Expansion of Prohibition of Interment or Memorialization of Persons Who Committed Certain Crimes

<RULE> DEPARTMENT OF VETERANS AFFAIRS <CFR>38 CFR Parts 38 and 39</CFR> <RIN>RIN 2900-AS06</RIN> <SUBJECT>Expansion of Prohibition of Interment or Memorialization of Persons Who Committed Certain Crimes</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Department of Veterans Affairs. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective April 25, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> 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). </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> 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 <E T="03">et seq.</E> ) 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 §§ 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 § 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 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 § 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 <E T="03">et seq.</E> )” 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 § 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 § 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). <HD SOURCE="HD1">Administrative Procedure Act</HD> 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. <E T="03">See Hadson Gas Sys.</E> v. <E T="03">FERC,</E> 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). <HD SOURCE="HD1">Executive Orders 12866, 13563 and 14094</HD> 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 <E T="03">www.regulations.gov.</E> <HD SOURCE="HD1">Regulatory Flexibility Act</HD> The Regulatory Flexibility Act, 5 U.S.C. 601-612, is not applicable to this rulemaking because notice of proposed rulemaking is not required. <E T="03">See</E> 5 U.S.C. 601(2), 603(a), 604(a). <HD SOURCE="HD1">Unfunded Mandates</HD> 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 no ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 20k characters. 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