[Federal Register Volume 67, Number 195 (Tuesday, October 8, 2002)]
[Rules and Regulations]
[Pages 62642-62645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-25493]


=======================================================================
-----------------------------------------------------------------------

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: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends 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 final 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.

DATES: Effective Date: This final rule is effective November 7, 2002.
    Applicability Date. The provisions of Public Law 105-116 were 
enacted on November 21, 1997, and subsequently codified at 38 U.S.C. 
2408(d) and 2411. Consistent with the enabling legislation, the 
provisions to this regulation shall apply to requests for interment or 
memorialization made on or after November 21, 1997, and to State 
cemetery grants made on or after November 21, 1997.

FOR FURTHER INFORMATION CONTACT: Kimberly Wright, Program Analyst, 
Office of Field Programs (401A2), National Cemetery Administration, 
Department of Veterans Affairs, 810 Vermont Ave., NW., Washington, DC 
20420, or Karen Barber, Program Analyst, Legislative and Regulatory 
Division (402B3), (202) 273-5307 or (202) 273-5183, respectively. 
(These are not toll-free numbers).

SUPPLEMENTARY INFORMATION: On July 21, 2000, the National Cemetery 
Administration (NCA) published in the Federal Register (65 FR 45332) a 
proposed rule which would implement the provisions of 38 U.S.C. 2408(d) 
and 2411. The final rule generally prohibits interment or 
memorialization in a VA national cemetery of a person who is convicted 
of a Federal capital crime and sentenced to death or life imprisonment, 
or is convicted of a State capital crime, and sentenced to death or 
life imprisonment without parole. The final rule, at 38 CFR 1.618, also 
addresses when Federal officials are authorized to deny burial in VA 
national cemeteries to persons who are shown by clear and convincing 
evidence to have committed a Federal or State capital crime but were 
not convicted of such crime because of flight to avoid prosecution or 
by death prior to trial. The Secretary is also authorized to provide 
aid to States for the establishment, expansion and/or improvement of 
State veterans cemeteries. Under 38 U.S.C. 2408(d)(1), State cemetery 
grants are conditioned on the application by the individual State of 
the prohibition against interment or memorialization of individuals 
convicted of Federal or State capital crimes, or found by clear and 
convincing evidence to have committed such crimes, without having been 
convicted of the crimes due to flight or death prior to trial. The 
final rule amends VA's regulation governing the State Cemetery Grants 
Program, 38 CFR 39.3(b), to note this requirement.

Comment on Proposed Rule

    We provided a 60-day comment period that ended September 19, 2000. 
We received one written response by e-mail during this period. The 
response included three comments. First, it suggested improving the 
proposed rule by using a ``deliminating'' date to this regulation for 
consideration of veterans who were convicted prior to 1997. Congress 
specified that 38 U.S.C. 2411 would apply to applications for interment 
or memorialization made on or after November 21, 1997. Accordingly, our 
implementing regulations must reflect this date of applicability. The 
second comment suggested that, for those cases where a person avoided 
conviction due to either flight or death, the standard for determining 
whether a person committed a capital crime should be beyond a 
reasonable doubt, not preponderance of the evidence. Congress specified 
that the standard of review for making decisions of this nature is 
``clear and convincing evidence'' (38 U.S.C. 2411) and we have no 
authority to deviate from this standard of review.
    The third comment asked whether there was a problem, in cemeteries 
where Native Americans and Prisoners of War (POWs) were interred, that 
might require individuals in these categories who had committed capital 
crimes to be disinterred. VA is not aware of any problems caused by the 
interment of Native Americans and POWs that relate to its 
implementation of the capital crimes prohibition. While such 
individuals are buried in certain VA national cemeteries, Public Law 
105-116, which established the capital-crimes burial prohibition, is 
not retroactive to interment or memorialization requests predating 
November 21, 1997. Further, 38 CFR 1.621 provides that, interment in 
national cemeteries is considered ``permanent and final,'' and sets 
forth stringent prerequisites for disinterment. Further, it provides 
that disinterment proceedings are matters that VA may not initiate.
    For these reasons, we believe it is not necessary to revise the 
rule based on the views expressed by the commenter.

Revisions to the Inquiry and Proceedings Process Contained in the 
Proposed Rule

    Since November 1997, NCA cemetery directors have dealt with several 
benefit cases in which the capital crime ban came into play. The 
majority of the cases involved situations in which an individual 
avoided conviction either due to flight or death. Because of lessons 
learned through experience, we are amending Sec.  1.618. Those 
modifications, which are described below, are procedural as opposed to 
substantive in nature.
    First, when a cemetery director receives a request for burial and 
there is reason to believe that a capital crime may have taken place, 
the cemetery director is required to initiate an inquiry seeking 
information in order to make an initial decision on the case. Once made 
aware of this requirement, families often

[[Page 62643]]

decide to bury at a location other than a VA national cemetery. Under 
the proposed rule, the cemetery director is required to continue the 
inquiry process even though the decedent has been buried elsewhere. In 
order to be sensitive to grieving families, NCA prefers to interpret 
private burial as a withdrawal of the request for national cemetery 
burial. Section 1.618(b) of the final rule has been modified so that if 
alternative burial arrangements are made during the inquiry all further 
VA action on the request for burial will cease.
    Second, Sec.  1.618(c)(2) as proposed included a provision on the 
number of days the family or other personal representative has to 
respond to a notice from the cemetery director stating that there 
appears to be clear and convincing evidence that a capital crime took 
place. This section has been revised to provide additional time for the 
family or other personal representative to respond. Upon receipt of the 
notice, the family or other personal representative will have 15 
instead of 10 days to respond.
    Third, the proposed version of Sec.  1.618(c)(2) has been modified 
to include an additional option for the family or other personal 
representative. Initially, the family or other personal representative 
could: (1) Request a hearing on the matter, (2) submit a written 
statement, with or without supporting documentation, for inclusion in 
the record, or (3) waive these two options. There was no option for the 
family or other personal representative to end the process if so 
desired. Through experience, we have found that several families made 
alternate burial arrangements at a location other than a VA national 
cemetery. NCA did not receive any further communications regarding 
national cemetery burial from these families. This new option allows 
the family or other personal representative to end the benefit decision 
process at this point and avoid having a finding made by VA. Under the 
final rule, the family or other personal representative may notify the 
cemetery director that the request for interment or memorialization is 
withdrawn, thereby, ending the claim process. This provides the family 
a simple means of ending the inquiry process. Under the proposed rule, 
VA was required to complete the process even if the decedent were 
buried in a private cemetery.
    Fourth, Sec.  1.618(d), as proposed, authorized the cemetery 
director or his or her designee to act as the Hearing Official when the 
family or other personal representative requests a hearing. As it is 
not feasible for NCA to train all cemetery directors as Hearing 
Officials (for potentially a limited number of cases), this section has 
been modified. Under the final rule, the Director, Memorial Services 
Network will conduct the hearing.
    Fifth, Sec.  1.618(h), as proposed, required that appellate rights 
be provided even if the burial request was granted. This section has 
been revised to make clear that appellate rights need only be furnished 
when a request for burial or interment is denied. Notice of appellate 
rights accompanying a decision granting a request for burial or 
interment is unnecessary and may be confusing to the recipient of the 
notice.
    In addition, because the regulations are clear as to their scope, 
the information included in the Note to Sec.  1.617 is unnecessary. 
Therefore, the Note following that section has been removed.
    Over the past four years NCA staff has closely monitored the 
processing of cases where the capital crimes prohibition might apply. 
The above changes are based upon NCA experience gathered during this 
time. These minor procedural modifications will reduce the burden on 
grieving families, improve clarity, reduce processing time, and 
increase efficiency.
    Based on the rational set forth in the proposed rule and in this 
document, we are adopting the provisions of the proposed rule as a 
final rule without change except that we are making nonsubstantive 
changes for purposes of clarity and are making the changes discussed 
above.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector of 
$100 million or more in any given year. This rule would have no 
consequential effect on State, local, or tribal governments.

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory amendment will 
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 reason for this certification is that this 
amendment would not directly affect any small entities. Only VA 
beneficiaries could be directly affected. Therefore, pursuant to 5 
U.S.C. 605(b), this amendment 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 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: September 25, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set forth in the preamble, 38 CFR parts 1 and 39 
are 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 Sec. Sec.  1.617 and 1.618:
    Appropriate State official means a State attorney general or other 
official with statewide 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 an offense 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 any action taken to honor the memory of a 
deceased individual.
    Personal representative means a family member or other individual 
who

[[Page 62644]]

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.
    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 been convicted of 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, 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 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 (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 Sec.  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 of appellate rights 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 Sec. Sec.  19.26 through 19.38 
of this title.

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



    4. 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 or termination 
of a claim by personal representative without a proceeding. (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 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.
    (2) If the personal representative elects for burial at a location 
other than a VA national cemetery, or makes alternate arrangements for 
burial at a location other than a VA national cemetery, the request for 
interment or memorialization will be considered withdrawn and action on 
the request will be terminated.
    (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

[[Page 62645]]

that he or she may, within 15 days of receipt 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;
    (iii) Waive a hearing and submission of a written statement and 
have the matter forwarded immediately to the Under Secretary for 
Memorial Affairs for a finding; or
    (iv) Notify the cemetery director that the personal representative 
is withdrawing the request for interment or memorialization, thereby, 
closing the claim.
    (3) The notice of procedural options will also inform the personal 
representative that, if he or she 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 Director, Memorial 
Services Network 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 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 the personal representative waives transcription, 
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 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 the finding of the Under Secretary for Memorial Affairs and 
of a decision under paragraph (b), (e)(1), or (g) of this section. With 
notice of any decision denying a request for interment or 
memorialization, the cemetery director will provide written notice of 
appellate rights to the personal representative of the deceased, in 
accordance with Sec.  19.25 of this title. This 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 Sec. Sec.  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 immediately 
following the authority citation at the end of paragraph (c) 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) and the authority citation at 
the end of the section are revised 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 Sec. Sec.  
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. 02-25493 Filed 10-7-02; 8:45 am]
BILLING CODE 8320-01-P