Post-9/11 Improvements, Fry Scholarship, and Interval Payments Amendments

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AQ88

Post-9/11 Improvements, Fry Scholarship, and Interval Payments Amendments

AGENCY:

Department of Veterans Affairs.

ACTION:

Proposed rule.

SUMMARY:

The Department of Veterans Affairs (VA) is proposing to amend the Veteran Readiness and Employment and Education regulations to implement the provisions of the Post-9/11 Veterans Educational Assistance Improvements Act of 2010, which modified the manner in which payments of educational assistance are determined and expanded the types of programs students may pursue under the Post-9/11 GI Bill. VA is also proposing to implement section 1002 of the Supplemental Appropriations Act, 2009, which authorized the “Marine Gunnery Sergeant John David Fry Scholarship,” and a select number of provisions of the Harry W. Colmery Veterans Educational Assistance Act of 2017. This proposed rule would include the rules necessary to implement provisions of other legislative enactments that affect the provision of educational assistance to veterans and their eligible dependents and beneficiaries.

DATES:

Comments must be received on or before July 24, 2023.

ADDRESSES:

Comments must be submitted through

www.regulations.gov.

Except as provided below, comments received before the close of the comment period will be available at

www.regulations.gov

for public viewing, inspection, or copying, including any personally identifiable or confidential business information that is included in a comment. We post the comments received before the close of the comment period on the following website as soon as possible after they have been received:

http://www.regulations.gov.

VA will not post on

Regulations.gov

public comments that make threats to individuals or institutions or suggest that the commenter will take actions to harm the individual. VA encourages individuals not to submit duplicative comments. We will post acceptable comments from multiple unique commenters even if the content is identical or nearly identical to other comments. Any public comment received after the comment period's closing date is considered late and will not be considered in the final rulemaking.

FOR FURTHER INFORMATION CONTACT:

Thomas Alphonso, Assistant Director, Policy and Procedures, Education Service, Department of Veterans Affairs, Veterans Benefits Administration (22), 810 Vermont Avenue NW, Washington, DC 20420. Telephone: (202) 461-9800. (This is not a toll-free telephone number.)

SUPPLEMENTARY INFORMATION:

I. Post-9/11 GI Bill Improvements

a. General

On January 4, 2011, the President signed into law the Post-9/11 Veterans Educational Assistance Improvements Act of 2010, Public Law 111-377, amending mainly chapter 33 of title 38, United States Code (U.S.C.); however, a few amendments in the law have an impact on other VA educational assistance programs and title 38 chapters.

b. Effective Dates of Amendments Contained in Public Law 111-377

In most instances, the changes made by Public Law 111-377 had an effective date of August 1, 2011, although some became effective on the date of enactment, some became effective after an interval of time after the signing of the Act (

e.g.,

effective 60 days after the date of the enactment of this Act,

see

section 103(c)), some became effective on October 1, 2011, and some became effective on a retroactive basis. In this proposed rule, we propose to clarify the effective dates of each provision in existing and new VA regulations. For instance, existing 38 CFR 21.9505, 21.9560, 21.9570, 21.9590, 21.9600, 21.9625, 21.9635, 21.9640, 21.9675, 21.9680, 21.9690 and 21.9720 would be amended to include language explaining that the rules contained in those existing sections describe the standards in effect before August 1, 2011, unless otherwise noted, whereas §§ 21.9506, 21.9561, 21.9571, 21.9591, 21.9601, 21.9626, 21.9636, 21.9641, 21.9667, 21.9668, 21.9676, 21.9681, 21.9691 and 21.9721 would be added with rules comparable to rules in existing provisions, but applicable after July 31, 2011, unless otherwise noted.

c. Section 101—Modification of Entitlement to Educational Assistance

Section 101(a)(1) of Public Law 111-377 amended 38 U.S.C. 3301(1) by adding a paragraph that expands the definition of active duty to include full-time service in the National Guard for certain purposes. We propose to implement section 101(a)(1) in proposed §§ 21.9505 and 21.9506. Under the expanded definition of active duty, these National Guard members are eligible for Post-9/11 GI Bill benefits. Section 101(d)(1) prohibits VA from paying benefits because of the amendment to section 3301(1) before October 1, 2011, but provides for an effective date of August 1, 2009, for the section 101(a)(1) amendment. Therefore, although a National Guard member may be entitled to Post-9/11 GI Bill benefits for the period between August 1, 2009, and September 30, 2011, we could not pay these benefits until October 1, 2011. Presently, under current 38 CFR 21.9625(a)(1), if an award is the first award of educational assistance for the program of education the eligible person is pursuing under the Post-9/11 GI Bill, the commencing date of the award of educational assistance is the latest of: (a) August 1, 2009, the earliest possible beginning date as provided in § 21.9625; (b) the date the educational institution certifies; (c) one year before the date of claim as determined by § 21.1029(b); (d) the effective date of the approval of the course, or (e) one year before the date VA receives the approval notice.

For example, if a National Guard member applied for chapter 33 benefits on October 12, 2011, and it is determined that the member was eligible for educational assistance beginning August 1, 2009, under current § 21.9625(a)(1)(B) benefits could not be paid for any period earlier than October 12, 2010,

i.e.,

one year prior to the date of application. Although the National Guard member was eligible for benefits from August 1, 2009, because this member did not apply until October 12, 2011, under our current regulations the furthest back that VA could pay benefits is October 12, 2010. This is problematic because National Guard members would not have applied for benefits until after January 4, 2011, when they first became eligible for benefits under the change in law. However, if National Guard members applied for benefits on January 4, 2011, because of current law they would only be paid from January 4, 2010, the latest of the specified beginning dates, instead of August 1, 2009, the earliest possible beginning date, thereby losing out on retroactive benefits. To remedy this problem, we propose to add § 21.9626(n) to provide special rules for determining the beginning dates of awards for National Guard members made eligible by Public Law 111-377. With these changes VA could pay retroactive benefits to newly eligible National Guard members beyond the one-year limit required by current regulations.

Additionally, while the statute is silent as to a time limit for retroactive claims, for the reasons discussed below,

VA is proposing to adopt a time limit for newly eligible National Guard members to file a claim for retroactive benefits. Our concern is that without a limited window for claims for retroactive payment, we will continue to see claims far into the future, which could result in increased unforeseen burdens and costs for VA. Therefore, in § 21.9626(n), VA proposes to specify that the special beginning-date rules are only available to a newly eligible National Guard member if he or she applied for retroactive benefits by September 30, 2012 (

i.e.,

one year from the first day on which VA was statutorily allowed to make payments to the National Guard members for the expanded benefits). After the expiration of the one-year period, the beginning-date rules under § 21.9625 for determining a beginning date would apply.

Under 38 U.S.C. 5110(g) and 5113(a), benefits based on a new, liberalizing statute generally may be paid for periods no earlier than one year before the date of application therefor. The purpose of that one-year retroactive period is to provide claimants a reasonable grace period in which to learn of the new law and file their claims for the newly authorized benefit.

See McCay

v.

Brown,

9 Vet. App. 183, 187-88 (1996). As noted above, however, imposing a one-year retroactive limit to benefits authorized by section 101(a)(1) of Public Law 111-377 would defeat the clear purpose of section 101(a)(1) and (d)(1) to authorize payments for periods extending back to August 1, 2009, more than a year before the statute's enactment. We believe proposed § 21.9626(n) appropriately gives effect to all applicable statutes by providing a one-year grace period for applying for the new benefits and ensuring that those who applied within that period potentially may receive the full extent of retroactive benefits authorized by section 101(a)(1) and (d)(1).

Section 101(a)(2) of Public Law 111-377 amended 38 U.S.C. 3301(2)(A) by adding “One Station Unit Training” to the definition of “entry level and skill training” for members of the Army (effective January 4, 2011), and section 101(a)(3) amended 38 U.S.C. 3301(2)(E) by adding “Skill Training (or so-called “A” School)” to the definition of “entry level and skill training” for members of the Coast Guard (effective January 4, 2011, and applicable to individuals entering service on or after that date). We propose to add “One Station Unit Training” for Army members and “Skill Training (or so-called “A” School)” for Coast Guard members to the definition of “entry level and skill training” in 38 CFR 21.9505 (definitions applicable prior to August 1, 2011, to the administration of the chapter 33 program). We propose to note that the inclusion of “One Station Unit Training” for Army members and “Skill Training (or so-called “A” School)” for Coast Guard members in the definition of “entry level and skill training” applies effective January 4, 2011.

Section 101(b) of Public Law 111-377 amended 38 U.S.C. 3311(c)(4) (effective January 4, 2011, with respect to discharges or releases that occur on or after that date) to clarify that a discharge or release from active duty for a preexisting, non-service-connected condition, hardship, or a condition that interfered with duty must be honorable for the individual to establish eligibility for educational assistance. We propose to include this honorable discharge requirement in § 21.9520(a)(5). Additionally, in § 21.9520(a) we propose to amend the chapter 33 eligibility criteria to clarify the need for an honorable discharge with respect to these types of discharges on or after January 4, 2011.

Section 101(c) of Public Law 111-377 amended 38 U.S.C. 3311(d)(2) to prohibit service pursuant to an agreement in connection with attendance at the Coast Guard Academy from being considered active duty for purposes of establishing entitlement to educational assistance under chapter 33 (effective January 4, 2011, with respect to individuals entering into agreements on or after that date). We propose to implement this change in the definition of “active duty” in 38 CFR 21.9505 and 21.9506, specifically in paragraph (3)(ii)(B)(

2

) of the definition of “active duty” in both sections. Although section 101(c) referred to 14 U.S.C. 182 as the statute governing Coast Guard Academy service agreements, Congress later replaced section 182 with 14 U.S.C. 1925. We propose to refer to the current statute.

d. Section 102—Amounts of Assistance for Programs of Education Leading to a Degree Pursued at Public, Non-Public, and Foreign Institutions of Higher Learning (IHL)

Section 102(a) of Public Law 111-377 amended 38 U.S.C. 3313(c) to specify the amount of assistance to be paid for pursuit of a program of education leading to a degree on more than a half-time basis at a public, non-public, or foreign IHL. The amended law provides that, effective August 1, 2011, the amount of educational assistance for payment of tuition and fees for an individual's pursuit of an approved program of education leading to a degree on more than a half-time basis at a public IHL is the actual net cost for in-State tuition and fees assessed by the institution after the application of any waiver of, or reduction in, tuition and fees and any scholarship, or other Federal, State, institutional, or employer-based aid or assistance (other than loans and any funds provided under section 401(b) of the Higher Education Act of 1965) that is provided directly to the institution and specifically designated for the sole purpose of defraying tuition and fees. For pursuit of an approved program of education leading to a degree on more than a half-time basis at a non-public or foreign IHL, effective August 1, 2011, the amount of educational assistance for tuition and fees is the lesser of (i) the actual net cost for tuition and fees assessed by the institution after application of the same waivers, reductions, scholarships, and assistance described above and (ii) $17,500 (the cap) for the academic year beginning on August 1, 2011, or the cap, as adjusted annually, for any subsequent academic year beginning on August 1 (the amount of the cap will be increased for each subsequent academic year by the percentage increase equal to the most recent percentage increase determined under 38 U.S.C. 3015(h) for the Montgomery GI Bill-Active Duty program (chapter 30)).

We would implement these changes effective August 1, 2011, in a new section, specifically 38 CFR 21.9641(b)(1) and (b)(2). The lump sum payment of educational assistance for tuition and fees is issued directly to the IHL for the entire term, quarter, or semester that the individual is pursuing the program of education, as provided in 38 CFR 21.9640(b)(1)(i). Rather than defining terms such as “Net cost” and “Non-public institution” in § 21.9641, we propose to define those terms in § 21.9506, because they would also be applicable to other provisions that are effective after July 31, 2011.

In § 21.9506, we propose to define “net cost” based on how it is described in Public Law 111-377, section 102, which specifies “net cost” as tuition and fees “after the application of any . . . [w]aiver of, or reduction in, tuition and fees” and any “[s]cholarship, or other Federal, State, institutional, or employer-based aid or assistance (other than loans and any funds provided under section 401(b) of the Higher Education Act of 1965).” We propose to also define “non-public institution” in § 21.9506, because we use this term often throughout the proposed regulations in this rulemaking to explain the different set of provisions

which apply to private institutions. We propose to define “Non-public institution” as a proprietary institution, as that term is defined in 38 CFR 21.4200(z), which refers to an educational institution that is not a public educational institution, that is located in a State, and that is legally authorized to offer a program of education in the State where the educational institution is physically located. Additionally, because section 3313(c), as amended by section 102(a) of Public Law 111-377, requires VA to pay the net cost for tuition and fees rather than established charges, we would use the phrase “tuition and fees” throughout the proposed rules.

Section 102(b) of Public Law 111-377 amended 38 U.S.C. 3313(c)(1)(B) effective August 1, 2011, to provide for rates of monthly housing stipends (or the “monthly housing allowance”) under the Post-9/11 GI Bill that are proportional to an individual's rate of pursuit of a program of education, as long as the rate of pursuit is more than half-time. For individuals pursuing a program of education leading to a degree (or program of education at a non-college degree institution, as provided by the changes in section 105(b)(3) of Pub. L. 111-377) on more than a half-time basis, under the amended law, the monthly housing stipend must be determined by multiplying the applicable amount of the monthly 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 IHL at which the individual is enrolled) by the lesser of 1.0 or the number of course hours borne by the individual in pursuit of the program of education, divided by the minimum number of course hours required for full-time pursuit of the program of education, rounded to the nearest tenth. For example, if a student is enrolled in 18 course hours and the minimum number of course hours required for full-time pursuit of the program of education is 12 course hours, the applicable multiplier would be 1.0. If the student is enrolled in 9 course hours under the same full-time criteria in this example, the applicable multiplier would be 0.80 (0.75 rounded to the nearest tenth). We note that section 3313(c)(1)(B)(i)(I) was further amended by Public Law 115-48, section 107, so that the monthly housing allowance calculation would use the ZIP code area in which is located the campus of the IHL where the individual physically participates in a majority of classes rather than the ZIP code area in which is located the IHL at which the individual is enrolled. In § 21.9641(c)(1)(ii), we refer to “ZIP code” or “location code.”

Section 5003 of Public Law 110-252 authorized VA to pay a monthly housing allowance equal to the monthly amount of the Basic Allowance for Housing (BAH) 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 of higher education at which the individual is enrolled. Public Law 110-252 did not address payment of the monthly housing allowance in areas for which there is no ZIP code. For areas without a ZIP code and U.S. Territories, the Department of Defense (DoD) pays an Overseas Housing Allowance (OHA) based on a location code. Therefore, for those individuals attending residence courses at locations that are not identified with a ZIP code, but that DoD identifies with a locality code, as provided in proposed § 21.9641(c)(1)(ii), we would pay the monthly housing stipend at the same rate as the amount of the basic allowance for housing payable under 37 U.S.C. 403 for a member with dependents in pay grade E-5 residing within the locality code identified by DoD. This payment change would be effective on August 1, 2011, which is the date that VA changed its interpretation of the statute.

We note that, under section 105(b) of Public Law 111-377, as discussed below, for individuals pursuing a certificate or other non-college degree at an educational institution other than an IHL on more than a half-time basis, the monthly housing stipends are calculated similar to the monthly housing stipends for individuals pursuing a program of education leading to a degree, discussed above, and are limited to the same proportionate percentage applicable to the monthly amounts payable to an individual under section 3313(c)(2) through (7), which is based on the aggregate amount of active duty service completed.

For individuals pursuing residence training at a foreign IHL on more than a half-time basis, under section 3313(c)(1)(B)(ii), the monthly housing stipend must be determined by multiplying the national average of the monthly amount of the basic allowance for housing payable under 37 U.S.C. 403 for a member with dependents in pay grade E-5 by the lesser of 1.0 or the number of course hours borne by the individual in pursuit of the program of education, divided by the minimum number of course hours required for full-time pursuit of the program of education, rounded to the nearest tenth.

For individuals pursuing training solely via distance learning on more than a half-time basis, under 38 U.S.C. 3313(c)(1)(B)(iii), effective October 1, 2011 (

see

section 102(c)(2) of Pub. L. 111-377), the monthly housing stipend is 50 percent of the rate paid to individuals pursuing residence training at a foreign IHL on more than a half-time basis. However, for individuals pursuing hybrid training that combines distance learning with residence training, effective October 1, 2011, the monthly housing stipend would be the residence training housing stipend without regard to the percentage of the training that is conducted through distance learning as compared to residence training (

i.e.,

as long as he/she is enrolled in at least one residence training class, the individual will receive a monthly housing allowance as if all classes in the term are residence training classes. The statute does not specifically define how VA should pay monthly housing for hybrid training. Because hybrid training contains at least some element of residential training, VA proposes to consider hybrid training to be in-residence for the purposes of determining the appropriate monthly housing stipend rate. This is necessary because 38 U.S.C. 3313(c)(1)(B)(iii) merely distinguishes between training that is pursued solely through distance learning and training that is not pursued solely through distance learning. As a result of this requirement, an individual pursuing training through a hybrid course is not pursuing training solely through distance learning and, therefore, is not subject to a housing stipend restricted to 50% of the housing stipend payable to an individual pursuing a program of education at a foreign IHL on more than a half-time basis.

Section 3313(c)(1)(B) requires payment of the monthly housing stipend in a certain amount equivalent to the DoD amount specified in 37 U.S.C. 403. Thus, when the DoD rate decreases under section 403(b)(3), the VA rate should similarly decrease. However, when specifying the amount of the monthly housing stipend, section 3313(c)(1)(B) refers to the monthly amount of the basic allowance for housing payable under section 403 without specifying the particular paragraph in section 403 on which to rely. While section 403(b)(3), in particular, specifies the amount of the monthly housing stipend DoD pays servicemembers, and other provisions in

section 403(b) generally pertain to DoD's establishment of housing rates, section 403(b)(6) establishes an exception to those general rates applicable to specific servicemembers. The lack of specificity in section 3313(c)(1)(B) with respect to a particular paragraph in section 403 on which to rely when setting the VA monthly housing rate reflects some ambiguity that we believe is best resolved by applying “rate protection” to chapter 33 just as DoD “grandfathers” the basic allowance for housing for servicemembers who retain uninterrupted eligibility under section 403(b)(6). Our longstanding interpretation of section 3313(c)(1)(B) has been that all provisions of section 403 are potentially applicable in determining the chapter 33 monthly housing stipend for VA claimants. And we view section 403(b)(6) as a component of the housing-rate structure incorporated by reference in section 3313(c)(1)(B). Our interpretation of section 3313(c)(1)(B) to apply rate protection would result in the best outcome for veterans because it would allow them to retain a higher rate of the monthly housing stipend. Furthermore, we believe it would be unfair to penalize a veteran student by lowering the monthly housing stipend as a result of a change that was not initiated by the student and was beyond his or her control. Thus, we propose to implement rate protection in § 21.9641(c)(8) for chapter 33 beneficiaries if they previously received the monthly housing stipend for the same type of training at the same educational institution and if they have not had more than a six-month break in training at the same educational institution.

We propose to implement these new monthly housing stipend payment rates in new § 21.9641(c) because most changes are effective on August 1, 2011. In § 21.9641(c), we propose to specify the monthly housing allowance payable and the respective effective dates of payments for individuals pursuing programs of education at domestic and foreign IHLs and non-college degree institutions and for individuals pursuing on-the-job or apprenticeship training. However, given that the change to the housing amount for distance learning did not take effect until October 1, 2011, we propose to specify the different effective date for pursuit of training solely via distance learning in paragraph (c)(4), by indicating that, after September 30, 2011, an individual who is not on active duty and who is pursuing a program of education solely through distance learning at a rate of pursuit of greater than 50 percent, can receive a monthly housing allowance for each month (or prorated amount for a partial month) of training during each term, quarter, or semester, equal to 50 percent of the housing stipend payable to an individual pursuing a program of education at a foreign IHL on more than a half-time basis.

e. Section 103—Amounts of Assistance for Programs of Education Leading to a Degree Pursued on Active Duty

Section 103 of Public Law 111-377 amended 38 U.S.C. 3313(e) to provide that, effective on or after March 5, 2011, the amount of educational assistance payable for pursuit of a program of education leading to a degree on more than a half-time basis at a public IHL by an individual while the individual is serving on active duty in the Armed Forces is the lesser of: (1) the actual net cost for in-State tuition and fees assessed by the institution after the application of any waiver of, or reduction in, tuition and fees, and any scholarship, or other Federal, State, institutional, or employer-based aid or assistance (other than loans and any funds provided under section 401(b) of the Higher Education Act of 1965) that is provided directly to the institution and specifically designated for the sole purpose of defraying tuition and fees, as stated in 38 U.S.C. 3313(e)(2)(A)(i), or (2) that portion of the established charges not covered by military tuition assistance under 10 U.S.C. 2007(a) or (b) for which the individual has informed VA that he or she wishes to receive payment (tuition assistance Top-Up), as stated in 38 U.S.C. 3313(e)(2)(A)(iii). For pursuit of a program of education leading to a degree on more than a half-time basis at a non-public or foreign IHL by an individual while the individual is serving on active duty, the amount of educational assistance, as provided in 38 U.S.C. 3313(e)(2)(A)(ii) and (iii), is the lesser of: (1) the actual net cost for tuition and fees assessed by the institution after application of the same waivers, reductions, scholarships, and assistance described above, (2) $17,500 (the cap) for the academic year beginning on August 1, 2011, or the cap, as adjusted annually, for any subsequent academic year beginning on August 1 (the amount of the cap will be increased for each subsequent academic year by the percentage increase equal to the most recent percentage increase determined under 38 U.S.C. 3015(h) for the Montgomery GI Bill-Active Duty program (chapter 30)), or (3) tuition assistance Top-Up. These rates specified in amended section 3313(e) are the same as the rates for similarly situated individuals not serving on active duty. Although tuition assistance Top-Up is not taken into account when determining the rates for individuals not serving on active duty, consideration of tuition assistance Top-Up for individuals serving on active duty does not change the calculation. Because Federal aid (which includes military tuition assistance) is first deducted in the calculation of the net cost of tuition and fees, the amount of tuition assistance Top-Up (the institution's charges not covered by military tuition assistance) will always be the same as the institution's actual net cost for tuition and fees, so the lesser of these two amounts is the same amount (actual net cost). Therefore, we propose to state in § 21.9641(b)(1) and (2) that we would pay the same rate (either actual net cost or a capped rate) to individuals who are serving on active duty and individuals who are not serving on active duty for pursuit of programs of education leading to a degree at public or non-public or foreign IHLs.

Section 103(a)(2)(E) of Public Law 111-377 added section 3313(e)(2)(C), which requires consideration of an individual Servicemember's length of time in service on active duty when determining the amount of educational assistance payable to an individual serving on active duty for pursuit of a program of education at a public, non-public, or foreign IHL. Under section 3313(e)(2)(C), the amounts payable are limited to a proportionate percentage based on length of time in service, as specified in section 3313(c)(2) through (7), of the assistance that would otherwise be payable if a Servicemember had completed an aggregate of 36 months of active duty. For example, if a Servicemember served an aggregate of at least 12 months, but less than 18 months, the applicable percentage to be applied, as specified in section 3313(c)(5), is 60 percent.

In addition, section 103(a)(2)(E) adds section 3313(e)(2)(B), which provides for a lump sum for the first month of each quarter, semester, or term, as applicable, of the program of education pursued by an individual on active duty for books, supplies, equipment, and other educational costs in an amount equal to $1,000, multiplied by the fraction of an academic year the quarter, semester or term represents and the applicable percentage as specified in section 3313(c)(2) through (7), depending on the individual's length of service.

We propose to implement the new provisions relating to payment of educational assistance for programs pursued while an individual is on active duty in new § 21.9640(d) and

§ 21.9641(a), (b), (c)(6) and (d) to make clear the particular effective dates that apply to individuals pursuing programs while on active duty. In § 21.9640(d)(1), we propose to specify the amounts payable for individuals on active duty for programs of education beginning on August 1, 2009, and ending on March 4, 2011, before the section 103 changes took effect. Consistent with current § 21.9640(d), we propose to provide that the amount payable will be the lowest of (1) the established charges that similarly circumstanced nonveterans would be required to pay who are enrolled in the individual's program of education; (2) that portion of the established charges not covered by military tuition assistance under 10 U.S.C. 2007(a) or (b) for which the individual has informed VA that he or she wishes to receive payment; (3) an amount that is the lesser amount of (1) or (2) above, divided by the number of days in the individual's quarter, semester, or term to determine the individual's daily rate, which is then multiplied by the individual's remaining months and days of entitlement to educational assistance.

We propose to implement the section 103 requirements, requiring, beginning March 5, 2011, changes in the amount of educational assistance payable for pursuit of programs of education leading to a degree on more than a half-time basis at public, non-public and foreign IHLs in § 21.9640(d)(2). We propose to specify that the amounts payable for individuals on active duty pursuing a program of education leading to a degree on a more than half-time basis beginning after March 4, 2011, but before August 1, 2011, would be based on the net cost for in-State tuition and fees. We propose to implement section 103(a)(2)(E) relating to the book stipend for the pursuit of an educational program while on active duty specifically in § 21.9641(d)(1)(i)(B).

In § 21.9641(a)(1), we propose to provide the percentages of the maximum amounts payable for the pursuit of approved program of education under chapter 33, which is based on the aggregate active duty service after September 10, 2001, for training that begins after July 31, 2011. For clarity, we would include a column with the number of days of the aggregate active duty service upon which the applicable percentages of the maximum payment amounts are based. We propose to also add this column with the number of days to § 21.9640(a)(1). In addition, we propose to clarify footnote 3 in § 21.9640(a)(1) concerning the requirement in 38 U.S.C. 3311(e) that we pay at the 70 percent level if an individual meets the service requirements at both the 80 and 70 percent level and add a reference to section 3311(e), the authority for this rule. We propose to include the same footnote in § 21.9641(a)(1).

In § 21.9641(b)(1), we propose to state that for individuals, whether on active duty or not on active duty, pursuing an approved program of education leading to a degree at a public institution of higher learning, effective after July 31, 2011, the lump sum payment of educational assistance is the applicable percentage of the net cost for in-state tuition and fees assessed by the institution after the application of any waiver of, or reduction in, tuition and fees and any scholarship, or other Federal, State, institutional, or employer-based aid or assistance (other than loans and any funds provided under section 401(b) of the Higher Education Act of 1965) that is provided directly to the institution and specifically designated for the sole purpose of defraying tuition and fees.

In 38 CFR 21.9641(b)(2), we propose to state that for individuals, whether on active duty or not on active duty, pursuing an approved program of education leading to a degree at a non-public or foreign institution of higher learning, effective after July 31, 2011, the lump sum payment of educational assistance is the lesser of the actual net cost for tuition and fees assessed by the institution after application of the same waivers and reductions described above; $17,500 (the cap) for the academic year beginning on August 1, 2011; or the cap, as adjusted annually, for any subsequent academic year beginning on August 1 (the amount of the cap will be increased for each subsequent academic year by the percentage increase equal to the most recent percentage increase determined under 38 U.S.C. 3015(h) for the Montgomery GI Bill-Active Duty program (chapter 30)). Under 38 U.S.C. 3313(h), VA is required to pay the amount of educational assistance for tuition and fees directly to the educational institution. We propose to implement this requirement in § 21.9641(b)(1) and (2) where we state that the lump sum payment of educational assistance for tuition and fees is issued directly to the IHL for the entire term, quarter, or semester that the individual is pursuing the program of education.

In § 21.9641(c)(6), we propose to state that no monthly housing allowance is payable for programs of education pursued for vocational flight training at institutions other than IHLs, pursued exclusively by correspondence, pursued on a half-time basis or less, and pursued while on active duty. This would reflect that the statutory provisions applicable to those programs, including 38 U.S.C. 3313(e) with regard to programs pursued while on active duty, do not authorize a monthly housing allowance.

f. Section 104—Educational Assistance for Programs of Education Pursued on a Half-Time Basis or Less

Section 104 of Public Law 111-377 amended 38 U.S.C. 3313(f), effective August 1, 2011, to add a new provision for determining the amounts of educational assistance payable to individuals enrolled in training on a half-time basis or less and to provide that the new provision is applicable to all individuals, whether for educational pursuit while on active duty, pursuit of programs of education leading to degrees, or pursuit of programs of education other than programs leading to degrees (non-degree programs). The new provision provides that the amount of assistance payable is the lesser of: (1) the actual net cost for in-State tuition and fees assessed by the institution after the application of any waiver of, or reduction in, tuition and fees and any scholarship, or other Federal, State, institutional, or employer-based aid or assistance (other than loans and any funds provided under section 401(b) of the Higher Education Act of 1965) that is provided directly to the institution and specifically designated for the sole purpose of defraying tuition and fees; or (2) the amount of such assistance after application of the proportionate-reduction provisions found in section 3313(c)(2) through (7).

We propose to implement section 104 in § 21.9641(b)(1) and (2), which would be applicable beginning August 1, 2011. Because section 104 requires payment for pursuit of programs of education leading to degrees and non-degree programs on a half-time basis or less in the same amount we are required to pay pursuant to section 102 for pursuit of programs of education leading to a degree on more than a half-time basis at a public, non-public, or foreign IHL, § 21.9641(b)(1) and (2) would be applicable to payments to individuals training in pursuit of programs of education leading to degress at less than half time as well as individuals training at more than half time. Payments to individuals training in pursuit of non-degree programs at less than half time are also covered in § 21.9641(b)(1) and (2), as explained below discussing the section 105 amendments.

With regard to active duty members, although the net cost for in-State tuition and fees would be payable beginning after March 4, 2011, to active duty

members pursuing a program of education leading to a degree on a more than half-time basis pursuant to section 103, we would not pay active duty members pursuing a program of education on a half-time basis or less and active duty members pursuing a non-degree program this new net cost rate until August 1, 2011. Until August 1, 2011, we would continue to pay active duty members pursuing a program of education on a half-time basis or less and active duty members pursuing a non-degree program the rate we paid all active duty members prior to the change in law on August 1, 2011, when section 104 requires payment of the new rate for active duty members pursuing a program of education on a half-time basis or less and active duty members pursuing a non-degree program. We propose to specify the continuance of the rate we paid all active duty members for active duty members pursuing a program of education leading to a degree on a half-time basis or less for the period from March 5, 2011, through August 1, 2011, in § 21.9640(d)(3). We propose to specify the continuance of the rate we paid all active duty members for active duty members pursuing a non-degree program for the period from March 5, 2011 through August 1, 2011, in § 21.9640(d)(4).

g. Section 105—Educational Assistance for Programs of Education Other Than Programs of Education Leading to a Degree

Section 105 of Public Law 111-377 amended section 3313(b) to remove language that limited the provision of educational assistance under the Post-9/11 GI Bill to programs of education pursued at IHLs. This change allows pursuit of non-college degree programs “approved for purposes of chapter 30.”

See

38 U.S.C. 3313(b). Section 105 also added a new 38 U.S.C. 3313(g) to allow payment of educational assistance for approved programs offered at educational institutions other than IHLs. In §§ 21.9715, 21.9735, 21.9740, 21.9750, and 21.9765, we propose to amend the existing regulations to authorize pursuit of non-college degree programs at non-IHLs and remove language that limits pursuit of non-college degree programs to only those offered by an IHL. In these sections, we propose to remove the term “institution of higher learning” and add, in its place, the term “educational institution.”

Prior to the passage of Public Law 111-377, students pursuing non-college degree programs at IHLs (on a greater-than-half-time basis) were entitled to payment of the established charges for tuition and fees (not to exceed the maximum amount of the established charges for in-State students at public institutions), a monthly housing stipend, and a books and supplies stipend. Individuals who were entitled to the 100-percent level of such payments were also eligible to participate in the Yellow Ribbon program if the schools they attended participated in this program. With regard to the payment of educational assistance, prior to the passage of Public Law 111-377, there was no distinction between an individual pursuing a degree program at an IHL and an individual pursuing a non-college degree program at an IHL.

Neither section 3313(c) nor section 3313(g) addresses the level of payment of educational assistance for pursuit of a non-college degree program at an IHL on a greater than half-time basis. In general, we view the purpose of the amendments made by Public Law 111-377 as expanding the universe of programs for which educational assistance may be paid under the Post-9/11 GI Bill (as it did by permitting payment for on-the-job and flight training programs at non-IHL schools, for which payment was previously not permitted). Therefore, based on our interpretation that Public Law 111-377 is meant to expand the universe of programs available, we construe section 105 in a way that does not stop previously authorized payment of educational assistance to individuals who may have already made substantial investments, in terms of time and effort, in pursuit of non-college degrees at IHLs. Also, and again based on our view of Public Law 111-377 as expanding the availability of educational assistance, we construe section 105 in a manner that does not limit a student's choice of the type of school he or she may wish to attend. Therefore, we conclude that VA retains the authority to pay educational assistance for the pursuit of non-college degree programs at IHLs in the same way we had been paying educational assistance for the pursuit of non-college degree programs at IHLs prior to the passage of Public Law 111-377. Because we had been paying educational assistance for the pursuit of non-college degree programs at IHLs in the same manner as we had been paying educational assistance for the pursuit of degree programs at IHLs prior to the passage of Public Law 111-377, we propose to continue to pay individuals pursuing a non-college degree program at an IHL in the same manner as we pay individuals pursuing a degree program at an IHL. Therefore, § 21.9641(b)(1) and (b)(2), specifying the amounts of tuition and fees payable beginning August 1, 2011, would be applicable to payments for pursuit of all programs of education, whether degree or non-college degree.

New 38 U.S.C. 3313(g)(3)(A), as added by section 105 of Public Law 111-377, provides, effective October 1, 2011, that the amount of educational assistance to be paid to an individual enrolled in a certificate or other non-college degree program at an educational institution other than an IHL on more than a half-time basis is the lesser of the actual net cost of in-State tuition and fees (less any waiver of, or reduction in, tuition and fees and any amount provided directly to the institution on behalf of an eligible student for the sole purpose of defraying tuition and fees), or $17,500 (the cap) for the academic year beginning on August 1, 2011 (or the cap as adjusted annually for any subsequent academic year beginning on August 1). We propose to implement this payment requirement in § 21.9641(b)(3) by providing that VA will make a lump sum payment directly to the institution in an amount of educational assistance payable for an individual enrolled at more than half-time, in a certificate or non-college degree program at an educational institution other than an IHL.

New section 3313(g)(3)(A) also provides, effective October 1, 2011, that individuals enrolled in a certificate or other non-college degree program at an educational institution on more than a half-time basis are eligible for a monthly housing stipend and a monthly stipend for books, supplies, and equipment. The amount of the monthly housing stipend is calculated in the same fashion as it is for individuals pursuing programs of education leading to a degree at IHLs. We propose to implement this payment requirement in § 21.9641(c)(3). The amount of the monthly stipend for books, supplies, and equipment is $83 each month, prorated for a partial month. We propose to implement this payment requirement in § 21.9641(d)(2). This amount for books, supplies, and equipment is further limited to a proportionate percentage applicable to the monthly amounts payable to an individual under section 3313(c)(2) through (7), which is based on the aggregate amount of active duty service completed. We proposed to implement this payment requirement in generally applicable § 21.9641(a), which provides the applicable percentage of the maximum amounts payable.

Section 3313(g)(3)(B), as added by Public Law 111-377, section 105(b), provides for a monthly housing stipend and a stipend for books, supplies and

equipment for individuals pursuing a full-time program of apprenticeship or other on-the-job training. Paragraph (B) requires, effective October 1, 2011, the amount of the monthly housing stipend to be 100 percent of the applicable amount of the monthly basic allowance for housing payable under 37 U.S.C. 403 for each month of the first six-month period of pursuit of the program, 80 percent of the applicable amount of the monthly basic allowance for housing payable under 37 U.S.C. 403 for each month of the second six-month period of pursuit, 60 percent of the applicable amount of the monthly basic allowance for housing payable under 37 U.S.C. 403 for each month of the third six-month period, 40 percent of the applicable amount of the monthly basic allowance for housing payable under 37 U.S.C. 403 for each month of the fourth six-month period, and 20 percent of the applicable amount of the monthly basic allowance for housing payable under 37 U.S.C. 403 for each month of pursuit of the program for any subsequent months of training. Paragraph (B) requires, effective October 1, 2011, the amount of the monthly stipend for books, supplies, and equipment to be $83 for each month of training, or a prorated amount for a partial month of training.

The amounts of the monthly housing stipend and stipend for books, supplies, and equipment for individuals entitled to educational assistance by reason of section 3311(b)(3) through (8) must be further limited to the same proportionate percentage applicable to the monthly amounts payable to an individual under section 3313(c)(2) through (7), which is based on the aggregate amount of active duty service completed. The amounts of these monthly stipends must be reduced even further if a individual fails to complete 120 hours of training in any month. Pursuant to new 38 U.S.C. 3313(g)(3)(B)(iv), the reduced amount must be determined by multiplying the otherwise payable amount for that month by the number of hours worked rounded to the nearest 8 hours, and then by dividing that amount by 120, and lastly rounding that final amount to the nearest hundred. For example, with regard to the monthly housing stipend, if a student completes 96 hours of training for a month in which he or she is eligible to otherwise receive a $1,000 monthly housing stipend, the student must receive $800 (which is $1,000 multiplied by 96 hours, and divided by 120). We propose to implement the monthly housing allowance payment requirement for individuals pursuing a full-time program of apprenticeship or other on-the-job training in § 21.9641(c)(5), and the book stipend payment requirement in § 21.9641(d)(2).

New 38 U.S.C. 3313(g) allows payment of educational assistance for approved programs other than programs leading to a degree offered at educational institutions other than IHLs, which would include apprenticeships and on-the-job training programs. Therefore, we propose to provide in newly added § 21.9626(c), the beginning dates of an award or increased award of educational assistance for approved programs, including apprenticeships and on-the-job training programs, but not for a licensing or certification test, a national test for admission, or a national test for credit.

Section 3313(g)(3)(C) and (D), as added by Public Law 111-377, section 105(b), provides, effective October 1, 2011, that the amount of educational assistance to be paid to an individual enrolled in a program of flight training or of training pursued exclusively by correspondence, respectively, at either an IHL or an institution other than an IHL on more than a half-time basis is the lesser of the actual net cost of tuition (in-State tuition for flight training) and fees (less any waiver of, or reduction in, tuition and fees and any amount provided directly to the institution on behalf of an eligible student for the sole purpose of defraying tuition and fees) or $10,000 (the cap) for flight training, or $8,500 (the cap) for training pursued exclusively by correspondence, for the academic year beginning August 1, 2011 (or the respective cap as adjusted annually for any subsequent academic year beginning on August 1). This amount is further limited to the same proportionate percentage applicable to the monthly amounts payable to an individual under section 3313(c)(2) through (7), which is based on the aggregate amount of active duty service completed.

We propose to specify in new § 21.9641(b)(5) that, effective after September 30, 2011, a lump sum of this amount of assistance would be paid directly to the institution on behalf of the individual enrolled in a flight training program at any institution, regardless of whether it is an IHL. We propose to require that an individual complete a certification for training before VA would issue payment for the flight training because section 3313(g)(4)(C)(ii) adds this requirement. We propose to specify in new § 21.9641(b)(6) that, effective after September 30, 2011, assistance would be paid quarterly on a pro rata basis for lessons completed directly to the educational institution on behalf of the individual enrolled in a program of training pursued exclusively by correspondence at any institution, regardless of whether it is an IHL, since this frequency of payment is required by section 3313(g)(4)(D).

Section 3313(g)(5) requires that we charge entitlement for individuals pursuing non-college degee programs at institutions other than IHLs based on the amount paid as a percentage of the otherwise applicable annual rate. The rules regarding the charge to entitlement for individuals pursuing certificate or other non-degree programs at educational institutions would be located in § 21.9561(b). In § 21.9561(b)(1), we propose to provide that when VA pays tuition and fees to the non-college degree institution, the individual would be charged entitlement equal to the numbers of months and the corresponding fraction measured in days, determined by dividing the total amount paid by the amount equal to 1/12th of the applicable amount for the academic year, which is $17,500 (the cap) for the academic year beginning on August 1, 2011 (or the cap as adjusted annually for any subsequent academic year beginning on August 1). In § 21.9561(b)(2), we propose to provide that for any period VA does not pay net costs to the non-college degree institution, but pays a monthly housing allowance or an increase (“kicker”) to the individual, that individual will be charged a percentage of a day equal to the individual's rate of pursuit for each day of the certified enrollment period that the individual received a monthly housing allowance or an increase (“kicker”). In § 21.9561(b)(3), we propose to provide that for any period VA does not pay net costs to the non-college degree institution, or a monthly housing allowance or an increase (“kicker”) to the individual, but makes a lump sum payment to the individual for books, supplies, equipment, and other educational costs, VA will make an entitlement charge of 1 day for every $41.67 paid, with any remaining amount rounded to the nearest amount evenly divisible by $41.67.

Although section 3313(g)(5) sets out the entitlement charges for individuals pursuing non-college degree programs at institutions other than IHLs, it omits the entitlement charges for apprenticeships and on-the-job training, flight training, and correspondence training. In the absence of guidance on how to charge entitlement for individuals pursuing flight and correspondence training, we propose to apply the same rules provided in section 3313(g)(5) because tuition is similarly charged for individuals pursuing certificate or other

non-degree programs at institutions other than IHLs and individuals pursuing flight and correspondence training. Specifically, in § 21.9561(d) and § 21.9561(e), we propose to provide that an individual will be charged entitlement equal to the number of months, and fraction thereof measured in days, determined by dividing the total amount paid by 1/12th of the amount applicable in the academic year in which payment is made for flight training and correspondence training occurring after July 31, 2011.

However, because we do not pay tuition and fees for individuals pursuing apprenticeships and on-the-job training under chapter 33, we cannot apply the entitlement charges rules in section 3313(g)(5) to individuals pursuing apprenticeships and on-the-job training under chapter 33. Instead, we propose to charge entitlement for training assistance allowance under 38 U.S.C. 3687(e) for individuals pursuing apprenticeships and on-the-job training under chapter 33. We are aware that the applicable statutes might be understood to preclude charging entitlement under section 3687(e) for individuals pursuing apprenticeships and on-the-job training under chapter 33. Section 3323(a)(1) makes 38 U.S.C. 3034(a)(1) applicable to the provision of educational assistance under chapter 33, and 38 U.S.C. 3034(a)(1) makes most of the provisions of chapter 36 applicable to the provision of educational assistance under chapter 30, with an explicit exception of section 3687. It arguably follows from section 3034 that we may not apply section 3687 to the provision of educational assistance under chapter 33. However, VA believes that the relevant statutes are best understood to permit application of section 3687(e) to the provision of educational assistance under chapter 33. Congress has consistently either specified the methodology for computing charges against entitlement or expressly stated that there will be no charge to entitlement (

see, e.g.,

38 U.S.C. 3314(d), 3318(e)). Its failure to do either section 3323 suggests that there is a gap in the statute VA must fill. We believe that the best interpretation of the statute is that there should be a charge against entitlement. Section 3312(a) of title 38, U.S.C., makes clear that educational assistance is limited to 36 months, and, absent an express provision that benefits are not charged against entitlement, providing benefits without any charge to entitlement would appear to be inconsistent with the overall statutory scheme. We believe it is more likely Congress intended that there be a charge against entitlement, but failed to specify the methodology. Therefore, it is reasonable to apply the entitlement charges rules in section 3687(e) to individuals pursuing apprenticeships and on-the-job training under chapter 33.

According to section 3687(e), an individual is charged entitlement for each month an individual is paid a training assistance allowance at a rate equal to the ratio of the training assistance allowance for the month to the monthly educational assistance allowance payable for full-time enrollment in an educational institution. For the first six months of training, we propose to pay a monthly training assistance allowance to individuals pursuing apprenticeships and on-the-job training under 38 U.S.C. 3313(g)(3)(B) at the same rate as the monthly amount of the basic allowance for housing payable under 37 U.S.C. 403, which is the same as the rate of the monthly educational assistance allowance payable for full-time enrollment in an educational institution; for the second six months of training, we propose to pay 80% of that amount; for the third six months of training we pay 60% of that amount; for the fourth six months of training, we propose to pay 40% of that amount; and for any month after the first 24 months of training, we propose to pay 20% of that amount. Accordingly, for the first six months of training, the ratio of the training assistance allowance to the educational assistance allowances would be one month, and for subsequent periods of training, the ratio would be the applicable portion of a month. We propose to provide these rules for entitlement charges for apprenticeships and on-the-job training occurring after July 31, 2011, in new § 21.9561(c).

In § 21.9641(e), we propose to provide notice that VA will publish the maximum amount of tuition and fees payable each academic year in the “Notices” section of the

Federal Register

and on the GI Bill website. We propose to add this notice provision to provide the public with efficient notification of the changes to the maximum amount of tuition and fees.

We propose to use the term “educational institution” in §§ 21.9601, 21.9626, 21.9636 and 21.9681. We propose to also define in § 21.9505 and § 21.9506 the term “educational institution” as having the same meaning as the term “institution of higher learning,” as that term is defined in § 21.4200(h). Prior to August 1, 2011, we referred to this type of institution solely as an institution of higher learning whereas now we would use that term and “educational institution” interchangeably.

Prior to the passage of Public Law 111-377, payment of Post-9/11 GI Bill benefits for individuals to pursue training at non-college degree programs was not authorized, although payment of educational benefits may have been authorized under other benefit programs, such as the Montgomery GI Bill program. Therefore, in 38 CFR 21.9590(d), we decided to pay for non-college degree programs on behalf of individuals who had relinquished another benefit to receive Post-9/11 GI Bill benefits, at the rate payable under the relinquished benefit. Because Public Law 111-377 authorized payment of training pursued at non-college degree programs after July 31, 2011, a provision such as § 21.9590(d) is not necessary for training pursued after July 31, 2011. Therefore, we propose to omit a provision, similar to § 21.9590(d), permitting payment for pursuit of non-college degrees at other than IHLs on behalf of individuals who had relinquished another benefit to receive Post 9/11 GI Bill benefits, in new § 21.9591, which covers approval of programs of education for training that begins on or after August 1, 2011, similar to § 21.9590 for approval of programs for training that occurs prior to August 1, 2011.

h. Section 106—Determination of Monthly Housing Stipend Payments for Academic Years

Section 106 of Public Law 111-377 added 38 U.S.C. 3313(i), which requires, effective August 1, 2011, that any monthly housing stipend payable under section 3313 during the academic year beginning on August 1 of each calendar year must be determined using rates for basic allowances for housing payable under 37 U.S.C. 403, in effect as of January 1 of such calendar year. We propose to add this requirement in § 21.9641(c)(7).

VA has been paying the monthly housing stipend to individuals attending residence courses in locations not identified with a ZIP code as if they were attending foreign institutions. However, this has resulted in inequities in payment. For the reasons we provided in the discussion of section 102(b) above, we propose to state in § 21.9641(c)(1)(ii) that, on or after August 1, 2012, we will use the ZIP code or locality code, whichever may be applicable, for all, or a majority, of the area of the institution in which the individual is enrolled when determining the monthly housing

allowance payable for residence training at an IHL located in a state.

i. Section 107—Availability of Assistance for Licensure and Certification Tests

Section 107 of Public Law 111-377 amended 38 U.S.C. 3315, effective August 1, 2011, by removing the one-time limit on the use of Post-9/11 GI Bill benefits to pay for a single licensure or certification test. Under current section 3315, an individual can receive payment for an unlimited number of licensure and certification tests, however, the amount payable cannot exceed the least of: $2,000; the amount charged for the test; or the amount of educational assistance corresponding to the remaining entitlement at the time of payment for the test. We propose to provide, in § 21.9667, for reimbursement for any number of licensing and certification tests taken after July 31, 2011, limited to the least of the licensing or certification test fee, $2,000, or the amount equal to the amount of entitlement to educational assistance available at the time of payment for the test.

In proposed § 21.9626(a)(2), we propose to include the same requirements included in § 21.9625—that VA will award educational assistance for the cost of a licensing or certification test only when the eligible individual takes such test on or after August 1, 2009, while the test is approved under 38 U.S.C. chapter 36, while the individual is eligible for such educational assistance, and if the claim for reimbursement of the cost of the test is received within 1 year of the test. We would include these same requirements in § 21.9626 because they continue to be applicable after July 31, 2011, but, because they are applicable beginning on or after August 1, 2009, we propose to include this beginning date requirement in § 21.9626(a)(2).

Section 107 also removed the prohibition on charging entitlement for payment for a test. It requires that the corresponding charge to entitlement for payment for each licensing or certification test taken on or after August 1, 2011, be made at the rate of one month (rounded to the nearest whole month) for each $1,460 paid for the academic year beginning on August 1, 2011, as increased under 38 U.S.C. 3015(h) each academic year beginning on each subsequent August 1. To the extent the calculation results in a rate of less than one-half month, we interpret the statute as requiring an entitlement charge of one month,

i.e.,

a test payment always results in an entitlement charge under section 3315(c).

In § 21.9561(f)(1) and (f)(2)(i), we propose to explain that we would charge entitlement for each payment of educational assistance made for an approved licensing or certification test taken on or after August 1, 2011, and prior to August 1, 2018, by dividing the total amount of the payment by $1,460 (or as increased under 38 U.S.C. 3015(h) for any subsequent academic year beginning on August 1) for the academic year beginning August 1, 2011, or the maximum amount of $2,000 for a licensing or certification test, and rounding the result to the nearest whole month. The charge to entitlement would be at least one month. For example, if an individual receives educational assistance during the academic year beginning August 1, 2011, for taking an approved licensure or certification test that costs $500, VA proposes to make a charge against the individual's entitlement of 1 month ($500/$1460 = 0.34; because there is a minimum charge of one month, this would be rounded to one month).

In 2017, section 108 of Public Law 115-48 further changed the requirements for calculating entitlement charges for licensure and certification tests under the Post 9/11 GI Bill for tests taken on or after August 1, 2018. Section 3315, as amended by section 108 of Public Law 115-48, requires that, for tests taken on or after August 1, 2018, entitlement charges be pro-rated based on the actual amount of the fee charged for the test relative to the rate that is payable for one month. In order to pro-rate the fee charged relative to the rate payable for one month, VA will count each month as 30 days. We propose to calculate the pro-rated charge to entitlement for tests taken on or after August 1, 2018, in § 21.9561(f)(2)(ii) by dividing the total amount of the payment by $1,460, as increased under 38 U.S.C. 3015(h) for the applicable academic years subsequent to August 1, 2011, beginning on August 1, multiplying by 30 and rounding the result to the nearest whole day, instead of to the nearest whole month. The minimum charge to entitlement would be at least one day, since it is the minimum part of a month.

j.

Section 108—National Tests

Section 108 of Public Law 111-377 added 38 U.S.C. 3315A to permit individuals to use Post-9/11 GI Bill benefits to pay a limited amount for national tests for admission to IHLs and national tests providing an opportunity for course credit at IHLs taken on or after August 1, 2011. Section 3315A imposes a corresponding charge to entitlement for each test, similar to the charge to entitlement imposed with respect to payment for licensing and certification tests. We propose to implement the requirements of this section in, among other regulations, §§ 21.9626(a)(3), 21.9668, and 21.9681.

In proposed § 21.9626(a)(3), we propose to provide that VA will award educational assistance for the cost of a national test for admission or a national test for credit for an individual who takes such test after July 31, 2011, under the same conditions under which we pay for the cost of licensing and certification tests. We propose to reword one of those conditions to more clearly state that VA will pay for the cost of a test only if a claim for reimbursement is submitted within 1 year of taking the test. In § 21.9668, we propose to specify that the reimbursement an individual could receive for taking a national test for admission or a national test for credit is the lesser of (a) the fee charged for the test or (b) the amount equal to the number of whole months of remaining entitlement available to the individual. We propose to also specify that of the fee charged for the test, we will not reimburse for any optional costs that are not required for the testing process. In § 21.9681(b)(1), we propose to provide that the certification requirements by educational institutions for release of payments do not apply to national tests for admission and national tests for credit.

Because section 108 of Public Law 111-377 amended 38 U.S.C. 3315A to add two additional test types, we propose to add new paragraphs (mm) and (nn) to § 21.4200, which defines terms that apply to subpart P of 38 CFR part 21, containing the regulations for the Post 9/11 GI Bill program, to define the terms “national test for admission” and “national test for credit.” As stated in proposed § 21.9626(a)(3), these tests must be specifically approved for the GI Bill under the provisions in 38 U.S.C. chapter 36, which is implemented by provisions currently found in § 21.4268. VA has a list of tests that have applied and been approved for reimbursement, and we would reference that list in proposed § 21.4200(mm) and (nn). The list is maintained and can be accessed by visiting the website:

http://inquiry.vba.va.gov/weamspub/buildSearchNE.do.

If the test has not yet been approved or is not contained on this list, the organization administering the test must contact VA about having it approved.

In § 21.9561(f), we propose to charge entitlement for each payment of educational assistance made for an approved national test taken on or after August 1, 2011, and prior to August 1,

2018, in the same manner as we charge entitlement for licensure and certification tests, except there would not be a $2,000 limit per cost of test as there would be with respect to licensure and certification tests.

We propose to add new § 21.9591 to explain the types of programs or courses an individual can pursue on or after August 1, 2011, to be eligible for educational assistance under the Post 9/11 GI Bill. We propose to include in § 21.9591(a)(4) national tests for admission and national tests for credit as types of programs an individual can pursue on or after August 1, 2011, and receive educational assistance under the Post 9/11 GI Bill. We propose to state in § 21.9591(b)(4) that VA would approve a program of education under chapter 33, except for a program consisting of a licensing or certification test designed to help the individual maintain employment in a vocation or profession, or for a program consisting of a national test for admission or a national test for credit, only if the individual is not already qualified for the objective of the program.

In new § 21.9601(b), we propose to explain that overcharges or excessive fees by organizations or entities offering national tests may result in disapproval of tests.

As provided in current § 21.9710, an individual's educational assistance is dependent upon his or her pursuit of a program of education, except for an individual pursuing tuition assistance Top-Up or reimbursement for taking an approved licensing or certification test. We propose to revise § 21.9710 to clarify that payment of educational assistance is not contingent upon an individual's pursuit when reimbursement is for a national test. This exception is in addition to the current exceptions of an individual's pursuit of tuition assistance Top-Up and reimbursement for taking an approved licensing or certification test. Furthermore, in proposed § 21.9721(a), we propose to provide that VA does not require organizations or entities offering national tests for admission, national tests for credit, or licensing or certification tests to certify that the individual took the test.

k. Section 109—Continuation of Entitlement to Additional Educational Assistance for Critical Skills or Specialty

Section 109 of Public Law 111-377 added 38 U.S.C. 3316(c) and (d). Section 3316(c) allows individuals entitled to receive an increased amount of educational assistance for critical skills or specialties (“recruitment or retention kickers” or “kickers”), pursuant to 38 U.S.C. 3015(d) or 10 U.S.C. 16131(i), from the Department of Defense (DOD) or the Department of Homeland Security (DHS) under the MGIB or the Montgomery GI Bill—Selected Reserve to remain entitled to that increased assistance if the individual has elected to receive Post-9/11 GI Bill benefits in lieu of either the MGIB or the Montgomery GI Bill—Selected Reserve. Under section 3316(c), payments of these kickers are now made on a monthly basis, as opposed to a lump sum for the entire term, quarter, or semester. Under section 3316(c), the amount payable on a monthly basis must be determined by multiplying the monthly amount of the kicker by the individual's rate of pursuit, rounded to the nearest multiple of 10.

In § 21.9650, which provides for continued entitlement to the increased “kicker” amount for critical skills or specialties if the individual has elected to receive Post-9/11 GI Bill benefits in lieu of either the MGIB or the Montgomery GI Bill—Selected Reserve, we propose to amend § 21.9650(a)(2) to add that the chapter 33 kicker amount paid to the individual as part of the monthly housing allowance if the individual is entitled to a monthly housing allowance for the period from August 1, 2009, to July 31, 2011, will be paid under § 21.9640(b), and for the period after July 31, 2011, will be paid under § 21.9641(c). Additionally, we propose to amend § 21.9650(b)(2) and (c)(2) to include separate paragraphs applicable to payment for training during different time periods, and amend § 21.9650(b)(3) and (c)(3) to indicate that, after July 31, 2011, payment of the kicker would be made on a monthly basis.

Additionally, we note that section 109 does not require changes to the calculation of payment amounts and the timing of payments for the continued payment of kickers under section 3021 (supplemental educational assistance). The only change we would make to § 21.9655 would be that any increase that is payable for supplemental educational assistance will only be paid to the individual as an increase to the monthly housing allowance if the individual is entitled to receive a monthly housing allowance under § 21.9640(b)(1)(ii), (b)(2)(ii), or § 21.9641(c) for that term, quarter, or semester. We are removing the authority citation to 38 U.S.C. 3316 that appears after paragraph (a) of § 21.9655 and including it at the end of the section. We also note that 38 U.S.C. 3316(d), as added by section 109(b)(1) of Public Law 111-377, directs DOD or DHS, as applicable, to pay for kickers from funds deposited in the DOD Education Benefits Fund or from appropriations available to the DHS, as appropriate. Because this change is an administrative issue for resolution exclusively by the DOD and the DHS, we would not make any changes to VA regulations to implement section 109(b)(1).

l. Section 110—Transfer of Unused Education Benefits

Section 110 of Public Law 111-377 amended 38 U.S.C. 3319, effective August 1, 2011, to permit certain members of the U.S. Public Health Service and the National Oceanic and Atmospheric Administration, in addition to members of the Armed Forces, to transfer Post-9/11 GI Bill benefits to their dependents following completion of minimum duty requirements. It also clarified that the purpose of permitting this transfer is to promote recruitment and retention, and that the individual Secretary concerned (

e.g.,

Secretary of the Army, Secretary of the Navy, Secretary of Health and Human Services, and others) may exercise the authority to allow such transfer when authorized by the Secretary of Defense in the national security interests of the United States.

We propose to amend the introductory text of § 21.9570 to indicate that the regulation would apply for training that occurs before August 1, 2011, and add § 21.9571, to apply to training that occurs after July 31, 2011, which would mostly replicate § 21.9570, but we propose to change “Armed Forces” and “active duty service” to “Uniformed Services” and “service as a member of the Uniformed Services,” respectively, each place they appear, and remove “military” each time it appears with reference to “department” to permit individuals who train with the U.S. Public Health Service and the National Oceanic and Atmospheric Administration after July 31, 2011, to transfer Post-9/11 GI Bill benefits to their dependents. Additionally, in § 21.9571(g)(1), we propose to clarify that any modification of a transfer of entitlement designation, including modification of a beginning date under § 21.9571(d)(1)(iii), will only be effective on or after the date that the modification was submitted, which would be consistent with § 21.9571(g)(2).

m. Section 111—Bar to Duplication of Certain Educational Assistance Benefits

Section 111 of Public Law 111-377 amended 38 U.S.C. 3322 by adding four new paragraphs to bar concurrent receipt of various types of VA educational assistance, effective August

1, 2011. Section 111(a) added section 3322(e) to require an election between educational assistance under 38 U.S.C. 3311(b)(9) (Fry Scholarship program) and under 38 U.S.C. 3319 (Post-9/11 GI Bill benefits based on transferred entitlement). Section 111(b) added section 3322(f) to restrict VA from paying dependency and indemnity compensation or pension based on the death of a parent to an eligible child, or increased rates or additional amounts of compensation, dependency and indemnity compensation, or pension based on the child, on the one hand, and educational assistance under the Fry Scholarship on the other hand. Section 111(c) added section 3322(g) to require a spouse or child to elect to receive transferred Post-9/11 GI Bill benefits under 38 U.S.C. 3319 from only one individual at a time if entitled to receive transferred benefits from more than one individual for the same time period.

Section 111(d) added section 3322(h) to require an individual to elect one program under which to establish eligibility for educational assistance even if the individual may be able to establish eligibility under 38 U.S.C. chapters 30, 32, or 33 and 10 U.S.C. chapters 1606 or 1607 based on a single period of active-duty service. New section 3322(h) also requires a child of a member of the Armed Forces who dies in the line of duty on or after September 11, 2001, while serving on active duty, to elect to establish eligibility for educational assistance under either the Fry Scholarship or under chapter 35 even if the child is eligible for educational assistance based on the parent's death under both programs. New paragraphs (e), (g), and (h) of section 3322 allow VA to determine the form and manner of the required elections.

To implement these requirements, we propose to modify § 21.9690 to indicate that the prohibitions on non-duplication of benefits in § 21.9690 are effective during the period beginning August 1, 2009, and ending July 31, 2011. We propose to also add provisions in proposed § 21.9691, in which we would provide that, after July 31, 2011, an eligible individual is barred from receiving educational assistance under 38 U.S.C. chapter 33 concurrently with various types of educational assistance,

see

proposed § 21.9691(a) (see discussion of section 202 below regarding this provision); that the payment of educational assistance is prohibited to the eligible individual for courses that are paid in full or in part by the Armed Forces while the individual is on active duty service, or for a course or courses that are paid under the Government Employees Training Act,

see

proposed § 21.9691(b); that an individual entitled to educational assistance under both the Fry Scholarship and transferred benefits may not receive educational assistance under both provisions concurrently,

see

proposed § 21.9691(c); that an individual may not receive transferred benefits from more than one individual concurrently,

see

proposed § 21.9691(d); that an individual's receipt of educational assistance under the Fry Scholarship is a bar to subsequent payment of both (i) dependency and indemnity compensation or death pension to the individual once they attain the age of 18 years, or (ii) an increased rate or additional amount of compensation, dependency and indemnity compensation, or pension paid on account of the individual,

see

proposed § 21.9691(e); that an individual who is eligible under 38 U.S.C. chapter 30, 32, or 33 and 10 U.S.C. chapter 1606 or 1607 must elect under which authority such service is to be credited; and that a child of a member of the Armed Forces who, after September 10, 2001, dies in the line of duty while serving on active duty, who is eligible for educational assistance under the Fry Scholarship or 38 U.S.C. chapter 35 based on the parent's death may not receive benefits under both provisions,

see

proposed § 21.9691(h).

We propose to implement section 3322(h) by stating in § 21.9691(h)(1)(ii) that an individual may not request that portions of a single period of service be used to establish eligibility under more than one benefit program. In other words, we propose to prohibit an individual from splitting a single period of service into separate periods and use the separate periods to establish eligibility for different benefit programs. In § 21.9691(h)(1)(i), we propose to require an individual whose period of active duty service meets the requirements to establish eligibility under 38 U.S.C. chapter 30, 32, or 33 and 10 U.S.C. chapter 1606 or 1607 to make an irrevocable election of which benefit program to use to establish eligibility and toward which benefit program to credit service. In § 21.9691(h)(2), we propose to require that a child eligible for educational assistance under § 21.9520(d) and 38 U.S.C. chapter 35 based on the parent's death make an irrevocable election in writing specifying which benefit the child wishes to receive. Although Congress does not explicitly state that an election must be irrevocable, VA finds that the statutory language supports this result. In contrast to section 3322(e) and (g), paragraph (h) does not merely bar “concurrent receipt” but instead bars “duplication of eligibility” under more than one program, and it provides that the individual “shall elect . . . under which authority [their] service is to be credited” or “shall elect . . . under which chapter to receive . . . assistance.” VA finds that requiring an election to be irrevocable best meets the requirements concerning the bar on duplication of benefits.

With regard to Post 9/11 GI Bill benefits and duplication of payments, Congress added prohibitions using replicated statutory language from statutes governing payment for other benefit programs (

see

38 U.S.C. 3033). Congress did not expressly provide any bar to duplication of benefits for the same period of enrollment in the event an individual can establish eligibility for chapter 33 benefits under multiple provisions, such as based on the death of more than one parent, or based on the beneficiary's own active-duty service and a parent's service (either with transferred benefits or Fry Scholarship benefits). However, the statutory structure is most logically construed to preclude concurrent awards of chapter 33 benefits to the same individual. Section 3311(b)(1) through (10) of title 38, U.S.C., provides 10 circumstances under which a person may become an “eligible individual” entitled to chapter 33 benefits, 8 of which pertain to the length of the individual's active service, while the other 2 categories involve the Fry Scholarship and Purple Heart recipients. Once an individual attains eligibility under any of those categories, they are entitled to payments under 38 U.S.C. 3313 for a program of education, with the amount of payment varying depending upon the category under which they attained eligibility. The determination that a person is an “eligible individual” under section 3311 is a threshold determination needed to establish eligibility for payments under section 3313. The fact that a person could satisfy two or more of the eligibility categories in section 3311(b)(1) through (10) does not entitle them to more than one award of benefits under section 3313. Indeed, most individuals who qualify under one of the length-of-service categories in section 3311(b)(1) through (8) would also satisfy one or more of the lesser length-of-service standards in those paragraphs. Where an individual meets two or more of the eligibility categories in section 3311(b)(1) through (10), VA proposes to credit them with the

eligibility category resulting in the highest level of payment, but would not grant them multiple awards of chapter 33 benefits. Similarly, if an individual would qualify under one category for two or more independent reasons, as in the case of an individual who could qualify for the Fry Scholarship based on the death of more than one parent, VA proposes to find that they satisfy the threshold eligibility requirement, but would not grant multiple awards of chapter 33 benefits. Granting concurrent receipt of benefit payments under multiple eligibility provisions of the Post-9/11 GI Bill would result in a windfall of benefit payments not contemplated by the statutory scheme.

Accordingly, we propose to add paragraphs (f) and (g) to § 21.9691 to expressly prohibit concurrent receipt of multiple Post 9/11 GI Bill benefits awards simply because an individual may meet more than one of the eligibility requirements in section 3311(b)(1) through (10). Section 21.9691(f) would prohibit an individual from establishing eligibility for the Fry Scholarship under § 21.9520(d) based on the deaths of more than one parent. Section 21.9691(g) would prohibit an individual from concurrently establishing eligibility for Post 9/11 GI Bill benefits based on his or her own service and someone else's service (

e.g.,

with transferred benefits or Fry Scholarship).

n.

Section 201—Extension of Delimiting Dates for Use of Educational Assistance by Primary Caregivers of Seriously Injured Veterans and Members of the Armed Forces

Section 201 of Public Law 111-377 amended 38 U.S.C. 3031(d), 38 U.S.C. 3319(h)(5), and 38 U.S.C. 3512(c), effective August 1, 2011, to extend the delimiting date for individuals eligible for educational assistance under each of these chapters to use the educational assistance if they are designated caregivers of disabled veterans or servicemembers and are unable to pursue a program of education because of responsibilities associated with this designation. Implementation of the new provisions will be the subject of a separate rulemaking.

o.

Section 202—Limitations on Receipt of Educational Assistance Under National Call to Service and Other Programs of Educational Assistance

Section 202 of Public Law 111-377 amended 38 U.S.C. 3322 and 3681, effective August 1, 2011, to add the National Call to Service (NCS) program (10 U.S.C. 510) to the list of programs under which an individual may not concurrently receive benefits, which bars concurrent receipt of benefits under the NCS program and other listed programs.

Section 21.3022 of title 38, CFR, bars concurrent receipt of benefits under chapter 35 and other chapters listed in sections 3322 and 3681; § 21.5022 bars concurrent receipt of benefits under chapter 32 and other chapters listed in those sections; § 21.7143 bars concurrent receipt of benefits under chapter 30 and other chapters listed in those sections; and § 21.7642 bars concurrent receipt of benefits under 10 U.S.C. 1606 and other chapters listed in those sections. Section 21.4022 bars concurrent receipt of assistance allowances under multiple programs. Section 21.9635(w) also bars concurrent receipt of educational assistance allowance under multiple programs. We propose to amend §§ 21.3022, 21.4022, 21.5022, 21.7143, 21.7642, and 21.9635(w) by adding 10 U.S.C. 510 to the list of programs in these regulations to bar concurrent receipt of benefits under the NCS program and various other programs. We propose to specify in each regulation that the bar on concurrent receipt of benefits under the NCS program and other programs would be effective August 1, 2011, as required by law.

Section 21.9690 bars concurrent receipt of benefits under chapter 33 and other chapters listed in this section. Instead of adding 10 U.S.C. 510 to the list of programs in § 21.9690, we propose to add 10 U.S.C. 510 to the list of programs in new § 21.9691, prohibiting concurrent receipt of benefits under chapter 33 and other chapters listed in this section and applicable to training pursued after July 31, 2011, to bar concurrent receipt of benefits under the NCS program and various other programs.

p.

Section 203—Approval of Courses

Section 203(a)(1) of Public Law 111-377 amended 38 U.S.C. 3672(b) to provide for constructive approval for accredited standard college degree programs at public or not-for-profit private institutions, certain flight training courses, and apprenticeship programs. Section 203(c) of Public Law 111-377 amended 38 U.S.C. 3675(a) to provide authority for a State approving agency or the Secretary to approve accredited programs (degree and non-college degree) at proprietary for-profit institutions. Prior to the amendment, section 3675 provided approval criteria for all accredited degree and non-college degree programs (regardless of whether the program was offered by a public, proprietary for-profit, or proprietary not-for-profit institution).

Section 203(a)(1) of Public Law 111-377 amended 38 U.S.C. 3672 to provide that “accredited standard college program[s]” offered by public and proprietary not-for-profit educational institutions are “deemed to be approved” (essentially meaning that they are exempt from all approval criteria except those limitations in 38 U.S.C. 3675(b)(1) and (b)(2), 3680A, 3684, and 3696; in other words, these deemed approved programs are exempt from most of the requirements of 38 CFR 21.4253).

See

38 U.S.C. 3672(b)(2)(A)(i). However, because section 3672(b)(2)(A)(i) explicitly only applies to “standard college degree program[s],” the “deemed to be approved” status does not apply to non-college degree programs at public or proprietary not-for-profit educational institutions. Furthermore, Public Law 111-377, section 203(c), amended 38 U.S.C. 3675(a)(1) by striking “A State approving agency may approve the courses offered by an educational institution” and inserting “The Secretary or a State approving agency may approve accredited programs (including non-degree accredited programs) offered by proprietary for-profit educational institutions.” Prior to this amendment, section 3675 placed approval requirements on all accredited programs of education.

See

38 U.S.C. 3675(a)(1) (2010) (stating “A State approving agency may approve the courses offered by an education institution when—” without any further qualifiers on either “courses” or “educational institutions”; therefore, the section applied to all courses at all educational institutions). However, due to the Public Law 111-377 amendments, only proprietary for-profit educational institutions were explicitly subject to the approval requirements of section 3675.

See

38 U.S.C. 3675(a)(1) (2011) (“. . . may approve accredited programs (including non-degree accredited programs) offered by proprietary for-profit educational institutions when—”).

The limitations of Public Law 111-377—accredited college degree programs at public and proprietary not-for-profit IHLs are “deemed to be approved” while section 3675 approval requirements only explicitly apply to proprietary for-profit educational institutions—left a hole in coverage concerning the statutory approval requirements of non-college degree programs at public or proprietary not-for-profit educational institutions.

With regard to liberalized approval criteria for programs of study at IHLs, it

is important to note that section 203 only specifically addressed standard college degree programs at IHLs. It is silent with regard to non-college degree programs at IHLs. This change, in combination with the amendment of 38 U.S.C. 3675 to only control programs offered by for-profit proprietary IHLs, left no statutory provisions governing the approval of accredited non-college degree programs at public and proprietary not-for-profit IHLs.

However, the enactment of section 408 of Public Law 114-315 remedied this shortcoming by amending 38 U.S.C. 3675(a)(1) to provide for the approval criteria of accredited non-college degree programs offered by public and proprietary not-for-profit IHLs. Section 3675(a)(1) was amended by striking “The Secretary or a State approving agency” and inserting “A State approving agency, or the Secretary when acting in the role of a State approving agency,” and by striking “offered by proprietary for-profit educational institutions” and inserting “not covered by section 3672 of this title.” As a result of this amendment, accredited non-college degree programs at public and proprietary not-for-profit IHLs are now subject to the approval requirements of section 3675. Thus, State approving agencies, or the Secretary when acting as a State approving agency, are required to determine the approval requirements of non-college degree programs at public or proprietary not-for-profit educational institutions.

We propose to amend § 21.4253 to clarify that accredited standard college degree courses at proprietary for-profit educational institutions and accredited non-college degree courses offered at either proprietary for-profit institutions or public or proprietary not-for-profit institutions would be subject to § 21.4253's approval criteria.

In § 21.4150(f), we propose to provide that accredited programs of education leading to a standard college degree offered at a public or proprietary not-for-profit IHL, flight training courses approved by the Federal Aviation Administration offered by a certified pilot school possessing a valid Federal Aviation Administration pilot school certificate or provisional pilot school certificate under 14 CFR part 141, registered apprenticeships, programs of education leading to a secondary school diploma offered by a secondary school approved in the State in which it is operating, and licensure tests offered by a Federal, State, or local government are deemed approved for VA benefits.

We propose to modify § 21.4259 by replacing “State approving agency” each place it appears in paragraphs (a) and (b)(1) and adding, in each place, “State approving agency or the Secretary” to make it consistent with 38 U.S.C. 3679 and 3689. We propose to also amend § 21.4263 to clarify requirements for approval of flight programs and provide that certain flight training courses, including those pursued with chapter 33 benefits, are deemed approved under chapter 33, and amend § 21.4235 to provide that flight training is approvable under certain conditions. Further, we propose to amend § 21.4268 to provide that licensure tests offered by a Federal, State, or local government are deemed approved under chapter 33.

Section 203(b) of Public Law 111-377 added 38 U.S.C. 3673(d) to authorize the use of State approving agencies for compliance and oversight activities without regard to whether the Secretary or the State approving agency approved the courses offered in the State concerned. Section 310 of Public Law 115-48 amended section 3673(d) to provide that the Secretary may use the services of a State approving agency to conduct “compliance and risk-based surveys and other such oversight purposes.” We propose to add a requirement in § 21.4151 that SAAs perform compliance and risk-based surveys and oversight without regard to whether a program was deemed approved or approved by the Secretary or SAA.

q.

Section 204—Reporting Fees

Section 204 of Public Law 111-377 amended 38 U.S.C. 3684(c), effective October 1, 2011, to require educational institutions to use fees paid after January 4, 2011, to make certifications or otherwise support programs for veterans. We propose to revise § 21.4206 to add this new requirement for educational institutions in § 21.4206(e)(3). We propose to also amend § 21.4206 to include references to 10 U.S.C. 510 and 10 U.S.C. chapter 1607. Although these programs are not explictly listed in 38 U.S.C. 3684, certifications under these benefit programs are nonetheless authorized reporting fees under 10 U.S.C. 510(h)(2)(B) and 10 U.S.C. 16166(b) and were previously inadvertently omitted from the existing regulation governing the payment of reporting fees to educational institutions. These chapters would also be included in revised § 21.4206 showing the new requirement for educational institutions with regard to use of fees for certifications and support for veterans programs.

Additionally, we propose to add in § 21.4206(b) that when computing reporting fees for institutions, VA will not count individuals whose only receipt of educational assistance during a calendar year was tuition assistance Top-Up under 38 U.S.C. chapter 30, rural relocation payment, or reimbursement for a national test for admission, national test for credit, or a licensing or certification test. The exclusion of tuition assistance Top-Up payments is merely maintaining the same limitation currently found at § 21.4206(b). The exclusion of the additional categories of payments is because these payments do not require certifications. As such, payments under 38 U.S.C. 3684 would be inappropriate because annual reporting fees payments are “in lieu of any other compensation or reimbursement for reports or certifications which such educational institution or joint apprenticeship training committee is required to submit to the Secretary by law or regulation.” Since there is no required certification, there should be no “in lieu of” reporting fee.

We note that the rates that are currently listed in § 21.4206 and that would be listed in proposed § 21.4206 are and would continue to be outdated. We plan to further revise § 21.4206(b) in a separate rulemaking to address the increase in reporting fees authorized by section 204 of Public Law 111-377 and section 304 of Public Law 115-48. VA will, of course, pay the rates authorized by statute, notwithstanding any contrary provisions in regulations pre-dating the current statute.

r.

Section 205—Election for Receipt of Alternate Subsistence Allowance for Certain Veterans With Service-Connected Disabilities Undergoing Training and Rehabilitation

Section 205 of Public Law 111-377 amended 38 U.S.C. 3108(b), effective August 1, 2011, to permit veterans entitled to a subsistence allowance under 38 U.S.C. chapter 31 (VA's Veteran Readiness and Employment Program) who also are eligible for educational assistance under 38 U.S.C. chapter 33 (the Post-9/11 GI Bill) to elect to receive a payment in an amount equal to the applicable monthly amount of basic allowance for housing payable under 37 U.S.C. 403 in lieu of the otherwise applicable subsistence allowance payable under chapter 31. The rules implementing this provision of law were addressed in the interim final rule published in the

Federal Register

on August 1, 2011 (Veteran Readiness and Employment Program—Changes to Subsistence Allowance, 76 FR 45697), which was adopted as a final rule on January 12, 2012 (77 FR 1872).

Those rules are currently codified in 38 CFR 21.260(c) and 21.264(b). This election was authorized as an incentive to enroll in the chapter 31 program to benefit from other services available under this program.

See

76 FR 45697.

Section 3322(a) of title 38, U.S.C., prohibits VA from paying benefits under both chapter 33 and chapter 31 concurrently. Thus, an individual entitled to benefits under both chapters must elect one chapter under which to receive benefits. While an election in this situation is mandatory, the timing of the election is not specified. VA policy allowing an individual to switch education benefit programs during the enrollment term was in place before Post-9/11 GI Bill education benefits were paid in lump sums. At that time, a switch in education benefit programs during the enrollment term did not create problems because benefit payments were paid monthly rather than in one lump sum. Now that VA is required to make lump sum payments at the beginning of the term under 38 U.S.C. 3313(d), if an individual switches from chapter 33 to chapter 31 during the term, because a lump sum was already paid under chapter 33, there may be an overpayment that the individual is responsible to pay. Under current § 21.9635(w), when an individual switches from chapter 33 to chapter 31, we terminate chapter 33 benefits on the first day of the enrollment period during which the individual makes the election to switch, creating an overpayment because the lump sum has already been paid out.

To avoid the creation of an overpayment when an individual switches from chapter 33 to chapter 31 during a term, we propose to change the rule regarding termination of educational assistance when an individual elects to switch benefit programs. We propose to add § 21.9636(w)(2) to require the termination of educational assistance under chapter 33 to be effective the first day of the enrollment period subsequent to the one during which the individual requests to receive educational assistance under chapter 31. This change would prevent overpayments because payment of chapter 31 benefits would not cover the same period covered by the lump sum payment of chapter 33 benefits, but would begin the following term. Further, for administrative efficiency, we propose to stipulate in § 21.9636(w)(3) that an eligible individual may only request a change in receipt of benefits from chapter 33 to chapter 31 once per term, quarter, or semester.

Similarly, to avoid the creation of an overpayment if an individual elects to switch from chapter 31 to chapter 33 during a term, we propose to add, in § 21.9626(l)(2)(ii), that VA will begin paying net cost of tuition and fees, and the books and supplies stipend, under chapter 33 beginning the first day of the enrollment period subsequent to the enrollment period during which the individual requests to receive educational assistance under chapter 33. Because the chapter 31 subsistence allowance would have been paid through the end of a month (and not in a lump sum for the entire term), we propose to state, in § 21.9626(l)(2)(i), that we will begin paying the monthly housing allowance under chapter 33 beginning the first day of the month following the date the individual requests to receive educational assistance under chapter 33.

s.

Section 206—Modification of Authority To Make Certain Interval Payments

Section 206 of Public Law 111-377 amended 38 U.S.C. 3680(a), effective August 1, 2011, to remove VA's authority to make interval payments under its educational assistance and Veteran Readiness and Employment Program. While the law allows VA to continue to make payments for non-training periods under certain circumstances (

i.e.,

when schools are temporarily closed under an established policy based on an Executive Order of the President or due to an emergency situation, including a strike), the total number of weeks that VA may continue to make payments in any 12-month period may not exceed 4 weeks.

We propose to revise the heading of § 21.4138(f) to indicate that, prior to August 1, 2011, there would be no changes in payment of allowances for intervals and temporary school closings and add a new paragraph (g) to eliminate interval payments beginning August 1, 2011, and limit payment of allowances during temporary school closings to 4 weeks in any 12-month period. We would not include in new paragraph (g) the requirement in current paragraph (f)(6) that if the reason for the closing is due to a strike that lasts more than 30 days, the Education Service Director would make the determination whether to deny payment. Similar to current paragraph (f)(6)(2), we propose to allow in new paragraph (g)(4) for the administrative review of decisions concerning whether a school closing is permanent or temporary. We propose to also add § 21.9681(b)(7) to provide that VA may continue to make payments during a temporary school closing. We plan to further revise § 21.9681(b) in a separate rulemaking to implement section 109 of Public Law 115-48, which authorizes payment of housing allowances for a certain period following a permanent closure. VA will, of course, continue to pay the monthly housing allowance to eligible individuals for a limited period following a permanent school closure, pursuant to the current statute.

t.

Other Clarifications and Modifications

In addition to the changes we propose to make to implement Public Law 111-377, we propose to clarify other provisions by adding language or simply re-wording language. We propose to also make technical changes to update our regulations, add provisions that were previously inadvertently omitted, and remove references to provisions that no longer exist.

Section 309 of Public Law 115-48 added 38 U.S.C. 3684(a)(4) requiring courses that begin seven or fewer days after the first day of the academic term be treated as if they began on the first day of the academic term for purposes of reporting enrollment under section 3684. In proposed § 21.9626(b)(2) and (3), we propose to provide that resident courses starting within seven calendar days (or one calendar week) of the first scheduled date of classes for an academic term will be considered to have begun on the first scheduled date of the term.

In §§ 21.4002(a), 21.4150(f), 21.4200(oo), 21.4259, 21.9735 and 21.9750, we propose to make several minor changes—removing language, adding language, or re-wording existing language, or reorganizing the section—to clarify the current meanings but would not change any of the substantive meanings of the sections. Specifically, in § 21.4002(a), we propose to remove the reference to §§ 19.192 and 19.183 because these sections no longer exist. In §§ 21.4150(f)(1) and 21.4259, among other changes, we propose to replace the word “course” with the term “program of education,” which would not change the substance of this provision because a course is a component of a program of education. In § 21.4200(oo), we propose to specify that the usage of the terms “we”, “us”, “our” means the United States Department of Veterans Affairs. In § 21.9735, we propose to replace the wording “individuals and institutions of higher learning” with the wording “eligible individuals and educational institutions” to be consistent with the terminology used in the statutes. In § 21.9750, we propose to replace the wording “institution of higher learning”

with the wording “educational institution”.

In § 21.9695, we propose to articulate additional circumstances that we have found in practice that warrant a finding that an educational institution is liable for overpayments to it from VA. We propose to restructure paragraph (b)(3) to clearly enumerate each circumstance. Under current § 21.9695(b)(3), an educational institution is liable for overpayments when an overpayment is the result of willful or negligent false certification by the educational institution, or willful or negligent failure to certify excessive absences from a course, discontinuance of a course, or interruption of a course by the eligible individual. Under revised § 9695(b)(3), we propose to add that the overpayment of educational assistance paid to the educational institution on behalf of an individual would constitute a liability of the educational institution when a student never attends classes for which he or she was certified (regardless of the reason for non-attendance), completely withdraws from all courses on or before the first day of the certified period of enrollment, or dies during the term; when an educational institution receives a payment for the wrong student, receives a duplicate payment for a student, or receives a payment in excess of the amount certified to VA on the enrollment certification; or when an educational institution submits an amended enrollment certification to correctly report a reduced amount of tuition and fee charges, reduced Yellow Ribbon Program contributions, or reduced amounts for both tuition and fees and Yellow Ribbon Program contributions. In these circumstances, the school would have received money it was not entitled to or was no longer entitled to because the certification that an individual student attended would have been false. The occurrence of any of these circumstances leads to the reasonable conclusion that an educational institution has made an improper student certification and has been unjustly enriched. Hence, it is reasonable to hold the educational institution liable for the amount of overpayment. Further, 38 U.S.C. 3685(b) and 3323, both of which are applicable to chapter 33, give VA the authority to promulgate regulations prescribing the circumstances which would constitute liability of an educational institution.

In § 21.9715, we propose to remove the references to “§ 21.9640(b)(1)(ii) or (b)(2)(ii)” and replace it with “§ 21.9640(b)(1)(ii), (b)(2)(ii), or 21.9641(c), whichever is applicable” to include the newly added § 21.9641(c). We propose to replace the term “the institution of higher learning” with the term “the educational institution” in each place it appears in the section and replace the term “an institution of higher learning” with the term “the educational institution” in paragraph (b)(1). Also, we propose to remove the reference to § 21.9730 because this section does not exist, and we would replace it with § 21.9735.

We propose to reword the provisions in § 21.9645(a)(1)(iii), (b)(1)(ii), and (c) to clarify that, in order for an individual to receive a refund of the chapter 30 contribution under the Post-9/11 GI Bill, the individual must have made a contribution into the Montgomery GI Bill and be in receipt of the monthly housing allowance at the time of entitlement exhaustion. We propose to remove the wording in § 21.9645(a)(1)(iii) “He or she is a member of the Armed Forces who is eligible to receive educational assistance under 38 U.S.C. chapter 30 because he or she has met the requirements of § 21.7042(a) or (b) and is making contributions as provided in § 21.7042(g)” because some of it is extraneous and replace it with the wording “He or she is a member of the Armed Forces who is making contributions as provided in § 21.7042(g) towards educational assistance under 38 U.S.C. chapter 30”. By changing the language in § 21.9645(c) from “will only be paid to the individual who made the contributions as an increase to the monthly housing allowance” to “will only be issued to the individual who made the contribution when the individual is in receipt of the monthly housing allowance payable under § 21.9640(b) or § 21.9641(c) at the time his or her entitlement exhausts”, we are clarifying that an individual must be in receipt of the monthly housing allowance at the time of entitlement exhaustion to get a refund.

Additionally, several sections would be updated to reference newly added sections when applicable. The updated sections would include 21.9550, 21.9620, 21.9645, and 21.9715.

In addition, for clarification, we propose to revise the language in § 21.9550(b)(2) to state that an individual who has not used his or her entitlement under chapter 30 and makes an irrevocable election to receive benefits under chapter 33 will be entitled to 36 months of chapter 33 benefits. The language used in the current § 21.9550(b)(2) does not clearly state that an individual is entitled to 36 months of benefits if they have not used or transferred chapter 30 benefits.

Finally, we propose to add the definition and the rules for “fugitive felons” since the “fugitive felons” provisions, contained in section 505 of Public Law 107-103, the Veterans Education and Benefits Expansion Act of 2001 (codified in 38 U.S.C. 5315B), were already implemented in our regulations for chapter 30 benefits but were not included for chapter 33 benefits. The new fugitive felon provisions that we would include in this rulemaking would be merely the reiteration of the provisions mandated by statute. They would not represent any substantively novel policies or practices. We would add the provisions for “fugitive felons” in §§ 21.9505, 21.9506, 21.9625, 21.9626, 21.9635 and 21.9636. In §§ 21.9505 and 21.9506, we propose to provide the definition of “fugitive felon” as a person identified as such by Federal, State, or local law enforcement officials and who is a fugitive by fleeing to avoid prosecution, custody, or confinement for a felony. This term also includes a person who is a fugitive by reason of violating a condition of probation or parole imposed for the commission of a felony. In §§ 21.9625(m) and 21.9626(m), we propose to state that an award of educational assistance to an otherwise eligible veteran, person, or dependent of a veteran will begin effective the date the individual ceases to be a fugitive felon. In §§ 21.9635(bb) and 21.9636(bb), we propose to state that VA will not award educational assistance to an otherwise eligible Veteran or dependent of an otherwise eligible Veteran for any period during which the Veteran is a fugitive felon and that the date of discontinuance of an award of educational assistance to a Veteran who is a fugitive felon or dependent of a Veteran who is a fugitive felon is the date of the warrant establishing that the individual is a fugitive felon or the date otherwise shown by evidence to be the date the individual became a fugitive felon.

Additionally, we propose to amend existing regulations and add new regulations to implement policies for determining discontinuance dates. Our current policies and practices function in ways that help to limit a student's debt by reflecting the reality of how schools refund tuition and fees during drop/add periods and by embodying what VA believes to be equitable dispositions for students that are negatively impacted by a mid-term course disapproval that is beyond the control of the student but where the student bears the brunt of the impact. Our amended and new regulations

would reflect our current policies and practices, except for certain proposed changes with respect to the first instance of withdrawal, reductions in rates of pursuit (either during the drop/add period, with mitigating circumstances, or when a punitive grade is assessed), individuals that have a change in active duty status, and individuals that die during a term—in those cases, we would implement slightly modified policies and practices as explained in greater detail below.

Specifically, regarding discontinuance dates, we propose to amend § 21.9635(c)(1) to state that, if a student withdraws from all courses after the school's drop/add period, and there are no mitigating circumstances, VA will terminate educational assistance as of the first day of the term from which the individual withdraws. We propose to amend § 21.9635(c)(2) to state that, if a student withdraws from all courses with mitigating circumstances, withdraws during the school's drop/add period or within the first 30 days of the enrollment period, whichever is earlier, or withdraws from all courses for which a punitive grade is assigned, VA will terminate educational assistance as of the last day of attendance or the official date of change in status. We propose to specify in § 21.9635(d) that VA will reduce educational assistance effective the end of the month during which the reduction occurred. These changes are being made because they are consistent with how we have interpreted the statutory requirements contained in 38 U.S.C. 3680(a) to process such adjustments under the Montgomery G.I. Bill. With respect to withdrawals during the drop/add period, we have historically processed claims in this manner because of the fact that schools generally do not assign punitive grades (or other penalties) during this period and generally there is no need for any justification or mitigating circumstances for withdrawals during this period, and schools generally refund all tuition and fees paid for courses dropped during drop/add periods or within the first 30 days of enrollment. Punitive and nonpunitive grades have, for the purposes of this regulation, the same meaning as they have historically in the admistration of VA educational benefits as defined in 38 CFR 21.4200(j) and (k). It is general practice at most schools that the drop/add period is a time for students to identify whether a course is appropriate for them and to allow the student to withdraw without any negative repercussions. Given the nature of the drop/add period as a time for the student to evaluate a course without the school imposing any negative consequences and that schools generally refund tuition and fees for courses dropped during drop/add periods or within the first 30 days of enrollment, VA does not want a student to incur debt if he or she withdraws from residence training during a drop/add period or within the first 30 days of enrollment, whichever is earlier. Therefore, in these circumstances, we propose to assign the discontinuance date as the last date of attendance for those in residence training, instead of the first day of the term. This change to discontinue payment on the date the student last attends the course will allow the student to not incur a debt since no payment will be made for any period that the student is not in attendance of the course. The same procedures would likewise be codified in proposed § 21.9636(c) and (d).

Furthermore, in § 21.9636(m), we propose to specify that VA will discontinue any monthly payments at the end of the month during which an eligible individual is incarcerated in a Federal, State, local, or other penal institution or correctional facility or the end date of the enrollment period as certified by the educational institution, whichever is earlier. Previously, in § 21.9635(m), we discontinued the monthly payments the first day of the enrollment period for which the individual's tuition and fees were paid by a Federal, State, or local program, the first day of the enrollment period in which the individual was incarcerated, or the beginning date of the award under 38 CFR 21.9625, whichever was the latest. We are changing the discontinuance date to the end of the month or end of the enrollment period, whichever is earlier, because it would lead to more equitable dispositions for students who are negatively impacted by a mid-term course payment discontinuance.

In addition to these changes, we will also add new paragraphs (b) and (c) in § 21.9676 to clarify that incarcerated individuals are not entitled to a monthly housing allowance when they are incarcerated due to a felony conviction, although they may be still entitled to other educational assistance (such as unpaid tuition and fees, as well as books, supplies, and equipment).

Regarding discontinuance dates when a program of education is disapproved during a term, either by the actions of the State approving agency or the Secretary, or in the event that an independent study course loses its accreditation, we propose to add § 21.9636(h), (i), and (x) and state that, in each of these situations, the discontinuance date would be the end of the course or period of enrollment. This would allow the student to complete the course without incurring a debt for the remaining cost of the course. Currently, when a program of education is disapproved by the actions of the State approving agency or the Secretary, the discontinuance date is either the date the payment was first suspended by the Director of the VA Regional Office (if disapproval was preceded by a suspension) or the end of the month in which the disapproval is effective. Additionally, when an independent study course loses its accreditation, the discontinuance date is the effective date of the withdrawal of accreditation by the accrediting agency. This policy would be made because we have found that to do otherwise (

i.e.,

make the discontinuance date the date of disapproval or withdrawal of accreditation) would unfairly punish the student for a situation completely out of the student's control. The student would be forced to either pay for the remainder of the course out-of-pocket (through the assessment and repayment of a VA educational assistance debt) or transfer—as of the date of the disapproval—to a different program. Transferring to a new program is highly problematic for a student, given the limited availability of programs willing to accept an intra-term transfer and the inconvenience to a student of trying to find and transfer to a new program. As a result, many students in such situations would ultimately choose to stay in the disapproved course and incur a debt. We believe our policies should be designed to limit the negative impact on the student when forced to make such a choice; therefore, we feel it is appropriate to pay educational benefits through the end of the course or period of enrollment, as certified by the educational institution, in which the disapproval or withdrawal of accreditation is effective and, thereby, avoid creating a student debt to cover the cost for the remainder of the term.

Additionally, in the event of a student's first instance of withdrawal (proposed § 21.9636(b)) or reduction in the rate of pursuit of a program of education (proposed § 21.9636(d)(1)), we propose to implement a policy change whereby VA would now adjust the eligible individual's educational assistance effective the last date of attendance as opposed to our current policy of adjusting effective the end of the month in which the change occurred. With respect to a change in active duty status affecting an individual's eligibility for a monthly

housing allowance, section 3313(j) requires VA to determine the amount of the monthly housing stipend on a pro rata basis for the period of the month during which an individual is not performing active duty service. Under this provision, in the event of a student's change in active duty status affecting eligibility to a monthly housing allowance—leaving active duty (proposed § 21.9626(k)) or entering active duty (proposed § 21.9636(n)), we propose to implement a policy change whereby we would no longer pay to the end of the month but, instead, would begin or discontinue payments effective the actual date of the change in status. For clarity, we propose to also include § 21.9636(n)(1)(ii) to redirect readers to proposed paragraph (n)(2), as these changes would also apply to those who reduced or terminated training due to active duty service since monthly housing would no longer be payable while on active duty.

Our current policies and practices with regard to these three changes in a student's status (rate of pursuit, entering active duty, or leaving active duty) were designed to help minimize overpayments of monthly benefit payments. The Post-9/11 GI Bill was initially implemented with rudimentary information technology (IT) systems, a heavy reliance on manual benefit calculations and payment authorization processes, and, as a consequence, suboptimal claims processing timeliness. Therefore, the adoption of an “end of month” rule, as opposed to specifying the actual date of change, was deemed necessary in order to attenuate the establishment of overpayments due to the lag time inherent with our limited functional capabilities. However, VA's current IT systems now possess features sufficient to handle these changes and the implementation of claims automation functionality has significantly reduced claims processing time. As a result, we now feel that it is appropriate, and more equitable, to begin and discontinue payments based on the actual date of the status change.

We expect that there will be concern that these changes would reduce benefits, especially with regard to monthly housing allowances now being discontinued on the date of entry on active duty as opposed to the end of the month. However, we would like to note that our policy to pay the monthly housing allowance until the end of the month of entry onto active duty service has always been balanced by our policy to not resume payment of the monthly housing allowance until the 1st day of the month following the date on which the individual was discharged. In addition, section 113 of Public Law 115-48 and section 501(c) of Public Law 115-62 also amended section 3313 to ensure equal treatment for all people leaving active duty, regardless of component and ensures proration of everyone's housing on the day the individual enters and leaves active duty service, effective August 1, 2018. Furthermore, although §§ 21.9626 and 21.9636 appear under headings that state the provisions of each section will be effective for any claim submitted after July 31, 2011, this date would not apply to proposed § 21.9626(k) or § 21.9636(b), (d), or (n). These amended provisions would not be a result of Public Law 111-377, therefore, the effective dates as set for the Improvement Act provisions do not apply. The effective date for these sections would be the effective date of the final rule implementing them. These exceptional effective dates are explicitly included in the proposed text of each section. Additionally, it should be noted that current § 21.9625(k) explicitly provides for separate beginning date rules for tuition and fees, monthly housing allowance, and book and supply stipends. These distinct rules were necessary under the statutory structure that existed prior to Public Law 111-377 where tuition and fee payments for active duty servicemembers were different than for veterans and dependents. However, Public Law 111-377 removed the distinctions. VA now pays tuition and fee and book and supply stipends, as required by Public Law 111-377, in the same manner for all beneficiaries, regardless of active duty status. Therefore, the standard rules for beginning dates contained in the proposed § 21.9625(a) apply for all payments except monthly housing payments with regards to active duty servicemembers. The only special beginning dates rules that are needed for active duty servicemembers are those for monthly housing payments contained in proposed § 21.9625(k).

Lastly, we propose to add § 21.9636(a)(4), which would change the discontinuance-date rule for non-lump sum payments (

e.g.,

monthly housing allowance) in death cases. We propose to discontinue payment effective the date of death. Our current rule, in § 21.9635(a), provides that if an individual dies before the end of the period covered by the lump sum payment, the discontinuance date of educational assistance for the purpose of the lump sum payment will be the last date of the period covered by the lump sum payment. This current regulation also specifies that for all other payments, if the eligible individual dies while pursuing a program of education, the discontinuance date of educational assistance will be the end of the month during which the individual last attended. The change to discontinue payment effective the date the individual dies is necessary because, upon death, the student terminates his or her attendance and, therefore, is no longer entitled to further payments. These payments, unlike lump sum payments, would not be made at the time of student's death and, therefore, deserve to be treated differently than lump sum payments because there is no reason for us to make a payment after it is already known that the payment is not authorized.

II. Fry Scholarship

a. General

On June 24, 2009, the President signed into law the Supplemental Appropriations Act, 2009, Public Law 111-32. Section 1002 of Public Law 111-32 amended 38 U.S.C. chapter 33 (the Post-9/11 GI Bill) by adding 38 U.S.C. 3311(b)(9), effective August 1, 2009, to extend eligibility for educational assistance under chapter 33 to children of members of the Armed Forces who, on or after September 11, 2001, die in line of duty while on active duty. The educational assistance payable for such individuals' pursuit of programs of education under chapter 33 is known as the “Marine Gunnery Sergeant John David Fry Scholarship” (Fry Scholarship). 38 U.S.C. 3311(f)(1). Although this amendment extending eligibility for chapter 33 educational assistance was effective August 1, 2009, section 1002(d)(2) of Public Law 111-32 allowed VA to begin making payments of educational assistance by not later than August 1, 2010. For individuals entitled to educational assistance between August 1, 2009, and July 31, 2010, section 1002(d)(2) requires VA to make retroactive payments. Accordingly, the changes implementing the Fry Scholarship would be applicable to claims received on or after August 1, 2009, and we propose to make retroactive payments for the period between August 1, 2009, and July 31, 2010, on any allowed claim received on or after August 1, 2009. This proposed rule would amend 38 CFR part 21, subpart P, specifically §§ 21.9520(d), 21.9530(f), 21.9626(o), 21.9640(a)(2), and 21.9700(b), to implement the Fry Scholarship.

b.

Rules Required by Public Law 111-32

1. Definition of “Child”

According to the amendment to 38 U.S.C. 3311(f)(2) made by section 1002(a) of Public Law 111-32, for purposes of paying the Fry Scholarship, the term “child” must “include” married individuals and individuals above 23 years of age. We believe Congress intended for VA to apply current law and regulations defining “child” for VA benefit purposes to eligibility determinations for the Fry Scholarship and include children who are married and/or above 23 years of age. Accordingly, for purposes of the Fry Scholarship, we propose to define “child” in § 21.9520(d) as an individual who meets the requirements of 38 CFR 3.57, (implementing the definition of “child” in 38 U.S.C. 101(4)), except for the requirements in § 3.57 pertaining to age and marital status. With regard to age and marital status, we propose to add § 21.9520(d)(1) and (2) to include in the definition of child, for purposes of eligibility for the Fry Scholarship, individuals who are married or over the age of 23. In proposed § 21.9520(d), we propose to include that eligibility to Fry Scholarship will be for the child of a person who, after September 10, 2001, died in the line of duty while serving on active duty as a member of the Armed Forces.

2. Effective Date and Entitlement Beginning and Ending Dates

Section 1002(b) of Public Law 111-32 amended 38 U.S.C. 3313(c)(1) to provide individuals entitled to a Fry Scholarship the full amount of tuition and fees for pursuit of a program of education. We propose to add paragraph (2) to §§ 21.9640(a) and 21.9641(a) to explain that we will pay 100 percent of the maximum amounts payable for pursuit of an approved program of education by an individual who is eligible for a Fry Scholarship under § 21.9520(d).

Section 1002(c) amended 38 U.S.C. 3321(b) to specify that an individual who first becomes entitled to the Fry Scholarship before January 1, 2013, may use the entitlement until “the end of the 15-year period beginning on the date of [the individual's] eighteenth birthday,”

i.e.,

until age 33. We believe that the reference to an individual's 18th birthday in section 3321(b)(4) is intended only as a point in time used in determining the future ending date of the individual's entitlement, rather than the age at which an individual becomes eligible for the Fry Scholarship. Section 3321 speaks only of the period during which an individual “may use” his or her entitlement, not the date an individual may first be entitled to chapter 33 benefits. Section 3311 lists the individuals who meet the criteria for entitlement to chapter 33 educational assistance. Section 3311(b)(9) states that “a child or spouse of a person who, on or after September 11, 2001, dies in line of duty while serving on active duty as a member of the Armed Forces” is entitled to chapter 33 educational assistance; however, this section does not specify when such individual may first be entitled to chapter 33 benefits. In light of the lack of a specified beginning date of eligibility and given the fact that individuals can pursue a program of education at an institution of higher learning before reaching the age of 18, we believe a reasonable beginning date would be either when a child graduates from high school and receives a high school diploma, even if the child may not have turned 18, or when the child turns 18, whichever is earlier.

This interpretation of 38 U.S.C. 3321(b)(4) is consistent with our interpretation of other provisions of 38 U.S.C. 3321 when we have interpreted the statute in a manner that injects a logical beginning date when one is lacking. For example, for an individual who was last discharged or released from active duty before January 1, 2013, section 3321 specifies that entitlement to chapter 33 educational assistance expires at the end of the 15-year period beginning on the date of an individual's last discharge or release from active duty of at least 90 continuous days or discharge or release from active duty of at least 30 continuous days for a service-connected disability.

See

38 U.S.C. 3321(a)(1), (b)(3). Section 3321, however, does not address the period of eligibility for individuals who are entitled to educational assistance based on a minimum of 90 aggregate days of active duty service who do not have a period of service consisting of 90 continuous days, as we stated in the preamble to proposed § 21.9530(b). 73 FR 78876, 78879-80. In § 21.9530(b), we established a 15-year period of eligibility for these individuals, beginning on the date of discharge or release from active duty for the last period of service used to meet the minimum service requirements under chapter 33.

Likewise, we propose to establish a reasonable beginning date for the period during which a child may use his or her entitlement to chapter 33 educational assistance as either the child's 18th birthday or upon attainment of a high school diploma, whichever is earlier. We propose to codify our interpretation pertaining to beginning dates of a child's eligibility in § 21.9626(o) and ending dates of a child's eligibility in § 21.9530(f). In § 21.9626(o), we propose to provide that the earliest beginning date of educational assistance for a child eligible for Fry Scholarship will be the earlier of either the date the child completes the requirements of a secondary school diploma (or an equivalency certificate) or the date the child reaches age 18. In § 21.9530(f), we propose to state that the ending date for a child who first becomes eligible for Fry Scholarship before January 1, 2013, is the date the child turns age 33. For a child who first becomes eligible to Fry Scholarship on or after January 1, 2013, we propose to provide that their eligbility to Fry Scholarship never expires.

We recognize that our interpretation means that a child may use the Fry Scholarship for a period that may exceed 15 years if the child begins an approved course of education before age 18. Nonetheless, our interpretation does not change the number of months of entitlement to chapter 33 educational assistance. Under 38 U.S.C. 3312(a), a child is entitled to a maximum of 36 months of educational assistance. Reading 38 U.S.C. 3312(a) and 3321(b)(4) together, we believe Congress intended that a Fry Scholarship be provided for a maximum of 36 months to any child of an individual who died in line of duty while on active duty in the Armed Forces after September 10, 2001, to pursue an approved program of education as long as the child has not reached 33 years of age. Section 112(b) of Public Law 115-48 further amended 38 U.S.C. 3321(b)(4) to extend the time for use of entitlement of chapter 33 educational assistance indefinitely for children who first become entitled to a Fry scholarship on or after January 1, 2013. Therefore, § 21.9530(f) would say, in the case of a child who first becomes entitled before January 1, 2013, benefits shall expire the day the child turns 33; or in the case of a child who first becomes entitled on or after January 1, 2013, benefits shall not expire.

3. Yellow Ribbon Program

Section 5003(a)(1) of Public Law 110-252 added 38 U.S.C. 3317 establishing the “Yellow Ribbon G.I. Education Enhancement Program” (Yellow Ribbon Program), which provides for enhancements to the educational assistance provided under 38 U.S.C. 3313. The final sentence of section 3317(a), as added by Public Law 110-252, provided that “[t]he program shall only apply to covered individuals described in paragraphs (1) and (2) of section 3311(b).” Although Congress, in Public Law 111-32, made specific

amendments to some provisions in chapter 33 concerning individuals entitled to Fry Scholarship benefits, it did not amend section 3317(a) to add a reference to section 3311(b)(9) to allow individuals entitled to Fry Scholarship benefits to be eligible for enhanced educational assistance under the Yellow Ribbon Program. Therefore, we could not provide enhanced educational assistance under this program to such individuals. Subsequently, with the enactment of Public Law 115-48, Congress amended section 3317(a), effective August 1, 2018, adding a reference to section 3311(b)(9), to explicitly apply the Yellow Ribbon Program to individuals entitled to Fry Scholarship benefits. Accordingly, we propose to amend 38 CFR 21.9700(b) to make clear that contributions under the Yellow Ribbon Program are available to individuals who establish eligibility for the Fry Scholarship under new § 21.9520(d) after August 1, 2018.

Executive Orders 12866 and 13563 and 14094

Executive Orders 12866 and 13563 and 14094 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 is a significant rule under Executive Order 12866, Section 3(f)(1), as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at

www.regulations.gov.

Regulatory Flexibility Act

The Secretary of Veterans Affairs hereby certifies that this regulatory action 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. Although this regulatory action would affect some small entities, such as testing organizations or educational institutions who qualify as “small” using the most recent official revenue standards, the economic impact on them would be minor. Educational institutions of all sizes voluntarily apply for approval to receive GI Bill benefits likely because tuition and fees revenue from student Veterans consists of guaranteed government funding (from U.S. taxpayer funds). However, if the cost for smaller educational institutions applying for GI Bill approval and meeting the requirements for continued approval were substantial, participating in the GI Bill program would not be financially viable. Because the policies memorialized in this regulatory action have been in effect for a long period of time and small institutions continue to seek and maintain GI Bill approval, likely profiting from this status, we conclude that the rules and policies in this regulatory action do not significantly impact these entities. Furthermore, realizing that there are costs to educational institutions associated with their participation in GI Bill programs, Congress enacted 38 U.S.C. 3684, increasing the reporting fee payable to testing organizations and educational institutions for carrying out reporting requirements, consequently further minimizing the economic impact on smaller educational and testing organizations. On this basis, the Secretary 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. Therefore, under 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 given year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act of 1995

This proposed rule includes provisions constituting revised collections of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 through 3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review and approval.

OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing the collection of information or take such other action as is directed by OMB.

Comments on the revised collections of information contained in this rulemaking should be submitted through

www.regulations.gov.

Comments should indicate that they are submitted in response to “RIN 2900-AQ88, Post-9/11 Improvements, Fry Scholarship, and Interval Payments Amendments” and should be sent within 60 days of publication of this rulemaking. The collections of information associated with this rulemaking can be viewed at:

www.reginfo.gov/public/do/PRAMain.

OMB is required to make a decision concerning the collection of information contained in this rulemaking between 30 and 60 days after publication of this rulemaking in the

Federal Register

(FR). Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment on the provisions of this rulemaking.

The Department considers comments by the public on a revised collection of information in—

• Evaluating whether the revised collection of information are necessary for the proper performance of the functions of the Department, including whether the information will have practical utility;

• Evaluating the accuracy of the Department's estimate of the burden of the revised collection of information, including the validity of the methodology and assumptions used;

• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,

e.g.,

permitting electronic submission of responses.

The collections of information associated with this rulemaking contained in 38 CFR are described immediately following this paragraph, under its respective title.

Title:

State Approving Agency Reports and Notices.

OMB Control No:

2900-0051.

CFR Provision:

38 CFR 21.4259(b).

Summary of collection of information:

The collection of information in proposed 38 CFR 21.4259(b) would require State approving agencies (SAAs) who approve, disapprove, or suspend programs of education to prepare notices of approval to inform educational institutions, training establishments, and organizations or entities of the approval, disapproval, or suspension of their courses, training, or tests, and submit to VA copies of the notices for each program of education that is suspended or disapproved.

Description of need for information and proposed use of information:

The collection of information is necessary to ensure programs of education are operating appropriately. VA will use the approval notice information to determine if payment of educational assistance is appropriate.

Description of likely respondents:

State approving agencies.

Estimated total number of respondents:

57 in FY 2024.

Estimated total number of responses:

4,707 in FY 2024.

Estimated frequency of responses:

Annual.

Estimated average burden per response:

15 total hours.

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 70,605 burden hours. Using the annual number of responses 4,707, VA estimates a total annual reporting and recordkeeping burden of 70,605 for respondents.

Estimated cost to respondents per year:

There is no cost to the respondents because, by contract, SAAs are reimbursed for submitting this information.

Title:

Application for VA Education Benefits (VA Form 22-1990).

OMB Control No:

2900-0154.

CFR Provision:

38 CFR 21.9505, 21.9506, 21.9520(c), 21.9570, 21.9571, 21.9636(w), 21.9641(b)(3), 21.9691(h), and 21.9700(b).

Summary of collection of information:

The collection of information in proposed 38 CFR 21.9505, 21.9506, 21.9520(c), 21.9570, 21.9571, 21.9636(w), 21.9641(b)(3), 21.9691(h), and 21.9700(b) would require the following individuals to submit an application for VA education benefits to establish their eligibility:

• Reserve and National Guard members (38 CFR 21.9505, 21.9506)

• Individuals eligible for Montgomery GI Bill—Active Duty (chapter 30), Montgomery GI Bill—Selected Reserve (chapter 1606), and Reserve Educational Assistance Program (chapter 1607) who want to relinquish their eligibility to establish eligibility under the Post-9/11 GI Bill (chapter 33) (38 CFR 21.9520(c))

• Individuals who train with the U.S. Public Health Service and the National Oceanic and Atmospheric Administration who want to transfer Post-9/11 GI Bill benefits to dependents (38 CFR 21.9570, 21.9571)

• Individuals receiving chapter 33 benefits and who are eligible for 10 U.S.C. chapter 106a, 1606, or 1607, 10 U.S.C. 510, 38 U.S.C. chapter 30, 31, 32, or 35 or Hostage Relief Act of 1980 benefits who want to receive educational assistance under another program (38 CFR 21.9636(w))

• Students pursuing a non-college degree program at a non-IHL (38 CFR 21.9641(b)(3))

• Individuals eligible under multiple programs (38 U.S.C. chapter 30, 32, or 33 or 10 U.S.C. chapter 1606 or 1607) who must elect under which authority service is to be credited (38 CFR 21.9691(h))

• Individuals eligible for the Fry Scholarship who want to apply for Yellow Ribbon Program benefits (38 CFR 21.9700(b))

Description of need for information and proposed use of information:

The collection of information is necessary to pay benefits. This information collected will be used by VA to determine an individual's eligibility for educational assistance benefits.

Description of likely respondents:

Individuals.

Estimated number of respondents:

810,000 in FY 2024.

Estimated frequency of responses:

Once.

Estimated average burden per response:

20 minutes (

VA.gov

); 15 minutes (paper).

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 249,750 burden hours. Using the annual number of responses 810,000 (567,000 responses at 20 minutes/response; 243,000 responses at 15 minutes/response), VA estimates a total annual reporting and recordkeeping burden of 249,750 for respondents.

Estimated cost to respondents per year:

VA estimates the annual cost to respondents to be $6,995,498 (567,000 applicants (using

Vets.gov

) per year × 20 minutes per application × $28.01 * = 5,293,890) and (243,000 (using paper form) per year × 15 minutes per application × $28.01 * = 1,701,608).

* To estimate the total information collection burden cost, VA used the 2021 Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $28.01 per hour. This information is available at:

https://www.bls.gov/oes/current/oesnat.htm#15-0000.

Title:

Dependents' Application for VA Education Benefits.

OMB Control No:

2900-0098.

CFR Provision:

38 CFR 21.9520(d), 21.9530(f), 21.9691(e), 21.9691(h).

Summary of collection of information:

The collection of information in proposed 38 CFR 21.9520(d), 21.9530(f), 21.9691(e), and 21.9691(h) would require certain children to submit an application to establish eligibility for the Fry Scholarship, and certain individuals who must elect the Fry Scholarship or either Dependency and Indemnity Compensation (DIC) or Survivors' and Dependents' Educational Assistance (DEA) to submit an application to establish eligibility for the elected benefit.

Description of need for information and proposed use of information:

The collection of information is necessary to pay benefits. The information collected will be used by VA to determine an individual's eligibility for the Fry scholarship, DIC, or DEA.

Description of likely respondents:

Individuals.

Estimated total number of respondents:

63,807 in FY 2024.

Estimated frequency of responses:

Once.

Estimated average burden per response:

45 minutes.

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 47,855 burden hours. Using the annual number of responses 63,807, VA estimates a total annual reporting and recordkeeping burden of 47,855 hours for respondents.

Estimated cost to respondents per year:

VA estimates the annual cost to respondents to be $1,340,419 (63,807 respondents per year × 45 minutes per application × $28.01*).

* To estimate the total information collection burden cost, VA used the 2021 Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $28.01 per hour. This information is available at:

https://www.bls.gov/oes/current/oesnat.htm#15-0000.

Title:

Application for Reimbursement of a National Exam Fee.

OMB Control No:

2900-0706.

CFR Provision:

38 CFR 21.9626(a)(3), 21.9668, 21.9681(b)(5).

Summary of collection of information:

The collection of information in proposed 38 CFR 21.9626(a)(3), 21.9668, 21.9681(b)(5) would require individuals to submit a claim and supporting

documentation to be reimbursed for the cost of a national test for admission or a national test for credit.

Description of need for information and proposed use of information:

The collection of information is necessary to pay benefits. The information collected will be used by VA to determine if an individual is eligible to receive reimbursement for a claimed national test, and to determine the amount of the reimbursement.

Description of likely respondents:

Individuals.

Estimated total number of respondents:

310 in FY 2024.

Estimated frequency of responses:

Once.

Estimated average burden per response:

15 minutes.

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 78 burden hours. Using the annual number of responses 310, VA estimates a total annual reporting and recordkeeping burden of 78 hours for respondents.

Estimated cost to respondents per year:

VA estimates the annual cost to respondents to be $2,185 (310 respondents per year × 15 minutes per application × $28.01 *).

* To estimate the total information collection burden cost, VA used the 2021 Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $28.01 per hour. This information is available at:

https://www.bls.gov/oes/current/oesnat.htm#15-0000.

Title:

Application for Reimbursement of Licensing and Certification Fees.

OMB Control No:

2900-0695.

CFR Provision:

38 CFR 21.9667.

Summary of collection of information:

The collection of information in proposed 38 CFR 21.9667 would require individuals to submit a claim to be reimbursed for the cost of licensing and certification tests.

Description of need for information and proposed use of information:

The collection of information is necessary to pay benefits. The information collected will be used by VA to determine if an individual is eligible to receive reimbursement for a licensing and certification test, and to determine the amount of the reimbursement.

Description of likely respondents:

Individuals.

Estimated total number of respondents:

4,210 in FY 2024.

Estimated total number of responses:

12,630 in FY 2024.

Estimated frequency of responses:

On occasion. (3 responses per year).

Estimated average burden per response:

15 minutes.

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 3,158 burden hours. Using the annual number of responses 12,630, VA estimates a total annual reporting and recordkeeping burden of 3,158 hours for respondents.

Estimated cost to respondents per year:

VA estimates the annual cost to respondents to be $88,456 (12,630 responses per year × 15 minutes per application × $28.01 *).

* To estimate the total information collection burden cost, VA used the 2021 Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $28.01 per hour. This information is available at:

https://www.bls.gov/oes/current/oesnat.htm#15-0000.

Title:

Monthly Certification for On-the-Job Training and Apprenticeship.

OMB Control No:

2900-0178.

CFR Provision:

38 CFR 21.9626(c).

Summary of collection of information:

The collection of information in proposed 38 CFR 21.9626(c) would require students pursuing on-the-job and apprenticeship programs at non-institutions of higher learning (IHLs) to submit monthly certifications to receive payment for such pursuit.

Description of need for information and proposed use of information:

The collection of information is necessary to pay benefits. The information collected will be used to determine whether an individual's educational assistance should be continued without change, amended, or terminated, and to determine the effective date of such continuance, amendment, or termination.

Description of likely respondents:

Individuals.

Estimated total number of respondents:

15,900 in FY 2024.

Estimated total number of responses:

190,800 in FY 2024.

Estimated frequency of responses:

Monthly.

Estimated average burden per response:

10 minutes.

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 31,800 burden hours. Using the annual number of responses 190,800, VA estimates a total annual reporting and recordkeeping burden of 31,800 for respondents.

Estimated cost to respondents per year:

VA estimates the annual cost to respondents to be $890,718 (190,800 responses per year × 10 minutes per application × $28.01 *).

* To estimate the total information collection burden cost, VA used the 2021 Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $28.01 per hour. This information is available at:

https://www.bls.gov/oes/current/oesnat.htm#15-0000.

Title:

Monthly Certification for Flight Training.

OMB Control No:

2900-0162.

CFR Provision:

38 CFR 21.9641(b)(5).

Summary of collection of information:

The collection of information in proposed 38 CFR 21.9641(b)(5) would require students pursuing flight training programs at non-IHLs to submit monthly certifications to receive payment for such pursuit.

Description of need for information and proposed use of information:

The collection of information is necessary to pay benefits. The information collected will be used to determine whether the individual's educational assistance should be continued without change, amended, or terminated, and to determine the effective date of such continuance, amendment, or termination.

Description of likely respondents:

Individuals.

Estimated total number of respondents:

3,900 in FY 2024.

Estimated total number of responses:

23,400 in FY 2024.

Estimated frequency of responses:

On occasion. (6 responses annually).

Estimated average burden per response:

30 minutes.

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 11,700 burden hours. Using the annual number of responses 23,400, VA estimates a total annual reporting and recordkeeping burden of 11,700 hours for respondents.

Estimated cost to respondents per year:

VA estimates the annual cost to respondents to be $327,717 (23,400 responses per year × 30 minutes per application × $28.01*).

* To estimate the total information collection burden cost, VA used the 2021 Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $28.01 per hour. This information is available at:

https://www.bls.gov/oes/current/oesnat.htm#15-0000.

Title:

Certification of Lessons Completed.

OMB Control No:

2900-0353.

CFR Provision:

38 CFR 21.9641(b)(6).

Summary of collection of information:

The collection of information in proposed 38 CFR 21.9641(b)(6) would

require students pursuing correspondence training programs at non-IHLs to submit certification of lessons completed to receive payment for such pursuit.

Description of need for information and proposed use of information:

The collection of information is necessary to pay benefits, which in the case of correspondence training, are based on the number of lessons completed. The information collected will be used by VA to determine the amount of educational assistance to be paid.

Description of likely respondents:

Individuals.

Estimated total number of respondents:

154 in FY 2024.

Estimated total number of responses:

616 in FY 2024.

Estimated frequency of responses:

Quarterly.

Estimated average burden per response:

10 minutes.

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 103 burden hours. Using the annual number of responses 616, VA estimates a total annual reporting and recordkeeping burden of 103 hours for respondents.

Estimated cost to respondents per year:

VA estimates the annual cost to respondents to be $2,885 (616 responses per year × 10 minutes per application × $28.01 *).

* To estimate the total information collection burden cost, VA used the 2021 Bureau of Labor Statistics (BLS) median hourly wage for “all occupations” of $28.01 per hour. This information is available at:

https://www.bls.gov/oes/current/oesnat.htm#15-0000.

Title:

Certification of Affirmation of Enrollment Agreement Correspondence Course.

OMB Control No:

2900-0576.

CFR Provision:

38 CFR 21.9641(b)(6).

Summary of collection of information:

The collection of information in proposed 38 CFR 21.9641(b)(6) would require students pursuing correspondence training programs at non-IHLs to submit an affirmation of enrollment in a correspondence course to receive payment for such pursuit.

Description of need for information and proposed use of information:

The collection of information is necessary to pay benefits. The information collected will be used by VA to ensure an individual is enrolled in a correspondence course following the signing of a contract.

Description of likely respondents:

Individuals.

Estimated total number of respondents:

75 in FY 2024.

Estimated frequency of responses:

Annually.

Estimated average burden per response:

3 minutes.

Estimated total annual reporting and recordkeeping burden:

VA estimates the total annual reporting and recordkeeping burden to be 4 burden hours. Using the annual number of responses 75, VA estimates a total annual reporting and recordkeeping burden of 4 hours for respondents.

Estimated cost to respondents per year:

VA estimates the annual cost to respondents to be $112 (75 responses per year × 3 minutes per application × $28.

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