[Federal Register Volume 89, Number 160 (Monday, August 19, 2024)]
[Rules and Regulations]
[Pages 66991-66995]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-18345]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 21

RIN 2900-AQ99


Bar to Approval

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: The Department of Veterans Affairs (VA) is amending its 
regulations that govern VA's administration of educational assistance 
programs to implement a provision of the Veterans Benefits and 
Transition Act of 2018, which requires a State Approving Agency (SAA), 
or the Secretary of Veterans Affairs (when acting as the SAA), to 
disapprove programs of education provided by educational institutions 
that do not permit individuals using benefits under certain VA 
educational assistance programs to attend or participate in courses 
while awaiting payment from VA or that impose a penalty on an 
individual for failure to meet financial obligations due to a delayed 
VA payment. VA is also implementing a provision that allows educational 
institutions to require a claimant using educational benefits to submit 
certain documents and to pay certain fees or charges if VA delays 
payment and ultimately pays less than what an educational institution 
anticipated receiving.

DATES: 
    Effective date: This rule is effective September 18, 2024.
    Applicability date: The provisions of this final rule shall apply 
to all terms that began on or after August 1, 2019.

FOR FURTHER INFORMATION CONTACT: Thomas Alphonso, Assistant Director, 
Policy and Procedures, Education Service, Department of Veterans 
Affairs, 810 Vermont Avenue NW, Washington, DC 20420, (202) 461-9800. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: On February 27, 2023, VA published a 
proposed rule in the Federal Register at 88 FR 12293 to amend its 
regulations to require an SAA, or the Secretary of Veterans Affairs 
when acting as an SAA, to disapprove programs of education that do not 
permit individuals using benefits under either Chapter 31 or Chapter 33 
to attend or participate in courses while awaiting payment from VA, and 
to implement other provisions of the Veterans Benefits and Transition 
Act of 2018, Public Law 115-407. The 60-day comment period ended on 
April 28, 2023.
    VA received comments from five commenters in response to the 
proposed

[[Page 66992]]

rule. While all commenters expressed some support for this rule, some 
requested additional information about its provisions or about 
implementation procedures. Further, some commenters stated that the 
rulemaking may have adverse effects on stakeholders. The comments are 
addressed below. In addition, we have included an applicability date in 
this final rule to conform to 38 U.S.C. 3679(e)(1) and to make clear 
that we have been applying, and will continue to apply, the statutory 
requirements reflected in this rule to all terms that began on or after 
August 1, 2019, and we have also included a technical edit in new 38 
CFR 21.4269(d)(1)(i).

Changes to Section 103

    One commenter requested that VA clarify changes it is making to 
section 103 of Public Law 115-407. As we stated in the proposed rule, 
section 103 added subsection (e) to 38 U.S.C. 3679, among other things, 
to require an SAA, or VA when acting as an SAA, to disapprove programs 
of education that do not permit individuals using Chapter 31 or Chapter 
33 benefits to attend or participate in courses while awaiting payment 
from VA, a requirement not previously in the law. The commenter appears 
to be conflating public laws enacted by Congress and regulations 
promulgated by agencies such as VA. This rulemaking implements section 
103 at 38 CFR 21.4269; VA is not making any changes to section 103 of 
Public Law 115-407 because VA has no authority to change laws.
    VA makes no changes to the rule based on this comment.

Release of Financial Aid Funds

    One commenter requested clarification regarding the release of a 
student's financial aid funds while the educational institution awaits 
tuition and fees payments from VA. Section 3679(e)(1)(B) provides that 
educational institutions are prohibited from employing policies 
requiring students to borrow additional funds to pay tuition and fees 
so the institutions are paid in advance of VA benefit payments while 
the institutions await VA payments. As the commenter noted, the law 
does not address educational institutions' obligations with regard to 
the release of financial aid funds. The use of Federal student 
financial aid is administered by the Department of Education (ED). 
Therefore, ED would be in the best position to answer questions 
concerning the use and release of financial aid funds.
    VA makes no changes to the rule based on this comment.

Chapter 35 Beneficiary

    One commenter requested additional clarification regarding the 
application of this rulemaking to Chapter 35 recipients. Section 
3679(e), as added by section 103 of Public Law 115-407, requires 
schools to maintain certain policies applicable only to Chapter 31 and 
33 beneficiaries. Effective November 30, 2021 (applicable to academic 
periods beginning August 1, 2022), Public Law 117-68 revised section 
3679(e) to require schools to maintain the policies with regard to 
Chapter 35 beneficiaries as well. VA does not pay tuition and fees to 
schools under Chapter 35, but instead pays a statutory flat rate 
directly to Chapter 35 beneficiaries. 38 U.S.C. 3532. Consequently, 
schools do not need to certify Chapter 35 tuition and fee payments, and 
students do not need to demonstrate to the school entitlement to 
Chapter 35 benefits. Thus, regardless of the statutory revision, there 
are no school policies about restricting Chapter 35 program 
participation or imposing a penalty for delayed VA payment of Chapter 
35 benefits that would be relevant to Chapter 35 beneficiaries. 
Nonetheless, in light of the statutory revision, we understand the 
commenter's confusion. Accordingly, to make it clear that the 
regulatory requirement would in theory apply to Chapter 35 
beneficiaries, and for consistency with the authorizing statute, we are 
adding ``chapter 35'' in the final rule where applicable.

Enrollment Manager for Eligibility Verification

    One commenter requested additional clarification regarding the 
definition of ``certificate of eligibility,'' specifically with regard 
to the newly released VA system Enrollment Manager (EM), a modernized 
platform used by school certifying officials (SCO), and its role in 
certifying student enrollments and verifying a students' eligibility 
for VA education benefits. As we explained in the proposed rule, we 
interpret section 3679(e)'s reference to ``certificate of eligibility'' 
as not referring to a specific VA document that could serve as 
eligibility documentation but, rather, as referring to any 
authoritative documentation provided by VA that serves to verify 
eligibility under Chapter 31 or 33. While EM allows SCOs to access a 
Chapter 33 student's entitlement information, such access is limited. A 
student's information is only accessible through EM if the student has 
allowed such access. Per 38 U.S.C. 3699A(b), a student may elect not to 
provide their entitlement information to a school through EM. 
Furthermore, the EM platform does not provide entitlement information 
for Chapter 31 student beneficiaries. Nonetheless, an SCO's use of EM 
to verify a student's remaining Chapter 33 benefits is an acceptable 
form of authoritative documentation for Chapter 33 beneficiaries who 
have not exercised their right under section 3699A(b) to block the 
sharing of their information with schools. Thus, we have clarified its 
acceptability in the final rule at Sec.  21.4269(a)(1).

Administrative Burdens

    One commenter described the many benefits of the new rule but 
expressed a number of concerns, including a potential increase in the 
administrative burden on both educational institutions and VA. The 
commenter stated that educational institutions may be required to 
change or update their policies and that VA would require more funding 
to ensure educational institutions' compliance with the rule. VA does 
not believe that there will be increased administrative burdens 
associated with this rule. SAAs are generally responsible for the 
approval or disapproval of education and training programs in their 
respective states. According to VA's internal compliance records, 
implementation of section 3679(e) has not created an additional 
administrative burden on SAAs. Since August 1, 2019, the date VA began 
implementing the statutory provision, no educational institution has 
been disapproved due to a violation of section 3679(e), and additional 
Federal funds have not been required to enforce this provision.
    Also, while educational institutions are required to provide notice 
to enrolled and prospective students of any information required for 
certification of students' enrollment in addition to the information 
enumerated in their online or print catalogs, VA surveyed multiple 
educational institutions and found that all have an online catalog that 
can be easily updated with this required notice in approximately two 
hours, per data provided by these schools. Consequently, we believe 
that the provisions of this rule do not pose an undue administrative 
burden on educational institutions. And there would be no additional 
burden on VA because, as stated, SAAs, rather than VA, are generally 
responsible for the approval or disapproval of education and training 
programs.
    Therefore, VA makes no changes to the rule based on this comment.

[[Page 66993]]

Program Options

    Two commenters expressed concern that there could be a reduction in 
the number of educational program options available to Veterans because 
non-compliant educational institutions will be disapproved by SAAs. 
While we understand that if a school is disapproved, options for 
Veteran students will decrease, VA compliance records show that no 
educational institutions have been disapproved due to a violation of 
section 3679(e) since August 1, 2019, when VA began implementing this 
law. Moreover, there is unlikely to be an increase in disapprovals 
because schools that are approved to receive GI Bill benefits generally 
receive a percent of their revenue, which can be substantial, from VA 
payments, and therefore, they have an incentive to comply with the law 
and maintain their approval. Thus, we do not believe that the rule will 
result in fewer educational opportunities for Veterans.
    Relatedly, one commenter stated that SAAs should not automatically 
disapprove programs that are non-compliant and suggested alternative 
enforcement mechanisms that would not limit educational opportunities. 
Although statutory authority requires disapproval of schools for 
failure to comply with the requirements of section 3679(e)(1), SAAs do 
not ``automatically'' disapprove non-compliant programs for violating 
section 3679(e)(1). If an SAA determines that an educational 
institution is not in compliance with this provision, the appropriate 
corrective action most often is suspension of the approval of a course 
for new enrollments, in accordance with 38 CFR 21.4259. Under Sec.  
21.4259(a), the SAA gives the educational institution 60 days to come 
into compliance. Additionally, section 3679(e)(3) gives the Secretary 
discretionary authority to waive the requirements of section 
3679(e)(1). In this final rule, VA is requiring in Sec.  21.4269(c) 
that an educational institution request a waiver within the same 60-day 
period, to ensure that an SAA does not withdraw approval when waiver 
may be warranted. Only if the educational institution does not come 
into compliance or request a waiver within 60 days will the SAA 
withdraw approval under section 3679. Further, if an SAA determines an 
educational institution's non-compliance is due to reasons outside of 
the educational institution's direct control (e.g., action is required 
by the state legislature), the SAA may recommend that the educational 
institution request a waiver from VA. Because disapprovals are not 
automatic, as the commenter suggests, and because they serve as a 
disincentive to non-compliance limiting the number of disapprovals, 
they are unlikely to restrict Veterans' educational training options.
    Accordingly, to ensure that educational institutions are aware that 
they must apply for a waiver within the 60-day period following a 
determination of non-compliance, VA is including this requirement in 
Sec.  21.4269(c).

Restoration of Entitlement

    One commenter expressed concern regarding the burden students 
enrolled in educational institutions that are disapproved due to non-
compliance under section 3679(e) would have to bear and suggested 
restoring entitlement to educational benefits for these students. 
Section 3699 provides VA with authority to restore entitlement when an 
educational institution or program has closed or has been disapproved 
due to a change in law or VA regulations. Also, the Veterans Eligible 
to Transfer School (VETS) Credit Act, Public Law 117-297, which 
modified this provision, made it easier for students to apply for 
restoration of entitlement. Specifically, for any covered closure or 
disapproval on or after December 27, 2022, students do not need to 
enroll in a new school prior to applying for restoration of benefits. 
Hence, if a training institution has been disapproved due to a 
violation of section 3679(e), affected students may not lose their 
entitlement in certain circumstances.
    VA makes no changes to the rule based on this comment.

Intent To Use Benefits

    One commenter requested that VA change the term ``request'' to 
``notice'' in Sec.  21.4269(d)(1)(ii), because if a student submits a 
``request'' to use their GI Bill benefits at a specific educational 
institution instead of a ``notice,'' the educational institution may 
deny the student's request. The commenter also requested that VA create 
a uniform form a student can use to inform an educational institution 
that they intend to use their GI Bill benefits. Section 3679(e)(4)(B) 
states that a student must ``[s]ubmit a written request to use such 
entitlement'' (emphasis added). We are parroting the statutory language 
in our regulation to ensure proper implementation and avoid 
misinterpretations. In any event, approved educational institutions 
lack the authority to deny an eligible student's request to use their 
VA benefits for a GI Bill approved program as long as the eligible 
student has remaining entitlement.
    Further, we believe that requiring a student to use a form 
developed by VA would increase their administrative burden and could 
make it harder for them to obtain relief, i.e., schools could attempt 
to withhold benefits if a student does not submit the correct form. VA 
disagrees with the commenter and, in fact, believes it is beneficial 
for students to be permitted to use any type of notification to request 
use of entitlement, and not be limited to a specific Federal Government 
form when dealing directly with a non-government educational 
institution.
    Accordingly, VA makes no changes to the rule based on this comment.
    Expected VA Funding
    One commenter asked that VA clarify why there would be a cost 
difference between the amount of funds expected by an educational 
institution from VA and the amount of funds the educational institution 
receives. The certificate of eligibility that VA issues as proof of a 
student's eligibility for educational benefits includes the number of 
months of entitlement but does not contain ``an itemization of the 
amount of benefits allocated to a student for tuition and fees, 
housing, and supplies'' as the commenter suggested. The amount of 
payment is dependent on the program of education a student is enrolled 
in, any statutory caps on certain VA benefits, and the student 
beneficiary's benefit level. Not all Post-9/11 GI Bill beneficiaries 
qualify at the 100% benefit level, which means that not all 
beneficiaries receive full payment. A school likely would not be able 
to calculate the VA payment amount for a beneficiary who is eligible 
for benefits at a percentage less than 100% and, thus, would not know 
in advance how much to expect to receive from VA on behalf of this 
beneficiary.
    VA makes no changes to the rule based on this comment.

Executive Orders 12866, 13563 and 14094

    Executive Order 12866 (Regulatory Planning and Review) directs 
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

[[Page 66994]]

promoting flexibility. Executive Order 14094 (Executive Order on 
Modernizing Regulatory Review) supplements and reaffirms the 
principles, structures, and definitions governing contemporary 
regulatory review established in Executive Order 12866 of September 30, 
1993 (Regulatory Planning and Review), and Executive Order 13563 of 
January 18, 2011 (Improving Regulation and Regulatory Review). The 
Office of Information and Regulatory Affairs has determined that this 
rulemaking is not a significant regulatory action under Executive Order 
12866, as amended by Executive Order 14094. The Regulatory Impact 
Analysis associated with this rulemaking can be found as a supporting 
document at www.regulations.gov.

Regulatory Flexibility Act

    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 (5 U.S.C. 601-612). Although this final rule includes 
provisions that entail costs to training institutions, such as the loss 
of late fees that institutions are prohibited from assessing when a 
student is unable to meet financial obligations to the institution, and 
the cost of publication of the requirements for submitting additional 
information needed for certifying enrollment, the provisions merely 
restate existing provisions of statute, and thus will have no 
additional impact on such small entities. Therefore, under 5 U.S.C. 
605(b), the initial and final regulatory flexibility analysis 
requirements of 5 U.S.C. 603 and 604 do not apply.

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 one 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 includes a provision constituting a new collection 
of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521). The new collection of information requires approval by the 
Office of Management and Budget (OMB) and assignment of an OMB Control 
Number. Accordingly, under 44 U.S.C. 3507(d), VA submitted a copy of 
this rulemaking action to OMB for review and approval. VA received no 
comments on the new collection of information.
    An OMB Control Number of 2900-0925 has been assigned to the new 
collection of information associated with this final rule. Assignment 
of this OMB control number is not an approval to conduct or sponsor an 
information collection under the Paperwork Reduction Act of 1995. In 
accordance with 5 CFR 1320, the new collection of information 
associated with this rulemaking is not approved by OMB at this time. 
OMB's approval of the new collection of information will occur within 
30 days after the final rulemaking publishes. If OMB does not approve 
the new collection of information as requested, VA will immediately 
remove the provision containing a new collection of information or take 
such other action as is directed by OMB.
    The new collection of information associated with this rulemaking 
contained in 38 CFR 21.4269 is described immediately following this 
paragraph, under its respective title.
    Title: Publishing of Requirement to Submit Additional Information 
Necessary for Certification of Enrollment.
    OMB Control No: 2900-0925.
    CFR Provision: 38 CFR 21.4269(d)(1)(iii).
     Summary of collection of information: This new collection 
of information in Sec.  21.4269(d)(1)(iii) will require educational 
institutions to give notice to enrolled and potential students of any 
information in addition to the information already enumerated in their 
catalogs that the educational institution requires for certification of 
claimants' enrollment. The educational institutions will be required to 
publish any additional information, after it is approved by the SAA, in 
their online or print catalogs.
     Description of need for information and proposed use of 
information: The information collected will be used by VA to facilitate 
VA's oversight of educational institutions and to ensure their 
compliance with Sec.  21.4269.
     Description of likely respondents: Educational 
institutions.
     Estimated total number of respondents: 16,084 educational 
institutions.
     Estimated frequency of responses: Once.
     Estimated average burden per response: Two hours or less.
     Estimated total annual reporting and recordkeeping burden: 
VA estimates the total annual reporting and recordkeeping burden to be 
32,168 burden hours. Using the annual number of responses, VA estimates 
a total annual reporting and recordkeeping burden of 32,168 hours for 
respondents.
     Estimated cost to respondents per year: VA estimates the 
annual cost to respondents to be $901,025.68 (16,084 respondents per 
year x 2 hours per application x $28.01*).
    * To estimate the total information collection burden cost, VA used 
the Bureau of Labor Statistics (BLS) median hourly wage for ``all 
occupations'' of $28.01 per hour. This information is available at: 
https://www.bls.gov/oes/current/oes_nat.htm#13-0000.

Assistance Listing

    The Assistance Listing numbers and titles for the programs affected 
by this document are: 64.027, Post-9/11 Veterans Educational 
Assistance; 64.028, Post-9/11 Veterans Educational Assistance; 64.032, 
Montgomery GI Bill Selected Reserve; Reserve Educational Assistance 
Program; 64.117, Survivors and Dependents Educational Assistance; 
64.120, Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-
Volunteer Force Educational Assistance.

Severability

    The purpose of this section is to clarify the agency's intent with 
respect to the severability of provisions of this final rule. Each 
provision that the agency is promulgating is capable of operating 
independently. If any provision of this rule is determined by judicial 
review or operation of law to be invalid, that partial invalidation 
will not render the remainder of this rule invalid. Likewise, if the 
application of any portion of this rule to a particular circumstance is 
determined to be invalid, the agency intends that the rule remain 
applicable to all other circumstances.

Congressional Review Act

    Pursuant to Subtitle E of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 
801 et seq.), the Office of Information and Regulatory Affairs 
designated this rule as not satisfying the criteria under 5 U.S.C. 
804(2).

List of Subjects in 38 CFR Part 21

    Administrative practice and procedure, Armed forces, Claims, 
Colleges and universities, Education, Employment, Reporting and 
recordkeeping requirements, Schools,

[[Page 66995]]

Veterans, Vocational education, Vocational rehabilitation.

Signing Authority

    Denis McDonough, Secretary of Veterans Affairs, approved this 
document on August 12, 2024, 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.

Luvenia Potts,
Regulations Development Coordinator, Office of Regulation Policy & 
Management, Office of General Counsel, Department of Veterans Affairs.

    For the reasons stated in the preamble, the Department of Veterans 
Affairs amends 38 CFR part 21 as set forth below:

PART 21--VOCATIONAL REHABILITATION AND EDUCATION

Subpart D--Administration of Educational Assistance Programs

0
1. The authority citation for part 21, subpart D continues to read as 
follows:

    Authority:  10 U.S.C. 2141 note, ch. 1606; 38 U.S.C. 501(a), 
chs. 30, 32, 33, 34, 35, 36, and as noted in specific sections


0
2. Add Sec.  21.4269 to read as follows:


Sec.  21.4269  Bar to approval.

    (a) Beginning on August 1, 2019, a State approving agency, or the 
Secretary when acting in the role of the State approving agency, shall 
disapprove a program of education provided by an educational 
institution that has in effect a policy that is inconsistent with any 
of the following:
    (1) A policy that permits any covered individual to attend or 
participate in the program of education during the period beginning on 
the date on which the individual provides to the educational 
institution any verifiable and authoritative VA document demonstrating 
entitlement to educational assistance under 38 U.S.C. chapter 31, 
chapter 33, or chapter 35 (such as a decision or notice of decision on 
entitlement, letter from VA, updated award letter from VA, or print-out 
of eligibility (statement of benefits) from a web-based VA system or 
beneficiary portal to include verification through VA's secure 
information technology system in accordance with 38 U.S.C. 3699A if an 
individual has provided authorization to obtain remaining entitlement 
information), and ending on the earlier of the following dates:
    (i) The date on which payment from VA is made to the institution.
    (ii) The date that is 90 days after the date on which the 
educational institution certifies tuition and fees following receipt of 
the verifiable and authoritative VA document proving entitlement to 
educational assistance under 38 U.S.C. chapter 31, chapter 33, or 
chapter 35.
    (2) A policy that ensures an educational institution will not 
impose any penalty, including the assessment of late fees, the denial 
of access to classes, libraries, or other institutional facilities, or 
the requirement that a covered individual borrow additional funds, on 
any covered individual because of the individual's inability to meet 
his or her financial obligations to the institution due to the delayed 
disbursement of a payment to be provided by VA under 38 U.S.C. chapter 
31, chapter 33, or chapter 35.
    (b) For purposes of this section, a covered individual is any 
individual who is entitled to educational assistance under 38 U.S.C. 
chapter 31, chapter 33, or chapter 35.
    (c) The Secretary (or designee) may waive such requirements of 
paragraph (a) of this section as the Secretary (or designee) considers 
appropriate. An educational institution must apply for a waiver within 
60 days of the SAA determination that an educational institution is not 
in compliance with paragraph (a).
    (d) It shall not be inconsistent with a policy described in 
paragraph (a) of this section for an educational institution:
    (1) To require a covered individual to take the following 
additional actions:
    (i) Submit any verifiable and authoritative VA document to prove 
entitlement to educational assistance under 38 U.S.C. chapter 31, 
chapter 33, or chapter 35 (as described in paragraph (a)(1)) not later 
than the first day of a program of education for which the individual 
has indicated the individual wishes to use the individual's entitlement 
to educational assistance.
    (ii) Submit a written request to use such entitlement.
    (iii) Provide additional information necessary to the proper 
certification of enrollment by the educational institution. If an 
educational institution intends to require additional information 
necessary for proper certification of enrollment, any such requirement 
must be included in the school's published catalog and also must be 
approved by the State approving agency, or the Secretary when acting in 
the role of the State approving agency, as being necessary for proper 
certification and not overly burdensome to submit.
    (2) In a case in which a covered individual is unable to meet a 
financial obligation to an educational institution due to the delayed 
disbursement of a payment to be provided by VA under 38 U.S.C. chapter 
31, chapter 33, or chapter 35 and the amount of such disbursement is 
less than the educational institution anticipated, to require 
additional payment of or impose a fee for the amount that is the 
difference between the amount of the financial obligation and the 
amount of the disbursement.
    (i) Such additional payment may include the amount of a financial 
obligation associated with charges for which VA does not pay benefits 
(e.g., room and board, any portion of tuition for which a claimant does 
not qualify).
    (ii) An educational institution may utilize its standard debt 
collection policies for these amounts, including the assessment of late 
fees.

(Authority: 38 U.S.C. 3679(e))

[FR Doc. 2024-18345 Filed 8-16-24; 8:45 am]
BILLING CODE 8320-01-P