[Federal Register Volume 84, Number 37 (Monday, February 25, 2019)]
[Rules and Regulations]
[Pages 5952-5955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03078]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 38 and 39

RIN 2900-AQ36


Prohibition of Interment or Memorialization of Persons Who Have 
Been Convicted of Federal or State Capital Crimes or Certain Sex 
Offenses

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) amends its national 
cemetery regulations prohibiting the interment or memorialization of 
certain persons who have been convicted of Federal or State capital 
crimes. This final rule incorporates the statutory prohibition against 
interment or memorialization in a VA national cemetery or VA-funded 
State or Tribal veterans' cemetery of a person 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; who, for such crime, is sentenced to a minimum of life 
imprisonment; and whose conviction is final (other than a person whose 
sentence was commuted by the President or Governor of a State). This 
prohibition was enacted as part of the Dignified Burial and Other 
Veterans' Benefits Improvement Act of 2012.

DATES: This rule is effective on February 25, 2019.

FOR FURTHER INFORMATION CONTACT: Eric D. Powell, Deputy Director, 
Memorial Programs Service, Office of Field Programs, National Cemetery 
Administration (NCA), Department of Veterans Affairs, 810 Vermont 
Avenue NW, Washington, DC 20420, (202) 632-8670 (This is not a toll-
free number).

SUPPLEMENTARY INFORMATION: Title 38, U.S.C., section 2411 originally 
prohibited the interment or memorialization in a VA national cemetery 
of an individual who had been convicted of a Federal or State capital 
crime or had been found to have committed a Federal or State capital 
crime but had not been convicted of such crime due to the person's 
death or flight to avoid prosecution. VA published regulations 
implementing this prohibition applicable to VA national cemeteries at 
38 CFR 38.617 and 38.618, and for State and Tribal veteran cemeteries 
funded through grants from VA at 38 CFR 39.10(b). The Dignified Burial 
and Other Veterans' Benefits Improvement Act of 2012, Public Law 112-
260, Sec. 105 (codified at 38 U.S.C. 2411(b)(4)), expanded the 
prohibition on interment or memorialization in a VA national cemetery 
to include 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 (42 U.S.C. 16901, et 
seq.); who, for such crime, is sentenced to a minimum of life 
imprisonment; and whose conviction is final (other than a person whose 
sentence was commuted by the President or Governor of a State).
    The Sex Offender Registration and Notification Act was previously 
codified at 42 U.S.C. 16901, et seq., but has been transferred to 34 
U.S.C. 20901, et seq. A ``tier III sex offender'' is defined at 34 
U.S.C. 20911(4) to mean a sex offender whose offense is punishable by 
imprisonment for more than 1 year and (1) is comparable to or more 
severe than aggravated sexual abuse or sexual abuse (18 U.S.C. 2241 and 
2242) or abusive sexual contact (18 U.S.C. 2244) against a minor who 
has not attained the age of 13 years, or is an attempt or conspiracy to 
commit such offenses; or (2) involves kidnapping of a minor (unless the 
offense is committed by a parent or guardian); or (3) occurs after the 
offender becomes a tier II sex offender.
    This final rule amends VA regulations to accurately reflect the 
statutory mandate in 38 U.S.C. 2411, including the prohibition added by 
Public Law 112-260, Sec. 105. VA has acted in compliance with the 
statutory mandate prohibiting interment or memorialization to 
individuals who meet the statutory definitions since enactment of 
Public Law 112-260, and this final rule brings VA's regulations into 
compliance with the statutory mandate. In addition, VA is making 
technical amendments to 38 CFR 38.617 to clarify that the prohibition 
added by Public Law 112-260 also prohibits individuals who meet the 
statutory definitions from receiving other memorialization benefits, 
even outside the national cemeteries. Although the language in 38 
U.S.C. 2411 prohibits burial and memorialization only in VA national 
cemeteries, the prohibition also pertains to other types of 
memorialization provided by VA in other statutes. In particular, 38 
U.S.C. 2306(h) prohibits provision of the various types of headstone 
and marker benefits to individuals identified in 38 U.S.C. 2411(b), 
including those buried in cemeteries other than VA national cemeteries. 
Similarly, 38 U.S.C. 112(c) prohibits the provision of a Presidential 
Memorial Certificate to any individual identified in 38 U.S.C. 2411(b), 
and 38 U.S.C. 2301(g) prohibits VA from providing a United States flag 
to drape

[[Page 5953]]

the casket of such individuals. To address these other benefits, we are 
removing, in 38 CFR 38.617(a), the phrase ``in such a cemetery,'' 
because these memorialization benefits may be provided outside the 
national cemeteries, according to the relevant statutory mandates. In 
addition, because cemetery directors do not have any responsibility for 
providing (or prohibiting the provision of) benefits outside the 
national cemeteries, we are also removing the phrase ``the affected 
cemetery director, or'' so that the Under Secretary for Memorial 
Affairs, or his or her designee, (which may include cemetery directors) 
is noted as responsible for such determinations. We are replacing all 
other references to ``cemetery director'' with ``Under Secretary for 
Memorial Affairs, or his or her designee,'' throughout 38 CFR 38.617. 
Referring to the Under Secretary for Memorial Affairs, or his or her 
designee, ensures that the regulation references the office currently 
responsible for implementing the bar to receiving benefits other than 
burial, and will remain correct even if the responsibility is 
reassigned to a different office in the future.
    In Sec.  38.617, the heading is amended to read ``Prohibition of 
interment or memorialization of persons who have been convicted of 
Federal or State capital crimes or certain sex offenses''.
    A new paragraph (a)(4) is added, to include in the list of 
individuals prohibited from interment or memorialization a person 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; and whose conviction is 
final (other than a person whose sentence was commuted by the President 
or Governor of a State).
    References in paragraphs (c) and (d) are updated to include a 
reference to new paragraph (a)(4).
    Current paragraph (e) addresses VA inquiries to the United States 
Attorney General in the case of a Federal capital crime, or an 
appropriate State official in the case of a State capital crime. Such 
references to either Federal or State capital crimes are revised to 
also include Federal or State crimes referred to in new paragraph 
(a)(4).
    To administer support to State and Tribal veterans' cemeteries, VA 
is authorized under 38 U.S.C. 2408 to make a grant for the 
establishment, expansion, or improvement of a State or Tribal veterans' 
cemetery, or the operation and maintenance of such cemetery. Pursuant 
to 38 U.S.C. 2408(d), as a condition for receiving such a grant, the 
State or Tribal Organization, after the date of the receipt of the 
grant, must prohibit the interment or memorialization in that cemetery 
of a person described in 38 U.S.C. 2411(b), subject to the receipt of 
notice described in 38 U.S.C. 2411(a)(2). Notice that the decedent has 
been convicted of a crime as described in 38 U.S.C. 2411(b)(1), (b)(2), 
or (b)(4) must be furnished to an appropriate official of the State or 
Tribal Organization; or a finding as described in 38 U.S.C. 2411(b)(3) 
must be made by an appropriate official of the State or Tribal 
Organization. Regulations governing grants to State and Tribal 
Organizations to establish, expand or improve a veterans' cemetery are 
published at 38 CFR part 39, and Sec.  39.10(b) addresses the 
prohibition on interment of decedents who committed a Federal or State 
capital crime.
    This final rule amends Sec.  39.10, which establishes cemetery 
requirements, prohibitions, and recapture rules applicable to grants to 
State and Tribal veteran cemeteries. A new paragraph (b)(4) is added, 
to include in the criteria of individuals prohibited from interment or 
memorialization a person 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; and whose conviction is final (other than a person whose 
sentence was commuted by the President or Governor of a State).
    Additionally, the authority citation for part 39 currently cites 
to, among other statutes, 25 U.S.C. 450b(l). This citation was included 
because the statute includes definitions relevant to tribal authorities 
to whom VA may make grants for veterans' cemeteries. However, 25 U.S.C. 
450b(l) has been transferred to 25 U.S.C. 5304(l). In addition, the 
pertinent definitions are also included in 38 U.S.C. 3765, which is 
among the other statutes cited in this authority citation, making the 
additional (and now outdated) reference to title 25 unnecessary. This 
final rule amends the authority citation for part 39 by removing the 
citation to 25 U.S.C. 450b(l).

Administrative Procedure Act

    In accordance with 5 U.S.C. 553(b)(B) and (d)(3), the Secretary of 
Veterans Affairs concludes that there is good cause to publish this 
rule without prior opportunity for public comment and to publish this 
rule with an immediate effective date, as such procedures would be 
unnecessary and contrary to the public interest. As stated above, this 
final rule reflects amendments to 38 U.S.C. 2411, prohibiting the 
interment or memorialization in a VA national cemetery of a person 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; and whose conviction is 
final (other than a person whose sentence was commuted by the President 
or Governor of a State). The final rule is not an exercise of agency 
discretion as it addresses only that which Congress mandates, and VA's 
actions in this rulemaking would not be changed as a result of public 
comment. This final rule amends our regulations to accurately reflect 
the statutory mandate in 38 U.S.C. 2411, to include the prohibition 
added by Public Law 112-260, Sec. 105. Further, delaying the effective 
date of this rulemaking would not benefit veterans and family members, 
and could lead to confusion regarding an individual's eligibility for 
burial in a VA national cemetery. For the above reasons, the Secretary 
issues this rule as a final rule, effective immediately.

Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this 
final rulemaking, represents VA's implementation of its legal authority 
on this subject. Other than future amendments to these regulations or 
governing statutes, no contrary guidance or procedures are authorized. 
All existing or subsequent VA guidance must be read to conform with 
this rulemaking if possible or, if not possible, such guidance is 
superseded by this rulemaking.

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).

Regulatory Flexibility Act

    This final rule is exempt from the Regulatory Flexibility Act, 5 
U.S.C. 601-612, because a general notice of proposed rulemaking is not 
required for this rulemaking under 5 U.S.C. 553, as discussed above. 
See 5 U.S.C. 601(2), 603(a), 604(a).

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and

[[Page 5954]]

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 12866 (Regulatory Planning and Review) defines a ``significant 
regulatory action,'' which requires review by the Office of Management 
and Budget (OMB), 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.
    VA has examined the economic, interagency, budgetary, legal, and 
policy implications of this regulatory action and determined that the 
action is not a significant regulatory action under E.O. 12866. VA's 
impact analysis can be found as a supporting document at http://www.Regulations.gov, usually within 48 hours after the rulemaking 
document is published. Additionally, a copy of the rulemaking and its 
impact analysis are available on VA's website at http://www.va.gov/orpm 
by following the link for VA Regulations Published from FY 2004 through 
FYTD.
    This rule is not an E.O. 13771 regulatory action because this rule 
is not significant under E.O. 12866.

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 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 final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are 64.201 National Cemeteries; 
64.202 Procurement of Headstones and Markers and/or Presidential 
Memorial Certificates; and, 64.203 State Cemetery Grants.

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

    The Secretary of Veterans Affairs, or designee, approved this 
document 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. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on January 11, 2019, for publication.

    Dated: February 19, 2019.
Luvenia Potts,
Program Specialist, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR parts 38 and 39 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, 2306, 2402, 2403, 2404, 
2408, 2411, 7105.


0
2. Amend Sec.  38.617 as follows:
0
a. Revise the section heading and paragraph (a) introductory text.
0
b. Add paragraph (a)(4).
0
c. Revise paragraphs (c), (d), (e)(1) introductory text, (e)(1)(i) and 
(ii), (e)(2), (f), and (g).
    The revisions and additions read as follows:


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

    (a) Persons prohibited. The interment in a national cemetery under 
control of the National Cemetery Administration of the remains of any 
person, or memorialization of such person, shall not take place absent 
a good faith effort by 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 
memorialization is sought is:
* * * * *
    (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; 
and whose conviction is final (other than a person whose sentence was 
commuted by the President or Governor of a State).
* * * * *
    (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 referred to in 
paragraphs (a)(1), (2), and (4) 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), (2), or (4) of this section with regard to the deceased, the 
Under Secretary for Memorial Affairs, or his or her designee, will make 
a decision on the request for interment or memorialization pursuant to 
38 U.S.C. 2411.
    (e) * * *
    (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), (2), or (4) of this 
section with regard to the deceased, but the Under Secretary for 
Memorial Affairs, or his or her designee, has reason to believe that 
the deceased may have been convicted of a Federal or State capital 
crime or sex offense as referred to in paragraph (a)(1), (2), or (4) of 
this section, the Under Secretary for Memorial Affairs, or his or her 
designee, will initiate an inquiry to either:
    (i) The United States Attorney General, requesting notification of

[[Page 5955]]

whether the deceased has been convicted of a Federal capital crime or 
sex offense as referred to in paragraph (a)(1) or (4) of this section; 
or
    (ii) An appropriate State official, requesting notification of 
whether the deceased has been convicted of a State capital crime or sex 
offense as referred to in paragraph (a)(2) or (4) of this section.
    (2) The Under Secretary for Memorial Affairs, or his or her 
designee, 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 Under Secretary for Memorial 
Affairs, or his or her designee, will make a decision on the request 
for interment or memorialization pursuant to 38 U.S.C. 2411 upon 
receipt of the notification requested, unless the Under Secretary for 
Memorial Affairs, or his or her designee, initiates an inquiry pursuant 
to Sec.  38.618(a).
    (g) Notice of decision. Written notice of a decision under 
paragraph (d) or (f) of this section will be provided by the Under 
Secretary for Memorial Affairs, or his or her designee, 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 Under Secretary for 
Memorial Affairs, or his or her designee. 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.

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

0
3. The authority citation for part 39 is revised to read as follows:

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

0
4. Amend Sec.  39.10 by adding paragraph (b)(4) 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 
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; and whose 
conviction is final (other than a person whose sentence was commuted by 
the President or Governor of a State).
* * * * *
[FR Doc. 2019-03078 Filed 2-22-19; 8:45 am]
 BILLING CODE 8320-01-P