Vocational Rehabilitation and Employment Program-Changes to Subsistence Allowance, 45697-45705 [2011-19473]
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Federal Register / Vol. 76, No. 147 / Monday, August 1, 2011 / Rules and Regulations
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AO10
Vocational Rehabilitation and
Employment Program—Changes to
Subsistence Allowance
Department of Veterans Affairs.
Interim final rule.
AGENCY:
ACTION:
This interim final rule
amends Department of Veterans Affairs
(VA) regulations to reflect changes made
by the Post-9/11 Veterans Educational
Assistance Improvements Act of 2010,
effective August 1, 2011, that affect
payment of vocational rehabilitation
benefits for certain service-disabled
veterans. Pursuant to these changes, a
veteran, who is eligible for a subsistence
allowance under chapter 31 of title 38,
United States Code, and educational
assistance under chapter 33 of title 38,
United States Code, may participate in
a rehabilitation program under chapter
31 and elect to receive a payment equal
in amount to an applicable military
housing allowance payable under title
37, United States Code, instead of the
regular subsistence allowance under
chapter 31. In addition, payments of
subsistence allowances during periods
between school terms are discontinued,
and payments during periods of
temporary school closings are modified.
This rulemaking amends VA regulations
consistent with this new authority.
DATES: This interim final rule is
effective August 1, 2011. Comments
must be received on or before August
31, 2011.
ADDRESSES: Written comments may be
submitted through https://
www.Regulations.gov; by mail or handdelivery to 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–
AO10, Vocational Rehabilitation and
Employment Program—Changes to
Subsistence Allowance.’’ 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 for an appointment.
(This is not a toll-free number.) In
addition, during the comment period,
comments are available online through
the Federal Docket Management System
(FDMS) at https://www.Regulations.gov.
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SUMMARY:
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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–
9600 (not a toll-free number).
SUPPLEMENTARY INFORMATION: Section
3108 of title 38, United States Code
(U.S.C.), requires the payment of a
subsistence allowance to veterans
during a period of participation in a
rehabilitation program under chapter 31
of title 38, United States Code. Pursuant
to 38 U.S.C. 3322(a), a veteran cannot
receive assistance under chapter 31 and
chapter 33, Post-9/11 Educational
Assistance, concurrently; he or she must
elect under which chapter to receive
assistance. Because the monthly
housing allowance authorized under
chapter 33 for eligible individuals
pursuing programs of education may be
considerably higher than the
appropriate chapter 31 subsistence
allowance, veterans with serviceconnected disabilities have an incentive
to apply for chapter 33 educational
assistance rather than enroll in VA’s
chapter 31 program of vocational
rehabilitation and training. By doing so,
they would forego certain
individualized rehabilitation services,
such as counseling and employment
assistance, which are available under
chapter 31. Congress recognized this
and was ‘‘concerned that the greater
benefit available under the chapter 33
program provides a disincentive for
service-connected disabled veterans to
enroll in the chapter 31 program, which
means they would forego the important
and valuable benefits, services,
counseling, and employment assistance
support that are available under the
chapter 31 program of training and
rehabilitation.’’ S. Rep. No. 111–346 at
23 (2010). Congress intended to remove
this disincentive by allowing eligible
veterans to elect a payment equal in
amount to an applicable military
housing allowance payable under title
37, United States Code, if they enroll in
a chapter 31 rehabilitation program. Id.
Accordingly, Congress amended 38
U.S.C. 3108(b), effective August 1, 2011,
to authorize a veteran, eligible for both
a chapter 31 subsistence allowance and
a chapter 33 educational assistance to
participate in a rehabilitation program
under chapter 31 and elect to receive a
payment in an alternate amount in lieu
of the chapter 31 subsistence allowance.
The Post-9/11 Veterans Educational
Assistance Improvements Act of 2010,
Public Law 111–377, sec. 205. The
alternate amount must be equal to the
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‘‘applicable monthly amount of basic
allowance for housing payable under
[37 U.S.C. 403] for a member with
dependents in pay grade E–5 residing in
the military housing area that
encompasses all or the majority portion
of the ZIP code area in which is located
the institution providing the
rehabilitation program concerned’’
(BAH). Id. Under the new law, veterans
may receive the individualized
supportive services provided under
chapter 31 and elect the alternate
amount to receive a greater monthly
allowance than they would otherwise
receive.
We are therefore amending 38 CFR
21.264 to allow a veteran to elect a
subsistence allowance in an alternate
amount, which we refer to as the Post9/11 subsistence allowance, in lieu of
the amount provided for in 38 CFR
21.260(b). We are indicating that, to be
eligible to elect the Post-9/11
subsistence allowance, a veteran must
be found to be eligible for training or
education under chapter 31 and
educational assistance under chapter 33.
We specifically indicate that entitlement
to all chapter 31 services and assistance
remains when this election is made. For
administrative purposes, we will allow
a veteran who has elected to receive
payment of the Post-9/11 subsistence
allowance to reelect payment of the
chapter 31 subsistence allowance at the
rate in § 21.260(b) only after completion
of a term, quarter, semester, or defined
period of instruction, unless the veteran
no longer meets the eligibility criteria
for the election or would be unable to
continue in a rehabilitation program
without immediate approval of the
reelection.
We are also amending 38 CFR
21.260(a) to include the Post-9/11
subsistence allowance as a type of
subsistence allowance that a veteran
participating in a rehabilitation program
under 38 U.S.C. chapter 31 may elect to
receive. In addition, we are amending
§ 21.260 by adding a new paragraph (c)
to provide for payment of the Post-9/11
subsistence allowance in the event of an
election, beginning August 1, 2011,
based on the basic allowance for
housing payable under 37 U.S.C. 403. In
a footnote, we clarify that the Post-9/11
subsistence allowance is paid in lieu of
the subsistence allowance authorized in
§ 21.260(b) and is not adjusted for
dependents. We interpret Congress’
intent in basing the alternate amount a
veteran may elect to receive on the basic
allowance for housing payable to a
member of the military with dependents
in pay grade E–5 to mean that all
veterans who elect to receive the Post9/11 subsistence allowance should
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receive an amount adjusted for
dependents. Therefore, we are not
further adjusting the Post-9/11
subsistence allowance for dependents as
we do for chapter 31 subsistence
allowance under § 21.260(b).
The rehabilitation program under
chapter 31 includes on-job training and
non-paid work experience, during
which an employer or agency rather
than an institution provides the training
or rehabilitation. Pub. L. 111–377
authorizes any veteran eligible for both
a chapter 31 subsistence allowance and
chapter 33 educational assistance, to
participate in a rehabilitation program
and elect the alternate amount of
payment of subsistence allowance, but it
does not specify how to calculate the
alternate amount in the absence of an
institution. To allow payment of the
Post-9/11 subsistence allowance for
veterans who are participating in on-job
training or non-paid work experience, in
§ 21.260(c)(1), we include in the
definition of BAH that the zip code of
the institution, employer, or agency
providing the training or rehabilitation
may be used in determining the amount
of the Post-9/11 subsistence allowance.
The applicable rates of payment of the
subsistence allowance for veterans
participating in a chapter 31
rehabilitation program are set forth in 38
U.S.C. 3108(b) and adjusted based on
the rate of pursuit of training, whether
full-time, three-quarter-time, or halftime, and increased yearly by the
percentage by which the Consumer
Price Index increases. Rates of payment
for each type of training or
rehabilitation program are also found in
tables in 38 CFR 21.260(b), with current
rates published yearly on the VA’s
Internet Web site. As stated previously,
Pub. L. 111–377, sec. 205, specifies that
the alternate amount that may be elected
in lieu of the subsistence allowance
must be equal to the applicable monthly
amount of basic allowance for housing
payable under 37 U.S.C. 403 for a
member with dependents in pay grade
E–5 residing in the military housing
area that encompasses all or the
majority portion of the ZIP code area in
which is located the institution
providing the rehabilitation program
concerned. However, the new law does
not specify that this alternate amount be
paid regardless of whether the training
is pursued full-time or part-time. There
is no indication by Congress that the
Post-9/11 subsistence allowance must
be paid in a manner different than the
way current subsistence allowance is
paid. We interpret the lack of specificity
in this regard as an indication that we
may continue to follow our current
practice of adjusting subsistence
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allowance rates based on rate of pursuit
of training. Furthermore, we continue to
believe that veterans who pursue
training on a less than full-time basis
should not be paid the full amount of
subsistence allowance.
Accordingly, we are adjusting rates of
the Post-9/11 subsistence allowance
based on rates of pursuit of training. In
a table in new § 21.260(c), we specify
the payments of the Post-9/11
subsistence allowance for the
rehabilitation program that currently
qualifies for payment of a subsistence
allowance under chapter 31. In a
footnote to the table, we explain that
payments for courses being taken
simultaneously at more than one
institution will be based on the BAH of
the zip code assigned to the parent
institution. We retain the rule with
respect to payment of the current
subsistence allowance for on-job
training that the rate paid may not
exceed the difference between the
monthly training wage, not including
overtime, and the entrance journeyman
wage for the veteran’s objective. We also
retain the rule with respect to payment
of the current subsistence allowance for
improvement of rehabilitation potential
that the quarter-time rate may be paid
only during a period of extended
evaluation.
For veterans pursuing a program of inhome training, including training with
an independent instructor or training
solely through distance learning, in
which case the institution is in a
different zip code than where the
veteran is located, Public Law 111–377
does not specify how to calculate
payments of the alternate subsistence
allowance that may be elected under
this law. With respect to payments of
the monthly living stipend for veterans
receiving chapter 33 educational
assistance for pursuit of a program of
education solely by distance learning,
Public Law 111–377 does specify how
to calculate payments. For veterans
pursuing a program of education on
more than a half-time basis, solely by
distance learning, Public Law 111–377
provides for payment of the chapter 33
living stipend at the rate of up to 50
percent of the national average of basic
allowance for housing payable under 37
U.S.C. 403 for a member of the military
with dependents in pay grade E–5,
adjusted based on the rate of pursuit.
Congress provided for such rate because
it believed that, although ‘‘payment of
some portion of the living allowance is
appropriate . . . since one of the basic
purposes of the living allowance is to
offset the cost of housing away from
home and since most distance learning
is pursued from home, the full
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allowance does not appear supported at
this time.’’ S. Rep. No. 111–346 at 11
(2010). Similarly, for veterans pursuing
training or rehabilitation under chapter
31 through a program of in-home
training, including solely through
distance learning, there is no local
institution providing the rehabilitation
or training and no housing costs to
offset. We believe Congress’ statement
with regard to the monthly living
stipend for veterans pursuing a program
of education was intended to apply to
the similarly situated veterans pursuing
training or rehabilitation under chapter
31.
Accordingly, we will base the rate of
the Post-9/11 subsistence allowance for
veterans pursuing training or
rehabilitation full-time through a
program of in-home training or solely
through distance learning on the
national average of basic allowance for
housing payable under 37 U.S.C. 403 for
a member of the military with
dependents in pay grade E–5 and pay
the allowance at 50 percent of the
national average. In § 21.260(c)(2) we
define BAH National Average as ‘‘the
average (i.e., unweighted arithmetic
mean) monthly amount of the basic
allowance for housing payable under 37
U.S.C. 403 for a member of the military
with dependents in pay grade E–5
residing in the United States’’. We will
continue to make payments, adjusted
based on rate of pursuit, for veterans
pursuing training or rehabilitation inhome or solely through distance
learning. We will therefore calculate the
rates of the Post-9/11 subsistence
allowance for those veterans pursuing
training or rehabilitation in home or
solely through distance learning at less
than full-time (three-quarter time or
half-time) in the same manner as we do
for veterans pursuing institutional
training or rehabilitation. Thus, veterans
pursuing training or rehabilitation inhome or solely through distance
learning at three-quarter time will
receive 3⁄4 of 50 percent of the BAH
National Average, or 3⁄8 of the BAH
National Average, and veterans
pursuing training or rehabilitation inhome or solely through distance
learning half-time will receive 1⁄2 of 50
percent of the BAH National Average, or
1⁄4 of the BAH National Average. These
rates of payment will be found in the
table in § 21.260(c). In a footnote to the
table, we clarify that payments for
training consisting of both distance
learning and courses at a local
institution are based on the BAH of the
local institution because the veteran
will incur costs away from home that
the allowance is intended to offset.
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In addition, for veterans pursuing
training or rehabilitation under chapter
31 in foreign institutions, in which case
there is no institution with a zip code
on which to base the rates of payment,
Public Law 111–377 does not specify
how to calculate payments of the Post9/11 subsistence allowance. For
veterans pursuing a program of
education under chapter 33 in a foreign
country, Public Law 111–377 does
specify that payment of the living
stipend be based on the national average
of basic allowance for housing payable
under 37 U.S.C. 403 for a member of the
military with dependents in pay grade
E–5 and adjusted based on the rate of
pursuit. We believe it is reasonable to
calculate payments of the Post-911
subsistence allowance for veterans
pursuing training or rehabilitation
under chapter 31 in foreign institutions
in the same manner that Congress
provided for similarly situated veterans
pursuing a program of education under
chapter 33. Therefore, we will base rates
of payment of the Post-9/11 subsistence
allowance for training in foreign
institutions on the BAH National
Average amount. We will continue to
make payments of the Post-9/11
subsistence allowance for training in
foreign institutions adjusted based on
rate of pursuit of training.
Under 38 CFR 21.79, VA charges for
entitlement usage to determine
remaining entitlement. VA bases
charges for entitlement usage on the
principle that a veteran who pursues a
rehabilitation program for one day
should be charged one day of
entitlement. When a chapter 31
participant elects to receive payment of
the Post-9/11 subsistence allowance
under § 21.260(c) in lieu of a
subsistence allowance under
§ 21.260(b), he or she will continue to
receive chapter 31 benefits and services.
In such cases, the entitlement usage will
be deducted from the veteran’s chapter
31 entitlement. No entitlement charges
will be made against chapter 33 because
the veteran will not be using chapter 33
benefits. We are revising § 21.79 to make
clear that we will determine entitlement
usage in this manner in the event of an
election of the Post-9/11 subsistence
allowance.
Section 3112 of title 38, United States
Code, establishes a revolving fund for
VA to use to make advances of no more
than twice the amount of the full-time
institutional monthly subsistence
allowance for a veteran with no
dependents to veterans pursuing a
rehabilitation program under chapter
31. Section 21.274 of title 38, Code of
Federal Regulations, specifies that the
fund is to pay veterans who would
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otherwise be unable to begin or
continue in a rehabilitation program
without such assistance. Section 21.274
also specifies that the amount of the
advance may not exceed the amount
needed or twice the monthly
subsistence allowance for a veteran
without dependents in full-time
institutional training. Section 3112
clearly establishes that the limit on
these advances is based on the full-time
institutional rate for a veteran with no
dependents. The full-time institutional
rate for a veteran with no dependents is
specified in § 21.260(b), whereas all
rates in new § 21.260(c) are based on an
allowance that includes dependents.
Therefore, the limit on the advances
may not be based on the rates of the
Post-9/11 subsistence allowance in
§ 21.260(c). Accordingly, we clarify in
§ 21.274(d)(1)(iii) that the limit placed
on the amount advanced from the
revolving fund is based on the
subsistence allowance in § 21.260(b).
Pursuant to 38 U.S.C. 3680(a)(3)(B),
subsistence allowances are authorized
to be paid during periods when schools
are temporarily closed under an
established policy based upon an
Executive Order of the President or due
to an emergency situation, during
periods between consecutive school
terms if there is a transfer to enroll in
and pursue a similar course at a
different educational institution if the
period between consecutive terms is 30
days or less, or, in certain
circumstances, during periods between
school terms, where the educational
institution certifies enrollment on an
individual term basis. Section 206 of
Public Law 111–377 removes the
authority to continue to pay allowances
between consecutive school terms
involving a transfer to another
educational institution and between
school terms where the educational
institution certifies enrollment on an
individual term basis. Section 206 also
restricts the total number of weeks for
which allowances may be paid during
periods when schools are temporarily
closed under an established policy
based upon an Executive Order of the
President or due to an emergency
situation to 4 weeks in any 12-month
period.
Accordingly, we are amending our
regulation, § 21.270, ‘‘Payment of
subsistence allowance during leave and
between periods of instruction’’, that
allows for the payment of subsistence
allowance between periods of
instruction. We are removing paragraph
(b), ‘‘Payment for intervals between
periods of instruction’’, which currently
directs the payment of subsistence
allowances for periods between
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consecutive school terms involving a
transfer and between school terms
where the educational institution
certifies enrollment on an individual
term basis. We are also redesignating
paragraph (c), ‘‘Payment for other
periods’’, as paragraph (b). The new
paragraph will continue to specify that
subsistence allowance will be paid for
periods in which the school is closed
temporarily under emergency
conditions described in § 21.4138(f). In
a separate rulemaking, VA is preparing
a revision to § 21.4138(f) to incorporate
the change in law regarding the
restriction on the total number of weeks
for which allowances for veterans
receiving any VA education benefit,
including chapter 31 benefits, may be
paid during periods of temporary
closure. In addition, we are adding an
authority citation to the end of the
section for clarification, correcting a
misspelling, and revising the section
heading to replace the words ‘‘between
periods of instruction’’ with the words
‘‘other periods’’.
Administrative Procedure Act
In accordance with 5 U.S.C.
553(b)(3)(B), the Secretary of Veterans
Affairs finds that there is good cause to
dispense with advance public notice
and opportunity to comment on this
rule and good cause to publish this rule
with an immediate effective date. The
Secretary finds that it is impracticable
and contrary to the public interest to
delay this regulation for the purpose of
soliciting prior public comment.
Sections 205 and 206 of Public Law
111–377 require that certain changes to
the rehabilitation program take effect on
August 1, 2011. This interim final rule
is necessary to implement by August 1,
2011, the statutory changes as they
relate to chapter 31 subsistence
allowances. For instance, Public Law
111–377 does not address how the
alternate rate of subsistence allowance
will be calculated in different situations.
Allowing veterans to elect an alternate
rate of subsistence allowance will
ensure that such veterans receive the
supportive services under chapter 31 to
assist them in the transition from
military to civilian careers. Because
eligible veterans will begin to make the
election on August 1, 2011, it is
important to have procedures in place
by this date to allow veterans to receive
the alternate rate of subsistence
allowance authorized under the law as
soon as they are able. For these reasons,
the Secretary of Veterans Affairs is
issuing this rule as an interim final rule.
The Secretary of Veterans Affairs will
consider and address comments that are
received within 30 days of the date this
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interim final rule is published in the
Federal Register.
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
given year. This interim final rule will
have no such effect on State, local, and
tribal governments, or on the private
sector.
Paperwork Reduction Act
This interim final rule does not
contain any collections of information
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501–3521).
Regulatory Flexibility Act
The Secretary hereby certifies that
this regulatory action 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. This
regulatory action will affect individuals
and will not affect any small entities.
Therefore, pursuant to 5 U.S.C. 605(b),
this regulatory action is exempt from the
initial and final flexibility analysis
requirements of sections 603 and 604.
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Congressional Review Act
Under the Congressional Review Act,
5 U.S.C. 801–08, a major rule is one that
would have an annual effect on the
economy of $100 million or more, cause
major increases in costs or prices for
consumers, or have significant adverse
effects on competition or other aspects
of the economy. We have determined
this rulemaking to be a major rule
because it will have an annual effect on
the economy in excess of $100 million.
However, this rulemaking falls within
an exception to the requirement in 5
U.S.C. 801(a)(3) that a rule may not take
effect until at least 60 days after the rule
and accompanying report are submitted
to Congress. VA will submit a copy of
this regulatory action and VA’s
Regulatory Impact Analysis to the
Comptroller General and to Congress,
but the rule will become effective upon
publication in the Federal Register. The
Secretary has determined in accordance
with 5 U.S.C. 808(2) that there is good
cause to make this regulatory action
effective immediately because advance
public notice and opportunity to
comment thereon are impractical and
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contrary to the public interest. Sections
205 and 206 of Public Law 111–377
require that the changes to the
rehabilitation program take effect on
August 1, 2011. VA regulations must be
in effect because Public Law 111–377
does not address how the alternate rate
of subsistence allowance will be
calculated in different situations.
Allowing veterans to elect an alternate
rate of subsistence allowance will
ensure that such veterans receive the
supportive services under chapter 31 to
assist them in the transition from
military to civilian careers. Because
eligible veterans will begin to make the
election on August 1, 2011, it is
important to have procedures in place
by this date to allow veterans to receive
the alternate rate of subsistence
allowance authorized under the law as
soon as they are able.
Executive Orders 13563 and 12866
Executive Orders 13563 and 12866
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, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. Executive
Order defines a ‘‘significant regulatory
action,’’ which requires review by the
Office of Management and Budget
(OMB), as any 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 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. This rule has been designated an
‘‘economically’’ significant regulatory
action under section 3(f)(1) of Executive
Order 12866. Accordingly, the rule has
been reviewed by OMB.
VA has examined the economic,
interagency, budgetary, legal, and policy
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implications of this regulatory action
and followed OMB Circular A–4 to the
extent feasible in this Regulatory Impact
Analysis. The circular first calls for a
discussion of the need for the regulatory
action.
Statement of Need
This rulemaking will amend VA
regulations to reflect changes made by
the Post-9/11 Veterans Educational
Assistance Improvements Act of 2010.
We are revising § 21.264 to allow
veterans eligible for a chapter 31
subsistence allowance and chapter 33
educational assistance to elect either the
allowable chapter 31 subsistence
allowance or an alternate amount of
subsistence allowance, referred to as the
Post-9/11 subsistence allowance. In
addition, we are amending § 21.260 to
include the Post-9/11 subsistence
allowance rates, which are based on the
military housing allowance payable
under title 37, United States Code,
referred to as the BAH. The BAH is
based on the ZIP code area where the
institution providing the rehabilitation
program is located.
We are also amending § 21.274 to
clarify that the maximum amount
allowable for an advance from the
revolving fund will stay the same—
twice the amount of full-time
subsistence allowance for a veteran with
no dependents in institutional training.
In § 21.274, we are adding the phrase
‘‘specified in 21.260(b)’’ to clarify that
the advance from the revolving fund is
based on the chapter 31 subsistence
allowance rates and not on the Post-9/
11 subsistence allowance rates specified
in § 21.260(c).
In addition, we are amending § 21.270
to prohibit payment of either the
chapter 31 subsistence allowance or the
Post-9/11 subsistence allowance during
intervals between school terms.
Payments of subsistence allowance
between school terms are no longer
authorized and payments of subsistence
allowance during temporary school
closings are limited to 4 weeks in any
12-month period.
Summary of Estimated Impact
The estimated costs associated with
this regulation are $111,239,000.00 for
Fiscal Year (FY) 2012 and
$854,897,000.00 over a 5 year period.
These are estimated costs based on the
fact that there are significant costs to VA
based on new provisions to § 21.264 and
an offset of costs (projected savings)
from the new provisions to § 21.270 of
this rulemaking.
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45701
Estimated impact of paying increased subsistence allowance based
on BAH
($000)
Projected savings from
no longer allowing payment of subsistence allowance during intervals
between terms
($000)
.............................................................................................
.............................................................................................
.............................................................................................
.............................................................................................
.............................................................................................
$162,579
194,298
224,957
257,256
291,533
$51,340
53,685
55,252
56,865
58,584
$111,239
140,613
169,705
200,391
232,949
5-Year Total ..........................................................................
1,130,623
275,726
854,897
Fiscal year
2012
2013
2014
2015
2016
Estimated costs and projections are
based on the best reasonably obtainable
and available economic information.
This analysis sets forth the basic
assumptions, methods, and data
underlying the analysis and discusses
the uncertainties associated with the
estimates. Assumptions and
methodologies for each portion of the
analysis are explained in more detail in
the Estimate of Potential Program Costs
below. VA invites public comments on
all of these projections.
Cost Benefit
The Post-9/11 subsistence allowance
rates are greater than the current chapter
31 subsistence allowance rates.
Therefore, VA believes that chapter 31
participants who are eligible to receive
the greater subsistence allowance will
require less dependence on support
programs and will be able to devote
more attention to their chapter 31
training/rehabilitation program, thus
creating better employment
opportunities and a better quality of life.
Alternatives
VA believes that there are no
alternatives to the promulgation of this
rulemaking. The provisions of sections
205 and 206 of Public Law 111–377
must be implemented in the Code of
Federal Regulations to ensure accurate
and consistent application of the law.
Estimate of Potential Program Costs
Section 21.264
To project the best possible economic
impact of § 21.264 in this rulemaking,
VA conducted an analysis to determine
the average annual difference between
the chapter 31 subsistence allowance
rate and the new Post-9/11 subsistence
allowance rate. Utilizing the FY 2012
President’s Budget, the average annual
chapter 31 subsistence allowance rate is
estimated to be $4,962.12 in FY 2012,
and the average annual Post-9/11
subsistence allowance rate is estimated
to be $12,444.94 in FY 2012. With the
average annual Post-9/11 subsistence
allowance rate being $7,482.82 more
than the average annual chapter 31
subsistence allowance rate, VA assumes
that all eligible chapter 31 participants
will elect to receive the Post-9/11
subsistence allowance rate under the
new provisions of § 21.264.
VA also conducted an analysis on the
total population of participants in the
Vocational Rehabilitation and
Employment’s (VR&E) chapter 31
program. The analysis focused on the
number of participants who are
currently receiving a monthly chapter
31 subsistence allowance and who also
have Operations Enduring Freedom and
Iraqi Freedom (OEF/OIF) military
service.
Data from VR&E’s FY 2012 Workload
Projections for Trainees/Participants
indicate that there will be
approximately a total of 62,078 chapter
31 participants receiving chapter 31
subsistence allowance in FY 2012.
Workload projections for the number of
participants receiving subsistence
allowance were based on FY 2010 actual
number of 61,405 from the VA Benefits
Delivery Network Computer Output
Identification Number Target System
Report 6002 with projected increases for
FY 2011 and FY 2012. To align with
projections from the FY 2012
President’s Budget, the number of
participants for FY 2012 (63,259) was
Estimated costs
($000)
then reduced by the number of
participants that VA projected would
transfer from chapter 31 benefits to the
Post-9/11 GI Bill. Data-Matching
between the Department of Defense and
VA databases indicated that
approximately 30% of VR&E
participants in FY 2011 had OEF/OIF
military service that qualified them to
elect the Post-9/11 subsistence
allowance. Over the next five years,
VR&E projects an increase of 5% per
year of VR&E participants who have
OEF/OIF service based on the influx of
more recent veterans leaving active duty
and applying for benefits while veterans
from previous eras complete
participation in VR&E.
This data also identified an estimated
21,727 chapter 31 participants, or 35%
of the total chapter 31 participants
(62,078), who will receive a monthly
subsistence allowance in FY 2012 and
have OEF/OIF military service. It is
estimated that all of these 21,727
participants will elect and receive the
Post-9/11 subsistence allowance based
on their OEF/OIF service in FY 2012.
The estimated total number of chapter
31 participants (21,727) who will be
eligible to elect and receive the Post-9/
11 subsistence allowance based on their
OEF/OIF service in FY 2012 was
multiplied by the difference between
the two subsistence allowance rates
($7,482.82), totaling approximately $163
million in FY 2012.
Projected increases to participants
receiving subsistence allowance,
average annual payments, and the
percentage of chapter 31 participants
receiving subsistence allowance were
applied in the out-years and shown in
the table below.
emcdonald on DSK2BSOYB1PROD with RULES
ESTIMATED IMPACT OF PAYING INCREASED SUBSISTENCE ALLOWANCE BASED ON BAH
Total # of Chapter 31 (CH31)
participants receiving Subsistence Allowance
(SA)
FY
Total # of CH31
participants receiving SA with
OEF/OIF service
* Percent of
CH31 participants receiving
SA with OEF/OIF
service
62,078
21,727
35
2012 .................................................................
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E:\FR\FM\01AUR1.SGM
Average annual
difference between current
CH31 SA and
new post-9/11
SA
01AUR1
$7,482.82
Obligations
($000)
$162,579
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ESTIMATED IMPACT OF PAYING INCREASED SUBSISTENCE ALLOWANCE BASED ON BAH—Continued
Total # of Chapter 31 (CH31)
participants receiving Subsistence Allowance
(SA)
Total # of CH31
participants receiving SA with
OEF/OIF service
* Percent of
CH31 participants receiving
SA with OEF/OIF
service
.................................................................
.................................................................
.................................................................
.................................................................
63,892
64,531
65,176
65,828
25,557
29,038
32,588
36,206
40
45
50
55
7,602.54
7,746.99
7,894.19
8,052.07
194,298
224,957
257,256
291,533
5-Year Total ..............................................
............................
............................
............................
............................
1,130,623
FY
2013
2014
2015
2016
Average annual
difference between current
CH31 SA and
new post-9/11
SA
Obligations
($000)
* VA assumes that the percentage of CH31 participants receiving SA and who have OEF/OIF military service will increase by 5% each year
based on the influx of more recent veterans leaving active duty and applying for benefits while veterans from previous eras complete participation in VR&E.
Section 21.270
To project the best possible economic
impact of § 21.270 in this rulemaking,
VA conducted an analysis to determine
the associated costs and/or savings by
no longer allowing payment of either
chapter 31 or Post-9/11 subsistence
allowance during intervals between
school terms.
This amendment applies to all
participants of the chapter 31 program
who are currently participating in a
training/rehabilitation program for
which subsistence allowance is payable.
Based on the FY 2012 President’s
Budget, the average annual subsistence
allowance payment is estimated to be
$4,962.12 in FY 2012. The average
annual payment is based on 9 months
of enrollment; therefore, an average
monthly subsistence payment would be
$551.35. We assumed that, on average,
participants would have received oneand-a-half months of interval
subsistence allowance based on
enrollment in training for 9 months of
the year. Therefore, the average annual
interval subsistence allowance rate for
this 1.5 month interval period is
estimated to be $827.03 ($551.35 × 1.5)
in FY 2012.
Data from VR&E’s FY 2012 Workload
Projections for Trainees/Participants
indicate that there will be
approximately 62,078 chapter 31
participants receiving chapter 31
subsistence allowance in FY 2012.
Workload projections for the number of
participants receiving subsistence
allowance were based on FY 2010 actual
number of 61,405 from the VA Benefits
Delivery Network Computer Output
Identification Number Target System
Report 6002 with projected increases for
FY 2011 and FY 2012. To align with
projections from the FY 2012
President’s Budget, the number of
participants for FY 2012 (63,259) was
then reduced by the number of
participants that VA projected would
transfer from chapter 31 benefits to the
Post-9/11 GI Bill.
The FY 2012 average annual interval
subsistence allowance rate ($827.03)
was multiplied by the FY 2012 total
number of CH31 participants receiving
subsistence allowance (62,078), totaling
approximately $51,340,000.00 in
projected savings to VA in FY 2012.
Projected savings are estimated to be
$51.3 million during FY 2012 and
$275.7 million over a five-year period.
Projected increases to participants
receiving subsistence allowance and
average annual payments were applied
in the out-years and are shown in the
table below.
PROJECTED SAVINGS FROM NO LONGER ALLOWING PAYMENT OF SUBSISTENCE ALLOWANCE DURING INTERVALS
BETWEEN TERMS
Total # of CH31
participants
receiving
subsistence
allowance (SA)
FY
2012
2013
2014
2015
2016
Average
annual interval
SA rate (1.5
mths. of SA)
Obligations
($000)
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................
.................................................................................................................................
62,078
63,892
64,530
65,176
65,829
$827.03
840.25
856.22
872.49
889.94
$51,340
53,685
55,252
56,865
58,584
5-Year Total ..............................................................................................................
............................
............................
275,726
emcdonald on DSK2BSOYB1PROD with RULES
Accounting Statement and Table
As required by OMB Circular A–4, in
the table below, VA has prepared an
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accounting statement showing the
classification of transfers, benefits and
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costs associated with the provisions of
this rulemaking.
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Transfers
Year
dollar
Category
Present value
FY2012
FY2013
FY2014
FY2015
Annualized
FY2016
3%
Federal Annualized Monetized
Transfers.
2010 .......
$111.2
$140.6
$169.7
$200.4
$232.9
7%
3%
7%
$774.7
$684.2
$164.2
$156.0
Benefits
Qualitative benefits ....................
The Post-9/11 subsistence allowance rates are greater than the current CH31 subsistence
allowance rates. Therefore, VA believes that CH31 participants who are eligible to receive the
greater subsistence allowance will require less dependence on support programs and will be able
to devote more attention to their CH31 training/rehabilitation program, thus creating better
employment opportunities and a better quality of life.
Costs
Costs ..........................................
None.
Identification of Duplicative,
Overlapping, or Conflicting Federal
Rules
There are no duplicative, overlapping,
or conflicting Federal rules identified
with this regulatory action.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance number and title for the
program that would be affected by this
interim final rule is 64.116, Vocational
Rehabilitation for Disabled Veterans.
Signing Authority
emcdonald on DSK2BSOYB1PROD with RULES
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.
17:41 Jul 29, 2011
For the reasons set forth in the
preamble, VA amends 38 CFR part 21
(subpart A) as follows:
PART 21—VOCATIONAL
REHABILITATION AND EDUCATION
Subpart A—Vocational Rehabilitation
and Employment Under 38 U.S.C.
Chapter 31
1. The authority citation for part 21,
subpart A continues to read as follows:
■
The Secretary of Veterans Affairs, or
designee, approved this document 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. John
R. Gingrich, Chief of Staff, Department
of Veterans Affairs, approved this
document on July 21, 2011, for
publication.
VerDate Mar<15>2010
Dated: July 21, 2011.
Robert C. McFetridge,
Director, Regulation Policy and Management,
Office of the General Counsel, Department
of Veterans Affairs.
Jkt 223001
Authority: 38 U.S.C. 501(a), chs. 18, 31,
and as noted in specific sections.
2. Amend § 21.79 by:
a. Redesignating paragraphs (f)(2),
(f)(2)(i), (f)(2)(ii), and (f)(3) as paragraphs
(f)(3), (f)(3)(i), (f)(3)(ii), and (f)(4)
respectively.
■ b. Adding a new paragraph (f)(2).
■ c. Adding an authority citation at the
end of new paragraph (f)(2).
The additions read as follows:
■
■
§ 21.79 Determining entitlement usage
under Chapter 31.
*
*
*
*
*
(f) Special situations. * * *
(2) When a chapter 31 participant
elects to receive payment of the Post-9/
11 subsistence allowance under
§ 21.260(c) in lieu of a subsistence
allowance under § 21.260(b), the
entitlement usage is deducted from the
veteran’s chapter 31 entitlement. No
entitlement charges are made against
chapter 33. (Authority: 38 U.S.C.
3108(b))
*
*
*
*
*
■ 3. Amend § 21.260 by:
■ a. Revising paragraph (a).
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b. Redesignating paragraphs (c) and
(d) as paragraphs (d) and (e),
respectively.
■ c. Adding a new paragraph (c).
The revisions and addition read as
follows:
■
§ 21.260
Subsistence allowance.
(a) General. A veteran participating in
a rehabilitation program under 38 U.S.C.
chapter 31 will receive a monthly
subsistence allowance at the rates in
paragraph (b) of this section, unless the
veteran elects to receive an alternate
payment (for the purposes of part 21,
subpart A, referred to as the Post-9/11
subsistence allowance) as specified in
paragraph (c) of this section, or payment
at the rate of monthly educational
assistance allowance payable under 38
U.S.C. chapter 30 for the veteran’s type
of training. See § 21.264(a) for election
of payment at the chapter 30 rate and
§ 21.264(b) for election of the Post-9/11
subsistence allowance. See §§ 21.7136,
21.7137, and 21.7138 to determine the
applicable chapter 30 rate.
(Authority: 38 U.S.C. 3108(a), 3108(b),
3108(f))
*
*
*
*
*
(c) Rate of payment of Post-9/11
subsistence allowance. In lieu of the
subsistence allowance payable under
paragraph (b) of this section, VA pays
the Post-9/11 subsistence allowance at
the rates in the table at the end of this
paragraph, effective August 1, 2011,
based on the basic allowance for
housing payable under 37 U.S.C. 403.
For purposes of the following table:
(1) BAH means ‘‘the applicable
amount of basic allowance for housing
payable under 37 U.S.C. 403 for a
member of the military with dependents
in pay grade E–5 residing in the military
housing area that encompasses all or the
majority portion of the ZIP code area in
which is located the institution, agency,
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or employer providing the rehabilitation
program concerned’’.
(2) BAH National Average means ‘‘the
average (i.e., unweighted arithmetic
mean) monthly amount of the basic
allowance for housing payable under 37
U.S.C. 403 for a member of the military
with dependents in pay grade E–5
residing in the United States’’.
PAYMENT OF POST-9/11 SUBSISTENCE ALLOWANCE IN ACCORDANCE WITH PUBLIC LAW 111–377
[Effective August 1, 2011] 1
Type of program
Payment
Institutional: 2
Full-time ...................................................................................................................................
3⁄4 time ......................................................................................................................................
1⁄2 time ......................................................................................................................................
Nonpay or nominal pay on-job training in a Federal, State, local, or federally recognized Indian
tribe agency; vocational course in a rehabilitation facility or sheltered workshop; institutional
non-farm cooperative:
Full-time only ............................................................................................................................
Nonpay or nominal pay work experience in a Federal, State, local, or federally recognized Indian tribe agency:
Full-time ...................................................................................................................................
3⁄4 time ......................................................................................................................................
1⁄2 time ......................................................................................................................................
Farm cooperative, apprenticeship, or other on-job training (OJT): 3
Full-time only ............................................................................................................................
Combination of institutional and OJT (Full-time only):
Institutional greater than 1⁄2 time .............................................................................................
OJT greater than 1⁄2 time 3 .......................................................................................................
Non-farm cooperative (Full-time only):
Institutional ...............................................................................................................................
On-job 3 ....................................................................................................................................
Improvement of rehabilitation potential:
Full-time ...................................................................................................................................
3⁄4 time ......................................................................................................................................
1⁄2 time ......................................................................................................................................
1⁄4 time 4 ...................................................................................................................................
Training consisting of solely distance learning: 5
Full-time ...................................................................................................................................
3⁄4 time ......................................................................................................................................
1⁄2 time ......................................................................................................................................
Training in the home, including independent instructor:
Full-time only ............................................................................................................................
Training in an institution not assigned a ZIP code, including foreign institutions:
Full-time ...................................................................................................................................
3⁄4 time ......................................................................................................................................
1⁄2 time ......................................................................................................................................
Entire BAH of institution ZIP code.
3⁄4 BAH of institution ZIP code.
1⁄2 BAH of institution ZIP code.
Entire BAH of agency or institution ZIP code.
Entire BAH of agency ZIP code.
3⁄4 BAH of agency ZIP code.
1⁄2 BAH of agency ZIP code.
Entire BAH of employer ZIP code.
Entire BAH of institution ZIP code.
Entire BAH of employer ZIP code.
Entire BAH of institution ZIP code.
Entire BAH of employer ZIP code.
Entire BAH of institution ZIP code.
3⁄4 BAH of institution ZIP code.
1⁄2 BAH of institution ZIP code.
1⁄4 BAH of institution ZIP code.
⁄ BAH National Average.
⁄ BAH National Average.
1⁄4 BAH National Average.
12
38
⁄ BAH National Average.
12
Entire BAH National Average.
3⁄4 BAH National Average.
1⁄2 BAH National Average.
1 Effective August 1, 2011, the Post-9/11 subsistence allowance may be paid in lieu of subsistence allowance authorized in § 21.260(b), and is
not adjusted to include dependents.
2 For measurement of rate of pursuit, see §§ 21.4270 and 21.4272 through 21.4275. Payments for courses being taken simultaneously at more
than one institution are based on the BAH of the ZIP code assigned to the parent institution.
3 For on-job training, payment of the Post-9/11 subsistence allowance may not exceed the difference between the monthly training wage, not
including overtime, and the entrance journeyman wage for the veteran’s objective.
4 The quarter-time rate may be paid only during extended evaluation.
5 Payment for training consisting of both distance learning and courses taken at a local institution is based on the BAH of the ZIP code assigned to the local institution.
(Authority: 38 U.S.C. 3108, 3115(a)(1))
emcdonald on DSK2BSOYB1PROD with RULES
*
*
*
*
*
■ 4. Amend § 21.264 by:
■ a. Revising the section heading.
■ b. Redesignating paragraphs (a)
introductory text, (a)(1), (a)(2), and (a)(3)
as paragraphs (a)(1), (a)(1)(i), (a)(1)(ii),
and (a)(1)(iii) respectively.
■ c. Adding a new heading to paragraph
(a).
■ d. Redesignating paragraphs (b)
introductory text, (b)(1), and (b)(2) as
paragraphs (a)(2), (a)(2)(i), and (a)(2)(ii),
respectively.
■ e. Redesignating paragraphs (c)
introductory text, (c)(1), (c)(2), and (c)(3)
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17:41 Jul 29, 2011
Jkt 223001
as paragraph (a)(3), (a)(3)(i), (a)(3)(ii),
and (a)(3)(iii), respectively.
■ f. Further redesignating paragraphs
(c)(3)(i), (c)(3)(ii), and (c)(3)(iii) as
paragraphs (a)(3)(iii)(A), (a)(3)(iii)(B),
and (a)(3)(iii)(C), respectively.
■ g. Redesignating paragraph (d) as
paragraph (a)(4).
■ h. Adding a new paragraph (b).
■ i. Revising the authority citation at the
end of the section.
The revisions and additions read as
follows:
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§ 21.264 Election of payment at the 38
U.S.C. chapter 30 educational assistance
rate or election of payment of Post-9/11
subsistence allowance.
(a) Election of chapter 30 educational
assistance rate. * * *
(b) Election of payment of Post-9/11
subsistence allowance.
(1) Eligibility. Effective August 1,
2011, a veteran who applies and is
eligible for training or education under
chapter 31 may elect to receive payment
of the Post-9/11 subsistence allowance
under § 21.260(c) in lieu of a
subsistence allowance under
§ 21.260(b), provided the veteran has
remaining eligibility for, and
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entitlement to, educational assistance
under chapter 33, Post-9/11 GI Bill.
(2) Reelection of subsistence
allowance under § 21.260(b). Reelection
of payment of benefits at the chapter 31
subsistence allowance rate under
§ 21.260(b) may be made only after
completion of a term, quarter, semester,
or other period of instruction unless:
(i) Chapter 33 eligibility or
entitlement ends earlier; or
(ii) Failure to approve immediate
reelection would prevent the veteran
from continuing in the rehabilitation
program.
(3) Services under chapter 31. A
veteran who elects payment of the Post9/11 subsistence allowance remains
entitled to all other services and
assistance under chapter 31.
(Authority: 38 U.S.C. 3108(b))
5. Amend § 21.270 by:
a. Revising the section heading.
b. Removing paragraph (b).
c. Redesignating paragraph (c) as
paragraph (b).
■ d. In newly redesignated paragraph
(b), removing ‘‘Weeekend’’ and adding,
in its place, ‘‘Weekend’’.
■ e. Adding an authority citation at the
end of the section.
The revision and addition read as
follows:
■
■
■
■
§ 21.270 Payment of subsistence
allowance during leave and other periods.
*
*
*
*
*
(Authority: 38 U.S.C. 3680(a))
6. Revise § 21.274 (d)(1)(iii) to read as
follows:
■
§ 21.274
Revolving fund loan.
*
*
*
*
*
(d) * * *
(1) * * *
(iii) The advance does not exceed
either the amount needed, or twice the
monthly subsistence allowance for a
veteran without dependents in full-time
institutional training specified in
§ 21.260(b); and
*
*
*
*
*
[FR Doc. 2011–19473 Filed 7–29–11; 8:45 am]
BILLING CODE 8320–01–P
ENVIRONMENTAL PROTECTION
AGENCY
emcdonald on DSK2BSOYB1PROD with RULES
40 CFR Part 52
[EPA–R03–OAR–2011–0471; FRL–9445–9]
Approval and Promulgation of Air
Quality Implementation Plans;
Pennsylvania; Diesel-Powered Motor
Vehicle Idling Act
Environmental Protection
Agency (EPA).
AGENCY:
VerDate Mar<15>2010
16:27 Jul 29, 2011
Jkt 223001
ACTION:
Direct final rule.
EPA is taking direct final
action to approve a revision to the
Pennsylvania State Implementation Plan
(SIP). The revision consists of the
Commonwealth’s Diesel-Powered Motor
Vehicle Idling Act (hereafter referred to
as the Diesel-Powered Motor Vehicle
Idling Act or as Act 124 of 2008, or
simply Act 124). Act 124, passed by the
Pennsylvania General Assembly and
signed into state law by Governor
Rendell in October 2008 (and effective
at the state level in February 2009),
reduces the allowable time that heavyduty, commercial highway diesel
vehicles of over 10,000 pounds gross
vehicle weight can idle their main
propulsion engines. The law restricts
idling of these commercial diesel
vehicles (mostly heavy trucks and
buses) to a period of 5 minutes per
continuous 60 minute period (with
certain allowable exemptions and
exclusions). Act 124 applies statewide
in the Commonwealth, and is estimated
by Pennsylvania to significantly reduce
emissions of nitrogen oxides, volatile
organic compounds, and fine particulate
matter. While idle time emissions limits
are not mandatory under the Clean Air
Act (CAA), incorporation of Act 124
into the SIP does strengthen the SIP,
makes the state law federally
enforceable by EPA, and allows the
Commonwealth to take credit for
emissions benefits from the rule as part
of future Pennsylvania SIP revisions to
demonstrate compliance with CAA
National Ambient Air Quality Standards
(NAAQS). EPA is approving this
revision governing idling time limits on
commercial heavy duty vehicles into the
Pennsylvania SIP. This action is not a
federal mandate required by the CAA,
but provides emission reductions that
aid Pennsylvania in complying with
CAA NAAQS. EPA’s approval of this
SIP revision is being done in accordance
with the requirements of the CAA.
DATES: This rule is effective on
September 30, 2011 without further
notice, unless EPA receives adverse
written comment by August 31, 2011. If
EPA receives such comments, it will
publish a timely withdrawal of the
direct final rule in the Federal Register
and inform the public that the rule will
not take effect.
ADDRESSES: Submit your comments,
identified by Docket ID Number EPA–
R03–OAR–2011–0471 by one of the
following methods:
A. https://www.regulations.gov. Follow
the on-line instructions for submitting
comments.
B. E-mail: fernandez.cristina@epa.gov
SUMMARY:
PO 00000
Frm 00051
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C. Mail: EPA–R03–OAR–2011–0471,
Cristina Fernandez, Associate Director,
Office of Air Program Planning,
Mailcode 3AP30, U.S. Environmental
Protection Agency, Region III, 1650
Arch Street, Philadelphia, Pennsylvania
19103.
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Instructions: Direct your comments to
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E:\FR\FM\01AUR1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 147 (Monday, August 1, 2011)]
[Rules and Regulations]
[Pages 45697-45705]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-19473]
[[Page 45697]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AO10
Vocational Rehabilitation and Employment Program--Changes to
Subsistence Allowance
AGENCY: Department of Veterans Affairs.
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: This interim final rule amends Department of Veterans Affairs
(VA) regulations to reflect changes made by the Post-9/11 Veterans
Educational Assistance Improvements Act of 2010, effective August 1,
2011, that affect payment of vocational rehabilitation benefits for
certain service-disabled veterans. Pursuant to these changes, a
veteran, who is eligible for a subsistence allowance under chapter 31
of title 38, United States Code, and educational assistance under
chapter 33 of title 38, United States Code, may participate in a
rehabilitation program under chapter 31 and elect to receive a payment
equal in amount to an applicable military housing allowance payable
under title 37, United States Code, instead of the regular subsistence
allowance under chapter 31. In addition, payments of subsistence
allowances during periods between school terms are discontinued, and
payments during periods of temporary school closings are modified. This
rulemaking amends VA regulations consistent with this new authority.
DATES: This interim final rule is effective August 1, 2011. Comments
must be received on or before August 31, 2011.
ADDRESSES: Written comments may be submitted through https://www.Regulations.gov; by mail or hand-delivery to 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-AO10, Vocational Rehabilitation and Employment Program--Changes to
Subsistence Allowance.'' 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 for
an appointment. (This is not a toll-free number.) In addition, during
the comment period, comments are available online through the Federal
Docket Management System (FDMS) at https://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) 461-9600 (not a toll-free
number).
SUPPLEMENTARY INFORMATION: Section 3108 of title 38, United States Code
(U.S.C.), requires the payment of a subsistence allowance to veterans
during a period of participation in a rehabilitation program under
chapter 31 of title 38, United States Code. Pursuant to 38 U.S.C.
3322(a), a veteran cannot receive assistance under chapter 31 and
chapter 33, Post-9/11 Educational Assistance, concurrently; he or she
must elect under which chapter to receive assistance. Because the
monthly housing allowance authorized under chapter 33 for eligible
individuals pursuing programs of education may be considerably higher
than the appropriate chapter 31 subsistence allowance, veterans with
service-connected disabilities have an incentive to apply for chapter
33 educational assistance rather than enroll in VA's chapter 31 program
of vocational rehabilitation and training. By doing so, they would
forego certain individualized rehabilitation services, such as
counseling and employment assistance, which are available under chapter
31. Congress recognized this and was ``concerned that the greater
benefit available under the chapter 33 program provides a disincentive
for service-connected disabled veterans to enroll in the chapter 31
program, which means they would forego the important and valuable
benefits, services, counseling, and employment assistance support that
are available under the chapter 31 program of training and
rehabilitation.'' S. Rep. No. 111-346 at 23 (2010). Congress intended
to remove this disincentive by allowing eligible veterans to elect a
payment equal in amount to an applicable military housing allowance
payable under title 37, United States Code, if they enroll in a chapter
31 rehabilitation program. Id.
Accordingly, Congress amended 38 U.S.C. 3108(b), effective August
1, 2011, to authorize a veteran, eligible for both a chapter 31
subsistence allowance and a chapter 33 educational assistance to
participate in a rehabilitation program under chapter 31 and elect to
receive a payment in an alternate amount in lieu of the chapter 31
subsistence allowance. The Post-9/11 Veterans Educational Assistance
Improvements Act of 2010, Public Law 111-377, sec. 205. The alternate
amount must be equal to the ``applicable monthly amount of basic
allowance for housing payable under [37 U.S.C. 403] for a member with
dependents in pay grade E-5 residing in the military housing area that
encompasses all or the majority portion of the ZIP code area in which
is located the institution providing the rehabilitation program
concerned'' (BAH). Id. Under the new law, veterans may receive the
individualized supportive services provided under chapter 31 and elect
the alternate amount to receive a greater monthly allowance than they
would otherwise receive.
We are therefore amending 38 CFR 21.264 to allow a veteran to elect
a subsistence allowance in an alternate amount, which we refer to as
the Post-9/11 subsistence allowance, in lieu of the amount provided for
in 38 CFR 21.260(b). We are indicating that, to be eligible to elect
the Post-9/11 subsistence allowance, a veteran must be found to be
eligible for training or education under chapter 31 and educational
assistance under chapter 33. We specifically indicate that entitlement
to all chapter 31 services and assistance remains when this election is
made. For administrative purposes, we will allow a veteran who has
elected to receive payment of the Post-9/11 subsistence allowance to
reelect payment of the chapter 31 subsistence allowance at the rate in
Sec. 21.260(b) only after completion of a term, quarter, semester, or
defined period of instruction, unless the veteran no longer meets the
eligibility criteria for the election or would be unable to continue in
a rehabilitation program without immediate approval of the reelection.
We are also amending 38 CFR 21.260(a) to include the Post-9/11
subsistence allowance as a type of subsistence allowance that a veteran
participating in a rehabilitation program under 38 U.S.C. chapter 31
may elect to receive. In addition, we are amending Sec. 21.260 by
adding a new paragraph (c) to provide for payment of the Post-9/11
subsistence allowance in the event of an election, beginning August 1,
2011, based on the basic allowance for housing payable under 37 U.S.C.
403. In a footnote, we clarify that the Post-9/11 subsistence allowance
is paid in lieu of the subsistence allowance authorized in Sec.
21.260(b) and is not adjusted for dependents. We interpret Congress'
intent in basing the alternate amount a veteran may elect to receive on
the basic allowance for housing payable to a member of the military
with dependents in pay grade E-5 to mean that all veterans who elect to
receive the Post-9/11 subsistence allowance should
[[Page 45698]]
receive an amount adjusted for dependents. Therefore, we are not
further adjusting the Post-9/11 subsistence allowance for dependents as
we do for chapter 31 subsistence allowance under Sec. 21.260(b).
The rehabilitation program under chapter 31 includes on-job
training and non-paid work experience, during which an employer or
agency rather than an institution provides the training or
rehabilitation. Pub. L. 111-377 authorizes any veteran eligible for
both a chapter 31 subsistence allowance and chapter 33 educational
assistance, to participate in a rehabilitation program and elect the
alternate amount of payment of subsistence allowance, but it does not
specify how to calculate the alternate amount in the absence of an
institution. To allow payment of the Post-9/11 subsistence allowance
for veterans who are participating in on-job training or non-paid work
experience, in Sec. 21.260(c)(1), we include in the definition of BAH
that the zip code of the institution, employer, or agency providing the
training or rehabilitation may be used in determining the amount of the
Post-9/11 subsistence allowance.
The applicable rates of payment of the subsistence allowance for
veterans participating in a chapter 31 rehabilitation program are set
forth in 38 U.S.C. 3108(b) and adjusted based on the rate of pursuit of
training, whether full-time, three-quarter-time, or half-time, and
increased yearly by the percentage by which the Consumer Price Index
increases. Rates of payment for each type of training or rehabilitation
program are also found in tables in 38 CFR 21.260(b), with current
rates published yearly on the VA's Internet Web site. As stated
previously, Pub. L. 111-377, sec. 205, specifies that the alternate
amount that may be elected in lieu of the subsistence allowance must be
equal to the applicable monthly amount of basic allowance for housing
payable under 37 U.S.C. 403 for a member with dependents in pay grade
E-5 residing in the military housing area that encompasses all or the
majority portion of the ZIP code area in which is located the
institution providing the rehabilitation program concerned. However,
the new law does not specify that this alternate amount be paid
regardless of whether the training is pursued full-time or part-time.
There is no indication by Congress that the Post-9/11 subsistence
allowance must be paid in a manner different than the way current
subsistence allowance is paid. We interpret the lack of specificity in
this regard as an indication that we may continue to follow our current
practice of adjusting subsistence allowance rates based on rate of
pursuit of training. Furthermore, we continue to believe that veterans
who pursue training on a less than full-time basis should not be paid
the full amount of subsistence allowance.
Accordingly, we are adjusting rates of the Post-9/11 subsistence
allowance based on rates of pursuit of training. In a table in new
Sec. 21.260(c), we specify the payments of the Post-9/11 subsistence
allowance for the rehabilitation program that currently qualifies for
payment of a subsistence allowance under chapter 31. In a footnote to
the table, we explain that payments for courses being taken
simultaneously at more than one institution will be based on the BAH of
the zip code assigned to the parent institution. We retain the rule
with respect to payment of the current subsistence allowance for on-job
training that the rate paid may not exceed the difference between the
monthly training wage, not including overtime, and the entrance
journeyman wage for the veteran's objective. We also retain the rule
with respect to payment of the current subsistence allowance for
improvement of rehabilitation potential that the quarter-time rate may
be paid only during a period of extended evaluation.
For veterans pursuing a program of in-home training, including
training with an independent instructor or training solely through
distance learning, in which case the institution is in a different zip
code than where the veteran is located, Public Law 111-377 does not
specify how to calculate payments of the alternate subsistence
allowance that may be elected under this law. With respect to payments
of the monthly living stipend for veterans receiving chapter 33
educational assistance for pursuit of a program of education solely by
distance learning, Public Law 111-377 does specify how to calculate
payments. For veterans pursuing a program of education on more than a
half-time basis, solely by distance learning, Public Law 111-377
provides for payment of the chapter 33 living stipend at the rate of up
to 50 percent of the national average of basic allowance for housing
payable under 37 U.S.C. 403 for a member of the military with
dependents in pay grade E-5, adjusted based on the rate of pursuit.
Congress provided for such rate because it believed that, although
``payment of some portion of the living allowance is appropriate . . .
since one of the basic purposes of the living allowance is to offset
the cost of housing away from home and since most distance learning is
pursued from home, the full allowance does not appear supported at this
time.'' S. Rep. No. 111-346 at 11 (2010). Similarly, for veterans
pursuing training or rehabilitation under chapter 31 through a program
of in-home training, including solely through distance learning, there
is no local institution providing the rehabilitation or training and no
housing costs to offset. We believe Congress' statement with regard to
the monthly living stipend for veterans pursuing a program of education
was intended to apply to the similarly situated veterans pursuing
training or rehabilitation under chapter 31.
Accordingly, we will base the rate of the Post-9/11 subsistence
allowance for veterans pursuing training or rehabilitation full-time
through a program of in-home training or solely through distance
learning on the national average of basic allowance for housing payable
under 37 U.S.C. 403 for a member of the military with dependents in pay
grade E-5 and pay the allowance at 50 percent of the national average.
In Sec. 21.260(c)(2) we define BAH National Average as ``the average
(i.e., unweighted arithmetic mean) monthly amount of the basic
allowance for housing payable under 37 U.S.C. 403 for a member of the
military with dependents in pay grade E-5 residing in the United
States''. We will continue to make payments, adjusted based on rate of
pursuit, for veterans pursuing training or rehabilitation in-home or
solely through distance learning. We will therefore calculate the rates
of the Post-9/11 subsistence allowance for those veterans pursuing
training or rehabilitation in home or solely through distance learning
at less than full-time (three-quarter time or half-time) in the same
manner as we do for veterans pursuing institutional training or
rehabilitation. Thus, veterans pursuing training or rehabilitation in-
home or solely through distance learning at three-quarter time will
receive \3/4\ of 50 percent of the BAH National Average, or \3/8\ of
the BAH National Average, and veterans pursuing training or
rehabilitation in-home or solely through distance learning half-time
will receive \1/2\ of 50 percent of the BAH National Average, or \1/4\
of the BAH National Average. These rates of payment will be found in
the table in Sec. 21.260(c). In a footnote to the table, we clarify
that payments for training consisting of both distance learning and
courses at a local institution are based on the BAH of the local
institution because the veteran will incur costs away from home that
the allowance is intended to offset.
[[Page 45699]]
In addition, for veterans pursuing training or rehabilitation under
chapter 31 in foreign institutions, in which case there is no
institution with a zip code on which to base the rates of payment,
Public Law 111-377 does not specify how to calculate payments of the
Post-9/11 subsistence allowance. For veterans pursuing a program of
education under chapter 33 in a foreign country, Public Law 111-377
does specify that payment of the living stipend be based on the
national average of basic allowance for housing payable under 37 U.S.C.
403 for a member of the military with dependents in pay grade E-5 and
adjusted based on the rate of pursuit. We believe it is reasonable to
calculate payments of the Post-911 subsistence allowance for veterans
pursuing training or rehabilitation under chapter 31 in foreign
institutions in the same manner that Congress provided for similarly
situated veterans pursuing a program of education under chapter 33.
Therefore, we will base rates of payment of the Post-9/11 subsistence
allowance for training in foreign institutions on the BAH National
Average amount. We will continue to make payments of the Post-9/11
subsistence allowance for training in foreign institutions adjusted
based on rate of pursuit of training.
Under 38 CFR 21.79, VA charges for entitlement usage to determine
remaining entitlement. VA bases charges for entitlement usage on the
principle that a veteran who pursues a rehabilitation program for one
day should be charged one day of entitlement. When a chapter 31
participant elects to receive payment of the Post-9/11 subsistence
allowance under Sec. 21.260(c) in lieu of a subsistence allowance
under Sec. 21.260(b), he or she will continue to receive chapter 31
benefits and services. In such cases, the entitlement usage will be
deducted from the veteran's chapter 31 entitlement. No entitlement
charges will be made against chapter 33 because the veteran will not be
using chapter 33 benefits. We are revising Sec. 21.79 to make clear
that we will determine entitlement usage in this manner in the event of
an election of the Post-9/11 subsistence allowance.
Section 3112 of title 38, United States Code, establishes a
revolving fund for VA to use to make advances of no more than twice the
amount of the full-time institutional monthly subsistence allowance for
a veteran with no dependents to veterans pursuing a rehabilitation
program under chapter 31. Section 21.274 of title 38, Code of Federal
Regulations, specifies that the fund is to pay veterans who would
otherwise be unable to begin or continue in a rehabilitation program
without such assistance. Section 21.274 also specifies that the amount
of the advance may not exceed the amount needed or twice the monthly
subsistence allowance for a veteran without dependents in full-time
institutional training. Section 3112 clearly establishes that the limit
on these advances is based on the full-time institutional rate for a
veteran with no dependents. The full-time institutional rate for a
veteran with no dependents is specified in Sec. 21.260(b), whereas all
rates in new Sec. 21.260(c) are based on an allowance that includes
dependents. Therefore, the limit on the advances may not be based on
the rates of the Post-9/11 subsistence allowance in Sec. 21.260(c).
Accordingly, we clarify in Sec. 21.274(d)(1)(iii) that the limit
placed on the amount advanced from the revolving fund is based on the
subsistence allowance in Sec. 21.260(b).
Pursuant to 38 U.S.C. 3680(a)(3)(B), subsistence allowances are
authorized to be paid during periods when schools are temporarily
closed under an established policy based upon an Executive Order of the
President or due to an emergency situation, during periods between
consecutive school terms if there is a transfer to enroll in and pursue
a similar course at a different educational institution if the period
between consecutive terms is 30 days or less, or, in certain
circumstances, during periods between school terms, where the
educational institution certifies enrollment on an individual term
basis. Section 206 of Public Law 111-377 removes the authority to
continue to pay allowances between consecutive school terms involving a
transfer to another educational institution and between school terms
where the educational institution certifies enrollment on an individual
term basis. Section 206 also restricts the total number of weeks for
which allowances may be paid during periods when schools are
temporarily closed under an established policy based upon an Executive
Order of the President or due to an emergency situation to 4 weeks in
any 12-month period.
Accordingly, we are amending our regulation, Sec. 21.270,
``Payment of subsistence allowance during leave and between periods of
instruction'', that allows for the payment of subsistence allowance
between periods of instruction. We are removing paragraph (b),
``Payment for intervals between periods of instruction'', which
currently directs the payment of subsistence allowances for periods
between consecutive school terms involving a transfer and between
school terms where the educational institution certifies enrollment on
an individual term basis. We are also redesignating paragraph (c),
``Payment for other periods'', as paragraph (b). The new paragraph will
continue to specify that subsistence allowance will be paid for periods
in which the school is closed temporarily under emergency conditions
described in Sec. 21.4138(f). In a separate rulemaking, VA is
preparing a revision to Sec. 21.4138(f) to incorporate the change in
law regarding the restriction on the total number of weeks for which
allowances for veterans receiving any VA education benefit, including
chapter 31 benefits, may be paid during periods of temporary closure.
In addition, we are adding an authority citation to the end of the
section for clarification, correcting a misspelling, and revising the
section heading to replace the words ``between periods of instruction''
with the words ``other periods''.
Administrative Procedure Act
In accordance with 5 U.S.C. 553(b)(3)(B), the Secretary of Veterans
Affairs finds that there is good cause to dispense with advance public
notice and opportunity to comment on this rule and good cause to
publish this rule with an immediate effective date. The Secretary finds
that it is impracticable and contrary to the public interest to delay
this regulation for the purpose of soliciting prior public comment.
Sections 205 and 206 of Public Law 111-377 require that certain changes
to the rehabilitation program take effect on August 1, 2011. This
interim final rule is necessary to implement by August 1, 2011, the
statutory changes as they relate to chapter 31 subsistence allowances.
For instance, Public Law 111-377 does not address how the alternate
rate of subsistence allowance will be calculated in different
situations. Allowing veterans to elect an alternate rate of subsistence
allowance will ensure that such veterans receive the supportive
services under chapter 31 to assist them in the transition from
military to civilian careers. Because eligible veterans will begin to
make the election on August 1, 2011, it is important to have procedures
in place by this date to allow veterans to receive the alternate rate
of subsistence allowance authorized under the law as soon as they are
able. For these reasons, the Secretary of Veterans Affairs is issuing
this rule as an interim final rule. The Secretary of Veterans Affairs
will consider and address comments that are received within 30 days of
the date this
[[Page 45700]]
interim final rule is published in the Federal Register.
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 given year. This interim final rule will have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
This interim final rule does not contain any collections of
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).
Regulatory Flexibility Act
The Secretary hereby certifies that this regulatory action 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. This regulatory action will affect individuals and will
not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b),
this regulatory action is exempt from the initial and final flexibility
analysis requirements of sections 603 and 604.
Congressional Review Act
Under the Congressional Review Act, 5 U.S.C. 801-08, a major rule
is one that would have an annual effect on the economy of $100 million
or more, cause major increases in costs or prices for consumers, or
have significant adverse effects on competition or other aspects of the
economy. We have determined this rulemaking to be a major rule because
it will have an annual effect on the economy in excess of $100 million.
However, this rulemaking falls within an exception to the requirement
in 5 U.S.C. 801(a)(3) that a rule may not take effect until at least 60
days after the rule and accompanying report are submitted to Congress.
VA will submit a copy of this regulatory action and VA's Regulatory
Impact Analysis to the Comptroller General and to Congress, but the
rule will become effective upon publication in the Federal Register.
The Secretary has determined in accordance with 5 U.S.C. 808(2) that
there is good cause to make this regulatory action effective
immediately because advance public notice and opportunity to comment
thereon are impractical and contrary to the public interest. Sections
205 and 206 of Public Law 111-377 require that the changes to the
rehabilitation program take effect on August 1, 2011. VA regulations
must be in effect because Public Law 111-377 does not address how the
alternate rate of subsistence allowance will be calculated in different
situations. Allowing veterans to elect an alternate rate of subsistence
allowance will ensure that such veterans receive the supportive
services under chapter 31 to assist them in the transition from
military to civilian careers. Because eligible veterans will begin to
make the election on August 1, 2011, it is important to have procedures
in place by this date to allow veterans to receive the alternate rate
of subsistence allowance authorized under the law as soon as they are
able.
Executive Orders 13563 and 12866
Executive Orders 13563 and 12866 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, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Executive Order defines a ``significant regulatory
action,'' which requires review by the Office of Management and Budget
(OMB), as any 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 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. This rule has been designated an ``economically'' significant
regulatory action under section 3(f)(1) of Executive Order 12866.
Accordingly, the rule has been reviewed by OMB.
VA has examined the economic, interagency, budgetary, legal, and
policy implications of this regulatory action and followed OMB Circular
A-4 to the extent feasible in this Regulatory Impact Analysis. The
circular first calls for a discussion of the need for the regulatory
action.
Statement of Need
This rulemaking will amend VA regulations to reflect changes made
by the Post-9/11 Veterans Educational Assistance Improvements Act of
2010. We are revising Sec. 21.264 to allow veterans eligible for a
chapter 31 subsistence allowance and chapter 33 educational assistance
to elect either the allowable chapter 31 subsistence allowance or an
alternate amount of subsistence allowance, referred to as the Post-9/11
subsistence allowance. In addition, we are amending Sec. 21.260 to
include the Post-9/11 subsistence allowance rates, which are based on
the military housing allowance payable under title 37, United States
Code, referred to as the BAH. The BAH is based on the ZIP code area
where the institution providing the rehabilitation program is located.
We are also amending Sec. 21.274 to clarify that the maximum
amount allowable for an advance from the revolving fund will stay the
same--twice the amount of full-time subsistence allowance for a veteran
with no dependents in institutional training. In Sec. 21.274, we are
adding the phrase ``specified in 21.260(b)'' to clarify that the
advance from the revolving fund is based on the chapter 31 subsistence
allowance rates and not on the Post-9/11 subsistence allowance rates
specified in Sec. 21.260(c).
In addition, we are amending Sec. 21.270 to prohibit payment of
either the chapter 31 subsistence allowance or the Post-9/11
subsistence allowance during intervals between school terms. Payments
of subsistence allowance between school terms are no longer authorized
and payments of subsistence allowance during temporary school closings
are limited to 4 weeks in any 12-month period.
Summary of Estimated Impact
The estimated costs associated with this regulation are
$111,239,000.00 for Fiscal Year (FY) 2012 and $854,897,000.00 over a 5
year period. These are estimated costs based on the fact that there are
significant costs to VA based on new provisions to Sec. 21.264 and an
offset of costs (projected savings) from the new provisions to Sec.
21.270 of this rulemaking.
[[Page 45701]]
----------------------------------------------------------------------------------------------------------------
Projected savings from
Estimated impact of no longer allowing
paying increased payment of subsistence
Fiscal year subsistence allowance allowance during Estimated costs ($000)
based on BAH ($000) intervals between terms
($000)
----------------------------------------------------------------------------------------------------------------
2012................................. $162,579 $51,340 $111,239
2013................................. 194,298 53,685 140,613
2014................................. 224,957 55,252 169,705
2015................................. 257,256 56,865 200,391
2016................................. 291,533 58,584 232,949
--------------------------------------------------------------------------
5-Year Total..................... 1,130,623 275,726 854,897
----------------------------------------------------------------------------------------------------------------
Estimated costs and projections are based on the best reasonably
obtainable and available economic information. This analysis sets forth
the basic assumptions, methods, and data underlying the analysis and
discusses the uncertainties associated with the estimates. Assumptions
and methodologies for each portion of the analysis are explained in
more detail in the Estimate of Potential Program Costs below. VA
invites public comments on all of these projections.
Cost Benefit
The Post-9/11 subsistence allowance rates are greater than the
current chapter 31 subsistence allowance rates. Therefore, VA believes
that chapter 31 participants who are eligible to receive the greater
subsistence allowance will require less dependence on support programs
and will be able to devote more attention to their chapter 31 training/
rehabilitation program, thus creating better employment opportunities
and a better quality of life.
Alternatives
VA believes that there are no alternatives to the promulgation of
this rulemaking. The provisions of sections 205 and 206 of Public Law
111-377 must be implemented in the Code of Federal Regulations to
ensure accurate and consistent application of the law.
Estimate of Potential Program Costs
Section 21.264
To project the best possible economic impact of Sec. 21.264 in
this rulemaking, VA conducted an analysis to determine the average
annual difference between the chapter 31 subsistence allowance rate and
the new Post-9/11 subsistence allowance rate. Utilizing the FY 2012
President's Budget, the average annual chapter 31 subsistence allowance
rate is estimated to be $4,962.12 in FY 2012, and the average annual
Post-9/11 subsistence allowance rate is estimated to be $12,444.94 in
FY 2012. With the average annual Post-9/11 subsistence allowance rate
being $7,482.82 more than the average annual chapter 31 subsistence
allowance rate, VA assumes that all eligible chapter 31 participants
will elect to receive the Post-9/11 subsistence allowance rate under
the new provisions of Sec. 21.264.
VA also conducted an analysis on the total population of
participants in the Vocational Rehabilitation and Employment's (VR&E)
chapter 31 program. The analysis focused on the number of participants
who are currently receiving a monthly chapter 31 subsistence allowance
and who also have Operations Enduring Freedom and Iraqi Freedom (OEF/
OIF) military service.
Data from VR&E's FY 2012 Workload Projections for Trainees/
Participants indicate that there will be approximately a total of
62,078 chapter 31 participants receiving chapter 31 subsistence
allowance in FY 2012. Workload projections for the number of
participants receiving subsistence allowance were based on FY 2010
actual number of 61,405 from the VA Benefits Delivery Network Computer
Output Identification Number Target System Report 6002 with projected
increases for FY 2011 and FY 2012. To align with projections from the
FY 2012 President's Budget, the number of participants for FY 2012
(63,259) was then reduced by the number of participants that VA
projected would transfer from chapter 31 benefits to the Post-9/11 GI
Bill. Data-Matching between the Department of Defense and VA databases
indicated that approximately 30% of VR&E participants in FY 2011 had
OEF/OIF military service that qualified them to elect the Post-9/11
subsistence allowance. Over the next five years, VR&E projects an
increase of 5% per year of VR&E participants who have OEF/OIF service
based on the influx of more recent veterans leaving active duty and
applying for benefits while veterans from previous eras complete
participation in VR&E.
This data also identified an estimated 21,727 chapter 31
participants, or 35% of the total chapter 31 participants (62,078), who
will receive a monthly subsistence allowance in FY 2012 and have OEF/
OIF military service. It is estimated that all of these 21,727
participants will elect and receive the Post-9/11 subsistence allowance
based on their OEF/OIF service in FY 2012.
The estimated total number of chapter 31 participants (21,727) who
will be eligible to elect and receive the Post-9/11 subsistence
allowance based on their OEF/OIF service in FY 2012 was multiplied by
the difference between the two subsistence allowance rates ($7,482.82),
totaling approximately $163 million in FY 2012.
Projected increases to participants receiving subsistence
allowance, average annual payments, and the percentage of chapter 31
participants receiving subsistence allowance were applied in the out-
years and shown in the table below.
Estimated Impact of Paying Increased Subsistence Allowance Based on BAH
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
of Chapter 31 Total * Percent of Average annual
(CH31) of CH31 CH31 difference
FY participants participants participants between current Obligations
receiving receiving SA receiving SA CH31 SA and new ($000)
Subsistence with OEF/OIF with OEF/OIF post-9/11 SA
Allowance (SA) service service
--------------------------------------------------------------------------------------------------------------------------------------------------------
2012.......................................................... 62,078 21,727 35 $7,482.82 $162,579
[[Page 45702]]
2013.......................................................... 63,892 25,557 40 7,602.54 194,298
2014.......................................................... 64,531 29,038 45 7,746.99 224,957
2015.......................................................... 65,176 32,588 50 7,894.19 257,256
2016.......................................................... 65,828 36,206 55 8,052.07 291,533
-----------------------------------------------------------------------------------------
5-Year Total.............................................. ................ ................ ................ ................ 1,130,623
--------------------------------------------------------------------------------------------------------------------------------------------------------
* VA assumes that the percentage of CH31 participants receiving SA and who have OEF/OIF military service will increase by 5% each year based on the
influx of more recent veterans leaving active duty and applying for benefits while veterans from previous eras complete participation in VR&E.
Section 21.270
To project the best possible economic impact of Sec. 21.270 in
this rulemaking, VA conducted an analysis to determine the associated
costs and/or savings by no longer allowing payment of either chapter 31
or Post-9/11 subsistence allowance during intervals between school
terms.
This amendment applies to all participants of the chapter 31
program who are currently participating in a training/rehabilitation
program for which subsistence allowance is payable.
Based on the FY 2012 President's Budget, the average annual
subsistence allowance payment is estimated to be $4,962.12 in FY 2012.
The average annual payment is based on 9 months of enrollment;
therefore, an average monthly subsistence payment would be $551.35. We
assumed that, on average, participants would have received one-and-a-
half months of interval subsistence allowance based on enrollment in
training for 9 months of the year. Therefore, the average annual
interval subsistence allowance rate for this 1.5 month interval period
is estimated to be $827.03 ($551.35 x 1.5) in FY 2012.
Data from VR&E's FY 2012 Workload Projections for Trainees/
Participants indicate that there will be approximately 62,078 chapter
31 participants receiving chapter 31 subsistence allowance in FY 2012.
Workload projections for the number of participants receiving
subsistence allowance were based on FY 2010 actual number of 61,405
from the VA Benefits Delivery Network Computer Output Identification
Number Target System Report 6002 with projected increases for FY 2011
and FY 2012. To align with projections from the FY 2012 President's
Budget, the number of participants for FY 2012 (63,259) was then
reduced by the number of participants that VA projected would transfer
from chapter 31 benefits to the Post-9/11 GI Bill.
The FY 2012 average annual interval subsistence allowance rate
($827.03) was multiplied by the FY 2012 total number of CH31
participants receiving subsistence allowance (62,078), totaling
approximately $51,340,000.00 in projected savings to VA in FY 2012.
Projected savings are estimated to be $51.3 million during FY 2012 and
$275.7 million over a five-year period.
Projected increases to participants receiving subsistence allowance
and average annual payments were applied in the out-years and are shown
in the table below.
Projected Savings From No Longer Allowing Payment of Subsistence Allowance During Intervals Between Terms
----------------------------------------------------------------------------------------------------------------
Total
of CH31 Average annual
participants interval SA Obligations
FY receiving rate (1.5 mths. ($000)
subsistence of SA)
allowance (SA)
----------------------------------------------------------------------------------------------------------------
2012...................................................... 62,078 $827.03 $51,340
2013...................................................... 63,892 840.25 53,685
2014...................................................... 64,530 856.22 55,252
2015...................................................... 65,176 872.49 56,865
2016...................................................... 65,829 889.94 58,584
-----------------------------------------------------
5-Year Total.......................................... ................ ................ 275,726
----------------------------------------------------------------------------------------------------------------
Accounting Statement and Table
As required by OMB Circular A-4, in the table below, VA has
prepared an accounting statement showing the classification of
transfers, benefits and costs associated with the provisions of this
rulemaking.
[[Page 45703]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transfers
-----------------------------------------------------------------------------------------
Category Year dollar Present value Annualized
FY2012 FY2013 FY2014 FY2015 FY2016 ---------------------------------------
3% 7% 3% 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
Federal Annualized Monetized Transfers 2010.................. $111.2 $140.6 $169.7 $200.4 $232.9 $774.7 $684.2 $164.2 $156.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Benefits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Qualitative benefits.................. The Post-9/11 subsistence allowance rates are greater than the current CH31 subsistence
allowance rates. Therefore, VA believes that CH31 participants who are eligible to
receive the greater subsistence allowance will require less dependence on support
programs and will be able to devote more attention to their CH31 training/rehabilitation
program, thus creating better employment opportunities and a better quality of life.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Costs................................. None.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Identification of Duplicative, Overlapping, or Conflicting Federal
Rules
There are no duplicative, overlapping, or conflicting Federal rules
identified with this regulatory action.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance number and title for the
program that would be affected by this interim final rule is 64.116,
Vocational Rehabilitation for Disabled Veterans.
Signing Authority
The Secretary of Veterans Affairs, or designee, approved this
document 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. John R.
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this
document on July 21, 2011, for publication.
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.
Dated: July 21, 2011.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General
Counsel, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA amends 38 CFR part 21
(subpart A) as follows:
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C.
Chapter 31
0
1. The authority citation for part 21, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in
specific sections.
0
2. Amend Sec. 21.79 by:
0
a. Redesignating paragraphs (f)(2), (f)(2)(i), (f)(2)(ii), and (f)(3)
as paragraphs (f)(3), (f)(3)(i), (f)(3)(ii), and (f)(4) respectively.
0
b. Adding a new paragraph (f)(2).
0
c. Adding an authority citation at the end of new paragraph (f)(2).
The additions read as follows:
Sec. 21.79 Determining entitlement usage under Chapter 31.
* * * * *
(f) Special situations. * * *
(2) When a chapter 31 participant elects to receive payment of the
Post-9/11 subsistence allowance under Sec. 21.260(c) in lieu of a
subsistence allowance under Sec. 21.260(b), the entitlement usage is
deducted from the veteran's chapter 31 entitlement. No entitlement
charges are made against chapter 33. (Authority: 38 U.S.C. 3108(b))
* * * * *
0
3. Amend Sec. 21.260 by:
0
a. Revising paragraph (a).
0
b. Redesignating paragraphs (c) and (d) as paragraphs (d) and (e),
respectively.
0
c. Adding a new paragraph (c).
The revisions and addition read as follows:
Sec. 21.260 Subsistence allowance.
(a) General. A veteran participating in a rehabilitation program
under 38 U.S.C. chapter 31 will receive a monthly subsistence allowance
at the rates in paragraph (b) of this section, unless the veteran
elects to receive an alternate payment (for the purposes of part 21,
subpart A, referred to as the Post-9/11 subsistence allowance) as
specified in paragraph (c) of this section, or payment at the rate of
monthly educational assistance allowance payable under 38 U.S.C.
chapter 30 for the veteran's type of training. See Sec. 21.264(a) for
election of payment at the chapter 30 rate and Sec. 21.264(b) for
election of the Post-9/11 subsistence allowance. See Sec. Sec.
21.7136, 21.7137, and 21.7138 to determine the applicable chapter 30
rate.
(Authority: 38 U.S.C. 3108(a), 3108(b), 3108(f))
* * * * *
(c) Rate of payment of Post-9/11 subsistence allowance. In lieu of
the subsistence allowance payable under paragraph (b) of this section,
VA pays the Post-9/11 subsistence allowance at the rates in the table
at the end of this paragraph, effective August 1, 2011, based on the
basic allowance for housing payable under 37 U.S.C. 403. For purposes
of the following table:
(1) BAH means ``the applicable amount of basic allowance for
housing payable under 37 U.S.C. 403 for a member of the military with
dependents in pay grade E-5 residing in the military housing area that
encompasses all or the majority portion of the ZIP code area in which
is located the institution, agency,
[[Page 45704]]
or employer providing the rehabilitation program concerned''.
(2) BAH National Average means ``the average (i.e., unweighted
arithmetic mean) monthly amount of the basic allowance for housing
payable under 37 U.S.C. 403 for a member of the military with
dependents in pay grade E-5 residing in the United States''.
Payment of Post-9/11 Subsistence Allowance in Accordance With Public Law
111-377
[Effective August 1, 2011] \1\
------------------------------------------------------------------------
Type of program Payment
------------------------------------------------------------------------
Institutional: \2\ .........................
Full-time................................ Entire BAH of institution
ZIP code.
\3/4\ time............................... \3/4\ BAH of institution
ZIP code.
\1/2\ time............................... \1/2\ BAH of institution
ZIP code.
Nonpay or nominal pay on-job training in a .........................
Federal, State, local, or federally
recognized Indian tribe agency; vocational
course in a rehabilitation facility or
sheltered workshop; institutional non-farm
cooperative:
Full-time only........................... Entire BAH of agency or
institution ZIP code.
Nonpay or nominal pay work experience in a
Federal, State, local, or federally
recognized Indian tribe agency:
Full-time................................ Entire BAH of agency ZIP
code.
\3/4\ time............................... \3/4\ BAH of agency ZIP
code.
\1/2\ time............................... \1/2\ BAH of agency ZIP
code.
Farm cooperative, apprenticeship, or other on- .........................
job training (OJT): \3\
Full-time only........................... Entire BAH of employer
ZIP code.
Combination of institutional and OJT (Full- .........................
time only):
Institutional greater than \1/2\ time.... Entire BAH of institution
ZIP code.
OJT greater than \1/2\ time \3\.......... Entire BAH of employer
ZIP code.
Non-farm cooperative (Full-time only): .........................
Institutional............................ Entire BAH of institution
ZIP code.
On-job \3\............................... Entire BAH of employer
ZIP code.
Improvement of rehabilitation potential: .........................
Full-time................................ Entire BAH of institution
ZIP code.
\3/4\ time............................... \3/4\ BAH of institution
ZIP code.
\1/2\ time............................... \1/2\ BAH of institution
ZIP code.
\1/4\ time \4\........................... \1/4\ BAH of institution
ZIP code.
Training consisting of solely distance .........................
learning: \5\
Full-time................................ \1/2\ BAH National
Average.
\3/4\ time............................... \3/8\ BAH National
Average.
\1/2\ time............................... \1/4\ BAH National
Average.
Training in the home, including independent .........................
instructor:
Full-time only........................... \1/2\ BAH National
Average.
Training in an institution not assigned a ZIP
code, including foreign institutions:
Full-time................................ Entire BAH National
Average.
\3/4\ time............................... \3/4\ BAH National
Average.
\1/2\ time............................... \1/2\ BAH National
Average.
------------------------------------------------------------------------
\1\ Effective August 1, 2011, the Post-9/11 subsistence allowance may be
paid in lieu of subsistence allowance authorized in Sec. 21.260(b),
and is not adjusted to include dependents.
\2\ For measurement of rate of pursuit, see Sec. Sec. 21.4270 and
21.4272 through 21.4275. Payments for courses being taken
simultaneously at more than one institution are based on the BAH of
the ZIP code assigned to the parent institution.
\3\ For on-job training, payment of the Post-9/11 subsistence allowance
may not exceed the difference between the monthly training wage, not
including overtime, and the entrance journeyman wage for the veteran's
objective.
\4\ The quarter-time rate may be paid only during extended evaluation.
\5\ Payment for training consisting of both distance learning and
courses taken at a local institution is based on the BAH of the ZIP
code assigned to the local institution.
(Authority: 38 U.S.C. 3108, 3115(a)(1))
* * * * *
0
4. Amend Sec. 21.264 by:
0
a. Revising the section heading.
0
b. Redesignating paragraphs (a) introductory text, (a)(1), (a)(2), and
(a)(3) as paragraphs (a)(1), (a)(1)(i), (a)(1)(ii), and (a)(1)(iii)
respectively.
0
c. Adding a new heading to paragraph (a).
0
d. Redesignating paragraphs (b) introductory text, (b)(1), and (b)(2)
as paragraphs (a)(2), (a)(2)(i), and (a)(2)(ii), respectively.
0
e. Redesignating paragraphs (c) introductory text, (c)(1), (c)(2), and
(c)(3) as paragraph (a)(3), (a)(3)(i), (a)(3)(ii), and (a)(3)(iii),
respectively.
0
f. Further redesignating paragraphs (c)(3)(i), (c)(3)(ii), and
(c)(3)(iii) as paragraphs (a)(3)(iii)(A), (a)(3)(iii)(B), and
(a)(3)(iii)(C), respectively.
0
g. Redesignating paragraph (d) as paragraph (a)(4).
0
h. Adding a new paragraph (b).
0
i. Revising the authority citation at the end of the section.
The revisions and additions read as follows:
Sec. 21.264 Election of payment at the 38 U.S.C. chapter 30
educational assistance rate or election of payment of Post-9/11
subsistence allowance.
(a) Election of chapter 30 educational assistance rate. * * *
(b) Election of payment of Post-9/11 subsistence allowance.
(1) Eligibility. Effective August 1, 2011, a veteran who applies
and is eligible for training or education under chapter 31 may elect to
receive payment of the Post-9/11 subsistence allowance under Sec.
21.260(c) in lieu of a subsistence allowance under Sec. 21.260(b),
provided the veteran has remaining eligibility for, and
[[Page 45705]]
entitlement to, educational assistance under chapter 33, Post-9/11 GI
Bill.
(2) Reelection of subsistence allowance under Sec. 21.260(b).
Reelection of payment of benefits at the chapter 31 subsistence
allowance rate under Sec. 21.260(b) may be made only after completion
of a term, quarter, semester, or other period of instruction unless:
(i) Chapter 33 eligibility or entitlement ends earlier; or
(ii) Failure to approve immediate reelection would prevent the
veteran from continuing in the rehabilitation program.
(3) Services under chapter 31. A veteran who elects payment of the
Post-9/11 subsistence allowance remains entitled to all other services
and assistance under chapter 31.
(Authority: 38 U.S.C. 3108(b))
0
5. Amend Sec. 21.270 by:
0
a. Revising the section heading.
0
b. Removing paragraph (b).
0
c. Redesignating paragraph (c) as paragraph (b).
0
d. In newly redesignated paragraph (b), removing ``Weeekend'' and
adding, in its place, ``Weekend''.
0
e. Adding an authority citation at the end of the section.
The revision and addition read as follows:
Sec. 21.270 Payment of subsistence allowance during leave and other
periods.
* * * * *
(Authority: 38 U.S.C. 3680(a))
0
6. Revise Sec. 21.274 (d)(1)(iii) to read as follows:
Sec. 21.274 Revolving fund loan.
* * * * *
(d) * * *
(1) * * *
(iii) The advance does not exceed either the amount needed, or
twice the monthly subsistence allowance for a veteran without
dependents in full-time institutional training specified in Sec.
21.260(b); and
* * * * *
[FR Doc. 2011-19473 Filed 7-29-11; 8:45 am]
BILLING CODE 8320-01-P
