[Federal Register Volume 73, Number 121 (Monday, June 23, 2008)]
[Rules and Regulations]
[Pages 35351-35353]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14038]



[[Page 35351]]

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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 38 and 39

RIN 2900-AM86


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.

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SUMMARY: This final rule amends the Department of Veterans Affairs (VA) 
regulations to implement section 662 of the National Defense 
Authorization Act of 2006 (Pub. L. 109-163). Section 662 of the Act 
prohibits interment and memorialization in a national or State veterans 
cemetery of certain persons who have been convicted of a Federal or 
State capital crime and whose conviction is final, unless such a 
person's sentence was commuted by the President or the Governor of a 
State. The final rule implements statutory provisions to ensure that 
the remains of certain persons who have committed Federal or State 
capital crimes are not interred or memorialized in a national or State 
veterans cemetery.

DATES: Effective Date: June 23, 2008.
    Applicability Date: Pursuant to the provisions of Public Law 109-
163, the National Defense Authorization Act of 2006, the provisions to 
this regulation shall apply to interment or memorialization occurring 
on or after January 6, 2006.

FOR FURTHER INFORMATION CONTACT: Steve Muro, National Cemetery 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420. Telephone: (202) 461-6249 (this is not a 
toll-free number).

SUPPLEMENTARY INFORMATION: The provisions of 38 U.S.C. 2411 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. Under 38 
U.S.C. 2408(d), this prohibition also applies to interment or 
memorialization in a State veterans cemetery that received a grant from 
VA on or after November 21, 1997. This final rule implements provisions 
of the National Defense Authorization Act of 2006, and prohibits 
interment or memoralization in a VA national cemetery or an affected 
State veterans cemetery of any person who is convicted of a Federal 
capital crime and whose conviction is final, unless the sentence was 
commuted by the President. This final rule also prohibits interment or 
memoralization in a VA national cemetery or an affected State veterans 
cemetery of any person who has been convicted of a State capital crime 
and whose conviction is final, unless the sentence was commuted by the 
Governor of a State.
    We note that regulations governing the VA State Cemetery Grants 
Program, which appear in part 39 of title 38 of the CFR, previously 
contained language making eligibility for a VA State Cemetery Grant 
subject to compliance with the capital crimes prohibitions codified in 
38 U.S.C. 2408 and 2411. 67 FR 62,642 (Oct. 8, 2002). These regulations 
were inadvertently deleted when VA's State Cemetery Grant Regulations 
were amended in 2004. 69 FR 16,344 (Mar. 29, 2004). The provisions that 
were inadvertently deleted are being updated to reflect the recent 
amendments to 38 U.S.C. 2411 and are being reinserted into part 39 of 
title 38 of the CFR.
    Additionally, this final rule will revise the definitions of 
Federal capital crime and State capital crime in Sec.  38.600 and 
clarify in Sec.  38.617 what procedures the Under Secretary for 
Memorial Affairs, or his or her designee, will employ as a good faith 
effort to determine if a person described in 2411(b) is ineligible for 
interment in a national cemetery as required under Public Law 109-163. 
Following passage of the law, VA provided updated guidance to all 
personnel responsible for processing requests for interment or 
memorialization that incorporated the revised definitions of Federal 
and State capital crimes.
    Section 662(d)(1) of Public Law 109-163 directed VA to issue 
regulations to ensure that a person is not interred in any cemetery in 
the National Cemetery System unless a good faith effort has been made 
to determine whether the person is ineligible by reason of being a 
person described in 38 U.S.C. 2411(b). Current VA regulations in 38 CFR 
38.617(a) prohibit the interment or memorialization of persons found 
ineligible under the standards and procedures set forth in 38 CFR 
38.617 and 38.618. Section 38.617(e) provides that, if VA has not 
previously received notice from the relevant authorities (the United 
States Attorney General or an appropriate State official) that a person 
was convicted of a capital crime, but there is reason to believe the 
person may have been so convicted, VA will initiate an inquiry to the 
relevant authorities and will defer its decision until it has received 
the information needed to determine whether the person is ineligible 
for burial. Section 38.618 states that, if VA has reason to believe 
that a person committed a capital crime but avoided conviction by 
reason of unavailability for trial due to death or flight to avoid 
prosecution, VA will initiate an inquiry to the relevant authorities 
for information on that matter. Further, Sec.  38.618 prescribes 
procedures VA will follow in order to determine, based on information 
received from the relevant authorities, whether an individual is 
ineligible for burial due to the commission of a capital crime, and 
provides that VA will make its determination only after completion of 
the prescribed inquiry and applicable procedures under that regulation.
    Following enactment of Public Law 109-163, VA reviewed all 
administrative procedures used to establish interment eligibility and 
determined the existing procedures are sufficient to ensure that a 
good-faith effort is made to ensure that individuals otherwise 
prohibited are not interred in national cemeteries. Accordingly, we are 
not revising the procedures currently required by VA regulations. 
However, to make clear that VA will continue to apply those procedures 
in accordance with the ``good faith'' standard imposed by section 
662(d)(1) of Public Law 109-163, VA is revising Sec.  38.617(a) to 
incorporate the ``good faith'' standard to govern VA's duties under 
Sec. Sec.  38.617 and 38.618.
    This final rule is necessary to incorporate statutory provisions 
into VA regulations.

Administrative Procedure Act

    Changes made by this final rule reflect implementation of changes 
in statutory requirements. For the reasons explained above, in response 
to the rulemaking requirement in section 662(d)(1) of Public Law 109-
163, VA is making no substantive changes to its current regulations, 
but is adding reference to the ``good faith'' standard imposed by the 
statute. Accordingly, this rule is exempt from the notice-and-comment 
and delayed-effective-date requirements of 5 U.S.C. 553.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. 
). Provisions currently in 38 CFR 38.617 and 38.618 providing for 
requests to Federal and State officials for information concerning 
capital crimes will apply to fewer than 10 persons annually and 
therefore do not constitute a collection of information under 5 CFR 
1320.3(c).

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Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) Create a serious inconsistency or otherwise interfere 
with an action taken or planned by another agency; (3) Materially alter 
the budgetary impact of entitlements, grants, user fees, or loan 
programs or the rights and obligations of recipients thereof; or (4) 
Raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined not to be a significant regulatory action under the 
Executive Order because it is unlikely to result in a rule that may 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order, or otherwise meet the criteria listed above.

Regulatory Flexibility Act

    The initial and final regulatory flexibility analysis requirements 
of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 
601-612, are not applicable to this rule because a notice of proposed 
rulemaking is not required for this rule. Even so, the Secretary of 
Veterans Affairs hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act. This final rule 
would not affect any small entities. Only individual VA beneficiaries 
would be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), 
this final rule is also exempt from the regulatory flexibility analysis 
requirements of sections 603 and 604.

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, or tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule would have no such effect 
on State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Program

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this final rule are 64.201, National Cemeteries; and 64.202, 
Procurement of Headstones and Markers and/or Presidential Memorial 
Certificates, and 64.203, State Cemetery Grants.

List of Subjects in 38 CFR Parts 38 and 39

    Administrative practice and procedure, Cemeteries, Claims, Crimes, 
Criminal offenses, Veterans, Grant Programs--veterans.

    Approved: June 16, 2008.
Gordon H. Mansfield,
Deputy Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, 38 CFR parts 38 and 39 are 
amended to read 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, chapter 24, 7105, and as 
noted in specific sections.


0
2. In Sec.  38.600(b), revise the definitions of ``Federal capital 
crime'' and ``State capital crime'' to read as follows:


Sec.  38.600  Definitions.

* * * * *
    (b) * * *
    Federal capital crime means an offense under Federal law for which 
a sentence of imprisonment for life or the death penalty may be 
imposed.
* * * * *
    State capital crime means, 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.
* * * * *

0
3. Section 38.617 is amended by revising paragraphs (a), (e)(1)(i), and 
(e)(1)(ii) to read as follows:


Sec.  38.617  Prohibition of interment or memorialization of persons 
who have been convicted of Federal or State capital crimes.

    (a) Persons Prohibited. The interment in a national cemetery under 
control of the National Cemetery Administration of the remains of any 
person, or memorialization in such a cemetery of such person, shall not 
take place absent a good faith effort by the affected cemetery 
director, or the Under Secretary for Memorial Affairs, or his or her 
designee, to determine whether such person is barred from receipt of 
such benefits because the individual for whom interment or 
memoralization is sought is:
    (1) A 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 whose conviction is final, other than a person whose 
sentence was commuted by the President.
    (2) A 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 whose conviction is final, other than a person whose 
sentence was commuted by the Governor of a State.
    (3) A person found under procedures specified in Sec.  38.618 to 
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.
* * * * *
    (e)
    (1) * * *
    (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; 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.
* * * * *

PART 39--STATE CEMETERY GRANTS

0
4. The authority citation for part 39 continues to read as follows:

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


0
5. In Sec.  39.5, a new paragraph (d) is added immediately following 
the authority citation at the end of paragraph (c) to read as follows:


Sec.  39.5  General requirements for a grant.

* * * * *

[[Page 35353]]

    (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, as defined 
in Sec.  38.600(b) of this chapter, and whose conviction is final, 
other than a person whose sentence was commuted by the President;
    (2) Who has been convicted of a State capital crime, as defined in 
Sec.  38.600(b) of this chapter, and whose conviction is final, other 
than a person whose sentence was commuted by the Governor of a State.
    (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, as defined in Sec.  38.600(b) of this chapter, 
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. 501, 2408, 2411).


0
6. In Sec.  39.6, paragraph (c) (1) and the authority citation at the 
end of the section are revised to read as follows:


Sec.  39.6  Preapplication requirements.

* * * * *
    (c) * * *
    (1) Any cemetery established, expanded, or improved through a grant 
will be used exclusively for the interment or memorialization of 
eligible persons, as set forth in Sec. Sec.  39.2(h) and 39.5(a), whose 
interment or memorialization is not contrary to the conditions of the 
grant (see Sec. Sec.  39.5(d) and 38 U.S.C. 2408 and 2411).
* * * * *

(Authority: 38 U.S.C. 501, 2408, 2411).
* * * * *
[FR Doc. E8-14038 Filed 6-20-08; 8:45 am]
BILLING CODE 8320-01-P