[Federal Register Volume 65, Number 141 (Friday, July 21, 2000)]
[Proposed Rules]
[Pages 45332-45335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-18325]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 1 and 39

RIN 2900-AJ77


Prohibition of Interment or Memorialization in National 
Cemeteries and Certain State Cemeteries Due to Commission of Capital 
Crimes

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: We propose to amend the Department of Veterans Affairs (VA) 
regulations governing eligibility for interment or memorialization in 
national cemeteries and in State cemeteries receiving State cemetery 
grants from VA. The proposed rule concerns statutory provisions 
designed to ensure that the remains of certain persons who committed 
Federal or State capital crimes are not interred in such cemeteries and 
that the memory of such persons is not memorialized in such cemeteries. 
We propose to restate a portion of these statutory provisions and to 
establish interpretations, delegations

[[Page 45333]]

of authority, and procedures which we believe to be appropriate for us 
to carry out the statutory provisions.

DATES: Comments must be received on or before September 19, 2000.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1154, Washington, DC 20420; or fax comments to 
(202) 273-9289; or e-mail comments to ``[email protected]''. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AJ77.'' All comments received will be available for public 
inspection in the Office of Regulations Management, Room 1158, between 
the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except 
holidays).

FOR FURTHER INFORMATION CONTACT: Kenneth Greenberg, Staff Assistant, 
Office Deputy Under Secretary for Management (402) or Deanna Wilson, 
Program Analyst, Communications Division (402B1), National Cemetery 
Administration, Department of Veterans Affairs, 810 Vermont Ave., NW., 
Washington, DC 20420, (202) 273-5179 or (202) 273-5154 (these are not 
toll-free numbers).

SUPPLEMENTARY INFORMATION: The provisions of 38 U.S.C. 2408(d) and 2411 
enacted on November 21, 1997, prohibit, under specified circumstances, 
interment or memorialization in VA national cemeteries of certain 
persons who are convicted of, or are found to have committed, Federal 
or State capital crimes and condition VA State cemetery grants on the 
prohibition of interment or memorialization of such persons in State 
cemeteries receiving such grants. This document proposes to establish 
regulations relating to these statutory provisions.
    Proposed 38 CFR 1.600 contains definitions for proposed Secs. 1.617 
and 1.618.
    Proposed 38 CFR 1.617 restates statutory prohibitions against 
interment or memorialization in a VA national cemetery of persons who 
have been convicted of Federal capital crimes for which they have been 
sentenced to death or life imprisonment or State capital crimes for 
which they have been sentenced to death or life imprisonment without 
parole, as well as persons who have been found to have committed 
Federal or State capital crimes and not to have been convicted as a 
result of unavailability for trial due to death or flight to avoid 
prosecution. This section would also establish procedures for decisions 
on requests for interment of the remains of or memorialization of 
persons who may have been convicted of Federal or State capital crimes.
    Proposed 38 CFR 1.618 sets forth procedures for handling 
eligibility determinations concerning interment or memorialization in a 
VA national cemetery when VA becomes aware of information suggesting 
that an individual has committed a capital crime for which the 
individual would have been convicted, in either a Federal or State 
court, but has not been convicted due to unavailability for trial due 
to death or flight to avoid prosecution. These procedures are intended 
to implement the provisions of 38 U.S.C. 2411. Under paragraphs (b), 
(c), and (d) of that statute, the prohibitions against interment and 
memorialization apply in these cases only if there is a finding by VA 
that the person committed a Federal capital crime or a State capital 
crime but has not been convicted of such crime because such person was 
not available for trial due to death or flight to avoid prosecution. 
However, paragraph (a)(2) of that statute states that the prohibitions 
in these cases apply only if written notice of this finding is provided 
to VA by the Attorney General or an appropriate State official. We 
believe that this notice provision reflects a legislative error, since 
there would be no need for the Attorney General or a State official to 
notify VA of a finding made by VA. Accordingly, we have included a 
provision in Sec. 1.617 to clarify that if an appropriate finding is 
made by VA the prohibitions will apply without any notice from the 
Attorney General or a State official.
    We propose to amend 38 CFR 39.2 and 39.3 to reflect provisions of 
38 U.S.C. 2408(d) making future grants for the establishment, 
expansion, or improvement of State veterans cemeteries contingent on 
the prohibition of interment in such cemeteries of the remains of 
certain persons who have committed Federal or State capital crimes.

Regulatory Flexibility Act

    The Secretary hereby certifies that the adoption of the 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. The proposed rule would not have 
more than a minuscule effect on any small entity. Therefore, pursuant 
to 5 U.S.C. 605(b), this proposed rule is exempt from the initial and 
final regulatory flexibility analysis requirements of sections 603 and 
604.

    The Catalog of Federal Domestic Assistance numbers for this 
proposed rule are 64.201, 64.202, and 64.203.

List of Subjects

38 CFR Part 1

    Administrative practice and procedure, Cemeteries, Claims, Crimes, 
Criminal offenses.

38 CFR Part 39

    Cemeteries, Grant programs-veterans, Veterans.

    Approved: July 5, 2000.
Togo D. West, Jr.,
Secretary of Veterans Affairs.
    For the reasons set forth in the preamble, 38 CFR parts 1 and 39 
are proposed to be amended as follows:

PART 1--GENERAL PROVISIONS

    1. The authority citation for part 1 continues to read as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

    2. Section 1.600 is added to read as follows:


Sec. 1.600  Definitions.

    (a) [Reserved]
    (b) Definitions. For purposes of Secs. 1.617 and 1.618:
    Appropriate State official means a State attorney general or other 
official with state-wide responsibility for law enforcement or penal 
functions.
    Clear and convincing evidence means that degree of proof which 
produces in the mind of the fact-finder a firm belief regarding the 
question at issue.
    Convicted means a finding of guilt by a judgment or verdict or 
based on a plea of guilty, by a Federal or State criminal court.
    Federal capital crime means a crime under Federal law for which the 
death penalty or life imprisonment may be imposed.
    Interment means the burial of casketed remains or the placement or 
scattering of cremated remains.
    Life imprisonment means a sentence of a Federal or State criminal 
court directing confinement in a penal institution for life.
    Memorialization means the erection of a memorial or marker to honor 
the memory of a deceased individual.
    Personal representative means a family member or other individual 
who has identified himself or herself to the National Cemetery 
Administration cemetery director as the person responsible for making 
decisions concerning the interment of the remains of or memorialization 
of a deceased individual.

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    State capital crime means, under State law, the willful, 
deliberate, or premeditated unlawful killing of another human being for 
which the death penalty or life imprisonment without parole may be 
imposed.

(Authority: 38 U.S.C. 2408, 2411)

    3. Section 1.617 is added to read as follows:


Sec. 1.617  Prohibition of interment or memorialization of persons who 
have committed Federal or State capital crimes.

    (a) Prohibition. The interment in a national cemetery under the 
control of the National Cemetery Administration of the remains, or the 
memorialization in such a cemetery, of any of the following persons is 
prohibited:
    (1) Any person identified to the Secretary of Veterans Affairs by 
the United States Attorney General, prior to approval of interment or 
memorialization, as an individual who has been convicted of a Federal 
capital crime and sentenced to death or life imprisonment as a result 
of such crime.
    (2) Any person identified to the Secretary of Veterans Affairs by 
an appropriate State official, prior to approval of interment or 
memorialization, as an individual who has been convicted of a State 
capital crime and sentenced to death or life imprisonment without 
parole as a result of such crime.
    (3) Any person found under procedures specified in Sec. 1.618 to 
have committed a Federal or State capital crime but to have 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 paragraph (a)(3) 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.
    (c) Receipt of notification. The Under Secretary for Memorial 
Affairs is delegated authority to receive from the United States 
Attorney General and appropriate State officials on behalf of the 
Secretary of Veterans Affairs the notification of conviction of capital 
crimes referred to in paragraphs (a)(1) and (2) of this section.
    (d) Decision where notification previously received. Upon receipt 
of a request for interment or memorialization, where the Secretary of 
Veterans Affairs has received the notification referred to in paragraph 
(a)(1) or (a)(2) of this section with regard to the deceased, the 
cemetery director will make a decision on the request for interment or 
memorialization pursuant to 38 U.S.C. 2411.
    (e) Inquiry. (1) Upon receipt of a request for interment or 
memorialization, where the Secretary of Veterans Affairs has not 
received the notification referred to in paragraph (a)(1) or (a)(2) of 
this section with regard to the deceased, but the cemetery director has 
reason to believe that the deceased may have been convicted of a 
Federal or State capital crime, the cemetery director will initiate an 
inquiry to either:
    (i) The United States Attorney General, in the case of a Federal 
capital crime, requesting notification of whether the deceased has been 
convicted of a Federal capital crime for which the deceased was 
sentenced to death or life imprisonment; or
    (ii) An appropriate State official, in the case of a State capital 
crime, requesting notification of whether the deceased has been 
convicted of a State capital crime for which the deceased was sentenced 
to death or life imprisonment without parole.
    (2) The cemetery director will defer decision on whether to approve 
interment or memorialization until after a response is received from 
the Attorney General or appropriate State official.
    (f) Decision after inquiry. Where an inquiry has been initiated 
under paragraph (e) of this section, the cemetery director will make a 
decision on the request for interment or memorialization pursuant to 38 
U.S.C. 2411 upon receipt of the notification requested under that 
paragraph, unless the cemetery director initiates an inquiry pursuant 
to section 1.618(a).
    (g) Notice of decision. Written notice of a decision under 
paragraph (d) or (f) of this section will be provided by the cemetery 
director to the personal representative of the deceased, along with 
written notice of appellate rights in accordance with Sec. 19.25 of 
this title. This notice will include notice of the opportunity to file 
a notice of disagreement with the decision of the cemetery director. 
Action following receipt of a notice of disagreement with a denial of 
eligibility for interment or memorialization under this section will be 
in accordance with Secs. 19.26 through 19.38 of this title.

    Note to Sec. 1.617: A decision under this section will not 
affect eligibility for any benefit under title 38, United States 
Code, other than interment or memorialization.

(Authority: 38 U.S.C. 512, 2411, 7105)

    4. Sec. Section 1.618 is added to read as follows:


Sec. 1.618  Findings concerning commission of a capital crime 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, 
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 regional 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), (d), (e), and (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) Decision approving request without a proceeding. 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 
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) Initiation of a proceeding. (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 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.
    (2) The notice of procedural options will inform the personal 
representative that the personal representative may, within the earlier 
of ten days of mailing of the notice or ten days of hand delivery of 
the notice:
    (i) Request a hearing on the matter;
    (ii) Submit a written statement, with or without supporting 
documentation, for inclusion in the record; or
    (iii) Waive a hearing and submission of a written statement and 
have the matter forwarded immediately to the

[[Page 45335]]

Under Secretary for Memorial Affairs for a finding.
    (3) The notice of procedural options will also inform the personal 
representative that, if the personal representative does not exercise 
one or more of the stated options within the prescribed period, the 
matter will be forwarded to the Under Secretary for Memorial Affairs 
for a finding based on the existing record.
    (d) Hearing. If a hearing is requested, the hearing will be 
conducted by the cemetery director or his or her designee. The purpose 
of the hearing is to permit the personal representative of the deceased 
to present evidence concerning whether the deceased committed a crime 
which 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 transcription is waived by the 
personal representative, a transcript of the hearing will be produced 
and included in the record.
    (e) Decision of approval or referral for a finding after a 
proceeding. 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:
    (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 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 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 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.
    (1) A finding that the deceased committed a crime referred to in 
paragraph (f) of this section must be based on clear and convincing 
evidence.
    (2) The cemetery director and the personal representative of the 
deceased will be provided with written notification of the finding of 
the Under Secretary for Memorial Affairs.
    (g) Decision after finding. Upon receipt of notification of the 
finding of the Under Secretary for Memorial Affairs, the cemetery 
director will make a decision on the request for interment or 
memorialization pursuant to 38 U.S.C. 2411. In making that decision, 
the cemetery director will be bound by the finding of the Under 
Secretary for Memorial Affairs.
    (h) Notice of decision. The cemetery director will provide written 
notice of a decision under paragraph (b), (e)(1), or (g) of this 
section and notice of appellate rights to the personal representative 
of the deceased, in accordance with Sec. 19.25 of this title. This 
notice will include notice of the opportunity to file a notice of 
disagreement with the decision of the cemetery director and the finding 
of the Under Secretary for Memorial Affairs. Action following receipt 
of a notice of disagreement with a denial of eligibility for interment 
or memorialization under this section will be in accordance with 
Secs. 19.26 through 19.38 of this title.

(Authority: 38 U.S.C. 512, 2411)

PART 39--STATE CEMETERY GRANTS

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

    Authority: 38 U.S.C. 2408.

    6. In Sec. 39.2, a new paragraph (d) is added to read as follows:


Sec. 39.2  Scope of the State cemetery grants program.

* * * * *
    (d) Any grant under this part made on or after November 21, 1997, 
is made on the condition that after the date of receipt of the grant 
the State receiving the grant, subject to requirements for receipt of 
notice in 38 U.S.C. 2408 and 2411, will prohibit in the cemetery for 
which the grant is furnished the interment of the remains of or the 
memorialization of any person:
    (1) Who has been convicted of a Federal capital crime for which the 
person was sentenced to death or life imprisonment;
    (2) Who has been convicted of a State capital crime for which the 
person was sentenced to death or life without parole; or
    (3) Who has been found by an appropriate State official, under 
procedures to be established by the State, to have committed a Federal 
or State capital crime but to have not been convicted of such crime by 
reason of unavailability for trial due to death or flight to avoid 
prosecution.

    (Authority: 38 U.S.C. 2408, 2411)

    7. In Sec. 39.3, paragraph (b)(1) is revised and an authority 
citation is added at the end of paragraph (b) to read as follows:


Sec. 39.3.  Applications with respect to projects.

* * * * *
    (b) * * *
    (1) Any cemetery established, expanded, or improved through 
assistance of this program shall be used exclusively for the interment 
or memorialization of eligible persons, as set forth in Secs. 39.1(h) 
and 39.2(a), whose interment or memorialization is not contrary to the 
conditions of the grant (see Sec. 39.2(d) and 38 U.S.C. 2408 and 2411).
* * * * *
(Authority: 38 U.S.C. 2408, 2411)
* * * * *

[FR Doc. 00-18325 Filed 7-20-00; 8:45 am]
BILLING CODE 8320-01-P