2024-08023. Expansion of Prohibition of Interment or Memorialization of Persons Who Committed Certain Crimes

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

The Department of Veterans Affairs (VA) is amending its regulations that prohibit interment or memorialization of persons who committed Federal or State capital crimes or certain sex offenses. This action is necessary to implement statutory amendments enacted on January 5, 2023. VA is required to prohibit interment or memorialization of a person who is found to have committed a Federal or State crime that would cause the person to be a tier III sex offender for purposes of the Sex Offender Registration and Notification Act but has not been convicted of such crime due to death or flight to avoid prosecution. This final rule also implements the statutory amendment to the sex offender prohibition to apply in conviction cases in which the person was sentenced to a term of 99 years or more. This final rule also makes corresponding amendments to the regulations that govern VA grant-funded cemeteries. The intended effect of this final rule is to comport the regulations with the amendments to the statutory bar to entitled benefits for individuals who commit certain criminal acts and to uphold the dignity and solemnity of VA national cemeteries as national shrines.

DATES:

This rule is effective April 25, 2024.

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: [phone] (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

This final rule amends three sections in 38 CFR parts 38 and 39 to implement statutory requirements enacted in section 6 of Public Law 117-355, the “National Cemeteries Preservation and Protection Act of 2022” (the Act), which amended 38 U.S.C. 2411 to expand the prohibition of memorialization or interment in a cemetery in the National Cemetery Administration (NCA) or Arlington National Cemetery of persons who committed certain crimes. Specifically, the amendment adds a new category of “persons prohibited” in sec. 2411(b)(5) to include a person who is found to have committed a Federal or State crime that would cause the person to be a tier III sex offender for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.) but has not been convicted of such crime because they were not available for trial due to death or flight to avoid prosecution. The Act also amended sec. 2411(b)(4)(B) to bar interment or memorialization of a person convicted of a Federal or State crime causing the person to be a tier III sex offender who for such crime was sentenced to a period of 99 years or more, whereas the statute previously only included individuals sentenced to a minimum of life imprisonment.

To implement the new statutory requirements, VA is amending 38 CFR 38.617, 38.618, and 39.10. These sections include references to the statutory authority to bar eligible individuals who by their criminal acts are prohibited from receiving memorialization benefits and interment in VA national and VA grant-funded cemeteries. Specific amendments to §§ 38.617, 38.618, and 39.10 are as follows.

VA is amending 38 CFR 38.617(a)(4) by inserting the words “or to a period of 99 years or more” after “life imprisonment” and adding new paragraph (a)(5) to implement the new category of persons to be barred under 38 U.S.C. 2411(b)(5). Implementing this change will not affect VA's current adjudication or appeals processes for interment and memorialization requests.

VA is also making a couple of technical corrections in § 38.617. First, VA is revising the section heading from “Prohibition of interment or memorialization of persons who have been convicted of Federal or State capital crimes or certain sex offenses” to “Prohibition of interment or memorialization of persons who committed certain Federal or State crimes” to capture those persons who committed certain Federal or State crimes but avoided conviction due to death or flight to avoid prosecution. Second, VA is amending paragraph (b) to clarify that the prohibition referred to in newly added paragraph (a)(5), which applies to a person found to have committed a Federal or State crime that would cause the person to be a tier III sex offender but avoided conviction due to death or flight to avoid prosecution, is not contingent on receipt by the Secretary of Veterans Affairs or any other VA official of notice from any Federal or State official.

VA is revising § 38.618 by revising the heading to include the words “or certain sex offenses”. Section 38.618 amendments revise paragraphs (a) through (c), (e) and (f) by adding the words “or a Federal or State crime that would cause the person to be a tier III sex offender for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.)” to include the new category of prohibited persons. Implementing this additional basis for the statutory bar to apply to interment and memorialization requests will not result in a change to VA's adjudication or appeals processes.

VA is also making a technical correction updating the reference to “VA regional counsel” to “VA district counsel” in § 38.618(a).

Finally, changes in sec. 2411 affect the application of that statute for cemeteries that receive a grant under 38 U.S.C. 2408. Specifically, sec. 2408(e) conditions any grant on the grantee's prohibition of interment or memorialization of a person described in sec. 2411(b). As a result, VA will amend § 39.10(b)(4) by inserting the words “or to a period of 99 years or more” after “life imprisonment,” and VA will add new paragraph (b)(5) to implement the new category of persons to be barred under 38 U.S.C. 2411(b)(5). These amendments implementing new statutory requirements that affect VA grant-funded cemeteries will not affect the cemetery grant process. VA defers to State officials to establish procedures for applying the statutory bar to benefits under sec. 2411(b), in accordance with sec. 2408(e).

Administrative Procedure Act

The Secretary of Veterans Affairs finds that there is good cause under the provisions of 5 U.S.C. 553(b)(B) to publish this rule without prior opportunity for public comment and dispense with the 30-day delay for the effective date of a rule under 5 U.S.C. 553(d)(3). Pursuant to sec. 553(b)(B) of the Administrative Procedure Act, general notice and opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Pursuant to sec. 553(d)(3), an agency may “for good cause found” dispense with the 30-day delay in the effective date of a rule.

Public comment is unnecessary for this rulemaking because this final rule merely incorporates the statutory text enacted by Congress, which is already in effect, and makes no other changes to existing processes for applying the bar to interment and memorialization requests. See Hadson Gas Sys. v. FERC, 75 F.3d 680, 684-85 (D.C. Cir. 1996) (holding that notice and public comment were not necessary when an agency removed regulations which had been rendered obsolete by statutory changes). For the same reason, VA concludes that there is good cause for the rule to be effective immediately under 5 U.S.C. 553(d)(3).

Executive Orders 12866, 13563 and 14094

Executive Orders 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 Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable to this rulemaking because notice of proposed rulemaking is not required. See5 U.S.C. 601(2), 603(a), 604(a).

Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies, before promulgating any general notice of proposed rulemaking, 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 requirement is not applicable to this rulemaking because a general notice of proposed rulemaking is not required. See2 U.S.C. 1532.

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 Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq.), the Office of Information and Regulatory Affairs designated this rule as not satisfying the criteria under 5 U.S.C. 804(2).

List of Subjects

38 CFR Part 38

• Administrative practice and procedure
• Cemeteries
• Claims
• Crime
• Veterans

38 CFR Part 39

• Cemeteries
• Grant programs-veterans
• Veterans

Signing Authority

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on April 10, 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 parts 38 and 39 as set forth below:

PART 38—NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

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.

2. Amend § 38.617 by:

a. Revising the section heading;

b. Revising paragraph (a)(4);

c. Adding paragraph (a)(5); and

d. Revising paragraph (b).

The revisions and addition read as follows:

§ 38.617

Prohibition of interment or memorialization of persons who committed certain Federal or State crimes.

(a) * * *

(4) A person identified to the Secretary of Veterans Affairs, by the United States Attorney General, in the case of a Federal crime, or by an appropriate State official, in the case of a State crime, as an individual who has been convicted of 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 (34 U.S.C. 20901, et seq.); who, for such crime, is sentenced to a minimum of life imprisonment or to a period of 99 years or more; and whose conviction is final (other than a person whose sentence was commuted by the President or Governor of a State).

(5) A person found, under procedures specified in § 38.618, to have committed a Federal or State crime that would cause the person to be a tier III sex offender for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.) but avoided conviction of such crime by reason of unavailability for trial due to death or flight to avoid prosecution.

(b) Notice. The prohibition referred to in paragraphs (a)(3) and (5) of this section is not contingent on receipt by the Secretary of Veterans Affairs or any other VA official of notice from any Federal or State official.

* * * * *

3. Amend § 38.618 by revising the section heading, paragraphs (a), (b)(1), (c)(1), (e)(1) and (2), and (f) to read as follows:

§ 38.618

Findings concerning commission of a capital crime or certain sex offenses where a person has not been convicted due to death or flight to avoid prosecution.

(a) Inquiry. With respect to a request for interment or memorialization, if a cemetery director has reason to believe that a deceased individual who is otherwise eligible for interment or memorialization may have 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 for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.), but avoided conviction of such crime by reason of unavailability for trial due to death or flight to avoid prosecution, the cemetery director, with the assistance of the VA district counsel, as necessary, will initiate an inquiry seeking information from Federal, State, or local law enforcement officials, or other sources of potentially relevant information. After completion of this inquiry and any further measures required under paragraphs (c) through (f) of this section, the cemetery director will make a decision on the request for interment or memorialization in accordance with paragraph (b), (e), or (g) of this section.

(b) * * *

(1) If, after conducting the inquiry described in paragraph (a) of this section, the cemetery director determines that there is no clear and convincing evidence that the deceased 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 for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.) of which he or she was not convicted due to death or flight to avoid prosecution, and the deceased remains otherwise eligible, the cemetery director will make a decision approving the interment or memorialization.

* * * * *

(c) * * *

(1) If, after conducting the inquiry described in paragraph (a) of this section, the cemetery director determines that there appears to be clear and convincing evidence that the deceased has 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 for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.) of which he or she was not convicted by reason of unavailability for trial due to death or flight to avoid prosecution, the cemetery director will provide the personal representative of the deceased with a written summary of the evidence of record and a written notice of procedural options.

* * * * *

(e) * * *

(1) If the cemetery director determines that it has not been established by clear and convincing evidence that the deceased 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 for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.) of which he or she was not convicted due to death or flight to avoid prosecution, and the deceased remains otherwise eligible, the cemetery director will make a decision approving interment or memorialization; or

(2) If the cemetery director believes that there is clear and convincing evidence that the deceased 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 for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.) of which he or she was not convicted due to death or flight to avoid prosecution, the cemetery director will forward a request for a finding on that issue, together with the cemetery director's recommendation and a copy of the record to the Under Secretary for Memorial Affairs.

(f) Finding by the Under Secretary for Memorial Affairs. Upon receipt of a request from the cemetery director under paragraph (e) of this section, the Under Secretary for Memorial Affairs will make a finding concerning whether the deceased 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 for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.) of which he or she was not convicted by reason of unavailability for trial due to death or flight to avoid prosecution. The finding will be based on consideration of the cemetery director's recommendation and the record supplied by the cemetery director.

* * * * *

PART 39—AID FOR THE ESTABLISHMENT, EXPANSION, AND IMPROVEMENT, OR OPERATION AND MAINTENANCE, OF VETERANS CEMETERIES

4. The authority citation for part 39 continues to read as follows:

Authority: 38 U.S.C. 101, 501, 2408, 2411, 3765.

5. Amend § 39.10 by revising paragraph (b)(4) and adding paragraph (b)(5) to read as follows:

§ 39.10

Cemetery requirements and prohibitions and recapture provisions.

* * * * *

(b) * * *

(4) Who has been convicted of 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 (34 U.S.C. 20901, et seq.); who, for such crime, is sentenced to a minimum of life imprisonment or to a period of 99 years or more; and whose conviction is final (other than a person whose sentence was commuted by the President or Governor of a State).

(5) Who has been found by an appropriate State official, as defined in § 38.600(a) of this part, under procedures to be established by the State, to have committed a Federal or State crime that would cause the person to be a tier III sex offender for purposes of the Sex Offender Registration and Notification Act (34 U.S.C. 20901 et seq.) but avoided conviction of such crime by reason of unavailability for trial due to death or flight to avoid prosecution.

* * * * *