[Federal Register Volume 66, Number 146 (Monday, July 30, 2001)]
[Rules and Regulations]
[Pages 39279-39280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18852]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AK06


Montgomery GI Bill--Active Duty

AGENCIES: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the educational assistance regulations of 
the Department of Veterans Affairs (VA). The amendments reflect 
statutory changes contained in the Veterans Millennium Health Care and 
Benefits Act of 1999 and statutory interpretations. This document also 
makes changes for the purpose of clarification.

DATES: Effective Date: July 30, 2001.
    Applicability Date: The changes are applied retroactively to 
November 30, 1999, to conform to statutory requirements. For more 
information concerning the date of applicability, see the SUPPLEMENTARY 
INFORMATION section.

FOR FURTHER INFORMATION CONTACT: William G. Susling, Jr., Assistant 
Director for Policy and Program Development, Education Service (225), 
Veterans Benefits Administration, Department of Veterans Affairs, 202-
273-7187.

SUPPLEMENTARY INFORMATION: This document amends the educational 
assistance regulations found in 38 CFR part 21, subpart K, regarding 
the Montgomery GI Bill--Active Duty (ch. 30, title 38, United States 
Code) (MGIB).
    The regulations are amended by expanding the definition of a 
``program of education'' to include a preparatory course for a test 
that is required or used for admission to an institution of higher 
education or to a graduate school. This would allow individuals who are 
eligible for the MGIB to receive benefits for taking a residence course 
designed to prepare the individual for such tests as the ACT Admissions 
test (ACT) and the Law School Admissions Test (LSAT). The regulations 
are also amended to provide that when an enlisted service member or 
warrant officer attends officer training school, and then is discharged 
to accept a commission as an officer, the enlisted period of active 
duty and first period of active duty as a commissioned officer may be 
combined for determining eligibility for the MGIB. These changes are 
made to reflect statutory changes made by the Veterans Millennium 
Health Care and Benefits Act of 1999 (Pub. L. 106-117). Also, as 
indicated in the text portion of this document, we are amending 38 CFR 
21.7020 to include definitions of the terms ``institution of higher 
education'' and ``graduate school''. We believe these definitions 
reflect the statutory intent. The changes made by this final rule are 
effective from the date of publication but the changes are applied 
retroactively to November 30, 1999, the date of enactment of the 
applicable statutory provisions discussed above.

Administrative Procedure Act

    Under 5 U.S.C. 553, there is a basis for dispensing with a 30-day 
delay of the effective date since the changes made by this final rule 
are restatements of statute, interpretive rules, and nonsubstantive 
changes for the purpose of clarity.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any given year. This rule would have no 
consequential effect on State, local, or tribal governments.

Executive Order 12866

    This document has been review by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary of Veterans Affairs hereby certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities as they are defined in the Regulatory 
Flexibility Act, 5 U.S.C. 601-612. This final rule will not cause 
educational institutions to make changes in their activities and has 
minuscule monetary effects, if any. Pursuant to 5 U.S.C. 605(b), this 
final rule, therefore, is exempt from the initial and final regulatory 
flexibility analyses requirements of Secs. 603 and 604.

(The Catalog of Federal Domestic Assistance number for program that 
this final rule affects is 64.124.)

List of Subjects in 38 CFR Part 21

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

    Approved: May 31, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set forth above, 38 CFR part 21 (subpart K) is 
amended as set forth below.

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

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

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

    Authority: 38 U.S.C. 501(a), chs. 30, 36, unless otherwise 
noted.

    2. Section 21.7020 is amended by:
    a. Redesignating paragraphs (b)(6)(v) and (b)(6)(vi) as paragraphs 
(b)(6)(vi) and (b)(6)(vii), respectively;
    b. In paragraph (b)(6)(iv), removing ``(b)(6)(v)'' and adding, in 
its place ``(b)(6)(vi)'';
    c. Adding a new paragraph (b)(6)(v);
    d. In newly redesignated paragraph (b)(6)(vi), removing 
``(b)(6)(iv)'' and adding, in its place, ``(b)(6)(iv) or (b)(6)(v)'';
    e. In paragraph (b)(23)(ii), removing ``field; and'' and adding, in 
its place, ``field;'';
    f. In paragraph (b)(23)(iii), removing ``training.'' and adding, in 
its place, ``training; and'';
    g. Adding paragraph (b)(23)(iv);
    h. Revising the authority citation for paragraph (b)(23); and
    i. Adding paragraphs (b)(45) and (b)(46).

[[Page 39280]]

    The revision and additions read as follows:


Sec. 21.7020  Definitions.

* * * * *
    (b) * * *
    (6) * * *
    (v) VA will not consider an individual to have an interruption of 
service when he or she:
    (A) Serves a period of active duty without interruption (without a 
complete separation from active duty), as an enlisted member or warrant 
officer;
    (B) While serving on such active duty is assigned to officer 
training school; and
    (C) Following successful completion of the officer training school 
is discharged to accept, without a break in service, a commission as an 
officer in the Armed Forces for a period of active duty.
* * * * *
    (23) * * *
    (iv) Effective November 30, 1999, includes a preparatory course for 
a test that is required or used for admission to--
    (A) An institution of higher education; or
    (B) A graduate school.

(Authority: 38 U.S.C. 3002(3), 3452(b)).
* * * * *
    (45) Institution of higher education. The term institution of 
higher education means either:
    (i) An educational institution, located in a State, that--
    (A) Admits as regular students only persons who have a high school 
diploma, or its recognized equivalent, or persons who are beyond the 
age of compulsory school attendance in the State in which the 
educational institution is located;
    (B) Offers postsecondary level academic instruction that leads to 
an associate or baccalaureate degree; and
    (C) Is empowered by the appropriate State education authority under 
State law to grant an associate or baccalaureate degree, or where there 
is no State law to authorize the granting of a degree, is accredited 
for associate or baccalaureate degree programs by a recognized 
accrediting agency; or
    (ii) An educational institution, not located in a State, that--
    (A) Offers a course leading to an undergraduate standard college 
degree or the equivalent; and
    (B) Is recognized as an institution of higher education by the 
secretary of education (or comparable official) of the country or other 
jurisdiction in which the educational institution is located.

(Authority: 38 U.S.C. 3002(3)).
    (46) Graduate school. The term graduate school means either:
    (i) An educational institution, located in a State, that--
    (A) Admits as regular students only persons who have a 
baccalaureate degree or the equivalent in work experience;
    (B) Offers postsecondary level academic instruction that leads to a 
master's degree, doctorate, or professional degree; and
    (C) Is empowered by the appropriate State education authority under 
State law to grant a master's degree, doctorate, or professional 
degree, or, where there is no State law to authorize the granting of a 
degree, is accredited for master's degree, doctorate, or professional 
degree programs by a recognized accrediting agency; or
    (ii) An educational institution, not located in a State, that--
    (A) Offers a course leading to a master's degree, doctorate, or 
professional degree; and
    (B) Is recognized as an institution of higher education by the 
secretary of education (or comparable official) of the country or other 
jurisdiction in which the educational institution is located.

(Authority: 38 U.S.C. 3002(3)).

    3. Section 21.7050 is amended by:
    a. Redesignating paragraphs (d) and (e) as paragraphs (e) and (f), 
respectively;
    b. In paragraph (a)(1), removing ``(b)'' and (c) and adding, in its 
place, ``(c) or (d)''; and
    c. Adding a new paragraph (d).
    The addition reads as follows:


Sec. 21.7050  Ending dates of eligibility.

* * * * *
    (d) Individual is eligible due to combining active duty as an 
enlisted member or warrant officer with active duty as a commissioned 
officer. If a veteran would not be eligible but for the provisions of 
Sec. 21.7020(b)(6)(v), VA will not pay basic educational assistance or 
supplemental educational assistance to that veteran beyond 10 years 
after the veteran's last discharge or release from a period of active 
duty of 90 days or more of continuous service, or November 30, 2009, 
whichever is later.

(Authority: 38 U.S.C. 3011(f), 3031(a)).
* * * * *

    4. In Sec. 21.7131, paragraph (d) is added to read as follows:


Sec. 21.7131  Commencing dates.

* * * * *
    (d) Individual is eligible due to combining active duty as an 
enlisted member or warrant officer with active duty as a commissioned 
officer. If a veteran served in the Armed Forces both as an enlisted 
member or warrant officer and as a commissioned officer, and that 
service was such that he or she is eligible only through application of 
Sec. 21.7020(b)(6)(v), the commencing date of the award of educational 
assistance will be no earlier than November 30, 1999.

(Authority: Sec. 702(c), Pub. L. 106-117, 113 Stat. 1583).
* * * * *
[FR Doc. 01-18852 Filed 7-27-01; 8:45 am]
BILLING CODE 8320-01-P