[Federal Register Volume 86, Number 99 (Tuesday, May 25, 2021)]
[Rules and Regulations]
[Pages 27974-27976]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10969]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 68

[Docket ID: DOD-2019-OS-0076]
RIN 0790-AJ95


Voluntary Education Programs

AGENCY: Office of the Under Secretary of Defense for Personnel and 
Readiness, Department of Defense (DoD).

ACTION: Final rule.

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SUMMARY: To ensure equity of student counseling options available to 
educational institutions, the DoD is amending its Voluntary Education 
Programs regulation to cite current law and to remove the requirement 
that an educational institution must have a DoD installation student 
population of at least 20 military students before it qualifies to be 
authorized access on a DoD installation that is not overseas.

DATES: This rule is effective on June 24, 2021.

FOR FURTHER INFORMATION CONTACT: Gary Schaub, 703-614-6414.

SUPPLEMENTARY INFORMATION:

Discussion of Public Comments Received

    On April 15, 2020, the Department of Defense published a proposed 
rule titled ``Voluntary Education Programs'' (85 FR 20893-20895) for a 
30-day public comment period. Thirteen public comments were received. 
Ten comments were within the scope of the rule and were supportive, one 
comment was a duplicate within this subset, and two comments were 
outside the scope of this rule.
    Ten comments within the scope of the rule articulated the 
respective submitters' agreement to the rule amendment. The comments 
collectively support DoD's willingness to ensure equitable access be 
given to all educational institutions to provide academic and student 
support services to students, regardless of military student population 
size. The duplicative comment was identical to one of these ten.
    Two comments addressed DoD policy beyond the scope of the rule. The 
first requested that DoD amend policy to ensure that educational 
institutions are granted one day a week on military installations to 
provide face-to-face counseling. The second requested that DoD change 
its policy to remove any fees currently being charged to schools for 
office space on military installations. These requests are beyond the 
scope of the proposed rule change. Therefore, DoD will not change the 
rule to incorporate them.

Executive Summary

Purpose of the Rule

    The Office of the Under Secretary of Defense for Personnel and 
Readiness provides policy and oversight of DoD's Voluntary Education 
(VolEd) Program, including the Tuition Assistance (TA) program. The 
VolEd program is authorized in 10 U.S.C. 2006a and 2007, and DoD policy 
is in DoD Instruction 1322.25, ``Voluntary Education Programs'' (last 
updated on July 7, 2014 and available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/132225p.pdf). The requirements 
for educational institutions, that each institution must sign, are 
provided in the companion DoD VolEd Partnership Memorandum of 
Understanding (MOU) (available in DoD Instruction 1322.25, Appendix to 
Enclosure 3; further information available at https://www.dodmou.com/). 
For the purposes of this part, an educational institution is defined as 
``a college, university, or other institution of higher education.''
    In accordance with the current regulation and DoD MOU, educational 
institutions must have a domestic DoD installation student population 
of at least 20 military students to request permission for access to a 
DoD installation that is not overseas. The policy does not apply to 
overseas DoD installations. Numerous institutions, using both private 
and public forums, have contacted the Office of the Deputy Assistant 
Secretary of Defense for Force Education and Training to communicate 
their concern over this policy inequity. The specific inequity is that 
currently all participating educational institutions do not have face-
to-face counseling access. DoD determined that action was

[[Page 27975]]

needed to rectify this policy inequity so that DoD policy is consistent 
and equitable, regardless of the type of educational institution or 
student population size.
    Currently, 1,339 institutions of the approximately 2,700 DoD MOU 
educational institutions have between 1 and 19 students, meaning that 
they have no options for face-to-face counseling on military 
installations. Most institutions operating under this MOU manage their 
student counseling by virtual means. Removal of the 20-student 
requirement will ensure equity of student counseling options for all 
DoD MOU educational institutions. Adding a face-to-face option could 
change institutional processes to reflect travel or setting up local 
offices. However, any such process change would be entirely optional on 
the part of the educational institution.
    Acknowledging that the size of the military installation may 
directly impact the number of students enrolled with a given 
educational institution, this change will also ensure that educational 
institutions have the opportunity to provide equal services to all 
Service members, including those assigned to smaller or more remote 
military installations.
    Accordingly, this rule amends 32 CFR part 68 (last updated on May 
15, 2014 at 79 FR 27737) to remove the 20 student requirement and allow 
educational institutions to provide academic services at DoD 
installations, regardless of the number of military students enrolled 
at that installation.
    The number of additional schools availing themselves of on-base 
access as a result of the proposed change is predicted to be small, as 
more than 80 percent of Service members receiving TA attend the 25 
largest DoD MOU schools, many of which are already afforded access to 
military installations under the current rule. This policy change 
ensures that every DoD MOU educational institution is treated equally. 
Installation Commanders will still retain access authority for their 
installation based on capacity and their available resources.

Summary of Major Provisions

    DoD determined that the requirement of having a student population 
of at least 20 military students before an educational institution can 
be authorized access on a DoD installation that is not overseas should 
be removed in order to provide consistent treatment of educational 
institutions, increased availability to students, convenience and 
fairness to Service members, and mission tempo of the servicing DoD 
installation and/or education office. Each educational institution must 
sign a DoD VolEd Partnership MOU. Eliminating the 20-student base 
access requirement will afford each of these educational institutions 
the same opportunity to provide academic counseling and student support 
services, regardless of the number of military students enrolled in 
their programs.
    Additionally, this rule finalizes amendments to the Authority 
citations for the part to include 10 U.S.C. 2006a, as section 2006a 
became effective as law on August 1, 2014, after the May 2014 
publication of the current version of this rule.

Legal Authority for This Program

    The current rule implements the legal requirements of 10 U.S.C. 
2005 and 2007 for DoD's VolEd Programs. The citation of 10 U.S.C. 2006a 
is also incorporated with this amendment. Below, we summarize each 
legal authority.
    10 U.S.C. 2005--Authorizes the Secretary concerned to associate a 
service agreement with the provision of advanced education assistance 
to a Service member and to subject a Service member to repayment if the 
service agreement is not satisfied.
    10 U.S.C. 2007--Authorizes the Secretary of Defense to provide 
advanced education assistance and pay tuition for off-duty training or 
education of eligible members of the Armed Forces.

Regulatory History

    The current rule was published in the Federal Register (FR) (79 FR 
27732) on May 15, 2014, after a proposed rule was published in the FR 
(78 FR 49382) on August 14, 2013, for a 45-day public comment period. 
The rule implements DoD's VolEd Programs to provide Service members 
with opportunities to enhance their academic achievement (i.e., earn a 
degree or certificate) during their off-duty time, which in turn, 
improves job performance and promotion potential. The rule also 
addresses uniform TA, counseling, and support services policy. Funding 
for VolEd Programs, including the DoD TA program, is authorized by law 
(10 U.S.C. 2007) and is subject to the availability of funds from each 
Military Department.
    The original rule for DoD's VolEd Program was published in the FR 
(77 FR 72941) on December 6, 2012, after a proposed rule was published 
in the FR (75 FR 47504) August 6, 2010, for a 45-day public comment 
period. Executive Order (E.O.) 13607, ``Establishing Principles of 
Excellence for Educational Institutions Servicing Service Members, 
Veterans, Spouses, and Other Family Members'', signed April 27, 2012 
(available at https://www.govinfo.gov/content/pkg/FR-2012-05-02/pdf/2012-10715.pdf), directs the Departments of Defense, Veterans Affairs, 
and Education to establish Principles of Excellence to apply to 
educational institutions receiving funding from Federal military and 
veterans educational benefits programs, including benefits programs 
provided by the Post-9/11 GI Bill and the TA Program. A March 2011 
Government Accountability Office report on the DoD TA program 
recommended DoD take steps to enhance its oversight of schools 
receiving TA funds. (available at http://www.gao.gov/new.items/d11300.pdf). As a result, a DoD standardized MOU requirement was 
included in the rule. A MOU between DoD and an educational institution 
is required before participating in DoD VolEd Programs, including TA. 
The MOU outlines the Department's relationship with education providers 
to ensure that interactions with Service members are consistent with 
statute and applicable EOs. Additionally, the rule incorporates 
principles consistent with E.O. 13607.

Regulatory Analysis

    We developed this rule amendment after considering numerous 
statutes and EOs related to rulemaking. Below, we summarize our 
analyses based on these statutes or EOs.

Regulatory Planning and Review

Executive Orders 12866 and 13563

    EOs 12866 (``Regulatory Planning and Review'') and 13563 
(``Improving Regulation and Regulatory Review'') direct agencies to 
assess all costs and benefits of available regulatory alternatives and, 
if regulation is necessary, to select regulatory approaches that 
maximize net benefits (including potential economic, environmental, 
public health and safety effects, distribute impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule amendment has been designated a ``non-significant action,'' 
and, accordingly, has not been reviewed by the Office of Management and 
Budget (OMB).

Costs

    Although the current rule had costs of $100 million or more, this 
final rule amendment does not incur any additional cost, as this final 
rule is removing the minimum student requirement at domestic military 
bases

[[Page 27976]]

of 20 military students and eliminating the possible disadvantage to 
military students for not receiving face-to-face academic counseling, 
certain educational courses, and other support services on the military 
installations. Neither action will increase or create a cost burden to 
the public.

Benefits

    The rule benefits educational institutions with a population of 
fewer than 20 military students as it allows them to provide face-to-
face academic counseling and administrative support to its students at 
a DoD installation, regardless of the number of its military students 
enrolled at that installation. This is a convenience to both 
educational institution and military students. Students will not have 
the added cost of having to leave their military installation, spending 
money for gas and travel to meet with their academic advisors. 
Additionally, there may be cost savings to the educational 
institutions, as the use of military facilities will preclude the need 
to secure and potentially pay for adequate facilities off the military 
installation.

Alternatives

    We have identified two alternatives:
    1. No action--The current rule would stand and only schools with 20 
or more military students would be permitted to access the DoD 
installation to counsel their military students, thus sustaining an 
identified policy inequity. This action would not benefit the public 
because educational institutions would be denied access to meet with 
their military students if they have less than 20 students enrolled in 
their institutions. Military students will have the added cost of 
having to leave their installation, spend money for gas, and travel to 
meet with their academic advisors. Educational institutions will need 
to secure, and potentially pay for, adequate facilities off the 
military installation for counseling and administrative support.
    2. Next best alternative--The next best alternative is to 
incorporate this rule amendment into the ``full'' revision of the rule 
to occur at a later date. The rule has been identified as a priority 
for modification to increase effectiveness and improve efficiencies. 
The ``full'' revision is currently in the development stage. However, 
it will be a significant amount of time (approximately 18 months) to 
complete internal processes that will culminate in development of the 
rule. This would put military students, as well as educational 
institutions, at a disadvantage to not be able to meet for counseling 
and academic support on the military installation simply because the 
number of military students enrolled at the educational institution is 
not 20 or more.

Congressional Review Act, 5 U.S.C. 804(2)

    Under the Congressional Review Act, a major rule may not take 
effect until at least 60 days after submission to Congress of a report 
regarding the rule. A major rule is one that would have an annual 
effect on the economy of $100M or more or have certain other impacts. 
This rule amendment is not a major rule under the Congressional Review 
Act.

Public Law 96-354, ``Regulatory Flexibility Act'' (RFA), (5 U.S.C. 601)

    The RFA requires that each Federal agency analyze options for 
regulatory relief of small businesses if a rule has a significant 
impact on a substantial number of small entities. For purposes of the 
RFA, small entities include small businesses, nonprofit organizations, 
and small governmental jurisdictions. This rule is not an economically 
significant regulatory action, and it will not have a significant 
impact on a substantial number of small entities. Therefore, this rule 
is not subject to the requirements of the RFA.

Public Law 104-4, Sec. 202, ``Unfunded Mandates Reform Act''

    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that agencies assess anticipated costs and benefits before 
issuing any rule whose mandates require spending in any one year of 
$100M in 1995 dollars, updated annually for inflation. That threshold 
level is currently approximately $140M. This rule amendment will not 
mandate any requirements for State, local, or tribal governments or the 
private sector.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This rule amendment does not contain a ``collection of 
information'' requirement, and will not impose additional information 
collection requirements on the public under Public Law 96-511, 
``Paperwork Reduction Act'' (44 U.S.C. chapter 35).

Executive Order 13132, ``Federalism''

    This rule amendment has been examined for its impact under E.O. 
13132, and it does not contain policies that have federalism 
implications that would have substantial direct effects on the States, 
on the relationship between the national Government and the States, or 
on the distribution of powers and responsibilities among the various 
levels of Government. Therefore, consultation with State and local 
officials is not required.

List of Subjects in 32 CFR Part 68

    Adult education, Armed forces, Colleges and universities, 
Education, Educational study programs, Government contracts, Military 
personnel, Student aid.

    For the reasons stated in the preamble, DoD amends 32 CFR part 68 
as follows:

PART 68--VOLUNTARY EDUCATION PROGRAMS

0
1. The authority citation for part 68 is revised to read as follows:

    Authority: 10 U.S.C. 2005, 2006a, 2007.


Sec.  68.6  [Amended]

0
2. Section 68.6 is amended by removing paragraph (d)(2) and 
redesignating paragraphs (d)(3) through (6) as paragraphs (d)(2) 
through (5), respectively.

    Dated: May 19, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-10969 Filed 5-24-21; 8:45 am]
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