Vocational Rehabilitation and Employment Program-Self-Employment, 19164-19167 [E9-9591]
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Federal Register / Vol. 74, No. 80 / Tuesday, April 28, 2009 / Proposed Rules
(iii) Risk assessment for maritime
safety and security;
(iv) Risk management strategies; and
(v) Resource needs for maritime
safety, security, and response.
(g) The Follow-on WSA must:
(1) Be submitted to the COTP as
follows:
(i) The owner or operator of an LNG
facility must submit the Follow-on WSA
to the COTP no later than the date the
owner or operator files its application
with FERC pursuant to 18 CFR parts 153
or 157, or if no application to FERC is
required, at least 180 days before the
owner or operator begins transferring
LNG.
(ii) The owner or operator of an LHG
facility must submit the Follow-on WSA
to the COTP in all cases at least 180
days before the owner or operator begins
transferring LHG.
(2) Contain a detailed analysis of the
elements listed in §§ 127.009(d) and (e)
of this part below.
(h) Until the facility begins operation,
owners or operators must:
(1) Annually review their WSAs and
submit a report to the COTP as to
whether changes are required. The
deadline for the required annual report
should coincide with the date of the
COTP’s letter of recommendation,
which indicates review and validation
of the Follow-on WSA has been
completed.
(2) In the event that revisions to the
WSA are needed, report to the COTP the
details of the necessary revisions, along
with a timeline for completion.
(3) Update the WSA if there are any
changes in conditions, such as changes
to the port environment, the LNG or
LHG facility, or the tanker route, that
would affect the suitability of the
waterway for LNG or LHG traffic.
(4) Submit a final report to the COTP
at least 30 days, but not more than 60
days, prior to the start of operations.
5. Revise § 127.009 to read as follows:
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§ 127.009
Letter of recommendation.
After the COTP receives the letter of
intent under § 127.007(a) or (b), the
COTP issues a letter of recommendation
to the federal, state, or local government
agencies having jurisdiction, as to the
suitability of the waterway for LNG or
LHG marine traffic, based on the—
(a) Information submitted under
§ 127.007;
(b) Density and character of marine
traffic in the waterway;
(c) Locks, bridges, or other man-made
obstructions in the waterway;
(d) Following factors adjacent to the
facility such as:
(1) Depths of the water;
(2) Tidal range;
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(3) Protection from high seas;
(4) Natural hazards, including reefs,
rocks, and sandbars;
(5) Underwater pipelines and cables;
(6) Distance of berthed vessel from the
channel and the width of the channel;
and
(e) Other safety and security issues
identified.
Dated: April 22, 2009.
Howard L. Hime,
Acting Director of Commercial Regulations
and Standards, U.S. Coast Guard.
[FR Doc. E9–9639 Filed 4–27–09; 8:45 am]
BILLING CODE 4910–15–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AN31
Vocational Rehabilitation and
Employment Program—SelfEmployment
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
SUMMARY: This document proposes to
amend the vocational rehabilitation and
employment regulations of the
Department of Veterans Affairs (VA)
concerning self-employment for
individuals with qualifying disabilities.
We are proposing changes that are
intended to conform VA’s regulations
for self-employment programs for
veterans, and for servicemembers
awaiting discharge, to statutory
provisions, including provisions
limiting eligibility for certain supplies,
equipment, stock, and license fees to
individuals with the most severe
service-connected disabilities. We are
also proposing related changes in VA’s
regulations affecting eligibility for such
assistance for certain veterans’ children
with birth defects in self-employment
programs. In addition, we propose to
amend our regulations regarding
authority for approval of selfemployment plans to make certain
requirements less restrictive and less
burdensome, remove a vague and overly
broad requirement, make changes to
reflect longstanding VA policy, and
make nonsubstantive clarifying changes
in our regulations affecting selfemployment programs.
DATES: Comments must be received on
or before June 29, 2009.
ADDRESSES: Written comments may be
submitted through
www.Regulations.gov; by mail or handdelivery to the Director, Regulations
Management (02REG), Department of
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Veterans Affairs, 810 Vermont Ave.,
NW., Room 1068, Washington, DC
20420; or by fax to (202) 273–9026.
Comments should indicate that they are
submitted in response to ‘‘RIN 2900–
AN31—Vocational Rehabilitation and
Employment Program—SelfEmployment.’’ Copies of comments
received will be available for public
inspection in the Office of Regulation
Policy and Management, Room 1063B,
between the hours of 8:00 a.m. and 4:30
p.m., Monday through Friday (except
holidays). Please call (202) 461–4902
(not a toll-free number) for an
appointment. In addition, during the
comment period, comments may be
viewed online through the Federal
Docket Management System (FDMS) at
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Alvin Bauman, Senior Policy Analyst,
Vocational Rehabilitation and
Employment Service (28), Veterans
Benefits Administration, Department of
Veterans Affairs, 810 Vermont Ave.,
NW., Washington, DC 20420, (202) 461–
9613 (not a toll-free number).
SUPPLEMENTARY INFORMATION: We
propose to amend VA’s regulations
concerning self-employment in 38 CFR
part 21 that are applicable to benefits
and services under 38 U.S.C. chapter 31,
Training and Rehabilitation for Veterans
with Service-Connected Disabilities,
and 38 U.S.C. chapter 18, Benefits for
Children of Vietnam Veterans and
Certain Other Veterans.
The Veterans’ Benefits Act of 1996,
Public Law 104–275 (enacted October 9,
1996), amended 38 U.S.C. 3104(a)(12)
regarding the special assistance and
supplies that VA can provide for
individuals pursuing self-employment
programs. Prior to the enactment of
Public Law 104–275, only ‘‘the most
severely disabled’’ individuals who
required self-employment were, under
38 CFR 21.258, entitled to the special
supplies, equipment, stock, and license
fees described in 38 CFR 21.214(e).
Public Law 104–275 amended 38 U.S.C.
3104(a)(12) by restricting the provision
of those special supplies, equipment,
stock, and license fees to individuals
‘‘with the most severe service-connected
disabilities who require homebound
training or self employment.’’ We plan
to address issues concerning training in
the home (also known as homebound
training) under 38 U.S.C. 3104(a)(12) in
a future rulemaking. This rulemaking,
like current § 21.258, concerns
individuals who require selfemployment, some of whom may also
require homebound training. This
proposed rule includes (in § 21.257
rather than current § 21.258) criteria
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Federal Register / Vol. 74, No. 80 / Tuesday, April 28, 2009 / Proposed Rules
regarding providing such special
supplies, equipment, stock, and license
fees for individuals who require selfemployment.
We also propose to revise and
eliminate some of the provisions of
§ 21.254 pertaining to a service-disabled
veteran who has trained for selfemployment under a State rehabilitation
agency. The proposed changes are
intended to make the requirements
under § 21.254 less restrictive and less
burdensome. Specifically, we propose to
eliminate the requirement in current
§ 21.254 for certification by an official of
the State rehabilitation agency with
responsibility for administration of selfemployment programs that:
• The veteran has successfully
completed training for a selfemployment program;
• The assistance needed is not
available through the State
rehabilitation program, or other non-VA
sources; and
• The assistance requested is a part of
the veteran’s Individualized Written
Rehabilitation Plan (IWRP) developed
by the State rehabilitation agency.
Instead, we propose to state the
conditions under which an individual
who has trained for self-employment
under a State rehabilitation agency may
be provided special supplies,
equipment, stock, and license fees if
there is a VA determination that the
following criteria are met:
• The individual is eligible for
employment assistance under the
provisions of 38 CFR 21.47.
• Evidence of record indicates that
the individual has successfully
completed training for a selfemployment program under a State
rehabilitation agency.
• No other non-VA sources of
assistance are known to be available for
the individual to complete his or her
self-employment program.
• The individual is within the group
of ‘‘individuals with the most severe
service-connected disability(ies) who
require self-employment’’ as defined in
38 CFR 21.257(b).
In addition, we propose to eliminate
the requirement currently in § 21.254
that, prior to authorization of any
supplies, the Director, Vocational
Rehabilitation and Education (VR&E)
Service must approve the request if the
cost of supplies is more than $2,500.
We propose to amend the criteria for
approval of self-employment as a
vocational goal for an individual.
Current § 21.257 provides that selfemployment is only available to an
individual if access to the normal
channels for suitable employment is
limited by his or her disability(ies), or
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other circumstances in the individual’s
situation warrant consideration of selfemployment. We believe the first of
these criteria is excessively restrictive
and that the second is vague and
excessively broad.
Self-employment as a mode of
employment is authorized for all
program participants for whom it is
determined to be appropriate for
achieving rehabilitation. However, 38
U.S.C. 3104(a)(12), as amended, reserves
the special assistance described in
§ 21.214(e) for individuals with the most
severe service-connected disability(ies)
who require self-employment.
Accordingly, we propose to revise
§ 21.257 to remove the above-referenced
restriction on authorizing selfemployment as a suitable vocational
goal and limit consistent with the
amendment to section 3104(a)(12) the
self-employment special assistance
under 38 CFR 21.214(e) to ‘‘individuals
with the most severe service-connected
disability(ies) who require selfemployment.’’
Proposed § 21.258 contains an
approval requirement relating to the
cost of the provision of special supplies,
equipment, stock, and license fees for
self-employment programs in
accordance with 38 U.S.C. 3104(a)(12).
Proposed § 21.258 would require that a
self-employment plan be approved
either at the level of the VR&E Officer
or at the level of the Director, VR&E
Service. If the estimated or actual cost
is less than $25,000, the VR&E Officer
could approve the plan. If the estimated
or actual cost of such a plan is $25,000
or more, approval by the Director, VR&E
Service would be required. The
provisions of § 21.258, as amended,
would reflect existing VA policy.
Many of the proposed amendments to
38 CFR part 21, subpart A in this
document applicable to veterans under
the 38 U.S.C. chapter 31 program would
be applicable to the vocational
rehabilitation program under 38 U.S.C.
chapter 18 regarding benefits for
children of Vietnam veterans and
certain other veterans (see 38 CFR part
21, subpart M). In subpart M,
§§ 21.8020, 21.8210, and 21.8380
contain provisions concerning the
applicability of the provisions of
§§ 21.214, 21.254, 21.256, 21.257,
21.258, and 21.430 in a manner
comparable to their application for a
veteran under the chapter 31 program.
We propose to amend § 21.8020 to
clarify how we would apply proposed
§ 21.257 to the provision of services and
assistance under subpart M in a manner
that we consider to be comparable to its
application for a veteran under the 38
U.S.C. chapter 31 program. In lieu of
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requiring that the individuals covered
under subpart M meet the definition in
proposed § 21.257(b), the requirements
for application of proposed
§ 21.257(e)(1) and (2) would be deemed
met for an individual in a selfemployment program if the individual
has been determined by VA to have
limitations affecting employability
arising from the effects of the
individual’s spina bifida or other
covered birth defect(s), which are so
severe as to necessitate selection of selfemployment as the only reasonably
feasible vocational goal for the
individual. We are proposing a related
clarifying change in § 21.8020(d),
intended to remove the possible
implication that self-employment is not
among the employment options for a
participant’s program under subpart M.
In addition to the amendments noted
above, we also propose to reorganize
§§ 21.257 and 21.258 to improve
readability, and to make other clarifying
changes that are nonsubstantive.
Paperwork Reduction Act of 1995
This document contains no provisions
constituting a collection of information
under the Paperwork Reduction Act (44
U.S.C. 3501–3521).
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
year. This rule would have no such
effect on State, local, and tribal
governments, or on the private sector.
Executive Order 12866
Executive Order 12866 directs
agencies to assess all 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, and other advantages;
distributive impacts; and equity). The
Executive Order classifies a regulatory
action as a ‘‘significant regulatory
action,’’ requiring review by the Office
of Management and Budget (OMB)
unless OMB waives such review, if it is
a regulatory action that is likely to result
in a rule that may: (1) Have an annual
effect on the economy of $100 million
or more or adversely affect in a material
way the economy, a sector of the
economy, productivity, competition,
jobs, the environment, public health or
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safety, or State, local, or tribal
governments or communities; (2) create
a serious inconsistency or otherwise
interfere with an action taken or
planned by another agency; (3)
materially alter the budgetary impact of
entitlements, grants, user fees, or loan
programs or the rights and obligations of
recipients thereof; or (4) raise novel
legal or policy issues arising out of legal
mandates, the President’s priorities, or
the principles set forth in the Executive
Order.
The economic, interagency,
budgetary, legal, and policy
implications of this proposed rule have
been examined and it has been
determined not to be a significant
regulatory action under Executive Order
12866.
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. This
proposed rule would not directly affect
any small entities. Only individuals
could be directly affected. Therefore,
pursuant to 5 U.S.C. 605(b), this
proposed rule is exempt from the initial
and final regulatory flexibility analysis
requirements of sections 603 and 604.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance numbers and titles for the
programs that would be affected by this
proposed rule are 64.116, Vocational
Rehabilitation for Disabled Veterans,
and 64.128, Vocational Training and
Rehabilitation for Vietnam Veterans’
Children with Spina Bifida or Other
Covered Defects.
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List of Subjects in 38 CFR Part 21
Administrative practice and
procedure, Armed forces, Civil rights,
Claims, Colleges and universities,
Conflict of interests, Education,
Employment, Grant programs—
education, Grant programs—veterans,
Health care, Loan programs—education,
Loan programs—veterans, Manpower
training programs, Reporting and
recordkeeping requirements, Schools,
Travel and transportation expenses,
Veterans, Vocational education,
Vocational rehabilitation.
Approved: April 15, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
For the reasons set forth in the
preamble, VA proposes to amend 38
CFR part 21 (subparts A and M) as
follows:
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PART 21—VOCATIONAL
REHABILITATION AND EDUCATION
Subpart A—Vocational Rehabilitation
and Employment Under 38 U.S.C.
Chapter 31
1. Revise the authority citation for
part 21, subpart A to read as follows:
Authority: 38 U.S.C. 501(a), chs. 18, 31,
and as noted in specific sections.
2. Revise the subpart A heading as set
forth above.
3. Amend § 21.214 by:
a. In paragraph (e) introductory text,
removing ‘‘services’’ and adding, in its
place, ‘‘related assistance’’ and
removing ‘‘§ 21.258’’ and adding, in its
place, ‘‘§§ 21.257 and 21.258’’.
b. In paragraph (e)(3), removing
‘‘incidental services’’ and adding, in its
place, ‘‘related assistance’’.
c. Revising the authority citation for
paragraph (e).
The revision reads as follows:
§ 21.214 Furnishing supplies for special
programs.
*
*
*
*
*
5. Revise § 21.257 to read as follows:
§ 21.257
Self-employment.
(a) Approval of self-employment as a
vocational goal. A program of vocational
rehabilitation benefits and services may
include self-employment for an
individual if VA determines that such
an objective is a suitable vocational
goal. VA will make this determination
based on—
(1) The results of the individual’s
initial evaluation conducted in
accordance with the provisions of
§ 21.50; and
(2) The provisions of this section.
(Authority: 38 U.S.C. 3104(a))
(b) Definition. For purposes of this
subpart, individuals with the most
severe service-connected disability(ies)
who require self-employment means
individuals who have been determined
by VA to have limitations affecting
employability arising from the effects of
each individual’s service-connected
disability(ies), which are so severe as to
necessitate selection of self-employment
as the only reasonably feasible
vocational goal for the individuals.
(Authority: 38 U.S.C. 3104(a)(12))
(Authority: 38 U.S.C. 3104)
*
(c) Scope of self-employment benefits
and services.
(1) VA may provide the selfemployment services listed in paragraph
(d) of this section to program
participants who are pursuing the
vocational goal of self-employment.
(2) VA may provide the more
extensive services listed in paragraph (e)
of this section to individuals with the
most severe service-connected
disability(ies) who require selfemployment.
*
*
*
*
4. In § 21.254, revise paragraph (c) to
read as follows:
§ 21.254
Supportive services.
*
*
*
*
*
(c) Individuals with service-connected
disability(ies) trained for selfemployment under a State
rehabilitation agency. An individual
with service-connected disability(ies)
who has trained for self-employment
under a State rehabilitation agency may
be provided supplemental equipment
and initial stocks and supplies similar
to the materials supplied under 38
U.S.C. chapter 31 to individuals with
the most severe service-connected
disability(ies) who require selfemployment as defined in § 21.257(b) if
VA determines that the following
conditions are met:
(1) The individual is eligible for
employment assistance under the
provisions of § 21.47;
(2) Evidence of record indicates that
the individual has successfully
completed training for a selfemployment program under a State
rehabilitation agency;
(3) No other non-VA sources of
assistance are known to be available for
the individual to complete his or her
self-employment program; and
(4) The individual meets the
requirements of the definition in
§ 21.257(b).
(Authority: 38 U.S.C. 3104, 3117(b)(2))
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(Authority: 38 U.S.C. 3104(a))
(d) Assistance for other individuals in
self-employment. Subject to the
provisions of § 21.258, VA may provide
the following assistance to any
individual for whom self-employment is
determined to be a suitable vocational
goal—
(1) Vocational training;
(2) Incidental training in the
management of a business;
(3) License or other fees required for
self-employment;
(4) Necessary tools and supplies for
the occupation; and
(5) Services described in § 21.252.
(Authority: 38 U.S.C. 3104(a))
(e) Special self-employment services
for individuals with the most severe
service-connected disability(ies) who
require self-employment. Individuals
described in paragraph (b) of this
section who are in a self-employment
program may receive—
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The revision reads as follows:
(1) The services described in
paragraph (d) of this section; and
(2) The assistance described in
§ 21.214.
§ 21.8020 Entitlement to vocational
training and employment assistance.
*
(Authority: 38 U.S.C. 3104, 3116, 3117)
(f) Feasibility analysis of a proposed
self-employment business plan. VA will
conduct a comprehensive review and
analysis of the feasibility of a proposed
business plan, as submitted by the
individual or developed with VA’s
assistance, prior to authorizing a
rehabilitation plan leading to selfemployment (a ‘‘self-employment
plan’’). The feasibility analysis must
include—
(1) An analysis of the economic
viability of the proposed business;
(2) A cost analysis specifying the
amount and types of assistance that VA
will provide;
(3) A market analysis for the
individual’s proposed services or
products;
(4) Availability of financing from nonVA sources, including the individual’s
personal resources, local banks, and
other sources;
(5) Evidence of coordination with the
Small Business Administration to
secure special consideration under
section 8 of the Small Business Act, as
amended;
(6) The location of the site for the
proposed business and the cost of the
site, if any; and
(7) A training plan to operate a
successful business.
*
*
*
*
(b) Services and assistance. An
eligible child may receive the services
and assistance described in § 21.8050(a).
(1) The following sections in subpart
A of this part apply to the provision of
these services and assistance in a
manner comparable to their application
for a veteran under the 38 U.S.C.
chapter 31 program:
(i) Section 21.250(a) and (b)(2);
(ii) Section 21.252;
(iii) Section 21.254;
(iv) Section 21.256 (not including
paragraph (e)(2));
(v) Section 21.257; and
(vi) Section 21.258.
(2) For purposes of this subpart, the
requirements for application of
§ 21.257(e)(1) and (2) are deemed met
for an individual in a self-employment
program regardless of whether the
individual is described in § 21.257(b), if
the individual has been determined by
VA to have limitations affecting
employability arising from the effects of
the individual’s spina bifida and/or
other covered birth defect(s) which are
so severe as to necessitate selection of
self-employment as the only reasonably
feasible vocational goal for the
individual.
(Authority: 38 U.S.C. 1804, 1814)
*
*
*
*
*
(Authority: 38 U.S.C. 3104)
[FR Doc. E9–9591 Filed 4–27–09; 8:45 am]
6. Section 21.258 is revised to read as
follows:
BILLING CODE 8320–01–P
§ 21.258 Cost limitations on approval of
self-employment plans.
DEPARTMENT OF THE INTERIOR
A self-employment plan with an
estimated or actual cost of less than
$25,000 may be approved by the VR&E
Officer with jurisdiction. Any selfemployment plan with an estimated or
actual cost of $25,000 or more must be
approved by the Director, VR&E Service.
Fish and Wildlife Service
(Authority: 38 U.S.C. 3104)
Endangered and Threatened Wildlife
and Plants; Designation of Critical
Habitat for the Salt Creek Tiger Beetle
(Cicindela nevadica lincolniana)
Subpart M—Vocational Training and
Rehabilitation for Certain Children of
Veterans—Spina Bifida and Covered
Birth Defects
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7. The authority citation for part 21,
subpart M continues to read as follows:
Authority: 38 U.S.C. 101, 501, 512, 1151
note, ch. 18, 5112, and as noted in specific
sections.
8. Amend § 21.8020 by:
a. Revising paragraph (b).
b. In paragraph (d), removing ‘‘obtains
a suitable job’’ and adding, in its place,
‘‘becomes suitably employed’’.
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50 CFR Part 17
[FWS–R6–ES–2007–0014; 92210–1117–
0000–FY08–B4]
RIN 1018–AT79
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Revised proposed rule;
reopening of comment period.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), announce the
reopening of the comment period on the
proposed rule (72 FR 70715, December
12, 2007) to designate critical habitat for
the Salt Creek tiger beetle (Cicindela
nevadica lincolniana) under the
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19167
Endangered Species Act of 1973, as
amended (Act). In this document, we
are proposing to add a total of 138 acres
(ac) (56 hectares (ha)) of critical habitat
to three of the four previously proposed
units. As a result, our proposed revised
critical habitat designation for the
species now includes four critical
habitat units totaling approximately
1,933 ac (782 ha).
The reopened comment period will
provide the interested parties with an
opportunity to submit written
comments on our proposal to add 138
ac (56 ha), determined to be occupied
and essential to the Salt Creek tiger
beetle, to the 1,795 ac (726 ha) proposed
as critical habitat on December 12, 2007.
Comments previously submitted for the
proposed critical habitat designation
need not be resubmitted; they have
already been incorporated into the
public record and will be fully
considered in any final decision.
DATES: We will consider comments
received on or before May 28, 2009.
ADDRESSES: You may submit comments
by one of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• U.S. mail or hand-delivery: Public
Comments Processing, Attn: FWS–R6–
ES–2007–0014; Division of Policy and
Directives Management; U.S. Fish and
Wildlife Service; 4401 N. Fairfax Drive,
Suite 222; Arlington, VA 22203.
We will not accept e-mail or faxes. We
will post all comments on https://
www.regulations.gov. This generally
means that we will post any personal
information you provide us (see the
Public Comments section below for
more information).
FOR FURTHER INFORMATION CONTACT: June
DeWeese, Field Supervisor, Nebraska
Ecological Services Field Office, Federal
Building, Second Floor, 203 West
Second Street, Grand Island, NE 68801;
telephone (308) 382–6468. If you use a
telecommunications device for the deaf
(TDD), call the Federal Information
Relay Service (FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Public Comments
We intend that any final action
resulting from the proposed rule will be
as accurate and as effective as possible.
Therefore, we request comments or
information during this reopened
comment period on the proposed
critical habitat designation published in
the Federal Register on December 12,
2007 (72 FR 70715), the draft economic
analysis, and draft environmental
assessment that were announced in that
rule and available to the public at
E:\FR\FM\28APP1.SGM
28APP1
]]>Agencies
[Federal Register Volume 74, Number 80 (Tuesday, April 28, 2009)]
[Proposed Rules]
[Pages 19164-19167]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-9591]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AN31
Vocational Rehabilitation and Employment Program--Self-Employment
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: This document proposes to amend the vocational rehabilitation
and employment regulations of the Department of Veterans Affairs (VA)
concerning self-employment for individuals with qualifying
disabilities. We are proposing changes that are intended to conform
VA's regulations for self-employment programs for veterans, and for
servicemembers awaiting discharge, to statutory provisions, including
provisions limiting eligibility for certain supplies, equipment, stock,
and license fees to individuals with the most severe service-connected
disabilities. We are also proposing related changes in VA's regulations
affecting eligibility for such assistance for certain veterans'
children with birth defects in self-employment programs. In addition,
we propose to amend our regulations regarding authority for approval of
self-employment plans to make certain requirements less restrictive and
less burdensome, remove a vague and overly broad requirement, make
changes to reflect longstanding VA policy, and make nonsubstantive
clarifying changes in our regulations affecting self-employment
programs.
DATES: Comments must be received on or before June 29, 2009.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to the Director,
Regulations Management (02REG), Department of Veterans Affairs, 810
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202)
273-9026. Comments should indicate that they are submitted in response
to ``RIN 2900-AN31--Vocational Rehabilitation and Employment Program--
Self-Employment.'' Copies of comments received will be available for
public inspection in the Office of Regulation Policy and Management,
Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday
through Friday (except holidays). Please call (202) 461-4902 (not a
toll-free number) for an appointment. In addition, during the comment
period, comments may be viewed online through the Federal Docket
Management System (FDMS) at www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Alvin Bauman, Senior Policy Analyst,
Vocational Rehabilitation and Employment Service (28), Veterans
Benefits Administration, Department of Veterans Affairs, 810 Vermont
Ave., NW., Washington, DC 20420, (202) 461-9613 (not a toll-free
number).
SUPPLEMENTARY INFORMATION: We propose to amend VA's regulations
concerning self-employment in 38 CFR part 21 that are applicable to
benefits and services under 38 U.S.C. chapter 31, Training and
Rehabilitation for Veterans with Service-Connected Disabilities, and 38
U.S.C. chapter 18, Benefits for Children of Vietnam Veterans and
Certain Other Veterans.
The Veterans' Benefits Act of 1996, Public Law 104-275 (enacted
October 9, 1996), amended 38 U.S.C. 3104(a)(12) regarding the special
assistance and supplies that VA can provide for individuals pursuing
self-employment programs. Prior to the enactment of Public Law 104-275,
only ``the most severely disabled'' individuals who required self-
employment were, under 38 CFR 21.258, entitled to the special supplies,
equipment, stock, and license fees described in 38 CFR 21.214(e).
Public Law 104-275 amended 38 U.S.C. 3104(a)(12) by restricting the
provision of those special supplies, equipment, stock, and license fees
to individuals ``with the most severe service-connected disabilities
who require homebound training or self employment.'' We plan to address
issues concerning training in the home (also known as homebound
training) under 38 U.S.C. 3104(a)(12) in a future rulemaking. This
rulemaking, like current Sec. 21.258, concerns individuals who require
self-employment, some of whom may also require homebound training. This
proposed rule includes (in Sec. 21.257 rather than current Sec.
21.258) criteria
[[Page 19165]]
regarding providing such special supplies, equipment, stock, and
license fees for individuals who require self-employment.
We also propose to revise and eliminate some of the provisions of
Sec. 21.254 pertaining to a service-disabled veteran who has trained
for self-employment under a State rehabilitation agency. The proposed
changes are intended to make the requirements under Sec. 21.254 less
restrictive and less burdensome. Specifically, we propose to eliminate
the requirement in current Sec. 21.254 for certification by an
official of the State rehabilitation agency with responsibility for
administration of self-employment programs that:
The veteran has successfully completed training for a
self-employment program;
The assistance needed is not available through the State
rehabilitation program, or other non-VA sources; and
The assistance requested is a part of the veteran's
Individualized Written Rehabilitation Plan (IWRP) developed by the
State rehabilitation agency.
Instead, we propose to state the conditions under which an
individual who has trained for self-employment under a State
rehabilitation agency may be provided special supplies, equipment,
stock, and license fees if there is a VA determination that the
following criteria are met:
The individual is eligible for employment assistance under
the provisions of 38 CFR 21.47.
Evidence of record indicates that the individual has
successfully completed training for a self-employment program under a
State rehabilitation agency.
No other non-VA sources of assistance are known to be
available for the individual to complete his or her self-employment
program.
The individual is within the group of ``individuals with
the most severe service-connected disability(ies) who require self-
employment'' as defined in 38 CFR 21.257(b).
In addition, we propose to eliminate the requirement currently in
Sec. 21.254 that, prior to authorization of any supplies, the
Director, Vocational Rehabilitation and Education (VR&E) Service must
approve the request if the cost of supplies is more than $2,500.
We propose to amend the criteria for approval of self-employment as
a vocational goal for an individual. Current Sec. 21.257 provides that
self-employment is only available to an individual if access to the
normal channels for suitable employment is limited by his or her
disability(ies), or other circumstances in the individual's situation
warrant consideration of self-employment. We believe the first of these
criteria is excessively restrictive and that the second is vague and
excessively broad.
Self-employment as a mode of employment is authorized for all
program participants for whom it is determined to be appropriate for
achieving rehabilitation. However, 38 U.S.C. 3104(a)(12), as amended,
reserves the special assistance described in Sec. 21.214(e) for
individuals with the most severe service-connected disability(ies) who
require self-employment. Accordingly, we propose to revise Sec. 21.257
to remove the above-referenced restriction on authorizing self-
employment as a suitable vocational goal and limit consistent with the
amendment to section 3104(a)(12) the self-employment special assistance
under 38 CFR 21.214(e) to ``individuals with the most severe service-
connected disability(ies) who require self-employment.''
Proposed Sec. 21.258 contains an approval requirement relating to
the cost of the provision of special supplies, equipment, stock, and
license fees for self-employment programs in accordance with 38 U.S.C.
3104(a)(12). Proposed Sec. 21.258 would require that a self-employment
plan be approved either at the level of the VR&E Officer or at the
level of the Director, VR&E Service. If the estimated or actual cost is
less than $25,000, the VR&E Officer could approve the plan. If the
estimated or actual cost of such a plan is $25,000 or more, approval by
the Director, VR&E Service would be required. The provisions of Sec.
21.258, as amended, would reflect existing VA policy.
Many of the proposed amendments to 38 CFR part 21, subpart A in
this document applicable to veterans under the 38 U.S.C. chapter 31
program would be applicable to the vocational rehabilitation program
under 38 U.S.C. chapter 18 regarding benefits for children of Vietnam
veterans and certain other veterans (see 38 CFR part 21, subpart M). In
subpart M, Sec. Sec. 21.8020, 21.8210, and 21.8380 contain provisions
concerning the applicability of the provisions of Sec. Sec. 21.214,
21.254, 21.256, 21.257, 21.258, and 21.430 in a manner comparable to
their application for a veteran under the chapter 31 program.
We propose to amend Sec. 21.8020 to clarify how we would apply
proposed Sec. 21.257 to the provision of services and assistance under
subpart M in a manner that we consider to be comparable to its
application for a veteran under the 38 U.S.C. chapter 31 program. In
lieu of requiring that the individuals covered under subpart M meet the
definition in proposed Sec. 21.257(b), the requirements for
application of proposed Sec. 21.257(e)(1) and (2) would be deemed met
for an individual in a self-employment program if the individual has
been determined by VA to have limitations affecting employability
arising from the effects of the individual's spina bifida or other
covered birth defect(s), which are so severe as to necessitate
selection of self-employment as the only reasonably feasible vocational
goal for the individual. We are proposing a related clarifying change
in Sec. 21.8020(d), intended to remove the possible implication that
self-employment is not among the employment options for a participant's
program under subpart M.
In addition to the amendments noted above, we also propose to
reorganize Sec. Sec. 21.257 and 21.258 to improve readability, and to
make other clarifying changes that are nonsubstantive.
Paperwork Reduction Act of 1995
This document contains no provisions constituting a collection of
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).
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 year. This rule would have no such effect on State,
local, and tribal governments, or on the private sector.
Executive Order 12866
Executive Order 12866 directs agencies to assess all 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,
and other advantages; distributive impacts; and equity). The Executive
Order classifies a regulatory action as a ``significant regulatory
action,'' requiring review by the Office of Management and Budget (OMB)
unless OMB waives such review, if it is a regulatory action that is
likely to result in a rule that may: (1) Have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy, a sector of the economy, productivity, competition, jobs,
the environment, public health or
[[Page 19166]]
safety, or State, local, or tribal governments or communities; (2)
create a serious inconsistency or otherwise interfere with an action
taken or planned by another agency; (3) materially alter the budgetary
impact of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raise novel legal
or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
The economic, interagency, budgetary, legal, and policy
implications of this proposed rule have been examined and it has been
determined not to be a significant regulatory action under Executive
Order 12866.
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. This proposed rule would not directly affect any small
entities. Only individuals could be directly affected. Therefore,
pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the
initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs that would be affected by this proposed rule are 64.116,
Vocational Rehabilitation for Disabled Veterans, and 64.128, Vocational
Training and Rehabilitation for Vietnam Veterans' Children with Spina
Bifida or Other Covered Defects.
List of Subjects in 38 CFR Part 21
Administrative practice and procedure, Armed forces, Civil rights,
Claims, Colleges and universities, Conflict of interests, Education,
Employment, Grant programs--education, Grant programs--veterans, Health
care, Loan programs--education, Loan programs--veterans, Manpower
training programs, Reporting and recordkeeping requirements, Schools,
Travel and transportation expenses, Veterans, Vocational education,
Vocational rehabilitation.
Approved: April 15, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR part 21 (subparts A and M) as follows:
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C.
Chapter 31
1. Revise the authority citation for part 21, subpart A to read as
follows:
Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in
specific sections.
2. Revise the subpart A heading as set forth above.
3. Amend Sec. 21.214 by:
a. In paragraph (e) introductory text, removing ``services'' and
adding, in its place, ``related assistance'' and removing ``Sec.
21.258'' and adding, in its place, ``Sec. Sec. 21.257 and 21.258''.
b. In paragraph (e)(3), removing ``incidental services'' and
adding, in its place, ``related assistance''.
c. Revising the authority citation for paragraph (e).
The revision reads as follows:
Sec. 21.214 Furnishing supplies for special programs.
* * * * *
(Authority: 38 U.S.C. 3104(a)(12))
* * * * *
4. In Sec. 21.254, revise paragraph (c) to read as follows:
Sec. 21.254 Supportive services.
* * * * *
(c) Individuals with service-connected disability(ies) trained for
self-employment under a State rehabilitation agency. An individual with
service-connected disability(ies) who has trained for self-employment
under a State rehabilitation agency may be provided supplemental
equipment and initial stocks and supplies similar to the materials
supplied under 38 U.S.C. chapter 31 to individuals with the most severe
service-connected disability(ies) who require self-employment as
defined in Sec. 21.257(b) if VA determines that the following
conditions are met:
(1) The individual is eligible for employment assistance under the
provisions of Sec. 21.47;
(2) Evidence of record indicates that the individual has
successfully completed training for a self-employment program under a
State rehabilitation agency;
(3) No other non-VA sources of assistance are known to be available
for the individual to complete his or her self-employment program; and
(4) The individual meets the requirements of the definition in
Sec. 21.257(b).
(Authority: 38 U.S.C. 3104, 3117(b)(2))
5. Revise Sec. 21.257 to read as follows:
Sec. 21.257 Self-employment.
(a) Approval of self-employment as a vocational goal. A program of
vocational rehabilitation benefits and services may include self-
employment for an individual if VA determines that such an objective is
a suitable vocational goal. VA will make this determination based on--
(1) The results of the individual's initial evaluation conducted in
accordance with the provisions of Sec. 21.50; and
(2) The provisions of this section.
(Authority: 38 U.S.C. 3104(a))
(b) Definition. For purposes of this subpart, individuals with the
most severe service-connected disability(ies) who require self-
employment means individuals who have been determined by VA to have
limitations affecting employability arising from the effects of each
individual's service-connected disability(ies), which are so severe as
to necessitate selection of self-employment as the only reasonably
feasible vocational goal for the individuals.
(Authority: 38 U.S.C. 3104)
(c) Scope of self-employment benefits and services.
(1) VA may provide the self-employment services listed in paragraph
(d) of this section to program participants who are pursuing the
vocational goal of self-employment.
(2) VA may provide the more extensive services listed in paragraph
(e) of this section to individuals with the most severe service-
connected disability(ies) who require self-employment.
(Authority: 38 U.S.C. 3104(a))
(d) Assistance for other individuals in self-employment. Subject to
the provisions of Sec. 21.258, VA may provide the following assistance
to any individual for whom self-employment is determined to be a
suitable vocational goal--
(1) Vocational training;
(2) Incidental training in the management of a business;
(3) License or other fees required for self-employment;
(4) Necessary tools and supplies for the occupation; and
(5) Services described in Sec. 21.252.
(Authority: 38 U.S.C. 3104(a))
(e) Special self-employment services for individuals with the most
severe service-connected disability(ies) who require self-employment.
Individuals described in paragraph (b) of this section who are in a
self-employment program may receive--
[[Page 19167]]
(1) The services described in paragraph (d) of this section; and
(2) The assistance described in Sec. 21.214.
(Authority: 38 U.S.C. 3104, 3116, 3117)
(f) Feasibility analysis of a proposed self-employment business
plan. VA will conduct a comprehensive review and analysis of the
feasibility of a proposed business plan, as submitted by the individual
or developed with VA's assistance, prior to authorizing a
rehabilitation plan leading to self-employment (a ``self-employment
plan''). The feasibility analysis must include--
(1) An analysis of the economic viability of the proposed business;
(2) A cost analysis specifying the amount and types of assistance
that VA will provide;
(3) A market analysis for the individual's proposed services or
products;
(4) Availability of financing from non-VA sources, including the
individual's personal resources, local banks, and other sources;
(5) Evidence of coordination with the Small Business Administration
to secure special consideration under section 8 of the Small Business
Act, as amended;
(6) The location of the site for the proposed business and the cost
of the site, if any; and
(7) A training plan to operate a successful business.
(Authority: 38 U.S.C. 3104)
6. Section 21.258 is revised to read as follows:
Sec. 21.258 Cost limitations on approval of self-employment plans.
A self-employment plan with an estimated or actual cost of less
than $25,000 may be approved by the VR&E Officer with jurisdiction. Any
self-employment plan with an estimated or actual cost of $25,000 or
more must be approved by the Director, VR&E Service.
(Authority: 38 U.S.C. 3104)
Subpart M--Vocational Training and Rehabilitation for Certain
Children of Veterans--Spina Bifida and Covered Birth Defects
7. The authority citation for part 21, subpart M continues to read
as follows:
Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and
as noted in specific sections.
8. Amend Sec. 21.8020 by:
a. Revising paragraph (b).
b. In paragraph (d), removing ``obtains a suitable job'' and
adding, in its place, ``becomes suitably employed''.
The revision reads as follows:
Sec. 21.8020 Entitlement to vocational training and employment
assistance.
* * * * *
(b) Services and assistance. An eligible child may receive the
services and assistance described in Sec. 21.8050(a).
(1) The following sections in subpart A of this part apply to the
provision of these services and assistance in a manner comparable to
their application for a veteran under the 38 U.S.C. chapter 31 program:
(i) Section 21.250(a) and (b)(2);
(ii) Section 21.252;
(iii) Section 21.254;
(iv) Section 21.256 (not including paragraph (e)(2));
(v) Section 21.257; and
(vi) Section 21.258.
(2) For purposes of this subpart, the requirements for application
of Sec. 21.257(e)(1) and (2) are deemed met for an individual in a
self-employment program regardless of whether the individual is
described in Sec. 21.257(b), if the individual has been determined by
VA to have limitations affecting employability arising from the effects
of the individual's spina bifida and/or other covered birth defect(s)
which are so severe as to necessitate selection of self-employment as
the only reasonably feasible vocational goal for the individual.
(Authority: 38 U.S.C. 1804, 1814)
* * * * *
[FR Doc. E9-9591 Filed 4-27-09; 8:45 am]
BILLING CODE 8320-01-P
