Rule2023-16559
Persons Eligible for Burial
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 3, 2023
Effective
September 5, 2023
Issuing agencies
Veterans Affairs Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 148 (Thursday, August 3, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="http://www.regulations.gov">www.regulations.gov</a>.
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]
BILLING CODE 8320-01-P
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</html>Indexed from Federal Register on August 3, 2023.
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