State Approving Agency Jurisdiction Rule, 57094-57097 [2021-21496]
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57094
Federal Register / Vol. 86, No. 196 / Thursday, October 14, 2021 / Proposed Rules
(b) Rates payable. The amount of
apportionment of DIC will be
determined in accordance with the
provisions of § 3.665.
(Authority: 101(4)(A), 104(a), 5307)
§§ 3.456 and 3.457
[Added and Reserved]
12. Add and reserve §§ 3.456 and
3.457.
■
§ 3.456
Reserved.
§ 3.457
Reserved.
§§ 3.458 through 3.461
Reserved]
[Removed and
13. Remove and reserve §§ 3.458
through 3.461.
■
§§ 3.458–3.461
[Reserved]
14. Amend § 3.556 as follows:
a. In paragraph (a)(1), remove the
words ‘‘unless it is determined that
apportionment for a spouse should be
continued’’; and
■ b. In paragraph (e):
■ 1. Remove the words ‘‘in the case of
a competent veteran’’ from the second
sentence, and remove the third
sentence; and
■ 2. Revise the fifth sentence.
The revision reads as follows:
■
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§ 3.556 Adjustment on discharge or
release.
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(e) Regular discharge. * * * Where an
apportionment was made under
§ 3.551(c), the apportionment will be
discontinued effective the day
preceding the date of the veteran’s
release from the hospital, unless an
overpayment would result. In the
excepted cases, the awards to the
veteran and apportionee will be
adjusted as of date of last payment.
* * *
(Authority: 38 U.S.C. 5503)
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15. Amend § 3.665 by revising
paragraphs (e), (h) and (i) to read as
follows:
■
§ 3.665 Incarcerated beneficiaries and
fugitive felons—compensation.
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(e) Apportionment—(1)
Compensation. All of the compensation
not paid to an incarcerated veteran may
be apportioned to the veteran’s spouse,
child or children (in equal shares), or
dependent parent or parents (in equal
shares).
(2) DIC. All of the DIC not paid to an
incarcerated surviving spouse or other
children not in the surviving spouse’s
custody may be apportioned to another
child or children. All of the DIC not
paid to an incarcerated child may be
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apportioned to the surviving spouse or
other children (in equal shares).
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(h) Notice to dependent for whom
apportionment granted. A dependent
for whom an apportionment is granted
under this section shall be informed that
the apportionment is subject to
immediate discontinuance upon the
incarcerated person’s release or
participation in a work release or
halfway house program.
(i) Resumption upon release—(1) No
apportionment. If there was no
apportionment at the time of release
from incarceration, the released person’s
award shall be resumed the date of
release from incarceration if the
Department of Veterans Affairs receives
notice of release within 1 year following
release; otherwise the award shall be
resumed the date of receipt of notice of
release. If there was an apportionment
award during incarceration, it shall be
discontinued date of last payment to the
apportionee upon receipt of notice of
release of the incarcerated person.
Payment to the released person shall
then be resumed at the full rate from
date of last payment to the apportionee.
Payment to the released person from
date of release to date of last payment
to the apportionee shall be made at the
rate which is the difference between the
released person’s full rate and the sum
of:
(i) The rate that was payable to the
apportionee; and
(ii) The rate payable during
incarceration.
(2) Apportionment to a dependent
parent. An apportionment made to a
dependent parent under this section
cannot be continued beyond the
veteran’s release from incarceration
unless the veteran is incompetent and
the provisions of § 3.452(b)(1) are for
application. When a competent veteran
is released from incarceration, an
apportionment made to a dependent
parent shall be discontinued and the
veteran’s award resumed as provided in
paragraph (i)(1) of this section.
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(Authority: 38 U.S.C. 501(a), 5313, 5313B;
Sec. 506, Pub. L. 107–103, 115 Stat. 996–997)
PART 21—VOCATIONAL
REHABILITATION AND EDUCATION
Subpart A—Vocational Rehabilitation
and Employment Under 38 U.S.C.
Chapter 31
16. 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.
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§ 21.330
■
[Removed and Reserved]
17. Remove and reserve § 21.330.
§ 21.330
[Reserved]
[FR Doc. 2021–21816 Filed 10–13–21; 8:45 am]
BILLING CODE 8320–01–P
DEPARTMENT OF VETERANS
AFFAIRS
38 CFR Part 21
RIN 2900–AQ89
State Approving Agency Jurisdiction
Rule
Department of Veterans Affairs.
Proposed rule.
AGENCY:
ACTION:
The Department of Veterans
Affairs (VA) proposes to amend existing
regulations to clarify State Approving
Agencies’ (SAA) jurisdiction for
approval of online distance learning
courses and distinguish such courses
from ‘‘traditional classroom’’ resident
training courses and independent studyresident training courses (also known as
‘‘hybrid’’ courses), which are typically a
combination of online and traditional
training. Additionally, VA seeks to
clarify SAA authority and jurisdiction
with regard to approval and disapproval
of any course, or licensing or
certification test, and to clarify the
adjudicatory outcomes available to an
SAA when reviewing an approval
application for any type of course (i.e.,
approval, denial of an application for
approval, suspension of approval, or
withdrawal of approval).
DATES: Comments must be received by
VA on or before December 13, 2021.
ADDRESSES: Comments may be
submitted through
www.Regulations.gov. Comments
should indicate that they are submitted
in response to RIN 2900–AQ89—State
Approving Agency Jurisdiction Rule.
Comments received will be available at
regulations.gov for public viewing,
inspection or copies.
FOR FURTHER INFORMATION CONTACT:
Cheryl Amitay, Chief, Policy and
Regulation Development Staff (225C),
Education Service, Department of
Veterans Affairs, 810 Vermont Avenue
NW, Washington, DC 20420, (202) 461–
9800. (This is not a toll-free telephone
number.)
SUPPLEMENTARY INFORMATION: Currently,
for purposes of determining SAA
jurisdiction, VA’s regulation divides
courses into residential courses offered
in the same state as the state in which
the educational institution is located, 38
CFR 21.4250(a)(1), residential courses
SUMMARY:
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Federal Register / Vol. 86, No. 196 / Thursday, October 14, 2021 / Proposed Rules
offered in one state by an educational
institution located in a different state,
§ 21.4250(a)(2), and courses offered by
independent study or correspondence,
§ 21.4250(a)(3). Current § 21.4250(a)(3)
provides that if an educational
institution offers a program through
independent study or by
correspondence, only the SAA for the
State where the school’s main campus is
located may approve the course for VA
training. This rule, however, does not
explicitly address online distance
learning courses. Some stakeholders
have thus erroneously concluded that
this rule does not address the
appropriate SAA of jurisdiction for
online distance learning programs. VA
views online distance learning as a
subset of courses offered through
independent study and, therefore, views
current § 21.4250(a)(3) as controlling
which SAA has jurisdiction to approve
a course offered via online distance
learning, i.e., the SAA for the State in
which the school’s main campus is
located has exclusive jurisdiction over
the approval of online distance learning
programs.
The relationship between
independent study and online distance
learning is further clarified in 38 CFR
21.4267(b). VA defines independent
study in that section for the purposes of
educational assistance programs as a
program that ‘‘consists of a prescribed
program of study with provision for
interaction between the student and
[instructor] . . . through use of
communications technology, including
. . . videoconferencing, computer
technology (to include electronic mail),
and other electronic means’’ and is
‘‘offered without any regularly
scheduled, conventional classroom or
laboratory sessions.’’ 38 CFR
21.4267(b)(1)(i) and (ii). The definition
provided for independent study
encompasses distance learning in VA’s
view, which includes courses offered
online. Therefore, online distance
learning is currently classified as
independent study for the purposes of
VA educational assistance programs.
Consequently, when current
§ 21.4250(a)(3) states that the SAA for
the State where the educational
institution’s main campus is located is
the SAA of jurisdiction for the approval
of independent study program, it is
likewise stating that such SAA is the
SAA of jurisdiction for the approval of
online distance learning programs.
Nevertheless, stakeholders have
informed VA that the connection
between ‘‘independent study’’ in
§ 21.4250(a)(3) and the definition of that
term in § 21.4267(b)(1), which
incorporates online distance learning, is
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not apparent to them. Therefore, even
though § 21.4250(a)(3) already addresses
the appropriate SAA jurisdictional rules
for independent study in VA’s view,
and § 21.4267(b)(1)(i) and (ii)
appropriately classifies online distance
learning as independent study for the
purposes of VA educational assistance,
VA proposes to amend § 21.4250(a)(3) to
explicitly include the term ‘‘online
distance learning.’’ Such an amendment
would not substantively change the
current definitions. Rather, it is
proposed to curtail confusion among
some SAAs and educational institutions
while maintaining the status quo.
Furthermore, we propose to also
include the qualifier ‘‘solely’’ to the type
of courses addressed in our proposed
amendment to § 21.4250(a)(3). The
qualifier ‘‘solely’’ is appropriate and
preferable to avoid confusion regarding
jurisdiction for SAA evaluation of any
training that is not solely through
independent study (including online
distance learning), correspondence, or
any combination of independent study
(including online distance learning) and
correspondence. Unless training is
offered ‘‘solely’’ via independent study
(including online distance learning),
correspondence, or any combination of
independent study (including online
distance learning) and correspondence,
it is addressed in either § 21.4250(a)(1),
or (2). Current paragraph (a)(1)
addresses ‘‘traditional classroom’’
resident training and independent
study-resident training, also known as
‘‘hybrid’’ training, which VA considers
resident training for the purpose of VA
approval when the resident training is
offered in the same state in which the
educational institution is located.
Current and proposed paragraph (a)(2)
addresses residential courses offered in
one state by an educational institution
located in a different state and ‘‘hybrid’’
training when the resident training is
offered in one state by an educational
institution located in a different state.
VA defined ‘‘resident training’’ and
‘‘independent study-resident training’’
for purposes of the Selected Reserve
Educational Assistance Program in 38
CFR 21.7520(b)(22) and (12),
respectively, but generally understands
those terms as they are defined in that
section. The distinction between
courses offered exclusively by
independent study and those offered in
part by independent study is also
addressed in § 21.4267. Section
21.4267(b)(1) defines courses offered
‘‘entirely by independent study,’’ while
§ 21.4267(b)(2) defines courses offered
‘‘in part by independent study.’’ VA
intends for § 21.4250(a)(1) or (2) to
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57095
control jurisdiction unless the course is
offered exclusively through
independent study (including online
distance learning), correspondence, or a
combination of independent study
(including online distance learning) and
correspondence. If offered solely via
independent study (including online
distance learning), correspondence, or a
combination of these methods, only the
SAA for the state where the educational
institution’s main campus is located
may approve independent study
(including online distance learning),
correspondence, and courses provided
via a combination of independent study
(including online distance learning) and
correspondence, in accordance with
§ 21.4250(a)(3).
Additionally, current § 21.4250(b)(3),
titled ‘‘Failure to act,’’ states that an
SAA can respond to a school’s
application for program approval by
issuing a notice to the school that the
SAA does not intend to act on the
school’s application, and the school
may, instead, request approval from the
Secretary. Issuance of such a notice is
not a program denial but rather serves
as an attempted abdication of the SAA’s
prescribed role in 38 U.S.C. 3672(a)(1)
and for which SAAs are reimbursed
under 38 U.S.C. 3674(a)(1). Therefore,
VA proposes to remove this exception
and to require an SAA with jurisdiction
to approve or disapprove any course for
which a VA beneficiary seeks to use his
or her VA educational benefits.
However, expressly eliminating the
authority of an SAA to take no action on
an application arguably creates
ambiguity as to what an SAA should do
when a school submits an incomplete,
insufficient, or otherwise unapprovable
application, or when the SAA lacks
jurisdiction to make a determination on
the application. In those cases, the SAA
should deny the application—an
implicit authority VA views as naturally
and obviously arising as the alternative
to the explicit authority to approve an
application. While SAAs already have
this authority in VA’s view, some SAAs
have expressed a belief that they lack
the authority to issue a denial of
approval because that term is not
specifically mentioned in any regulatory
section.
To remove any potential ambiguity,
VA proposes to amend § 21.4250(b) by
removing the language currently
following the heading ‘‘State approving
agencies’’ and adding language to
explicitly list ‘‘Approval of an
Application for Approval,’’ ‘‘Denial of
an Application for Approval,’’
‘‘Suspension of Approval,’’ and
‘‘Withdrawal of Approval’’ as the four
types of decision an SAA is authorized
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to make under 38 U.S.C. 3672 and 3679.
VA does not view this change as
substantive in nature but, rather, is
making the change to clarify existing
authority based on stakeholder
feedback.
Additionally, VA proposes to amend
38 CFR 21.4259 to include the new
phrasing for the denial of an application
in proposed § 21.4250(b). VA proposes
to amend § 21.4259(a) to explicitly state
that an SAA may deny an application
when the program either fails to satisfy
any approval criterion or when the
program is outside the SAA’s
jurisdiction. VA proposes to include, in
proposed § 21.4259(a)(3) and (b), denial
of an application for approval in the list
of reasons for which an SAA must send
a notification of decision to the
educational institution and VA,
respectively. Additionally, VA proposes
to amend § 21.4259(b) to explicitly state
that the notification to VA must set forth
the reasons for such denial, suspension,
or withdrawal. Under 38 U.S.C. 3672(a)
an SAA must notify VA of its reasons
for disapproval of a previously
approved course. VA intends to
explicitly apply the requirement under
38 U.S.C. 3672(a) to every SAA action
that may negatively impact a student’s
ability to use GI Bill benefits at a
particular educational institution. The
language requiring the SAA to set forth
reasons for adverse approval action is
being moved from current
§ 21.4250(b)(2), which contains vital
notification requirements, to proposed
§ 21.4259(a)(3) and (b) because it
appears to better fit with proposed
§ 21.4259. We propose to include a
cross-reference in § 21.4250(b)(2) to
indicate that requirements for an SAA’s
notice of denial, suspension, or
withdrawal is covered in § 21.4259(a)(3)
and (b). VA further proposes to relocate
the sentence, ‘‘It is incumbent upon the
State approving agency to determine the
conduct of courses and to take
immediate appropriate action in each
case in which it is found that the
conduct of a course in any manner fails
to comply with the requirements for
approval,’’ in a revised form, from
current § 21.4259(a)(3) to proposed
§ 21.4259(a)(2) as a matter of style, not
to have any substantive effect.
Lastly, VA would remove the term
‘‘disapproval’’ from § 21.4259 and
replace it with the terms ‘‘Denial of an
Application for Approval’’ and
‘‘Withdrawal of Approval’’ as
applicable. VA interprets, as it always
had, its authority to disapprove courses
in 38 U.S.C. 3679 as including authority
to deny applications for approval,
suspend approvals, and withdraw
approvals. This non-substantive change
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would provide consistency in the
terminology used throughout proposed
§ 21.4259 and proposed § 21.4250(b).
In the interest of properly assisting
SAAs in effectively and efficiently
administering VA education benefits
approval standards and resolve
confusion expressed by some SAAs in
recent years regarding how to respond
to educational institutions seeking
approval of strictly online distance
learning training courses, it is necessary
for VA to make these regulatory
amendments. Additionally, these
amendments would help ensure course
approvals or denials are made by the
correct SAA and to provide appropriate
guidance regarding the denial of an
application for approval.
Executive Orders 12866 and 13563
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. The Office of
Information and Regulatory Affairs has
determined that this rule is not a
significant regulatory action under
Executive Order 12866. The Regulatory
Impact Analysis associated with this
rulemaking can be found as a
supporting document at
www.regulations.gov.
Regulatory Flexibility Act
The Secretary hereby certifies that
this proposed rule would not have a
significant economic impact on a
substantial number of small entities as
they are defined in the Regulatory
Flexibility Act (5 U.S.C. 601–612). VA
has determined there are no small
entities involved with the approval of
online distance learning courses or any
involvement with administering VA’s
educational benefits. Therefore,
pursuant to 5 U.S.C. 605(b), the initial
and final regulatory flexibility analysis
requirements of 5 U.S.C. 603 and 604 do
not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act
of 1995 requires, at 2 U.S.C. 1532, that
agencies prepare an assessment of
anticipated costs and benefits before
issuing any rule that may result in the
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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 proposed rule would
have no such effect on State, local, and
tribal governments, or on the private
sector.
Paperwork Reduction Act
Although this action contains
provisions constituting collections of
information at 38 CFR 21.4250 and
21.4259 under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501–3521), no
new or proposed revised collections of
information are associated with this
proposed rule. The information
collection requirements for §§ 21.4250
and 21.4259 are currently approved by
the Office of Management and Budget
(OMB) and have been assigned OMB
control number 2900–0051.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic
Assistance numbers and titles for the
programs affected by this document are
64.027, Post-9/11 Veterans Educational
Assistance; 64.028, Post-9/11 Veterans
Educational Assistance; 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, AllVolunteer 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 interests, Defense
Department, 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, and Vocational
rehabilitation.
Signing Authority
Denis McDonough, Secretary of
Veterans Affairs, approved this
document on September 14, 2021, and
authorized the undersigned to sign and
submit the document to the Office of the
Federal Register for publication
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electronically as an official document of
the Department of Veterans Affairs.
§ 21.4259 Denial of an Application for
Approval, Suspension of Approval, or
Withdrawal of Approval.
Jeffrey M. Martin,
Assistant Director, Office of Regulation Policy
& Management, Office of the Secretary,
Department of Veterans Affairs.
(a)(1) A State approving agency may
deny an application for approval of any
course, or licensing or certification test,
after reviewing the application and
determining that either:
(i) The course, or licensing or
certification test, fails to meet any of the
requirements for approval; or
(ii) The State approving agency lacks
jurisdiction under § 21.4250.
(2) With respect to any approved
course, or licensing or certification test,
it is incumbent upon the State
approving agency to determine whether
the course continues to comply with the
requirements for approval and to take
immediate appropriate action in each
case in which the evidence of record
establishes that the conduct of a course
fails to comply with the requirements
for approval. If so found, the State
approving agency:
(i) Will suspend the approval of a
course for new enrollments, or approval
of a licensing or certification test, for a
period not to exceed 60 days to allow
the institution to correct any
deficiencies; or
(ii) Will immediately withdraw the
approval of the course, or licensing or
certification test, if any of the
requirements for approval that are not
being met cannot be corrected within a
period of 60 days.
(3) Upon denying an application for
approval, or suspending or withdrawing
an approval, the State approving agency
will notify the educational institution
by certified or registered letter with a
return receipt secured (38 U.S.C. 3679).
The notification will set forth the
reasons for such denial, suspension, or
withdrawal.
(b) Each State approving agency will
immediately notify VA of each course,
or licensing or certification test, for
which it has denied an application for
approval, or suspended or withdrawn
the approval, and set forth the reasons
for such action.
(c) VA will deny an application for
approval, or suspend or withdraw the
approval, of courses, or licensing or
certification tests, under conditions
specified in paragraph (a) of this section
where it functions for the State
approving agency. See § 21.4150(c).
(d) VA will immediately notify the
respective State approving agency, if
applicable, in each case VA suspends or
withdraws approval of any school under
38 U.S.C. chapter 31.
(The Office of Management and Budget
has approved the information collection
provisions in this section under control
number 2900–0051)
For the reasons stated in the
preamble, VA proposes to amend 38
CFR part 21 as set forth below:
PART 21—VOCATIONAL
REHABILITATION AND EDUCATION
Subpart D—Administration of
Educational Assistance Programs
1. The authority citation for part 21,
subpart D continues to read as follows:
■
Authority: 10 U.S.C. 2141 note, ch. 1606;
38 U.S.C. 501(a), chs. 30, 32, 33, 34, 35, 36,
and as noted in specific sections.
2. Amend § 21.4250 by revising
paragraphs (a)(2) and (3), revising in
paragraph (b) the introductory text
following the paragraph heading,
revising paragraph (b)(2), and removing
paragraph (b)(3) to read as follows:
■
§ 21.4250 Course and licensing and
certification test approval; jurisdiction and
notices.
(a) * * *
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*
(2) If an educational institution with
a main campus in a State offers a
resident course not located in the same
State, only the State approving agency
for the State where the educational
institution’s main campus is located
may approve the course for VA training.
If the State approving agency chooses to
approve a resident course (other than a
flight course) not leading to a standard
college degree, it must also approve the
class schedules of that course.
(3) If an educational institution offers
a course solely by independent study as
defined in § 21.4267(b)(1), which
includes online distance learning, solely
by correspondence, as addressed in
§ 21.4256, or solely by a combination of
independent study and correspondence,
only the State approving agency for the
State where the educational institution’s
main campus is located may approve
the course for VA training.
*
*
*
*
*
(b) * * * State approving agencies
may make four types of decisions:
Approval of an Application for
Approval; Denial of an Application for
Approval; Suspension of Approval; and
Withdrawal of Approval.
(1) * * *
(2) Notice of denial, suspension, or
withdrawal. See § 21.4259(a)(3) and (b).
*
*
*
*
*
■ 3. Revise § 21.4259 to read as follows:
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(Authority: 38 U.S.C. 3672, 3679, 3689)
[FR Doc. 2021–21496 Filed 10–13–21; 8:45 am]
BILLING CODE 8320–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 54
[CC Docket No. 02–6; FCC 21–107; FRS
51933]
Schools and Libraries Universal
Support Mechanism
Federal Communications
Commission.
ACTION: Proposed rule.
AGENCY:
In this document, the Federal
Communications Commission propose
to update the definition of library in the
Commission’s rules to provide clarity
regarding the eligibility of Tribal
libraries and promote increased
participation of underrepresented Tribal
libraries in the E-Rate Program. The
Federal Communications Commission
seeks to address a longstanding issue
that has impeded Tribal libraries in
seeking E-Rate support.
DATES: Comments are due on or before
November 15, 2021, and reply
comments are due on or before
November 29, 2021.
ADDRESSES: All filings should refer to
CC Docket No. 02–6. Comments may be
filed by paper or by using the
Commission’s Electronic Comment
Filing System (ECFS). See Electronic
Filing of Documents in Rulemaking
Proceedings, 63 FR 24121 (1998).
D Electronic Filers: Comments and
replies may be filed electronically by
using the internet by accessing ECFS:
https://www.fcc.gov/ecfs.
D Paper Filers: Parties who choose to
file by paper must file an original and
one copy of each filing. If more than one
docket or rulemaking number appears in
the caption of this proceeding, filers
must submit two additional copies for
each additional docket or rulemaking
number.
D Filings can be sent by commercial
overnight courier or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
D Commercial overnight mail (other
than U.S. Postal Service Express Mail
and Priority Mail) must be sent to 9050
Junction Drive, Annapolis Junction, MD
20701.
D U.S. Postal Service first-class,
Express, and Priority mail must be
SUMMARY:
E:\FR\FM\14OCP1.SGM
14OCP1
]]>Agencies
[Federal Register Volume 86, Number 196 (Thursday, October 14, 2021)]
[Proposed Rules]
[Pages 57094-57097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21496]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 21
RIN 2900-AQ89
State Approving Agency Jurisdiction Rule
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend
existing regulations to clarify State Approving Agencies' (SAA)
jurisdiction for approval of online distance learning courses and
distinguish such courses from ``traditional classroom'' resident
training courses and independent study-resident training courses (also
known as ``hybrid'' courses), which are typically a combination of
online and traditional training. Additionally, VA seeks to clarify SAA
authority and jurisdiction with regard to approval and disapproval of
any course, or licensing or certification test, and to clarify the
adjudicatory outcomes available to an SAA when reviewing an approval
application for any type of course (i.e., approval, denial of an
application for approval, suspension of approval, or withdrawal of
approval).
DATES: Comments must be received by VA on or before December 13, 2021.
ADDRESSES: Comments may be submitted through www.Regulations.gov.
Comments should indicate that they are submitted in response to RIN
2900-AQ89_State Approving Agency Jurisdiction Rule. Comments received
will be available at regulations.gov for public viewing, inspection or
copies.
FOR FURTHER INFORMATION CONTACT: Cheryl Amitay, Chief, Policy and
Regulation Development Staff (225C), Education Service, Department of
Veterans Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202)
461-9800. (This is not a toll-free telephone number.)
SUPPLEMENTARY INFORMATION: Currently, for purposes of determining SAA
jurisdiction, VA's regulation divides courses into residential courses
offered in the same state as the state in which the educational
institution is located, 38 CFR 21.4250(a)(1), residential courses
[[Page 57095]]
offered in one state by an educational institution located in a
different state, Sec. 21.4250(a)(2), and courses offered by
independent study or correspondence, Sec. 21.4250(a)(3). Current Sec.
21.4250(a)(3) provides that if an educational institution offers a
program through independent study or by correspondence, only the SAA
for the State where the school's main campus is located may approve the
course for VA training. This rule, however, does not explicitly address
online distance learning courses. Some stakeholders have thus
erroneously concluded that this rule does not address the appropriate
SAA of jurisdiction for online distance learning programs. VA views
online distance learning as a subset of courses offered through
independent study and, therefore, views current Sec. 21.4250(a)(3) as
controlling which SAA has jurisdiction to approve a course offered via
online distance learning, i.e., the SAA for the State in which the
school's main campus is located has exclusive jurisdiction over the
approval of online distance learning programs.
The relationship between independent study and online distance
learning is further clarified in 38 CFR 21.4267(b). VA defines
independent study in that section for the purposes of educational
assistance programs as a program that ``consists of a prescribed
program of study with provision for interaction between the student and
[instructor] . . . through use of communications technology, including
. . . videoconferencing, computer technology (to include electronic
mail), and other electronic means'' and is ``offered without any
regularly scheduled, conventional classroom or laboratory sessions.''
38 CFR 21.4267(b)(1)(i) and (ii). The definition provided for
independent study encompasses distance learning in VA's view, which
includes courses offered online. Therefore, online distance learning is
currently classified as independent study for the purposes of VA
educational assistance programs. Consequently, when current Sec.
21.4250(a)(3) states that the SAA for the State where the educational
institution's main campus is located is the SAA of jurisdiction for the
approval of independent study program, it is likewise stating that such
SAA is the SAA of jurisdiction for the approval of online distance
learning programs.
Nevertheless, stakeholders have informed VA that the connection
between ``independent study'' in Sec. 21.4250(a)(3) and the definition
of that term in Sec. 21.4267(b)(1), which incorporates online distance
learning, is not apparent to them. Therefore, even though Sec.
21.4250(a)(3) already addresses the appropriate SAA jurisdictional
rules for independent study in VA's view, and Sec. 21.4267(b)(1)(i)
and (ii) appropriately classifies online distance learning as
independent study for the purposes of VA educational assistance, VA
proposes to amend Sec. 21.4250(a)(3) to explicitly include the term
``online distance learning.'' Such an amendment would not substantively
change the current definitions. Rather, it is proposed to curtail
confusion among some SAAs and educational institutions while
maintaining the status quo.
Furthermore, we propose to also include the qualifier ``solely'' to
the type of courses addressed in our proposed amendment to Sec.
21.4250(a)(3). The qualifier ``solely'' is appropriate and preferable
to avoid confusion regarding jurisdiction for SAA evaluation of any
training that is not solely through independent study (including online
distance learning), correspondence, or any combination of independent
study (including online distance learning) and correspondence. Unless
training is offered ``solely'' via independent study (including online
distance learning), correspondence, or any combination of independent
study (including online distance learning) and correspondence, it is
addressed in either Sec. 21.4250(a)(1), or (2). Current paragraph
(a)(1) addresses ``traditional classroom'' resident training and
independent study-resident training, also known as ``hybrid'' training,
which VA considers resident training for the purpose of VA approval
when the resident training is offered in the same state in which the
educational institution is located. Current and proposed paragraph
(a)(2) addresses residential courses offered in one state by an
educational institution located in a different state and ``hybrid''
training when the resident training is offered in one state by an
educational institution located in a different state. VA defined
``resident training'' and ``independent study-resident training'' for
purposes of the Selected Reserve Educational Assistance Program in 38
CFR 21.7520(b)(22) and (12), respectively, but generally understands
those terms as they are defined in that section. The distinction
between courses offered exclusively by independent study and those
offered in part by independent study is also addressed in Sec.
21.4267. Section 21.4267(b)(1) defines courses offered ``entirely by
independent study,'' while Sec. 21.4267(b)(2) defines courses offered
``in part by independent study.'' VA intends for Sec. 21.4250(a)(1) or
(2) to control jurisdiction unless the course is offered exclusively
through independent study (including online distance learning),
correspondence, or a combination of independent study (including online
distance learning) and correspondence. If offered solely via
independent study (including online distance learning), correspondence,
or a combination of these methods, only the SAA for the state where the
educational institution's main campus is located may approve
independent study (including online distance learning), correspondence,
and courses provided via a combination of independent study (including
online distance learning) and correspondence, in accordance with Sec.
21.4250(a)(3).
Additionally, current Sec. 21.4250(b)(3), titled ``Failure to
act,'' states that an SAA can respond to a school's application for
program approval by issuing a notice to the school that the SAA does
not intend to act on the school's application, and the school may,
instead, request approval from the Secretary. Issuance of such a notice
is not a program denial but rather serves as an attempted abdication of
the SAA's prescribed role in 38 U.S.C. 3672(a)(1) and for which SAAs
are reimbursed under 38 U.S.C. 3674(a)(1). Therefore, VA proposes to
remove this exception and to require an SAA with jurisdiction to
approve or disapprove any course for which a VA beneficiary seeks to
use his or her VA educational benefits. However, expressly eliminating
the authority of an SAA to take no action on an application arguably
creates ambiguity as to what an SAA should do when a school submits an
incomplete, insufficient, or otherwise unapprovable application, or
when the SAA lacks jurisdiction to make a determination on the
application. In those cases, the SAA should deny the application--an
implicit authority VA views as naturally and obviously arising as the
alternative to the explicit authority to approve an application. While
SAAs already have this authority in VA's view, some SAAs have expressed
a belief that they lack the authority to issue a denial of approval
because that term is not specifically mentioned in any regulatory
section.
To remove any potential ambiguity, VA proposes to amend Sec.
21.4250(b) by removing the language currently following the heading
``State approving agencies'' and adding language to explicitly list
``Approval of an Application for Approval,'' ``Denial of an Application
for Approval,'' ``Suspension of Approval,'' and ``Withdrawal of
Approval'' as the four types of decision an SAA is authorized
[[Page 57096]]
to make under 38 U.S.C. 3672 and 3679. VA does not view this change as
substantive in nature but, rather, is making the change to clarify
existing authority based on stakeholder feedback.
Additionally, VA proposes to amend 38 CFR 21.4259 to include the
new phrasing for the denial of an application in proposed Sec.
21.4250(b). VA proposes to amend Sec. 21.4259(a) to explicitly state
that an SAA may deny an application when the program either fails to
satisfy any approval criterion or when the program is outside the SAA's
jurisdiction. VA proposes to include, in proposed Sec. 21.4259(a)(3)
and (b), denial of an application for approval in the list of reasons
for which an SAA must send a notification of decision to the
educational institution and VA, respectively. Additionally, VA proposes
to amend Sec. 21.4259(b) to explicitly state that the notification to
VA must set forth the reasons for such denial, suspension, or
withdrawal. Under 38 U.S.C. 3672(a) an SAA must notify VA of its
reasons for disapproval of a previously approved course. VA intends to
explicitly apply the requirement under 38 U.S.C. 3672(a) to every SAA
action that may negatively impact a student's ability to use GI Bill
benefits at a particular educational institution. The language
requiring the SAA to set forth reasons for adverse approval action is
being moved from current Sec. 21.4250(b)(2), which contains vital
notification requirements, to proposed Sec. 21.4259(a)(3) and (b)
because it appears to better fit with proposed Sec. 21.4259. We
propose to include a cross-reference in Sec. 21.4250(b)(2) to indicate
that requirements for an SAA's notice of denial, suspension, or
withdrawal is covered in Sec. 21.4259(a)(3) and (b). VA further
proposes to relocate the sentence, ``It is incumbent upon the State
approving agency to determine the conduct of courses and to take
immediate appropriate action in each case in which it is found that the
conduct of a course in any manner fails to comply with the requirements
for approval,'' in a revised form, from current Sec. 21.4259(a)(3) to
proposed Sec. 21.4259(a)(2) as a matter of style, not to have any
substantive effect.
Lastly, VA would remove the term ``disapproval'' from Sec. 21.4259
and replace it with the terms ``Denial of an Application for Approval''
and ``Withdrawal of Approval'' as applicable. VA interprets, as it
always had, its authority to disapprove courses in 38 U.S.C. 3679 as
including authority to deny applications for approval, suspend
approvals, and withdraw approvals. This non-substantive change would
provide consistency in the terminology used throughout proposed Sec.
21.4259 and proposed Sec. 21.4250(b).
In the interest of properly assisting SAAs in effectively and
efficiently administering VA education benefits approval standards and
resolve confusion expressed by some SAAs in recent years regarding how
to respond to educational institutions seeking approval of strictly
online distance learning training courses, it is necessary for VA to
make these regulatory amendments. Additionally, these amendments would
help ensure course approvals or denials are made by the correct SAA and
to provide appropriate guidance regarding the denial of an application
for approval.
Executive Orders 12866 and 13563
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.
The Office of Information and Regulatory Affairs has determined that
this rule is not a significant regulatory action under Executive Order
12866. The Regulatory Impact Analysis associated with this rulemaking
can be found as a supporting document at www.regulations.gov.
Regulatory Flexibility Act
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act (5
U.S.C. 601-612). VA has determined there are no small entities involved
with the approval of online distance learning courses or any
involvement with administering VA's educational benefits. Therefore,
pursuant to 5 U.S.C. 605(b), the initial and final regulatory
flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.
Unfunded Mandates
The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C.
1532, that agencies prepare an assessment of anticipated costs and
benefits before issuing any rule that may result in the expenditure by
State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more (adjusted annually for
inflation) in any one year. This proposed rule would have no such
effect on State, local, and tribal governments, or on the private
sector.
Paperwork Reduction Act
Although this action contains provisions constituting collections
of information at 38 CFR 21.4250 and 21.4259 under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501-3521), no new or proposed revised
collections of information are associated with this proposed rule. The
information collection requirements for Sec. Sec. 21.4250 and 21.4259
are currently approved by the Office of Management and Budget (OMB) and
have been assigned OMB control number 2900-0051.
Catalog of Federal Domestic Assistance
The Catalog of Federal Domestic Assistance numbers and titles for
the programs affected by this document are 64.027, Post-9/11 Veterans
Educational Assistance; 64.028, Post-9/11 Veterans Educational
Assistance; 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 interests, Defense
Department, 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, and Vocational
rehabilitation.
Signing Authority
Denis McDonough, Secretary of Veterans Affairs, approved this
document on September 14, 2021, and authorized the undersigned to sign
and submit the document to the Office of the Federal Register for
publication
[[Page 57097]]
electronically as an official document of the Department of Veterans
Affairs.
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, VA proposes to amend 38 CFR
part 21 as set forth below:
PART 21--VOCATIONAL REHABILITATION AND EDUCATION
Subpart D--Administration of Educational Assistance Programs
0
1. The authority citation for part 21, subpart D continues to read as
follows:
Authority: 10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), chs.
30, 32, 33, 34, 35, 36, and as noted in specific sections.
0
2. Amend Sec. 21.4250 by revising paragraphs (a)(2) and (3), revising
in paragraph (b) the introductory text following the paragraph heading,
revising paragraph (b)(2), and removing paragraph (b)(3) to read as
follows:
Sec. 21.4250 Course and licensing and certification test approval;
jurisdiction and notices.
(a) * * *
* * * * *
(2) If an educational institution with a main campus in a State
offers a resident course not located in the same State, only the State
approving agency for the State where the educational institution's main
campus is located may approve the course for VA training. If the State
approving agency chooses to approve a resident course (other than a
flight course) not leading to a standard college degree, it must also
approve the class schedules of that course.
(3) If an educational institution offers a course solely by
independent study as defined in Sec. 21.4267(b)(1), which includes
online distance learning, solely by correspondence, as addressed in
Sec. 21.4256, or solely by a combination of independent study and
correspondence, only the State approving agency for the State where the
educational institution's main campus is located may approve the course
for VA training.
* * * * *
(b) * * * State approving agencies may make four types of
decisions: Approval of an Application for Approval; Denial of an
Application for Approval; Suspension of Approval; and Withdrawal of
Approval.
(1) * * *
(2) Notice of denial, suspension, or withdrawal. See Sec.
21.4259(a)(3) and (b).
* * * * *
0
3. Revise Sec. 21.4259 to read as follows:
Sec. 21.4259 Denial of an Application for Approval, Suspension of
Approval, or Withdrawal of Approval.
(a)(1) A State approving agency may deny an application for
approval of any course, or licensing or certification test, after
reviewing the application and determining that either:
(i) The course, or licensing or certification test, fails to meet
any of the requirements for approval; or
(ii) The State approving agency lacks jurisdiction under Sec.
21.4250.
(2) With respect to any approved course, or licensing or
certification test, it is incumbent upon the State approving agency to
determine whether the course continues to comply with the requirements
for approval and to take immediate appropriate action in each case in
which the evidence of record establishes that the conduct of a course
fails to comply with the requirements for approval. If so found, the
State approving agency:
(i) Will suspend the approval of a course for new enrollments, or
approval of a licensing or certification test, for a period not to
exceed 60 days to allow the institution to correct any deficiencies; or
(ii) Will immediately withdraw the approval of the course, or
licensing or certification test, if any of the requirements for
approval that are not being met cannot be corrected within a period of
60 days.
(3) Upon denying an application for approval, or suspending or
withdrawing an approval, the State approving agency will notify the
educational institution by certified or registered letter with a return
receipt secured (38 U.S.C. 3679). The notification will set forth the
reasons for such denial, suspension, or withdrawal.
(b) Each State approving agency will immediately notify VA of each
course, or licensing or certification test, for which it has denied an
application for approval, or suspended or withdrawn the approval, and
set forth the reasons for such action.
(c) VA will deny an application for approval, or suspend or
withdraw the approval, of courses, or licensing or certification tests,
under conditions specified in paragraph (a) of this section where it
functions for the State approving agency. See Sec. 21.4150(c).
(d) VA will immediately notify the respective State approving
agency, if applicable, in each case VA suspends or withdraws approval
of any school under 38 U.S.C. chapter 31.
(The Office of Management and Budget has approved the information
collection provisions in this section under control number 2900-0051)
(Authority: 38 U.S.C. 3672, 3679, 3689)
[FR Doc. 2021-21496 Filed 10-13-21; 8:45 am]
BILLING CODE 8320-01-P
