Rule2024-08023
Expansion of Prohibition of Interment or Memorialization of Persons Who Committed Certain Crimes
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
April 25, 2024
Effective
April 25, 2024
Issuing agencies
Veterans Affairs Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 81 (Thursday, April 25, 2024)</title>
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[Federal Register Volume 89, Number 81 (Thursday, April 25, 2024)]
[Rules and Regulations]
[Pages 31636-31639]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-08023]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 38 and 39
RIN 2900-AS06
Expansion of Prohibition of Interment or Memorialization of
Persons Who Committed Certain Crimes
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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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: (314) 416-6304 (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 Sec. Sec. 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 Sec.
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
[[Page 31637]]
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 Sec. 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 Sec. 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 Sec. 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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
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. See 5 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. See 2
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:
[[Page 31638]]
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. Amend Sec. 38.617 by:
0
a. Revising the section heading;
0
b. Revising paragraph (a)(4);
0
c. Adding paragraph (a)(5); and
0
d. Revising paragraph (b).
The revisions and addition read as follows:
Sec. 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 Sec. 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.
* * * * *
0
3. Amend Sec. 38.618 by revising the section heading, paragraphs (a),
(b)(1), (c)(1), (e)(1) and (2), and (f) to read as follows:
Sec. 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
0
4. The authority citation for part 39 continues to read as follows:
Authority: 38 U.S.C. 101, 501, 2408, 2411, 3765.
0
5. Amend Sec. 39.10 by revising paragraph (b)(4) and adding paragraph
(b)(5) to read as follows:
Sec. 39.10 Cemetery requirements and prohibitions and recapture
provisions.
* * * * *
(b) * * *
(4) Who has been convicted of a Federal or State crime causing the
[[Page 31639]]
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 Sec. 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.
* * * * *
[FR Doc. 2024-08023 Filed 4-24-24; 8:45 am]
BILLING CODE 8320-01-P
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