Streamlining Annual Rate Publication for VA Educational Benefits, 22370-22374 [2019-10245]

Agencies

• DEPARTMENT OF VETERANS AFFAIRS

[Federal Register Volume 84, Number 96 (Friday, May 17, 2019)]
[Rules and Regulations]
[Pages 22370-22374]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10245]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AP99


Streamlining Annual Rate Publication for VA Educational Benefits

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends Department of Veterans Affairs (VA) 
regulations regarding the monthly rates payable for the following 
educational assistance programs: Montgomery GI Bill--Active Duty (MGIB-
AD), Montgomery GI Bill--Selected Reserve (MGIB-SR), and Survivors' and 
Dependents' Educational Assistance (DEA). Instead of publishing the 
monthly rates in regulations, VA will continue to publish the monthly 
rates annually on VA's Education Service rate tables website. This 
website publication provides the public with timely notification of the 
annual changes to monthly rates.

DATES: Effective Date: This rule is effective May 17, 2019.

FOR FURTHER INFORMATION CONTACT: Schnell Carraway, Management and 
Program Analyst (225C), Education Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue NW, 
Washington, DC 20420, (202) 461-9632. (This is not a toll-free 
telephone number.)

SUPPLEMENTARY INFORMATION: The statutory amount of payment for basic 
educational assistance under the Montgomery GI Bill--Active Duty (MGIB-
AD) program is set out in 38 U.S.C. 3015 and 3032, under the Montgomery 
GI Bill--Selected Reserve (MGIB-SR) program in 10 U.S.C. 16131, and 
under the Survivors' and Dependents' Educational Assistance (DEA) 
program in 38 U.S.C. 3532, 3686, and 3687.
    In accordance with statutory requirements, VA annually adjusts the 
monthly rates of educational assistance payable under the MGIB-AD, 
MGIB-SR, and DEA programs to reflect cost-of-living increases. See 38 
U.S.C. 3015(h); 10 U.S.C. 16131(b)(2); and 38 U.S.C. 3564. VA 
calculates the monthly rates based on the statutory provisions. 
Historically, VA annually revised its regulations with the updated 
calculated amounts.
    Publication of the calculated amounts as regulatory amendments 
subject to the informal rulemaking process of the Administrative 
Procedure Act (APA) is unnecessary because the rates are set by statute 
and VA has no discretion in determining those rates. Furthermore, it is 
inefficient to utilize the rulemaking process as a vehicle for 
notifying the public of revised rates, because delays in the rulemaking 
process result in a delay in notification of the new rates to 
beneficiaries. Finally, the published monthly rates of educational 
assistance are often out-of-date because of the delay of publishing the 
monthly rates in regulations.
    To reduce the administrative burden and improve the provision of 
notice of the changes in monthly rates payable for basic educational 
assistance under the MGIB-AD, MGIB-SR, and DEA programs, we are 
amending 38 CFR

[[Page 22371]]

21.3131, 38 CFR 21.7136, and 38 CFR 21.7636. Instead of publishing 
rates payable for various types and levels of training in regulations, 
we refer to the statutory provisions, which specify the rates, or, 
where the statute authorizes VA to provide an appropriately reduced 
rate by regulations, we provide a percentage by which VA will reduce 
the rate in regulations. We also refer to the GI Bill education and 
training website, currently located at: https://www.benefits.va.gov/GIBILL/resources/benefits_resources/rate_tables.asp, where, every year, 
VA will continue to publish the calculated rates, as increased annually 
to account for annual increases in the cost of living. VA has 
consistently made current rates available on its website, and this 
revision ensures that VA's regulations will notify the public of where 
to find the most up-to-date rates.

MGIB-AD

    Although 38 U.S.C. 3015 establishes the rate of payment under the 
MGIB-AD program for full-time training only, section 3015(a)(2) and 
(b)(2) authorizes VA to establish an appropriate reduced rate in 
regulations for less than full-time training. VA established the rate 
of payment for educational assistance for less than full-time training 
under the MGIB-AD program in a 1990 regulatory amendment in 38 CFR 
21.7136. See 55 FR 28382, 28386 (July 11, 1990). The rate of payment 
for various levels of less than full-time training was based on a 
percentage of the statutory amount for full-time training as VA 
determined appropriate: VA determined to pay \3/4\ time training at 75% 
of the full-time training rate; \1/2\ time training at 50%; less than 
\1/2\ time but more than \1/4\ time training at 50%, and less than \1/
4\ time training at 25%. For veterans whose service is described in 
Sec.  21.7136(a), the full-time rate in current Sec.  21.7136(b)(1)(i)-
(iii) is covered by new Sec.  21.7136(b)(1), and the less than full-
time rates of pursuit in current Sec.  21.7136(b)(1)(i)-(iii) are 
covered by new Sec.  21.7136(b)(2).
    For veterans whose service is described in Sec.  21.7136(a), the 
rates for apprenticeship or on-the-job training in current Sec.  
21.7136(b)(2) are covered by new Sec.  21.7136(b)(3). The rates for 
apprenticeship or other on-job training are based on the limitations 
established in section 3032(c): First six months of training at 75% of 
the full-time training rate; second six months of training at 55%; and 
remaining pursuit of training at 35%. Also, the rate for cooperative 
training for these veterans in current Sec.  21.7136(b)(3) is covered 
by new Sec.  21.7136(b)(4). The rate for cooperative training is the 
same as the full-time rate covered by new Sec.  21.7136(b)(1).
    For veterans whose service is described in Sec.  21.7136(c), the 
full-time rate in current Sec.  21.7136(c)(1)(i)-(iii) is covered by 
new Sec.  21.7136(c)(1), and the less than full-time rates of pursuit 
in current Sec.  21.7136(c)(1)(i)-(iii) are covered by new Sec.  
21.7136(c)(2). Also, for these veterans, the rates for apprenticeship 
or other on-job training in current Sec.  21.7136(c)(2) are covered by 
new Sec.  21.7136(c)(3), and the rate for cooperative training in 
current Sec.  21.7136(c)(3) is covered by new Sec.  21.7136(c)(4).
    New Sec.  21.7136(i) provides that ``VA will publish the monthly 
rates of basic educational assistance payable under this section on the 
GI Bill education and training website each time there is an increase 
in the rates.''

MGIB-SR

    New Sec.  21.7636(a) provides that ``VA will publish the monthly 
rates of basic educational assistance payable under this section on the 
GI Bill education and training website each time there is an increase 
in the rates.''
    For reservists pursuing institutional training, the rates of 
payment for the various rates of pursuit in current Sec.  
21.7636(a)(1)(i)-(ii) are covered by new Sec.  21.7636(a)(1). The rates 
for apprenticeship or other on-job training in current Sec.  
21.7636(a)(2)(i)(A)-(B) and current Sec.  21.7636(a)(2)(ii) are covered 
by new Sec.  21.7636(a)(2). The rates for apprenticeship or other on-
job training are based on the limitations established in 10 U.S.C. 
16131(d)(1): First six months of training at 75% of the full-time 
training rate; second six months of training at 55%; and remaining 
pursuit of training at 35%. The rate for cooperative training in 
current Sec.  21.7636(a)(3)(i)-(ii) is covered by new Sec.  
21.7636(a)(3). The rate for cooperative training is the same as the 
full-time rate covered by new Sec.  21.7636(a)(1).

DEA

    New Sec.  21.3131(a)(1) provides that ``VA will publish the monthly 
rates of basic educational assistance payable under paragraph (a)(2) of 
this section on the GI Bill education and training website each time 
there is an increase in the rates.'' For an eligible survivor or 
dependent of a veteran, as defined in Sec.  21.3021, the rates of 
payment for the various institutional rates of pursuit in current Sec.  
21.3131(a)(1)-(7) are covered by new Sec.  21.3131(a)(2). The 
institutional rates are based on the rates provided in 38 U.S.C. 
3532(a). The rates for apprenticeship or other on-job training, 
cooperative training (other than farm cooperative), farm cooperative 
training, and correspondence courses provided in current Sec.  
21.3131(a)(1)-(7) are covered by new Sec.  21.3131(a)(2). The rates for 
apprenticeship or other on-job training are based on the rates provided 
in 38 U.S.C. 3687. See 38 U.S.C. 3534. The rate for cooperative 
training (other than farm cooperative) is the same as the full-time 
rate covered by new Sec.  21.3131(a)(2). See 38 U.S.C. 3532(b). The 
rate for farm cooperative training is based on the rates provided in 38 
U.S.C. 3532(c). The rate for correspondence courses is based on 38 
U.S.C. 3534(b) and 3686.
    We also revised the authority citation for Sec.  21.3131 to include 
references to 38 U.S.C. 3534, 3564 and 3686, and to remove the 
reference to 38 U.S.C. 3542(a) governing special training allowances, 
which are not covered in Sec.  21.3131.

Administrative Procedure Act

    VA currently publishes on its Education Service website the monthly 
rates payable for MGIB-AD, MGIB-SR, and DEA, as increased annually to 
account for annual increases in the cost of living, and this rule 
ensures that VA's regulations will notify the public of where to find 
the most up-to-date rates. This rule does not make any substantive 
policy change or impact the calculation of rates for educational 
assistance but simply reflects a change in agency procedure or practice 
regarding publication of such rates, which are set by statute and over 
which VA has no discretion. As discussed above, it is inefficient to 
utilize the rulemaking process as a vehicle for notifying the public of 
revised rates, because delays in the rulemaking process result in a 
delay in notification of the new rates to beneficiaries. Finally, the 
published monthly rates of educational assistance are often out-of-date 
because of the delay of publishing the monthly rates in regulations.
    To the extent the regulations being revised previously specified 
the payment amounts determined as prescribed by existing statute and 
regulation and these revised regulations merely describe the existing 
formulas for determining those rates, the rules are, at most, 
interpretive rules, because they merely reiterate and explain the 
existing statutory and regulatory requirements without establishing 
additional requirements or standards. Paralyzed Veterans of Am. v. 
West, 138 F.3d 1434, 1436 (Fed. Cir. 1998) (An interpretive rule 
``simply indicates an agency's reading of a statute or a rule. It does 
not intend to create new rights or duties, but only reminds affected

[[Page 22372]]

parties of existing duties.'' (citation and internal quotation marks 
omitted)). To the extent the revised regulations specify the location 
at which VA publishes the current rates, they are rules of agency 
practice or procedure.
    As a rule of agency procedure or practice and, at most, an 
interpretive rule reiterating and explaining statutory and regulatory 
requirements, this rule is exempt under 5 U.S.C. 553(b)(A) from the 
prior notice-and-comment requirements of 5 U.S.C. 553. Also, because 
this rule is not a substantive rule, it is exempt from the delayed 
effective date requirement under 5 U.S.C. 553(d).

Executive Orders 12866, 13563, and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, when 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, and other advantages; distributive impacts; 
and equity). Executive Order 13563 (Improving Regulation and Regulatory 
Review) emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), unless OMB waives such review, 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.
    The economic, interagency, budgetary, legal, and policy 
implications of this regulatory action have been examined, and it has 
been determined not to be a significant regulatory action under 
Executive Order 12866. VA's impact analysis can be found as a 
supporting document at https://www.regulations.gov, usually within 48 
hours after the rulemaking document is published. Additionally, a copy 
of the rulemaking and its impact analysis are available on VA's website 
at https://www.va.gov/orpm/, by following the link for ``VA Regulations 
Published From FY 2004 Through Fiscal Year to Date.''
    This rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-
612). Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt 
from the initial and final regulatory flexibility analysis requirements 
of sections 603 and 604.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 
1532, that agencies prepare an assessment of anticipated costs and 
benefits before issuing any rule that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100 million or more (adjusted annually for 
inflation) in any one year. This final rule will have no such effect on 
State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act of 1995

    This final rule contains no provisions constituting a collection of 
information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3521).

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs affected by this document are: 64.032, Montgomery GI Bill 
Selected Reserve; Reserve Educational Assistance Program; 64.117, 
Survivors and Dependents Educational Assistance; 64.120, Post-Vietnam 
Era Veterans' Educational Assistance; 64.124, All-Volunteer Force 
Educational Assistance.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interest, Defense 
Department, Education, Employment, Grants programs--education, Grants 
program--veterans, Health care, Loan programs--education, Loan 
programs--veterans, Manpower training programs, Reporting and 
recordkeeping requirements, Schools, Travel and transportation expense, 
Veterans, Vocational education, Vocational rehabilitation.

Signing Authority

    The Secretary of Veterans Affairs 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. Robert L. 
Wilkie, Secretary, Department of Veterans Affairs, approved this 
document on April 25, 2019, for publication.

    Dated: May 14, 2019.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy & Management, Office of 
the Secretary, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 21 as set forth below:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart C--Survivors' and Dependents' Educational Assistance Under 
38 U.S.C. Chapter 35

0
1. The authority citation for part 21, subpart C, continues to read as 
follows:

    Authority:  38 U.S.C. 501(a), 512, 3500-3566, and as noted in 
specific sections.

0
2. Amend Sec.  21.3131 by revising the section heading and paragraph 
(a) to read as follows:


Sec.  21.3131   Rates of payment.

    (a) Rates. (1) VA will publish the monthly rates of basic 
educational assistance allowance payable under paragraph (a)(2) of this 
section on the GI Bill education and training website each time there 
is an increase in the rates.
    (2) Except as provided in Sec.  21.3132, the monthly rate of basic 
educational assistance allowance payable to an eligible person, as 
defined in Sec.  21.3021, will be the applicable rate provided in 38 
U.S.C. 3532, 3686 or 3687, as increased each fiscal year in accordance 
with 38 U.S.C. 3564 and 3687(d). The rate of pursuit will be determined 
in accordance with Sec.  21.4270.

(Authority: 38 U.S.C. 3532, 3534, 3564, 3686, 3687)

* * * * *

Subpart K--All Volunteer Force Educational Assistance Program 
(Montgomery GI Bill--Active Duty)

0
3. The authority citation for part 21, subpart K, continues to read as 
follows:

     Authority:  38 U.S.C. 501(a), chs. 30, 36, and as noted in 
specific sections.


[[Page 22373]]



0
4. Amend Sec.  21.7136 by revising paragraphs (b) and (c) and adding 
paragraph (i) to read as follows:


Sec.  21.7136   Rates of payment of basic educational assistance.

* * * * *
    (b) Rates for veterans whose service is described in paragraph (a) 
of this section--(1) Institutional training (full-time rate of 
pursuit). Except as elsewhere provided in this section or in Sec.  
21.7139, the monthly rate of basic educational assistance payable to a 
veteran whose service is described in paragraph (a) of this section and 
who is pursuing full-time institutional training will be the applicable 
rate provided in 38 U.S.C. 3015(a), as increased each fiscal year in 
accordance with 38 U.S.C. 3015(h).
    (2) Institutional training (less than full-time rate of pursuit). 
Except as elsewhere provided in this section or in Sec.  21.7139, the 
monthly rate of basic educational assistance payable to a veteran whose 
service is described in paragraph (a) of this section and who is 
pursuing less than full-time institutional training, as determined in 
accordance with Sec.  21.4270, will be the full-time rate described in 
paragraph (b)(1) of this section reduced proportionately based on the 
rate of pursuit in accordance with the following:

                       Table 1 to Paragraph (b)(2)
------------------------------------------------------------------------
                                                           Percentage of
                        Training                             full-time
                                                           monthly rate
------------------------------------------------------------------------
\3/4\ time..............................................              75
\1/2\ time..............................................              50
Less than \1/2\ but more than \1/4\ time................              50
\1/4\ time..............................................              25
------------------------------------------------------------------------

    (3) Apprenticeship or other on-job training. The monthly rate of 
basic educational assistance payable to a veteran whose service is 
described in paragraph (a) of this section and who is pursuing 
apprenticeship or other on-job training will be the full-time rate 
described in paragraph (b)(1) of this section reduced in accordance 
with the following:

                       Table 2 to Paragrpah (b)(3)
------------------------------------------------------------------------
                                                           Percentage of
                     Training period                         full-time
                                                           monthly rate
------------------------------------------------------------------------
First six months of training............................              75
Second six months of training...........................              55
Remaining pursuit of training...........................              35
------------------------------------------------------------------------

    (4) Cooperative training. Except as elsewhere provided in this 
section or in Sec.  21.7139, the monthly rate of basic educational 
assistance payable to a veteran whose service is described in paragraph 
(a) of this section and who is pursuing cooperative training will be 
the full-time rate described in paragraph (b)(1) of this section.

(Authority: 38 U.S.C. 3015, 3032(c))


    (c) Rates for some veterans whose qualifying obligated period of 
active duty is less than three years. If a veteran has established 
eligibility under Sec.  21.7042, but the veteran's service is not 
described in paragraph (a)(2) of this section, the monthly rate of 
educational assistance payable to the veteran will be determined by 
this paragraph (c).
    (1) Institutional training (full-time rate of pursuit). Except as 
elsewhere provided in this section or in Sec.  21.7139, the monthly 
rate of basic educational assistance payable to a veteran whose service 
is described in paragraph (c) of this section, and who is pursuing 
full-time institutional training, will be the applicable rate provided 
in 38 U.S.C. 3015(b)(1), as increased each fiscal year in accordance 
with 38 U.S.C. 3015(h).
    (2) Institutional training (less than full-time rate of pursuit). 
Except as elsewhere provided in this section or in Sec.  21.7139, the 
monthly rate of basic educational assistance payable to a veteran whose 
service is described in paragraph (c) of this section and who is 
pursuing less than full-time institutional training, as determined in 
accordance with Sec.  21.4270, will be the full-time rate described in 
paragraph (c)(1) of this section reduced proportionately based on the 
rate of pursuit in accordance with the following:

                       Table 3 to Paragraph (c)(2)
------------------------------------------------------------------------
                                                           Percentage of
                        Training                             full-time
                                                           monthly rate
------------------------------------------------------------------------
\3/4\ time..............................................              75
\1/2\ time..............................................              50
Less than \1/2\ but more than \1/4\ time................              50
\1/4\ time..............................................              25
------------------------------------------------------------------------

    (3) Apprenticeship or other on-job training. The monthly rate of 
basic educational assistance payable to a veteran whose service is 
described in paragraph (c) of this section and who is pursuing of 
apprenticeship or other on-job training will be the full-time rate 
described in paragraph (c)(1) of this section reduced in accordance 
with the following:

                       Table 4 to Paragraph (c)(3)
------------------------------------------------------------------------
                                                           Percentage of
                     Training period                         full-time
                                                           monthly rate
------------------------------------------------------------------------
First six months of training............................              75
Second six months of training...........................              55
Remaining pursuit of training...........................              35
------------------------------------------------------------------------

    (4) Cooperative training. Except as elsewhere provided in this 
section or in Sec.  21.7139, the monthly rate of basic educational 
assistance payable to a veteran whose service is described in paragraph 
(c) of this section and who is pursuing cooperative training will be 
the full-time rate described in paragraph (c)(1) of this section.

(Authority: 38 U.S.C. 3015, 3032(c))

* * * * *
    (i) Publication of monthly rates. VA will publish the monthly rates 
of basic educational assistance payable under this section on the GI 
Bill education and training website each time there is an increase in 
the rates.

Subpart L--Educational Assistance for Members of the Selected 
Reserve

0
5. The authority citation for part 21, subpart L, continues to read as 
follows:

    Authority:  10 U.S.C. ch. 1606; 38 U.S.C. 501(a), 512, ch. 36, 
and as noted in specific sections.

0
6. Amend Sec.  21.7636 by revising paragraph (a) to read as follows:


Sec.  21.7636  Rates of payment.

    (a) Monthly rate of educational assistance. VA will publish the 
monthly rates of basic educational assistance payable under this 
section on the GI Bill education and training website each time there 
is an increase in the rates.
    (1) Institutional training. Except as otherwise provided in this 
section or in Sec.  21.7639, the monthly rate of basic educational 
assistance payable to a reservist pursuing institutional training will 
be the applicable rate provided in 10 U.S.C. 16131(b)(1), as increased 
each fiscal year in accordance with 10 U.S.C. 16131(b)(2). The rate of 
pursuit will be determined in accordance with Sec.  21.4270.
    (2) Apprenticeship and other on-the-job training. (i) The monthly 
rate of basic educational assistance payable to a reservist pursuing 
apprenticeship or other on-the-job training will be a percentage of the 
full-time rate determined in paragraph (a)(1) of this section. In 
accordance with 10 U.S.C. 16131(d)(1), VA will determine the monthly 
rate payable by multiplying the full-time monthly rate payable to the

[[Page 22374]]

reservist by the applicable percentage based on the reservist's 
training period as follows:

                     Table 1 to Paragraph (a)(2)(i)
------------------------------------------------------------------------
                                                           Percentage of
                        Training                           monthly rate
                                                              payable
------------------------------------------------------------------------
First six months of training............................              75
Second six months of training...........................              55
Remaining pursuit of training...........................              35
------------------------------------------------------------------------

    (ii) Full-time training will consist of the number of hours which 
constitute the standard workweek of the training establishment, but not 
less than 30 hours unless a lesser number of hours is established as 
the standard workweek for the particular establishment through bona 
fide collective bargaining between employers and employees.
    (3) Cooperative training. The monthly rate of basic educational 
assistance payable to a reservist pursuing cooperative training will be 
equal to the applicable full-time monthly rate determined in paragraph 
(a)(1) of this section.

(Authority: 10 U.S.C. 16131)

* * * * *
[FR Doc. 2019-10245 Filed 5-16-19; 8:45 am]
 BILLING CODE 8320-01-P