[Federal Register Volume 74, Number 80 (Tuesday, April 28, 2009)]
[Proposed Rules]
[Pages 19164-19167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9591]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AN31


Vocational Rehabilitation and Employment Program--Self-Employment

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This document proposes to amend the vocational rehabilitation 
and employment regulations of the Department of Veterans Affairs (VA) 
concerning self-employment for individuals with qualifying 
disabilities. We are proposing changes that are intended to conform 
VA's regulations for self-employment programs for veterans, and for 
servicemembers awaiting discharge, to statutory provisions, including 
provisions limiting eligibility for certain supplies, equipment, stock, 
and license fees to individuals with the most severe service-connected 
disabilities. We are also proposing related changes in VA's regulations 
affecting eligibility for such assistance for certain veterans' 
children with birth defects in self-employment programs. In addition, 
we propose to amend our regulations regarding authority for approval of 
self-employment plans to make certain requirements less restrictive and 
less burdensome, remove a vague and overly broad requirement, make 
changes to reflect longstanding VA policy, and make nonsubstantive 
clarifying changes in our regulations affecting self-employment 
programs.

DATES: Comments must be received on or before June 29, 2009.

ADDRESSES: Written comments may be submitted through 
www.Regulations.gov; by mail or hand-delivery to the Director, 
Regulations Management (02REG), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1068, Washington, DC 20420; or by fax to (202) 
273-9026. Comments should indicate that they are submitted in response 
to ``RIN 2900-AN31--Vocational Rehabilitation and Employment Program--
Self-Employment.'' Copies of comments received will be available for 
public inspection in the Office of Regulation Policy and Management, 
Room 1063B, between the hours of 8:00 a.m. and 4:30 p.m., Monday 
through Friday (except holidays). Please call (202) 461-4902 (not a 
toll-free number) for an appointment. In addition, during the comment 
period, comments may be viewed online through the Federal Docket 
Management System (FDMS) at www.Regulations.gov.

FOR FURTHER INFORMATION CONTACT: Alvin Bauman, Senior Policy Analyst, 
Vocational Rehabilitation and Employment Service (28), Veterans 
Benefits Administration, Department of Veterans Affairs, 810 Vermont 
Ave., NW., Washington, DC 20420, (202) 461-9613 (not a toll-free 
number).

SUPPLEMENTARY INFORMATION: We propose to amend VA's regulations 
concerning self-employment in 38 CFR part 21 that are applicable to 
benefits and services under 38 U.S.C. chapter 31, Training and 
Rehabilitation for Veterans with Service-Connected Disabilities, and 38 
U.S.C. chapter 18, Benefits for Children of Vietnam Veterans and 
Certain Other Veterans.
    The Veterans' Benefits Act of 1996, Public Law 104-275 (enacted 
October 9, 1996), amended 38 U.S.C. 3104(a)(12) regarding the special 
assistance and supplies that VA can provide for individuals pursuing 
self-employment programs. Prior to the enactment of Public Law 104-275, 
only ``the most severely disabled'' individuals who required self-
employment were, under 38 CFR 21.258, entitled to the special supplies, 
equipment, stock, and license fees described in 38 CFR 21.214(e). 
Public Law 104-275 amended 38 U.S.C. 3104(a)(12) by restricting the 
provision of those special supplies, equipment, stock, and license fees 
to individuals ``with the most severe service-connected disabilities 
who require homebound training or self employment.'' We plan to address 
issues concerning training in the home (also known as homebound 
training) under 38 U.S.C. 3104(a)(12) in a future rulemaking. This 
rulemaking, like current Sec.  21.258, concerns individuals who require 
self-employment, some of whom may also require homebound training. This 
proposed rule includes (in Sec.  21.257 rather than current Sec.  
21.258) criteria

[[Page 19165]]

regarding providing such special supplies, equipment, stock, and 
license fees for individuals who require self-employment.
    We also propose to revise and eliminate some of the provisions of 
Sec.  21.254 pertaining to a service-disabled veteran who has trained 
for self-employment under a State rehabilitation agency. The proposed 
changes are intended to make the requirements under Sec.  21.254 less 
restrictive and less burdensome. Specifically, we propose to eliminate 
the requirement in current Sec.  21.254 for certification by an 
official of the State rehabilitation agency with responsibility for 
administration of self-employment programs that:
     The veteran has successfully completed training for a 
self-employment program;
     The assistance needed is not available through the State 
rehabilitation program, or other non-VA sources; and
     The assistance requested is a part of the veteran's 
Individualized Written Rehabilitation Plan (IWRP) developed by the 
State rehabilitation agency.
    Instead, we propose to state the conditions under which an 
individual who has trained for self-employment under a State 
rehabilitation agency may be provided special supplies, equipment, 
stock, and license fees if there is a VA determination that the 
following criteria are met:
     The individual is eligible for employment assistance under 
the provisions of 38 CFR 21.47.
     Evidence of record indicates that the individual has 
successfully completed training for a self-employment program under a 
State rehabilitation agency.
     No other non-VA sources of assistance are known to be 
available for the individual to complete his or her self-employment 
program.
     The individual is within the group of ``individuals with 
the most severe service-connected disability(ies) who require self-
employment'' as defined in 38 CFR 21.257(b).
    In addition, we propose to eliminate the requirement currently in 
Sec.  21.254 that, prior to authorization of any supplies, the 
Director, Vocational Rehabilitation and Education (VR&E) Service must 
approve the request if the cost of supplies is more than $2,500.
    We propose to amend the criteria for approval of self-employment as 
a vocational goal for an individual. Current Sec.  21.257 provides that 
self-employment is only available to an individual if access to the 
normal channels for suitable employment is limited by his or her 
disability(ies), or other circumstances in the individual's situation 
warrant consideration of self-employment. We believe the first of these 
criteria is excessively restrictive and that the second is vague and 
excessively broad.
    Self-employment as a mode of employment is authorized for all 
program participants for whom it is determined to be appropriate for 
achieving rehabilitation. However, 38 U.S.C. 3104(a)(12), as amended, 
reserves the special assistance described in Sec.  21.214(e) for 
individuals with the most severe service-connected disability(ies) who 
require self-employment. Accordingly, we propose to revise Sec.  21.257 
to remove the above-referenced restriction on authorizing self-
employment as a suitable vocational goal and limit consistent with the 
amendment to section 3104(a)(12) the self-employment special assistance 
under 38 CFR 21.214(e) to ``individuals with the most severe service-
connected disability(ies) who require self-employment.''
    Proposed Sec.  21.258 contains an approval requirement relating to 
the cost of the provision of special supplies, equipment, stock, and 
license fees for self-employment programs in accordance with 38 U.S.C. 
3104(a)(12). Proposed Sec.  21.258 would require that a self-employment 
plan be approved either at the level of the VR&E Officer or at the 
level of the Director, VR&E Service. If the estimated or actual cost is 
less than $25,000, the VR&E Officer could approve the plan. If the 
estimated or actual cost of such a plan is $25,000 or more, approval by 
the Director, VR&E Service would be required. The provisions of Sec.  
21.258, as amended, would reflect existing VA policy.
    Many of the proposed amendments to 38 CFR part 21, subpart A in 
this document applicable to veterans under the 38 U.S.C. chapter 31 
program would be applicable to the vocational rehabilitation program 
under 38 U.S.C. chapter 18 regarding benefits for children of Vietnam 
veterans and certain other veterans (see 38 CFR part 21, subpart M). In 
subpart M, Sec. Sec.  21.8020, 21.8210, and 21.8380 contain provisions 
concerning the applicability of the provisions of Sec. Sec.  21.214, 
21.254, 21.256, 21.257, 21.258, and 21.430 in a manner comparable to 
their application for a veteran under the chapter 31 program.
    We propose to amend Sec.  21.8020 to clarify how we would apply 
proposed Sec.  21.257 to the provision of services and assistance under 
subpart M in a manner that we consider to be comparable to its 
application for a veteran under the 38 U.S.C. chapter 31 program. In 
lieu of requiring that the individuals covered under subpart M meet the 
definition in proposed Sec.  21.257(b), the requirements for 
application of proposed Sec.  21.257(e)(1) and (2) would be deemed met 
for an individual in a self-employment program if the individual has 
been determined by VA to have limitations affecting employability 
arising from the effects of the individual's spina bifida or other 
covered birth defect(s), which are so severe as to necessitate 
selection of self-employment as the only reasonably feasible vocational 
goal for the individual. We are proposing a related clarifying change 
in Sec.  21.8020(d), intended to remove the possible implication that 
self-employment is not among the employment options for a participant's 
program under subpart M.
    In addition to the amendments noted above, we also propose to 
reorganize Sec. Sec.  21.257 and 21.258 to improve readability, and to 
make other clarifying changes that are nonsubstantive.

Paperwork Reduction Act of 1995

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

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 year. This rule would have no such effect on State, 
local, and tribal governments, or on the private sector.

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 regulatory action as a ``significant regulatory 
action,'' requiring review by the Office of Management and Budget (OMB) 
unless OMB waives such review, if it is a 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

[[Page 19166]]

safety, or State, local, or tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    The economic, interagency, budgetary, legal, and policy 
implications of this proposed rule have been examined and it has been 
determined not to be a significant regulatory action under Executive 
Order 12866.

Regulatory Flexibility Act

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

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for 
the programs that would be affected by this proposed rule are 64.116, 
Vocational Rehabilitation for Disabled Veterans, and 64.128, Vocational 
Training and Rehabilitation for Vietnam Veterans' Children with Spina 
Bifida or Other Covered Defects.

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Civil rights, 
Claims, Colleges and universities, Conflict of interests, 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: April 15, 2009.
John R. Gingrich,
Chief of Staff, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA proposes to amend 38 
CFR part 21 (subparts A and M) as follows:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C. 
Chapter 31

    1. Revise the authority citation for part 21, subpart A to read as 
follows:

    Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in 
specific sections.

    2. Revise the subpart A heading as set forth above.
    3. Amend Sec.  21.214 by:
    a. In paragraph (e) introductory text, removing ``services'' and 
adding, in its place, ``related assistance'' and removing ``Sec.  
21.258'' and adding, in its place, ``Sec. Sec.  21.257 and 21.258''.
    b. In paragraph (e)(3), removing ``incidental services'' and 
adding, in its place, ``related assistance''.
    c. Revising the authority citation for paragraph (e).
    The revision reads as follows:


Sec.  21.214  Furnishing supplies for special programs.

* * * * *

(Authority: 38 U.S.C. 3104(a)(12))

* * * * *
    4. In Sec.  21.254, revise paragraph (c) to read as follows:


Sec.  21.254  Supportive services.

* * * * *
    (c) Individuals with service-connected disability(ies) trained for 
self-employment under a State rehabilitation agency. An individual with 
service-connected disability(ies) who has trained for self-employment 
under a State rehabilitation agency may be provided supplemental 
equipment and initial stocks and supplies similar to the materials 
supplied under 38 U.S.C. chapter 31 to individuals with the most severe 
service-connected disability(ies) who require self-employment as 
defined in Sec.  21.257(b) if VA determines that the following 
conditions are met:
    (1) The individual is eligible for employment assistance under the 
provisions of Sec.  21.47;
    (2) Evidence of record indicates that the individual has 
successfully completed training for a self-employment program under a 
State rehabilitation agency;
    (3) No other non-VA sources of assistance are known to be available 
for the individual to complete his or her self-employment program; and
    (4) The individual meets the requirements of the definition in 
Sec.  21.257(b).

(Authority: 38 U.S.C. 3104, 3117(b)(2))


    5. Revise Sec.  21.257 to read as follows:


Sec.  21.257  Self-employment.

    (a) Approval of self-employment as a vocational goal. A program of 
vocational rehabilitation benefits and services may include self-
employment for an individual if VA determines that such an objective is 
a suitable vocational goal. VA will make this determination based on--
    (1) The results of the individual's initial evaluation conducted in 
accordance with the provisions of Sec.  21.50; and
    (2) The provisions of this section.

(Authority: 38 U.S.C. 3104(a))


    (b) Definition. For purposes of this subpart, individuals with the 
most severe service-connected disability(ies) who require self-
employment means individuals who have been determined by VA to have 
limitations affecting employability arising from the effects of each 
individual's service-connected disability(ies), which are so severe as 
to necessitate selection of self-employment as the only reasonably 
feasible vocational goal for the individuals.

(Authority: 38 U.S.C. 3104)


    (c) Scope of self-employment benefits and services.
    (1) VA may provide the self-employment services listed in paragraph 
(d) of this section to program participants who are pursuing the 
vocational goal of self-employment.
    (2) VA may provide the more extensive services listed in paragraph 
(e) of this section to individuals with the most severe service-
connected disability(ies) who require self-employment.

(Authority: 38 U.S.C. 3104(a))


    (d) Assistance for other individuals in self-employment. Subject to 
the provisions of Sec.  21.258, VA may provide the following assistance 
to any individual for whom self-employment is determined to be a 
suitable vocational goal--
    (1) Vocational training;
    (2) Incidental training in the management of a business;
    (3) License or other fees required for self-employment;
    (4) Necessary tools and supplies for the occupation; and
    (5) Services described in Sec.  21.252.

(Authority: 38 U.S.C. 3104(a))


    (e) Special self-employment services for individuals with the most 
severe service-connected disability(ies) who require self-employment. 
Individuals described in paragraph (b) of this section who are in a 
self-employment program may receive--

[[Page 19167]]

    (1) The services described in paragraph (d) of this section; and
    (2) The assistance described in Sec.  21.214.

(Authority: 38 U.S.C. 3104, 3116, 3117)


    (f) Feasibility analysis of a proposed self-employment business 
plan. VA will conduct a comprehensive review and analysis of the 
feasibility of a proposed business plan, as submitted by the individual 
or developed with VA's assistance, prior to authorizing a 
rehabilitation plan leading to self-employment (a ``self-employment 
plan''). The feasibility analysis must include--
    (1) An analysis of the economic viability of the proposed business;
    (2) A cost analysis specifying the amount and types of assistance 
that VA will provide;
    (3) A market analysis for the individual's proposed services or 
products;
    (4) Availability of financing from non-VA sources, including the 
individual's personal resources, local banks, and other sources;
    (5) Evidence of coordination with the Small Business Administration 
to secure special consideration under section 8 of the Small Business 
Act, as amended;
    (6) The location of the site for the proposed business and the cost 
of the site, if any; and
    (7) A training plan to operate a successful business.

(Authority: 38 U.S.C. 3104)


    6. Section 21.258 is revised to read as follows:


Sec.  21.258  Cost limitations on approval of self-employment plans.

    A self-employment plan with an estimated or actual cost of less 
than $25,000 may be approved by the VR&E Officer with jurisdiction. Any 
self-employment plan with an estimated or actual cost of $25,000 or 
more must be approved by the Director, VR&E Service.

(Authority: 38 U.S.C. 3104)

Subpart M--Vocational Training and Rehabilitation for Certain 
Children of Veterans--Spina Bifida and Covered Birth Defects

    7. The authority citation for part 21, subpart M continues to read 
as follows:

    Authority: 38 U.S.C. 101, 501, 512, 1151 note, ch. 18, 5112, and 
as noted in specific sections.

    8. Amend Sec.  21.8020 by:
    a. Revising paragraph (b).
    b. In paragraph (d), removing ``obtains a suitable job'' and 
adding, in its place, ``becomes suitably employed''.
    The revision reads as follows:


Sec.  21.8020  Entitlement to vocational training and employment 
assistance.

* * * * *
    (b) Services and assistance. An eligible child may receive the 
services and assistance described in Sec.  21.8050(a).
    (1) The following sections in subpart A of this part apply to the 
provision of these services and assistance in a manner comparable to 
their application for a veteran under the 38 U.S.C. chapter 31 program:
    (i) Section 21.250(a) and (b)(2);
    (ii) Section 21.252;
    (iii) Section 21.254;
    (iv) Section 21.256 (not including paragraph (e)(2));
    (v) Section 21.257; and
    (vi) Section 21.258.
    (2) For purposes of this subpart, the requirements for application 
of Sec.  21.257(e)(1) and (2) are deemed met for an individual in a 
self-employment program regardless of whether the individual is 
described in Sec.  21.257(b), if the individual has been determined by 
VA to have limitations affecting employability arising from the effects 
of the individual's spina bifida and/or other covered birth defect(s) 
which are so severe as to necessitate selection of self-employment as 
the only reasonably feasible vocational goal for the individual.

(Authority: 38 U.S.C. 1804, 1814)

* * * * *

[FR Doc. E9-9591 Filed 4-27-09; 8:45 am]
BILLING CODE 8320-01-P