[Federal Register Volume 82, Number 177 (Thursday, September 14, 2017)]
[Notices]
[Pages 43288-43289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19480]


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DEPARTMENT OF VETERANS AFFAIRS


Employees Whose Association With For-Profit Educational 
Institutions Poses No Detriment to Veterans

AGENCY: Department of Veterans Affairs.

ACTION: Notice of intent and request for comments.

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SUMMARY: The Department of Veterans Affairs (VA) intends to waive the 
application of applicable Federal regulations (see SUPPLEMENTARY 
INFORMATION) for all VA employees who receive any wages, salary, 
dividends, profits, gratuities, or services from, or own any interest 
in, a for-profit educational institution in which an eligible person or 
veteran is pursuing a program of education under a VA education 
benefits program.

DATES: This notice is applicable on October 16, 2017, without further 
notice, unless VA receives a significant adverse comment by October 16, 
2017.

ADDRESSES: Written comments may be submitted by email through http://www.regulations.gov; by mail or hand-delivery to Director, Regulations 
Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue 
NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. 
Comments should indicate that they are submitted in response to 
``Notice of Intent and request for comments--Employees Whose 
Association With For-Profit Educational Institutions Poses No Detriment 
to Veterans.'' Copies of comments received will be available for public 
inspection in the Office of Regulation Policy and Management, Room 
1068, between the hours of 8:00 a.m. and 4:30 p.m. Monday through 
Friday (except holidays). Please call (202) 461-4902 for an 
appointment. In addition, during the comment period, comments may be 
viewed online through the Federal Docket Management System (FDMS) at 
http://www.regulations.gov. A significant adverse comment is one that 
explains why the waiver would be inappropriate, including challenges to 
the waiver's underlying premise or approach, or why it would be 
ineffective or unacceptable without change. If significant adverse 
comments are received, VA will publish a notice of receipt of 
significant adverse comments in the Federal Register addressing the 
comments and announcing VA's final decision on this action.

FOR FURTHER INFORMATION CONTACT: Christopher Britt, Office of General 
Counsel (02-EST), Department of Veterans Affairs, 810 Vermont Avenue 
NW., Washington, DC 20420, 202-461-7637 (this is not a toll free 
number).

SUPPLEMENTARY INFORMATION: The Department is committed to ensuring that 
veterans are protected from predatory behavior from for-profit 
educational institutions. We must also ensure that all employees abide 
by government ethics laws, particularly the laws that prohibit 
employees from using their public office for private gain. This is the 
bedrock of our ethics program: Placing loyalty to the Constitution, 
laws, and ethical principles above personal interests.
    One statute pertaining to for-profit educational institutions--38 
U.S.C. 3683--was passed by Congress decades ago, before there were 
conflict-of-interest laws applicable to all Executive Branch employees, 
and was intended to prevent corruption in connection with VA's 
administration of benefits under VA education benefits programs. In 
current practice, however, that statute has illogical and unintended 
consequences, in that it requires the removal of any VA employee who 
has any connection to a for-profit educational institution that 
students attend under a VA education benefits program. As an example, a 
literal reading of the statute would require the removal of a VA lab 
technician who takes a class, on her own time and using her own money, 
at a for-profit educational institution that is also attended by 
students using VA education benefits. It would also require the removal 
of a VA physician who teaches an introductory biology class at such a 
school. The statute applies retroactively, in that it requires VA to 
remove employees who have no current connection to a for-profit 
institution but took or taught a class at one at any time during their 
VA employment. Applying this statute to VA employees who have not 
engaged in any real conflict of interest would be unjust and 
detrimental to VA's ability to serve veterans.
    The VA Inspector General (IG) recently issued a report finding that 
two VA employees violated 38 U.S.C. 3683 when they taught as adjunct 
faculty at for-profit educational institutions that have students using 
VA education benefits. Fortunately, that IG report recommended that VA 
issue waivers, as the statute specifically allows, for employees whose 
connection with for-profit institutions creates no actual conflict of 
interest and poses no harm to veterans.
    Therefore, under the authority granted by 38 U.S.C. 3683(d) and 38 
CFR 21.4005, the Secretary intends to waive the application of 38 
U.S.C. 3683(a) for all VA employees who receive any wages, salary, 
dividends, profits, gratuities, or services from, or own any interest 
in, a for-profit educational institution in which an eligible person or 
veteran is pursuing a program of education using VA education benefits, 
as long as employees abide by the conflict of interest laws discussed 
in the following paragraph, as the Secretary has determined that no 
detriment will

[[Page 43289]]

result to the United States, veterans, or eligible persons from such 
activities. The Secretary will reserve his authority to remove an 
employee under section 3683(a) if the employee has committed, in 
relation to a for-profit educational institution, a violation of the 
conflict of interest laws discussed in the following paragraph. This 
waiver will apply to all employees who previously had a connection to a 
for-profit educational institution, who currently have a connection to 
a for-profit educational institution, and who in the future will have a 
connection to a for-profit educational institution. This includes, but 
is not limited to, employees whose only connection to a for-profit 
educational institution is that they have taken, are taking, or will 
take classes, regardless of how the classes were paid for.
    Employees covered by this waiver must continue to abide by 18 
U.S.C. 208, which prohibits an employee from participating personally 
and substantially in VA particular matters that will directly and 
predictably affect the employee's financial interests. Such financial 
interests include owning a share of, being employed by, negotiating for 
employment with, or having an arrangement for future employment with an 
outside entity. Employees must also continue to abide by 5 CFR 
2635.502, which requires employees to recuse themselves from VA matters 
when an employee's participation would cause a reasonable person to 
question the employee's impartiality. Specifically, if an employee has 
a ``covered relationship'' with a for-profit educational institution 
(for example, as a consultant or contractor), that employee must not 
participate in any VA matters to which the for-profit educational 
institution is a party, if such participation would cause a reasonable 
person to question the employee's impartiality.
    The provisions of 38 U.S.C. 3683 apply to VA employees who have a 
connection to a for-profit institution in which an eligible person or 
veteran was pursuing a program of education or course ``under this 
chapter [i.e., chapter 36] or chapter 34 or 35 of this title [i.e., 
title 38, United States Code].'' In 38 U.S.C. 3034(a)(1), 3241(a)(1), 
and 3323(a)(1), Congress generally has made the provisions of chapter 
36, including section 3683, applicable also to VA education benefits 
under chapters 30, 32, and 33 or title 38, United States Code. 
Accordingly, the requirements of section 3683 apply to for-profit 
institutions in which an eligible person or veteran was pursuing a 
program of education or course under chapter 30, 32, 33, 34, 35, or 36 
of title 38. The waiver discussed in this notice would apply in 
circumstances in which the eligible person(s) or veteran(s) were 
receiving benefits under any of those chapters.

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. Vivieca 
Wright Simpson, Chief of Staff, Department of Veterans Affairs, 
approved this document on September 8, 2017, for publication.

    Dated: September 8, 2017.
Jeffrey Martin,
Office Program Manager, Office of Regulation Policy & Management, 
Office of the Secretary, Department of Veterans Affairs.
[FR Doc. 2017-19480 Filed 9-13-17; 8:45 am]
 BILLING CODE 8320-01-P