[Federal Register Volume 88, Number 148 (Thursday, August 3, 2023)]
[Rules and Regulations]
[Pages 51236-51238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16559]


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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: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is revising 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 is amending its regulations to reflect this expanded 
eligibility.

DATES: This rule is effective September 5, 2023.

FOR FURTHER INFORMATION CONTACT: Daniel Catron, Supervisory Program 
Analyst, National Cemetery Administration, 41B2, Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420. Telephone: (314) 
416-6324. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION: On February 16, 2023, VA published a 
proposed rule in the Federal Register (88 FR 10065) that proposed to 
revise VA regulations regarding persons eligible for interment in a 
national cemetery, documentation associated with requests for 
interment, and eligibility for headstones or markers. The public 
comment period ended on April 17, 2023, and VA received six comments in 
response to the proposed rule.

Technical Correction

    During the final rule drafting process, VA noted an inaccuracy in 
proposed 38 CFR 38.619(a)(2)(i)(A), which we corrected in this final 
rule. In the proposed rule, we drafted the last sentence of the 
paragraph to read: ``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.'' We clarify 
that VA verifies

[[Page 51237]]

naturalization with the U.S. Citizenship and Immigration Services, but 
we do not receive or maintain naturalization records used for 
eligibility determinations. For this reason, the corrected language 
reads: ``VA will verify with the U.S. Citizenship and Immigration 
Services that the naturalization was pursuant to section 2(1) of the 
Act.'' This correction does not alter the process reflected by that 
paragraph nor does it affect the public in any way.

Public Comment Analysis

    Two commenters provided very brief remarks stating their support 
for expanding eligibility for burial in a VA national cemetery but made 
no specific mention of the proposed rule itself or the regulatory 
language. VA appreciates the supportive comments; however, we note that 
eligibility for burial was expanded to this special group of persons by 
Congress and was not a result of the rulemaking. Since the commenters 
raised no questions or concerns and suggested no changes to the 
proposed regulatory implementation, VA will make no changes to the 
proposed regulatory text based on these comments.
    Another commenter provided a brief statement of support for 
expanding burial eligibility and noted the criteria for eligibility and 
documentary evidence outlined in the rulemaking was clear. The 
commenter stated support for the rule, which VA appreciates. Since the 
commenter raised no questions or concerns and suggested no changes to 
the proposed regulatory implementation, VA will make no changes to the 
proposed regulatory text based on these comments.
    One commenter provided a statement of support for the rule, but 
also questioned why non-citizens should be excluded from the rule. At 
the outset, we note that this rule includes not just individuals who 
became United States citizens, but also non-citizens lawfully admitted 
for permanent residence in the United States at the time of their 
death. In any event, this decision to focus on citizenship and 
permanent residency was Congress's, not VA's. 38 U.S.C. 2402(a)(10). 
This rule simply implements an extension of eligibility that Congress 
has legislated.
    Moreover, while the commenter asserts that it is arbitrary to 
discriminate against non-citizen veterans, that assertion is premised 
on a misunderstanding of the definition of ``veteran.'' For VA benefit 
purposes, ``veteran'' is defined at 38 U.S.C. 101(2) and requires 
service in the active military, naval, air, or space service in the 
United States Armed Forces. The individuals at issue here, who served 
with a special guerrilla unit or irregular forces operating from a base 
in Laos, were not members of the United States Armed Forces and do not 
meet the definition of ``veteran'' for VA benefit purposes. And while 
Congress has included them as eligible for burial in 38 U.S.C. 
2402(a)(10), Congress also provided certain qualifications related to 
citizenship and residency status at the time of death. We appreciate 
this commenter's concerns but will make no changes to the regulation 
based on this comment.
    Another commenter stated support for the proposed rule but 
expressed concern that the rule does not specify how the documentation 
provided as evidence of service in support of a request for burial will 
be verified. The commenter suggested that the rule should specify how 
evidence will be corroborated and that VA should set a low standard for 
this matter so that people who have honorably served our country should 
get the benefit of the doubt. The commenter asserted that expanding the 
criteria that VA will use to evaluate the strength of evidence would be 
helpful for decedent representatives in gathering the documentation. 
Similarly, another commenter requested that evidence submitted by 
families of individuals who served with a special guerrilla unit or 
irregular forces be added explicitly to the types of documentation that 
VA will accept as evidence of service.
    To the extent these comments are predicated on the possible 
difficulties in obtaining official government documentation as proposed 
in Sec.  38.619(a)(2)(ii)(A), or obtaining affidavits of the decedent's 
superior officer, or two other individuals who also served and knew of 
the decedent's service as proposed in Sec.  38.619(a)(2)(ii)(B) and 
(C), that is why VA included Sec.  38.619(a)(2)(ii)(D) in the proposed 
(and this final) rule. This provision constitutes confirmation that VA 
will accept other appropriate evidence as proof of service for these 
individuals. Moreover, in considering the issue, VA will provide 
assistance and give claimants the benefit of the doubt, in accord with 
its statutory duties. 38 U.S.C. 5103A, 5107(b).
    As explained in the proposed rule, VA recognizes the challenge of 
verifying an individual's service with a special guerilla unit or 
irregular forces operating from a base in Laos in support of the Armed 
Forces between February 28, 1961, and May 7, 1975. No U.S. government 
agency has records of such service. So, VA is implementing the same 
evidentiary requirement Congress outlined in section 4 of the Hmong 
Veterans Naturalization Act of 2000, Public Law 106-207, which permits 
VA to consider any ``appropriate proof'' of qualifying service.
    Again, to the extent the commenter had concerns over 
interpretations or assumptions regarding the type of evidence allowed 
in proposed Sec.  38.619(a)(2)(ii)(D), VA confirms here that the 
regulatory text allows for the consideration of all appropriate 
evidence that factually documents the service, location and dates 
served. Because this provision is broad, we will make no changes to the 
regulatory text based on these comments.

Executive Orders 12866, 13563 and 14094

    Executive Order 12866 (Regulatory Planning and Review) 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. Executive Order 14094 (Executive Order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 of September 30, 
1993 (Regulatory Planning and Review), and Executive Order 13563 of 
January 18, 2011 (Improving Regulation and Regulatory Review). 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 Secretary 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 (5 U.S.C. 601-
612). The factual basis for this certification is the fact that the 
rule simply describes a new category of persons eligible for interment 
in national cemeteries and the associated documentation to substantiate 
eligibility. Therefore, pursuant to 5

[[Page 51238]]

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

Paperwork Reduction Act

    This final 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 submitted a copy 
of this rulemaking action to OMB for review and approval. OMB has 
reviewed and approved this revised collection of information.

Congressional Review Act

    Pursuant to Congressional Review Act (5 U.S.C. 801 et seq.), the 
Office of Information and Regulatory Affairs designated this rule as 
not a major rule, as defined by 5 U.S.C. 804(2).

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.

List of Subjects in 38 CFR Part 38

    Administrative practice and procedure, Cemeteries, Veterans.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved and signed 
this document on July 28, 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.

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 part 38 as set forth below:

PART 38--NATIONAL CEMETERIES OF THE DEPARTMENT OF VETERANS AFFAIRS

0
1. The authority citation for part 38 is revised 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 verify with the 
U.S. Citizenship and Immigration Services 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. 2023-16559 Filed 8-2-23; 8:45 am]
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