[Federal Register Volume 73, Number 4 (Monday, January 7, 2008)]
[Rules and Regulations]
[Pages 1075-1076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25657]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 3

RIN 2900-AM72


Dependents' Educational Assistance

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Department of Veterans Affairs (VA) 
regulation regarding dependents' educational assistance. A recent 
statutory change provides eligibility for dependents' educational 
assistance for dependents of servicepersons who meet certain criteria. 
This final rule is necessary to incorporate statutory amendments into 
VA regulations.

DATES: Effective Date: This final rule is effective January 7, 2008.
    Applicability Date: In accordance with statutory provisions, the 
amendment in this final rule will be applied retroactively. The 
amendment to 38 CFR 3.807 is applicable for a course of education 
pursued after December 22, 2006.

FOR FURTHER INFORMATION CONTACT: Maya Ferrandino, Regulations Staff 
(211D), Compensation and Pension Service, Veterans Benefits 
Administration, Department of Veterans Affairs, 810 Vermont Avenue, 
NW., Washington, DC 20420, (202) 273-7210. (This is not a toll-free 
number.)

SUPPLEMENTARY INFORMATION: Section 301 of the Veterans Benefits, Health 
Care, and Information Technology Act of 2006, Public Law 109-461, 
amended the basic eligibility criteria for dependents' educational 
assistance (DEA) in 38 U.S.C. 3501(a). Under prior law, spouses and 
children of servicemembers missing in action, captured in the line of 
duty by a hostile force, or forcibly detained or interned in the line 
of duty by a foreign government or power had eligibility for DEA. The 
amendments expand eligibility, for pursuit of a course of education 
that occurs after December 22, 2006, to include spouses and children of 
servicemembers receiving treatment for permanent and total disability 
incurred in the line of duty and likely to result in discharge or 
release from service.
    VA's DEA regulations, specifically 38 CFR 3.807(a)(5), restate the 
statutory basic eligibility criteria for spouses and children of 
servicemembers. Accordingly, we are amending that provision, consistent 
with the amendments to section 3501(a), to clarify that spouses and 
children of certain permanently and totally disabled servicemembers are 
eligible for DEA for pursuit of a course of education that occurs after 
December 22, 2006.

Administrative Procedures Act

    Substantive changes made by this final rule merely reflect 
statutory requirements. Accordingly, there is a basis for dispensing 
with prior notice and comment and a delayed effective date under the 
provisions of 5 U.S.C. 553. Use of those procedures would be 
impracticable, unnecessary, and contrary to the public interest.

Paperwork Reduction Act

    This document contains no provisions constituting a new collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521).
    The Office of Management and Budget (OMB) assigns a control number 
for each collection 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.
    In Sec.  3.807 (concerning certification of basic eligibility for 
dependents' educational assistance), the final rule amends provisions 
concerning information collection requirements that are currently 
approved by OMB under the following control numbers: 2900-0049 (VA Form 
21-674, Request for Approval of School Attendance), 2900-0098 (VA Form 
22-5490, Application for Survivors' and Dependents' Educational 
Assistance), 2900-0099 (VA Form 22-5495, Request for Change of Program 
or Place of Training Survivors' and Dependents' Educational 
Assistance).

Regulatory Flexibility Act

    The initial and final regulatory flexibility analysis requirements 
of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 
601-612, are not applicable to this rule because a notice of proposed 
rulemaking is not required for this rule. Even so, 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. This final rule 
would not affect any small entities. Only individual VA beneficiaries 
would be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), 
this final rule is also exempt from the regulatory flexibility analysis 
requirements of sections 603 and 604.

Executive Order 12866

    Executive Order 12866 directs agencies to assess all 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, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by OMB unless OMB waives such review, as any regulatory action that is 
likely to result in a rule that may: (1) Have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees, or loan

[[Page 1076]]

programs or the rights and obligations of recipients thereof; or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this final rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995, codified at 2 U.S.C. 
1532, requires agencies to 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 year. This final rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program number and title 
for this rule is 64.117, Survivors and Dependents Educational 
Assistance.

List of Subjects in 38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

    Approved: November 16, 2007.
Gordon H. Mansfield,
Acting Secretary of Veterans Affairs.

0
For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 3 as set forth below:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

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1. The authority citation for part 3, subpart A continues to read as 
follows:

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

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2. Revise Sec.  3.807(a)(5) to read as follows:


Sec.  3.807  Dependents' educational assistance; certification.

* * * * *
    (a) * * *
    (5) Is on active duty as a member of the Armed Forces and
    (i) Now is, and, for a period of more than 90 days, has been listed 
by the Secretary concerned as missing in action, captured in line of 
duty by a hostile force, or forcibly detained or interned in line of 
duty by a foreign Government or power; or
    (ii) Has been determined by VA to have a total disability permanent 
in nature incurred or aggravated in the line of duty during active 
military, naval, or air service; is hospitalized or receiving 
outpatient medical care, services, or treatment for such disability; is 
likely to be discharged or released from such service for such 
disability; and the pursuit of a course of education by such 
individual's spouse or child for which benefits under 38 U.S.C. chapter 
35 are sought occurred after December 22, 2006.
* * * * *8
 [FR Doc. E7-25657 Filed 1-4-08; 8:45 am]
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