA decides to reconsider the 
interment or memorialization decision, the USMA would provide the 
decedent's next of kin or other person authorized to arrange for the 
interment or memorialization of the decedent (i.e., personal 
representative) with written notice that VA has reason to believe that 
the decedent may have committed a Federal or State capital crime and 
the USMA is reconsidering VA's prior decision to inter or memorialize 
the decedent. This notice would also provide the next of kin or 
personal representative with procedural options should they disagree. 
The notice of procedural options would inform the decedent's next of 
kin or personal representative 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. If a hearing 
is requested, the District Executive Director would conduct the 
hearing.
    The purpose of the hearing would be 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 would be presented under oath, and the 
personal representative would have the right to representation by 
counsel and the right to call witnesses. The VA official conducting the 
hearing would have the authority to administer oaths. The hearing would 
be conducted in an informal manner and court rules of evidence would 
not apply. The hearing would be recorded on audiotape and, unless the 
personal representative waives transcription, a transcript of the 
hearing would be produced and included in the record. After the 
completion of the procedural options period (including hearing, if 
requested), the USMA would then decide whether there is clear and 
convincing evidence that the decedent committed a Federal or State 
capital crime 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, NCA would 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 does exist, and the USMA 
further decides to disinter the remains or remove the memorialization, 
NCA would provide written notice of the decision to the decedent's next 
of kin or personal representative in accordance with 38 U.S.C. 5104 
that includes notice of appellate rights in accordance with 38 CFR 
19.25, following the same notification of decision process in cases of 
Federal or State capital crime or sexual offense convictions (38 U.S.C. 
2411(d)(2)(B) and (3)(A)) in proposed Sec.  38.622(d)(1).

Appeal of Decision To Disinter or Remove Memorialization

    Proposed Sec.  38.622(d)(3) references VA actions after receiving a 
notice of disagreement from the next of kin or personal representative. 
As mentioned above, a notification of decision letter from NCA would 
include an opportunity to file a notice of disagreement with the 
decision within 60 days of the date of the notice (38 U.S.C. 
2411(d)(3)(A)). Once the notice of disagreement is reviewed and the 
appellate process is completed, if the Board of Veterans' Appeals 
overturns the USMA's decision to disinter the decedent or remove the 
decedent's memorial headstone or marker, NCA would notify the next of 
kin or personal representative that the decedent may remain interred or 
memorialized. However, if the USMA's decision to disinter the decedent 
or remove the decedent's memorial headstone or marker is affirmed at 
the completion of the appellate process, the cemetery director would 
provide written notification to the decedent's next of kin or personal 
representative of this decision.

Disinterment and Removal of Memorialization

    Proposed Sec.  38.622(e) would describe VA actions when the 
decision to disinter or remove a memorial headstone or marker becomes 
final given the next of kin's or personal representative's failure to 
timely appeal the decision or by final disposition of the appeal. VA 
would take the following actions as applicable: disinter the remains 
and provide for reinterment or other appropriate disposition of remains 
in a place other than a Veterans cemetery (which includes but is not 
limited to a VA national cemetery or State or Tribal Veterans Cemetery) 
or remove the memorial headstone or marker placed to honor the memory 
of the deceased (38 U.S.C. 2411(d)(4)).
    In the case of disinterment, the cemetery director would contact 
the next of kin or other person authorized to arrange for the 
deceased's interment or memorialization (i.e., personal representative) 
to coordinate the transfer of remains from the national cemetery to 
another location. The next of kin or personal representative would have 
30 days to respond to this notification. If the next of kin or personal 
representative responds to the notice within the 30-day period, VA 
would attempt to coordinate a date and time for the disinterment and 
release of the decedent's remains to the next of kin or personal 
representative. VA would perform the disinterment. However, the 
decedent's next of kin or personal representative would have to bear 
the responsibility and cost of transporting remains from the cemetery, 
in compliance with applicable state laws concerning the disinterment 
and transport of remains from the national cemetery, as well as costs 
associated with subsequent disposition of the remains.

[[Page 12299]]

    If the next of kin or personal representative does not respond to 
the notice within the 30-day period, declines to accept the decedent's 
remains, or does not appear at the agreed upon time and place to accept 
the remains, VA would determine a suitable cemetery for the disposition 
of the decedent's remains and would make all necessary arrangements to 
disinter, transport, reinter, and mark the grave of the decedent with a 
non-government headstone or marker in accordance with sec. 
2411(d)(4)(A) within a reasonable time frame. VA would 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.
    In the case of a memorial headstone or marker, the cemetery 
director would remove the headstone or marker from the cemetery, 
dispose of it in accordance with NCA policy, and notify the next of kin 
or personal representative of the date on which this action was taken.

Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).

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 proposed rule directly affects 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, the VA does not consider the economic impact to 
be significant to small entities. Since the 2013 enactment of the 
reconsideration authority in 38 U.S.C. 2411, VA has made only 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.

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.

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.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Claims, Grants 
programs, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on February 7, 2023, 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. 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 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 
tier III sex offense 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 tier III 
sex offense meeting 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 Capital Crime 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 but avoided conviction 
of such crime by reason of unavailability for trial due to death or

[[Page 12300]]

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 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 Federal or 
State capital crime or a tier III sexual offense conviction, 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 19.25. This notice of 
appellate rights will include notice of the opportunity to file a 
notice of disagreement with the decision of the USMA within 60 days 
from the date of the decision notice.
    (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), 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 
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 19.25. This 
notice of appellate rights will include notice of the opportunity to 
file a notice of disagreement with the decision of the USMA within 60 
days from the date of the notice.
    (3) 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 19.
    (e) Disinterment or Removal of Memorialization. A decision to 
disinter 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. 2023-03942 Filed 2-24-23; 8:45 am]
BILLING CODE 8320-01-P