[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 [www.gpo.gov]
[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 www.regulations.gov.

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