[Federal Register Volume 88, Number 32 (Thursday, February 16, 2023)]
[Proposed Rules]
[Pages 10065-10068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03052]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 38

RIN 2900-AR80


Persons Eligible for Burial

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to revise its 
regulations regarding persons eligible for interment in a national 
cemetery, documentation associated with requests for interment, and 
eligibility for headstones or markers to implement new authorities 
provided in the National Defense Authorization Act for Fiscal Year 2022 
(NDAA FY22). Section 6601 of NDAA FY22 expanded eligibility for 
interment in national cemeteries to include certain individuals who 
served with a special guerrilla unit or irregular forces operating from 
a base in Laos in support of the Armed Forces during a specified time 
period. VA proposes to amend its regulations to reflect this expanded 
eligibility.

DATES: Comments must be received by VA on or before April 17, 2023.

ADDRESSES: Comments must be submitted through www.regulations.gov. 
Except as provided below, comments received before the close of the 
comment period will be available at www.regulations.gov for public 
viewing, inspection, or copying, including any personally identifiable 
or confidential business information that is included in a comment. We 
post the comments received before the close of the comment period on 
the following website as soon as possible after they have been 
received: https://www.regulations.gov. VA will not post on 
Regulations.gov public comments that make threats to individuals or 
institutions or suggest that the commenter will take actions to harm 
the individual. VA encourages individuals not to submit duplicative 
comments. We will post acceptable comments from multiple unique 
commenters even if the content is identical or nearly identical to 
other comments. Any public comment received after the comment period's 
closing date is considered late and will not be considered in the final 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Michelle Myers, Management and Program 
Analyst, Legislative and Regulatory Service, National Cemetery 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC, 20420. Telephone: (202) 717-2979. (This is not a toll-
free telephone number.)

SUPPLEMENTARY INFORMATION: 

Background

    The National Cemetery Administration (NCA) honors Veterans and 
their eligible family members with final resting places in national 
shrines and with lasting tributes that commemorate their service and 
sacrifice to our Nation. VA operates 155 national cemeteries and 34 
soldiers' lots and monument sites in 42 states and Puerto Rico. More 
than 4 million Americans, including Veterans of every war and conflict, 
are buried in VA's national cemeteries. Section 2402 of title 38, 
United States Code (U.S.C.), specifies in law persons who are eligible 
for

[[Page 10066]]

interment in national cemeteries under NCA control.
    On March 23, 2018, the Consolidated Appropriations Act, 2018, 
Public Law 115-141, div. J, tit. II, section 251 (CAA), amended 38 
U.S.C. 2402(a) to establish eligibility for burial in a VA national 
cemetery for certain individuals naturalized pursuant to section 2(1) 
of the Hmong Veterans' Naturalization Act of 2000, Public Law 106-207 
(2000 Act). Section 2(1) of the 2000 Act specified that an individual 
who served with a special guerilla unit or irregular forces, operating 
from a base in Laos in support of the United States (U.S.) military 
during a specified period was temporarily eligible for an exemption 
from the English language requirement for naturalization. See also id. 
at section 6. Individuals who were granted naturalization under this 
authority, who died on or after March 23, 2018, and resided in the U.S. 
at the time of death are eligible for burial in a national cemetery 
pursuant to the CAA. In 2021, VA implemented this authority by amending 
its regulations to reflect the expanded eligibility for interment in a 
national cemetery. 86 FR 43091.

New Authority

    On December 27, 2021, the National Defense Authorization Act for 
Fiscal Year 2022, Public Law 117-81, section 6601 (NDAA FY22), further 
amended 38 U.S.C. 2402(a) to expand eligibility for interment in NCA 
national cemeteries to additional individuals who served honorably with 
a special guerrilla unit or irregular forces operating from a base in 
Laos in support of the Armed Forces at any time during the period 
beginning on February 28, 1961, and ending on May 7, 1975. Those 
individuals must be, at the time of death, residing in the U.S. and 
either a U.S. citizen or an alien lawfully admitted for permanent 
residence in the U.S.
    This change provides burial eligibility to affected individuals who 
were not eligible under the CAA because they may have become U.S. 
citizens prior to the 2000 Act or were naturalized after the English 
language exemption provision of the 2000 Act expired. This change also 
expands eligibility to individuals who were lawfully admitted for 
permanent residency but are not naturalized U.S. citizens.
    To implement this new authority, VA proposes to revise Sec.  
38.620(j) to include this new category of individuals. Paragraphs 
(j)(1) and (2) would address the date of death and residency 
requirements; paragraph (j)(3)(i) would address those individuals 
covered by the CAA, and paragraph (j)(3)(ii) would address those 
covered by the NDAA FY22.
    Additionally, VA proposes to revise Sec.  38.619(a) by inserting a 
new paragraph (a)(2) to provide more specific information regarding 
documentation supporting interment requests for persons eligible for 
interment in a national cemetery under 38 CFR 38.620(j). Under Sec.  
38.619(a)(1), VA requires certain information from a decedent's 
personal representative at the time of the request for interment to 
determine eligibility and ascertain other details to allow for 
scheduling the interment. Proposed new paragraph (a)(2)(i)(A) would 
require, for decedents who were naturalized under the English language 
exemption provided in section 2(1) of the 2000 Act, a copy of the 
official U.S. Certificate of Naturalization. VA would then obtain 
verification from the U.S. Citizenship and Immigration Services that 
naturalization was pursuant to section 2(1) of the 2000 Act. Neither 
this requirement nor the process is new, but the paragraph would codify 
in regulation the policy and process VA has been using to verify 
eligibility for this category of individuals since eligibility was 
first established on March 23, 2018.
    Proposed new paragraph (a)(2)(i)(B) would address documentation 
requirements for decedents who served honorably with a special guerilla 
unit or irregular forces operating from a base in Laos in support of 
the Armed Forces at any time between February 28, 1961, and May 7, 
1975, and are U.S. citizens, but were not naturalized under section 
2(1) of the 2000 Act. VA would verify citizenship and review evidence 
of service in order to confirm eligibility.
    Proposed new paragraph (a)(2)(i)(C) would address documentation 
requirements for decedents who served honorably with a special guerilla 
unit or irregular forces operating from a base in Laos in support of 
the Armed Forces at any time between February 28, 1961, and May 7, 
1975, and were not U.S. citizens but were lawfully admitted for 
permanent residence in the U.S. VA would verify permanent residence 
status and review evidence of service.
    Proposed new paragraph (a)(2)(i)(D) would require that all 
interment requests pursuant to Sec.  38.620(j) include evidentiary 
support substantiating that the decedent resided in the U.S. at the 
time of death.
    Proposed new paragraph (a)(2)(ii) would describe the type of 
documentation VA will accept as evidence of service. This type of 
documentation is consistent with the type of documentation used by U.S. 
Citizenship and Immigration Services to determine eligibility for 
citizenship under section 2(1) of the 2000 Act. See Public Law 106-207, 
section 4.
    Proposed new paragraph (a)(2)(iii) would provide clarification that 
Department of Defense (DD) Form 214, Certificate of Release or 
Discharge from Active Duty, is not an appropriate document of service 
for purposes of paragraphs (a)(2)(i)(B) or (C) of this section.
    Finally, VA proposes to revise Sec.  38.630(a)(1)(ii)(F) and 
38.630(a)(2)(i)(F), which address eligibility for burial headstones and 
markers for unmarked graves and marked graves. Because the individuals 
described in Sec.  38.620(j) are by law eligible for burial in a 
national cemetery, they are also eligible for a government furnished 
headstone or marker under 38 U.S.C. 2306(a)(1) and (2) and (d)(1). VA's 
regulation governing eligibility for headstones and markers must be 
updated to include this group of individuals who are newly eligible. 
These revisions will ensure that VA regulations related to burial and 
headstone eligibility are updated for consistency with NDAA FY22.

Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct 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. 
The Office of Information and Regulatory Affairs has determined that 
this rule is not a significant regulatory action under Executive Order 
12866.
    The Regulatory Impact Analysis associated with this rulemaking can 
be found as a supporting document at www.regulations.gov.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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 factual basis for this certification is based on 
the fact that the proposed rule would simply describe a new category of 
persons eligible for interment in

[[Page 10067]]

national cemeteries and the associated documentation to substantiate 
eligibility. Therefore, pursuant to 5 U.S.C. 605(b), the initial and 
final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 
604 do not apply.

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

Paperwork Reduction Act

    This proposed rule includes provisions constituting a revised 
collection of information under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501-3521) that require approval by the Office of Management and 
Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a 
copy of this rulemaking action to OMB for review and approval.
    OMB assigns control numbers to collections of information it 
approves. VA may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. If OMB does not approve the 
collection of information as requested, VA will immediately remove the 
provisions containing the collection of information or take such other 
action as is directed by OMB.
    Comments on the revised collection of information contained in this 
rulemaking should be submitted through www.regulations.gov. Comments 
should indicate that they are submitted in response to ``RIN 2900-AR80, 
Persons Eligible for Burial'' and should be sent within 60 days of 
publication of this rulemaking. The collection of information 
associated with this rulemaking can be viewed at: www.reginfo.gov/public/do/PRAMain.
    OMB is required to make a decision concerning the collection of 
information contained in this rulemaking between 30 and 60 days after 
publication of this rulemaking in the Federal Register. Therefore, a 
comment to OMB is best assured of having its full effect if OMB 
receives it within 30 days of publication. This does not affect the 
deadline for the public to comment on the provisions of this 
rulemaking.
    The Department considers comments by the public on a revised 
collection of information in--
     Evaluating whether the revised collection of information 
is necessary for the proper performance of the functions of the 
Department, including whether the information will have practical 
utility;
     Evaluating the accuracy of the Department's estimate of 
the burden of the revised collection of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    The collection of information associated with this rulemaking 
contained in 38 CFR 38.619 is described immediately following this 
paragraph, under its respective title.
    Title: Verification of Eligibility for Burial in a National 
Cemetery, VA Form 40-4962.
    OMB Control No: 2900-0232.
    CFR Provision: 38 CFR 38.619(a)(2).
     Summary of collection of information: Proposed 38 CFR 
38.619(a)(2) would require the submission of specific documents to 
support the interment eligibility of persons who were naturalized under 
section 2(1) of the Hmong Veterans Naturalization Act of 2000 or served 
with a special guerilla unit or irregular forces operating from a base 
in Laos in support of the Armed Forces at any time between February 28, 
1961, and May 7, 1975, such as a copy of the U.S. Certificate of 
Naturalization or a copy of the official documentation of status as a 
lawful permanent resident; evidence that the decedent resided in the 
U.S. at the time of death; and (in some circumstances) evidence of 
service. VA typically uses the DD214 to verify service in the U.S. 
Armed Forces; however, since these individuals did not serve in the 
U.S. Armed Forces, there is no official U.S. Government documentation 
of military service. Thus, in enumerated circumstances, one of the 
following types of evidence of service would be required:
    [cir] Original documentation issued by a government agency 
officially documenting the service type, location and dates served;
    [cir] An affidavit of the decedent's superior officer attesting to 
the type of service, location, and dates served;
    [cir] Two affidavits from other individuals who were also serving 
with such a special guerilla unit or irregular forces and who 
personally knew of the decedent's service; or
    [cir] Other appropriate evidence that factually documents the 
service, location and dates served.
     Description of need for information and proposed use of 
information: The information will be used by NCA to determine whether 
the decedent meets the statutory requirements for eligibility for 
burial in a national cemetery, which would be enumerated at proposed 38 
CFR 38.620(j).
     Description of likely respondents: Respondents will be 
personal representatives of decedents who seek burial in a national 
cemetery. With respect to this rulemaking, this may be family members 
of the decedent, funeral directors, or other designated 
representatives.
     Estimated number of respondents: VA estimates an average 
of 85 such respondents per year providing the information requested in 
the revised collection.
     Estimated frequency of responses: This is one time per 
personal representative of decedent.
     Estimated average burden per response: 15 minutes per 
response.
     Estimated total annual reporting and recordkeeping burden: 
VA estimates the total annual reporting and recordkeeping burden to be 
21.25 burden hours (85 respondents x 15 minutes / 60 minutes).
     Estimated cost to respondents per year: VA estimates the 
annual cost to respondents to be $595.21. Using VA's average annual 
number of 85 respondents, VA estimates the respondents' total 
information collection burden cost to be $595.21 per year*. (21.25 
burden hours for respondents x $28.01 mean hourly wage)].
    * To estimate the respondents' total information collection burden 
cost, VA uses the Bureau of Labor Statistics (BLS) mean hourly wage for 
``All Occupations'' of $28.01. This information is available at https://www.bls.gov/oes/2021/may/oes_nat.htm#00-0000.

Assistance Listing

    The Assistance Listing numbers and titles for the program affected 
by this document are 64.201, National Cemeteries; 64.203, Veterans 
Cemetery Grants Program; and 64.206, VA Outer Burial Receptacle 
Allowance Program.

[[Page 10068]]

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on February 7, 2023, 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.

Jeffrey M. Martin,
Assistant Director, 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 proposes to amend 38 CFR part 38 as set forth below:

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, 531, 2306, 2400, 2402, 
2403, 2404, 2407, 2408, 2411, 7105.

0
2. Amend Sec.  38.619 by adding paragraph (a)(2) to read as follows:


Sec.  38.619  Requests for interment, committal services or memorial 
services, and funeral honors.

    (a) * * *
    (2) Interment requests pursuant to Sec.  38.620(j). (i) Consistent 
with paragraph (a)(1)(i) of this section, interment requests pursuant 
to Sec.  38.620(j) must include the following:
    (A) For decedents who were naturalized under section 2(1) of the 
Hmong Veterans Naturalization Act of 2000 (the Act), a copy of the 
official U.S. Certificate of Naturalization. (VA will retrieve 
naturalization records from the U.S. Citizenship and Immigration 
Services to verify that the naturalization was pursuant to section 2(1) 
of the Act.)
    (B) For decedents who were otherwise naturalized, a copy of the 
U.S. Certificate of Naturalization and documentation of the decedent's 
honorable service with a special guerilla unit or irregular forces 
operating from a base in Laos in support of the Armed Forces at any 
time between February 28, 1961, and May 7, 1975.
    (C) For decedents who were not naturalized but were lawfully 
admitted for permanent residence in the U.S., a copy of the official 
documentation of status as a lawful permanent resident, and 
documentation of the decedent's honorable service with a special 
guerilla unit or irregular forces operating from a base in Laos in 
support of the Armed Forces at any time between February 28, 1961, and 
May 7, 1975.
    (D) Evidence that the decedent resided in the U.S. at the time of 
death.
    (ii) VA will accept the following types of documentation as 
evidence of service described in paragraphs (a)(2)(i)(B) and (C) of 
this section:
    (A) Original documentation issued by a government agency officially 
documenting the service type, location and dates served;
    (B) An affidavit of the decedent's superior officer attesting to 
the type of service, location, and dates served;
    (C) Two affidavits from other individuals who were also serving 
with such a special guerilla unit or irregular forces and who 
personally knew of the decedent's service; or
    (D) Other appropriate evidence that factually documents the 
service, location and dates served.
    (iii) The DD Form 214, Certificate of Release or Discharge from 
Active Duty, is not an appropriate documentation of service for 
purposes of paragraphs (a)(2)(i)(B) and (C) of this section.
* * * * *
0
3. Amend Sec.  38.620 by revising paragraph (j) to read as follows:


Sec.  38.620  Persons eligible for burial.

* * * * *
    (j) Any individual who:
    (1) Died on or after March 23, 2018; and
    (2) Resided in the United States at the time of their death; and
    (3) Either:
    (i) Was naturalized pursuant to section 2(1) of the Hmong Veterans' 
Naturalization Act of 2000 (Pub. L. 106-207, 114 Stat. 316; 8 U.S.C. 
1423 note); or
    (ii) Served honorably with a special guerilla unit or irregular 
forces operating from a base in Laos in support of the Armed Forces at 
any time between February 28, 1961, and May 7, 1975; and was, at the 
time of the individual's death, a citizen of the United States or an 
alien lawfully admitted for permanent residence in the United States.
0
4. Amend Sec.  38.630 by revising paragraphs (a)(1)(ii)(F) and 
(a)(2)(i)(F) to read as follows:


Sec.  38.630  Burial headstones and markers; medallions.

    (a) * * *
    (1) * * *
    (ii) * * *
    (F) Individuals who were naturalized pursuant to section 2(1) of 
the Hmong Veterans' Naturalization Act of 2000, or who served honorably 
with a special guerilla unit or irregular forces operating from a base 
in Laos in support of the Armed Forces, as described in and subject to 
Sec.  38.620(j).
    (2) * * *
    (i) * * *
    (F) Individuals who were naturalized pursuant to section 2(1) of 
the Hmong Veterans' Naturalization Act of 2000, or who served honorably 
with a special guerilla unit or irregular forces operating from a base 
in Laos in support of the Armed Forces, as described in and subject to 
Sec.  38.620(j).

[FR Doc. 2023-03052 Filed 2-15-23; 8:45 am]
BILLING CODE 8320-01-P