[Federal Register Volume 77, Number 8 (Thursday, January 12, 2012)]
[Rules and Regulations]
[Pages 1872-1873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-452]



38 CFR Part 21

RIN 2900-AO10

Vocational Rehabilitation and Employment Program--Changes to 
Subsistence Allowance

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.


SUMMARY: This document adopts as final, without change, the interim 
final rule amending regulations of the Department of Veterans Affairs 
(VA) to reflect changes made by the Post-9/11 Veterans Educational 
Assistance Improvements Act of 2010, effective August 1, 2011, that 
affect payment of vocational rehabilitation benefits for certain 
service-disabled veterans. Pursuant to these changes, a veteran, who is 
eligible for a subsistence allowance under chapter 31 of title 38, 
United States Code, and educational assistance under chapter 33 of 
title 38, United States Code, may participate in a rehabilitation 
program under chapter 31 and elect to receive a payment equal in amount 
to an applicable military housing allowance payable under title 37, 
United States Code, instead of the regular subsistence allowance under 
chapter 31. In addition, payments of subsistence allowances during 
periods between school terms are discontinued, and payments during 
periods of temporary school closings are modified.

DATES: Effective Date: This final rule is effective January 12, 2012.

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) 461-9600 (not a toll-free 

SUPPLEMENTARY INFORMATION: In an interim final rule published in the 
Federal Register on August 1, 2011 (76 FR 45697), VA amended Sec. Sec.  
21.260 and 21.264 to allow a veteran who is eligible for a chapter 31 
subsistence allowance and chapter 33 educational assistance to 
participate in a chapter 31 rehabilitation program and elect a 
subsistence allowance in an alternate amount, which we referred to as 
the Post-9/11 subsistence allowance, in lieu of the amount of the 
regular chapter 31 subsistence allowance provided for in Sec.  
21.260(b). Among other things, we also amended Sec.  21.270 to 
discontinue the payment of subsistence allowance for periods between 
school terms.
    We provided a 30-day comment period that ended August 31, 2011. No 
comments were received. Based on the rationale set forth in the interim 
final rule, we adopt the interim final rule as a final rule without 

Administrative Procedure Act

    This document affirms the amendments made by the interim final rule 
that is already in effect. The Secretary of Veterans Affairs concluded 
that, under 5 U.S.C. 553(b)(3)(B) and (d)(3), there was good cause to 
dispense with advance public notice and opportunity to comment on this 
rule and good cause to publish the interim final rule with an immediate 
effective date. The Secretary found that it was impracticable and 
contrary to the public interest to delay this regulation for the 
purpose of soliciting prior public comment. Sections 205 and 206 of 
Public Law 111-377 required that certain changes to the rehabilitation 
program take effect on August 1, 2011. This interim final rule was 
necessary to implement by August 1, 2011, the statutory changes as they 
related to chapter 31 subsistence allowance. For instance, Public Law 
111-377 did not address how the alternate rate of subsistence allowance 
would be calculated in different situations. Allowing veterans to elect 
an alternate rate of subsistence allowance ensured that such veterans 
would receive the supportive services under chapter 31 to assist them 
in the transition from military to civilian careers. Because eligible 
veterans could begin to make the election on August 1, 2011, it was 
important to have procedures in place by this date to allow veterans to 
receive the alternate rate of subsistence allowance authorized under 
the law as

[[Page 1873]]

soon as they were able. For these reasons, the Secretary of Veterans 
Affairs issued this rule as an interim final rule.

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 final rule will have no such effect 
on State, local, and tribal governments, or on the private sector.

Paperwork Reduction Act

    This final rule does not contain any collections of information 
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Regulatory Flexibility Act

    The Secretary hereby certifies that this regulatory action 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 regulatory action will affect individuals and will 
not affect any small entities. Therefore, pursuant to 5 U.S.C. 605(b), 
this regulatory action is exempt from the initial and final regulatory 
flexibility analysis requirements of sections 603 and 604.

Executive Orders 13563 and 12866

    Executive Orders 13563 and 12866 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. 
Executive Order 12866 (Regulatory Planning and Review) defines a 
``significant regulatory action,'' which requires review by the Office 
of Management and Budget (OMB), 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 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 regulatory action have been examined and it has 
been determined to be a significant regulatory action under Executive 
Order 12866.

Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the 
program that would be affected by this final rule is 64.116, Vocational 
Rehabilitation for Disabled Veterans.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on November 1, 2011 for publication.

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.

    Dated: January 9, 2012.
Robert C. McFetridge,
Director, Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.


Accordingly, the interim final rule amending 38 CFR part 21, which was 
published at 76 FR 45697 on August 1, 2011, is adopted as a final rule 
without change.

[FR Doc. 2012-452 Filed 1-11-12; 8:45 am]