29294 Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations

SUPPLEMENTARY INFORMATION: This final

rule consists of nonsubstantive changes

and, therefore, is not subject to the

notice and comment and effective date

provisions of 5 U.S.C. 553.

The Secretary 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

(RFA), 5. U.S.C. 601–602. This final rule

would not cause a significant effect on

any entities since it does not contain

any substantive provisions. Therefore,

pursuant to 5 U.S.C. 605(b), this

amendment is exempt from the initial

and final regulatory flexibility analysis

requirements of sections 603 and 604.

The Catalog of Federal Domestic

Assistance program numbers are 64008,

64009, and 64010.

List of Subjects in 38 CFR Part 17

Administrative practice and

procedure, Alcohol abuse, Alcoholism,

Claims, Day care, Dental health, Drug

abuse, Foreign relations, Government

contracts, Grant programs-health, Grant

programs-veterans, Health care, Health

facilities, Health professions, Health

records, Homeless, Medical and dental

schools, Medical devices, Medical

research, Mental health programs,

Nursing homes, Philippines, Reporting

and recordkeeping requirements,

Scholarships and fellowships, Travel

and transportation expenses, Veterans.

Approved: May 31, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set forth in the

preamble, 38 CFR part 17 is amended as

set forth below:

PART 17—MEDICAL

1. The authority citation for part 17

continues to read as follows:

Authority: 38 U.S.C. 501, 1721, unless

otherwise noted.

§ 17.170 [Amended]

2. In § 17.170, paragraph (c) is

amended by removing ‘‘or the cause of

death is unknown’’, and paragraph (d) is

amended by removing ‘‘coroner’’ each

time it appears and adding, in its place,

‘‘medical examiner/coroner’’.

[FR Doc. 96–14362 Filed 6–7–96; 8:45 am]

BILLING CODE 8320–01–P

38 CFR Part 21

RIN 2900–AH31

Educational Assistance Programs and

Service Members Occupational

Conversion and Training Act Program

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

educational assistance regulations and

the Service Members Occupational

Conversion and Training Act

(SMOCTA) regulations. It restates

statutory provisions of the Veterans’

Benefits Improvement Act of 1994 and

the National Defense Authorization Act

for Fiscal Year 1995. It also makes

changes to set forth statutory

interpretations of the Department of

Veterans Affairs (VA), to reflect current

organizational structure within VA, and

to provide clarification. These changes

affect the Survivors’ and Dependents’

Educational Assistance program, the

Montgomery GI Bill—Active Duty

program, the Montgomery GI Bill—

Selected Reserve program, the SMOCTA

program, and the Post-Vietnam Era

Veterans’ Educational Assistance

program (VEAP).

EFFECTIVE DATE: This final rule is

effective June 10, 1996. For more

information concerning the application

of the provisions of the final rule, see

the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: June

C. Schaeffer, Assistant Director for

Policy and Program Administration,

Education Service, Veterans Benefits

Administration, (202) 273–7187.

SUPPLEMENTARY INFORMATION: This

document amends regulations in 38 CFR

Part 21. It amends educational

assistance regulations concerning the

Survivors’ and Dependents’ Educational

Assistance program in subpart C and the

Montgomery GI Bill—Active Duty

program in subpart K. Also, this

document makes changes to the

administrative provisions in subpart D

that affect the Survivors’ and

Dependents’ Educational Assistance

program, the Montgomery GI Bill—

Active Duty program, the Montgomery

GI Bill—Selected Reserve program, and

VEAP. Further, this document amends

the SMOCTA regulations in subpart F–

3.

The Veterans’ Benefits Improvement

Act of 1994 (Pub. L. 103–446) contains

many provisions that affect the

Montgomery GI Bill—Active Duty

program. These include making

vocational flight training permanently

available under the Montgomery GI

Bill—Active Duty program; permitting

approval of alternative teacher

certification programs for training under

the Montgomery GI Bill—Active Duty

program; eliminating VA’s authority to

functionally supervise State approving

agencies; restricting approved

correspondence courses to accredited

courses; and permitting approval of

programs of education offered by foreign

educational institutions when those

programs include courses offered away

from the institution’s main campus.

Accordingly, the regulations in subparts

D and K are amended to incorporate the

statutory changes.

Pursuant to Pub. L. 103–446, the

provisions concerning alternative

teacher certification do not apply to the

Survivors’ and Dependents’ Educational

Assistance program, and regulations in

subpart C governing that program are

revised to clarify that fact. The

provisions of Pub. L. 103–446 also

provide that certain recipients of

Survivors’ and Dependents’ Educational

Assistance in the Philippines who were

being paid at the rate equivalent to 50

cents on the dollar in Philippine pesos

will now be paid in U.S. dollars. The

regulations in subpart C are amended

accordingly. We also made various

changes to SMOCTA regulations in

subpart F–3 to reflect the statutory

changes made by Pub. L. 103–446. In

this regard, the SMOCTA regulations are

amended by eliminating the prohibition

against training programs that lasted

more than 18 months, by eliminating

provisions that required a two week

wait before a veteran could begin a

training program, and by adding an

aggregate limit of not more than $10,000

or $12,000, as applicable, that could be

paid to employers when a trainee was

in more than one training program.

The National Defense Authorization

Act for Fiscal Year 1995 (Pub. L. 103–

337) contains provisions permitting

additional members of the Coast Guard

to qualify for the Montgomery GI Bill—

Active Duty program. The regulations in

subpart K are amended to reflect the

statutory change.

VA is prohibited by statute from

approving the enrollment of an eligible

veteran in a course if 85% or more of

the students enrolled in the course are

VA-supported. In this regard, vocational

flight training is now a permanent part

of the Montgomery GI Bill—Active Duty

program, the Montgomery GI Bill—

Selected Reserve program, and VEAP.

The regulations are amended by

providing that solo flight training and

training in flight simulators are to be

included in the calculations for

determining whether the 85%–15%

requirement has been met in flight

courses. This is necessary since in our
Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations 29295

view 38 U.S.C. 3680A(d) requires that

when educational assistance may be

paid to eligible veterans for any courses,

those courses are subject to the 85%–

15% requirement.

The regulations in subpart D are

amended by eliminating references to

the Director, Vocational Rehabilitation

and Education Service, a position that

no longer exists; by removing an

obsolete reference to eligibility

requirements under the old Vietnam Era

GI Bill from the regulations concerning

training in foreign schools, since there

no longer is any eligibility under the

Vietnam Era GI Bill; and clarifying,

consistent with the requirements of Pub.

L. 103–446, that a person eligible under

the Montgomery GI Bill—Active Duty

program and the Montgomery GI Bill—

Selected Reserve program may train in

foreign schools.

Pub. L. 103–446 contains a provision

that requires any entity offering an

alternative teacher certification program

to be considered to be an educational

institution for VA purposes during the

period beginning on November 2, 1994,

and ending on September 30, 1996. This

document amends subparts D and K to

reflect this statutory change.

This document also amends subparts

D and K by adding a definition of

‘‘alternative teacher certification

program’’ as follows:

The term alternative teacher certification

program, for the purposes of determining

whether an entity offering such a program is

a school, educational institution or

institution as defined in * * * this section,

means a program leading to a teacher’s

certificate that allows individuals with a

bachelor’s degree or graduate degree to obtain

teacher certification without enrolling in an

institution of higher learning.

We believe this is consistent with

congressional intent.

The educational assistance

regulations in subparts C, D, and K and

the SMOCTA regulations in subpart F–

3 are further amended by making other

changes for purposes of clarification.

The restatements of statute and

statutory interpretations of Pub. L. 102–

484 and Pub. L. 103–446 contained in

this final rule will be applied

retroactively from the effective dates of

the statutory provisions. However, the

revisions concerning the internal VA

reorganization and other clarifications

will be applied from the effective date

of the rule. Dates of application for

provisions covered by this document are

as follows:

Oct. 1, 1994: § 21.7120.

Oct. 5, 1994: § 21.7045.

Nov. 2, 1994: §§ 21.3333, 21.4152,

21.4155, 21.4200, 21.4250(f), 21.4820,

21.4830, 21.4832, and 21.7020.

Jan. 31, 1995: §§ 21.4252(e) and 21.4279.

June 10, 1996: §§ 21.4201 and 21.4260.

This document makes no substantive

changes. It restates statutory provisions,

sets forth statutory interpretations,

reflects current organizational structure

within VA, and makes changes for

clarification. Accordingly, there is a

basis for dispensing with prior notice

and comment and delayed effective date

provisions of 5 U.S.C. 552 and 553.

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. This

final rule makes no substantive changes.

Pursuant to 5 U.S.C. 605(b), this final

rule, therefore, is exempt from the

initial and final regulatory flexibility

analyses requirements of sections 603

and 604.

The Catalog of Federal Domestic

Assistance numbers for programs

affected by this final rule are 64.117,

64.120, and 64.124. No Catalog of

Federal Domestic Assistance number

has been assigned to the Montgomery GI

Bill—Selected Reserve program or the

training programs under the Service

Members Occupational Conversion and

Training Act.

List of Subjects in 38 CFR Part 21

Administrative practice and

procedure, Armed forces, Civil rights,

Claims, Colleges and universities,

Conflict of interests, Defense

Department, 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: May 31, 1996.

Jesse Brown,

Secretary of Veterans Affairs.

For the reasons set out in the

preamble, 38 CFR part 21 is amended as

set forth below.

PART 21—VOCATIONAL

REHABILITATION AND EDUCATION

Subpart C—Survivors’ and

Dependents’ Educational Assistance

Under 38 U.S.C. Chapter 35

1. The authority citation for subpart C

is revised to read as follows:

Authority: 38 U.S.C. 501(a), 512, 3500–

3566, unless otherwise noted.

2. In § 21.3021, paragraph (k) is

redesignated as paragraph (l); and new

paragraph (k) is added and newly

redesignated paragraph (l) is revised, to

read as follows:

§ 21.3021 Definitions.

* * * * *

(k) School, educational institution,

institution. The terms school,

educational institution and institution

mean:

(1) A vocational school or business

school;

(2) A junior college, teachers’ college,

college, normal school, professional

school, university, or scientific or

technical institution;

(3) A public or private secondary

school;

(4) A training establishment as

defined in § 21.4200(c); or

(5) An institution that provides

specialized vocational training,

generally recognized as on the

secondary school level or above, for

people with mental or physical

disabilities.

(Authority: 38 U.S.C. 3501(a)(6), 3535)

* * * * *

(l) Additional definitions. The

definitions of all terms that are defined

in § 21.4200 but that are not defined in

this section apply to subpart C of this

part.

(Authority: 38 U.S.C. 501, 3501)

* * * * *

3. In § 21.3333, paragraph (c) is

revised to read as follows:

§ 21.3333 Rates.

* * * * *

(c) Payments made to eligible persons

in the Republic of the Philippines or to

certain Filipinos. When the eligible

person is pursuing training at an

institution located in the Republic of the

Philippines or when an eligible child’s

entitlement is based on the service of a

veteran in the Philippine

Commonwealth Army, or as a

Philippine Scout as defined in § 3.8(b),

(c), or (d) of this chapter, payments of

special training allowance made after

December 31, 1994, will be made at the

rate of 50 cents for each dollar

authorized.

(Authority: 38 U.S.C. 3532(d), 3542, 3565)

* * * * *

Subpart D—Administration of

Educational Assistance Programs

4. The authority citation for subpart D

continues to read as follows:

Authority: 10 U.S.C. ch. 1606; 38 U.S.C.

501(a), chs. 30, 32, 34, 35, 36, unless

otherwise noted.
29296 Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations

§ 21.4155 [Amended]

5. In § 21.4152, paragraph (a) is

amended by removing ‘‘Except as

provided in § 21.4155 of this part, no’’

and adding, in its place, ‘‘No’’.

§ 21.4152 [Amended]

6. In § 21.4155, paragraph (b) is

removed and paragraphs (c) and (d) are

redesignated as paragraphs (b) and (c),

respectively.

7. In § 21.4200, paragraph (a) is

revised and paragraph (w) is added, to

read as follows:

§ 21.4200 Definitions.

(a) School, educational institution,

institution. The terms school,

educational institution and institution

mean:

(1) A vocational school or business

school;

(2) A junior college, teachers’ college,

college, normal school, professional

school, university, or scientific or

technical institution;

(3) A public or private elementary

school or secondary school;

(4) A training establishment as

defined in paragraph (c) of this section;

or

(5) Any entity during the period

beginning on November 2, 1994, and

ending on September 30, 1996, other

than an institution of higher learning,

that provides training for completion of

a State-approved alternative teacher

certification program.

(Authority: 38 U.S.C. 3452)

* * * * *

(w) Alternative teacher certification

program. The term alternative teacher

certification program, for the purposes

of determining whether an entity

offering such a program is a school,

educational institution, or institution as

defined in paragraph (a)(5) of this

section, means a program leading to a

teacher’s certificate that allows

individuals with a bachelor’s degree or

graduate degree to obtain teacher

certification without enrolling in an

institution of higher learning.

(Authority: 38 U.S.C. 3452(c))

* * * * *

8. In § 21.4201, paragraph (e)(3)(ii)

introductory text is amended by

removing ‘‘part 141, Title 14, Code of

Federal Regulations’’ in each place and

adding, in its place, ‘‘14 CFR part 141’’;

paragraphs (e)(3)(ii)(B) and (e)(3)(ii)(C)

are removed; paragraphs (e)(3)(ii)(D) and

(e)(3)(ii)(E) are redesignated as

paragraphs (e)(3)(ii)(B) and (e)(3)(ii)(C),

respectively; and the section heading

and newly redesignated paragraph

(e)(3)(ii)(C) are revised to read as

follows:

§ 21.4201 Restrictions on enrollment;

percentage of students receiving financial

support.

* * * * *

(e) * * *

(3) * * *

(ii) * * *

(C) For students enrolled in courses

not approved under 14 CFR part 141,

such as courses offered by flight

simulator or courses for navigator or

flight engineer, shall include ground

training time or charges; actual logged

instructional flight time or charges; and

instructional time in a flight simulator

or charges for that training.

(Authority: 10 U.S.C. 16136(c); 38 U.S.C.

3034(d), 3680A(d))

* * * * *

9. In § 21.4252, paragraph (e) is

revised and paragraph (f) is added, to

read as follows:

§ 21.4252 Courses precluded.

* * * * *

(e) Correspondence courses. (1) VA

will not approve the enrollment of an

individual under 10 U.S.C. Chapter

1606 or 38 U.S.C. Chapter 30, 32, or 35

in a correspondence course or the

correspondence portion of a

correspondence-residence course unless

the course is accredited and meets the

requirements of §§ 21.4253, 21.4256,

and 21.4279, as appropriate.

(2) VA will not approve the

enrollment of an eligible child under 38

U.S.C. Chapter 35 in a correspondence

course or the correspondence portion of

a correspondence-residence course.

(Authority: 38 U.S.C. 3534(b))

(f) Alternative teacher certification

program. VA will not approve the

enrollment of an eligible person under

38 U.S.C. Chapter 35 in an alternative

teacher certification program unless that

program is offered by an institution of

higher learning as defined in

§ 21.4200(h).

(Authority: 38 U.S.C. 3452(c), 3501(a)(6))

* * * * *

10. In § 21.4260, paragraphs (b)(2),

(b)(3)(ii)(B), (b)(5), and (b)(6) are

amended by removing ‘‘Vocational

Rehabilitation and’’; paragraph (c)(1) is

amended by removing ‘‘of eligible’’ and

adding, in its place, ‘‘or eligible’’; and

paragraphs (c)(1)(i), (c)(1)(ii), and (c)(2)

are revised to read as follows:

§ 21.4260 Courses in foreign countries.

* * * * *

(c) * * *

(1) * * *

(i) The eligible person, serviceperson,

veteran, or reservist meets the eligibility

and entitlement requirements of either

§§ 21.3040 through 21.3046, §§ 21.5040

and 21.5041, §§ 21.7040 through

21.7045, or § 21.7540, as appropriate;

(ii) The eligible person’s,

serviceperson’s, veteran’s, or reservist’s

program of education meets the

requirements of either § 21.3021(h),

§ 21.5230, § 21.7020(b)(23), or

§ 21.7520(b)(17), as appropriate; and

* * * * *

(2) VA may deny or discontinue the

payment of educational assistance

allowance to a veteran, serviceperson,

eligible person or reservist pursuing a

course in an institution of higher

learning not located in a State when VA

finds that the veteran’s, serviceperson’s,

eligible person’s, or reservist’s

enrollment is not in his or her best

interest or the best interest of the

Federal Government.

(Authority: 38 U.S.C. 3687)

11. In § 21.4279, paragraph (b)

introductory text and paragraph (b)(1)

are revised to read as follows:

§ 21.4279 Combination correspondenceresidence program.

* * * * *

(b) Payment for pursuit of a

correspondence-residence program. The

rate of educational assistance payable to

a spouse or surviving spouse under 38

U.S.C. Chapter 35 for the residence

portion of a correspondence-residence

course or program shall be computed as

set forth in §§ 21.3131(a) and 21.4270.

(1) The charges for that portion of the

course or program pursued exclusively

by correspondence will be in

accordance with § 21.3131(a) with 1

month entitlement charged for each

$404 of cost reimbursed.

(Authority: 38 U.S.C. 3534)

* * * * *

Subpart F–3—Service Members

Occupational Conversion and Training

Program

12. The authority citation for subpart

F–3 is revised to read as follows:

Authority: 10 U.S.C. 1143 note; sec. 4481–

4497, Pub. L. 102–484, 106 Stat. 2757–2769;

sec. 610, Pub. L. 103–446, 108 Stat. 4673–

4674, unless otherwise noted.

13. Section 21.4820 is amended by

removing paragraph (a)(3) introductory

text; redesignating paragraphs (a)(3)(i)

and (a)(3)(ii) as paragraphs (a)(3) and

(a)(4), respectively; and paragraph (a)(1)

and newly redesignated paragraph (a)(4)

are revised to read as follows:

§ 21.4820 Job training program approval.

(a) * * *

(1) The training provided under an

employer’s job training program must be

in a field of employment providing a
Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations 29297

reasonable probability of stable, longterm employment and such training

must be provided for a period of not less

than 6 months.

* * * * *

(4) If a job training program requires

more than 18 months (or the equivalent

in training hours) of training to

complete, the period of training

approvable for purposes of this subpart

will be limited to the first 18 months (or

the equivalent in training hours) of

training under that program, or a period

of training not to exceed 18 months (or

the equivalent in training hours) from

the point at which the eligible person

enters the program in the case where the

employer grants credit for prior training.

(See § 21.4832(a)(3)).

(Authority: 10 U.S.C. 1143 note; sec. 4481–

4497, Pub. L. 102–484, 106 Stat. 2757–2769,

as amended by sec. 610, Pub. L. 103–446, 108

Stat. 4673–4674)

* * * * *

14. In § 21.4830, paragraph (b)(2) is

revised to read as follows:

§ 21.4830 Entrance into training.

* * * * *

(b) * * *

(2) The eligible person may enter the

job training program on or after the date

the notice of intent to hire described in

paragraph (a) of this section is

submitted to VA. However, VA may not

provide assistance to the employer if,

within two weeks after the date on

which the notice of intent to hire is

transmitted to VA, VA disapproves the

eligible person’s entry into that program

due to a lack of funds.

* * * * *

15–16. In § 21.4832, paragraph (d)(1)

introductory text is revised to read as

follows:

§ 21.4832 Payments to employers.

* * * * *

(d) Limitations on amount of

payments. (1) In no case will the sum

of the periodic payments and the lumpsum payment made to an employer for

all programs of training that an eligible

veteran may pursue with that employer

exceed:

* * * * *

Subpart K—All Volunteer Force

Educational Assistance Program

(Montgomery GI Bill—Active Duty)

17. The authority citation for subpart

K is revised to read as follows:

Authority: 38 U.S.C. 501(a), chs. 30, 36,

unless otherwise noted.

18. In § 21.7020, paragraph (b)(29) is

revised and paragraph (b)(43) is added,

to read as follows:

§ 21.7020 Definitions.

* * * * *

(b) * * *

(29) School, educational institution,

institution. The terms school,

educational institution, and institution

mean—

(i) Any vocational school,

correspondence school, business school,

junior college, teachers’ college, college,

normal school, professional school,

university or scientific or technical

institution;

(ii) Any public or private elementary

school or secondary school which offers

courses for adults, provided that the

courses lead to an objective other than

an elementary school diploma, a high

school diploma or their equivalents; and

(iii) An entity, during the period

beginning on November 2, 1994, and

ending on September 30, 1996, other

than an institution of higher learning,

that provides training required for

completion of a State-approved

alternative teacher certification

program.

(Authority: 38 U.S.C. 3002(8), 3452(c); Pub.

L. 98–525, Pub. L. 103–446)

* * * * *

(43) Alternative teacher certification

program. The term alternative teacher

certification program, for the purposes

of determining whether an entity

offering such a program is a school,

educational institution or institution as

defined in paragraph (b)(29)(iii) of this

section, means a program leading to a

teacher’s certificate that allows

individuals with a bachelor’s degree or

graduate degree to obtain teacher

certification without enrolling in an

institution of higher learning.

(Authority: 38 U.S.C. 3452(c))

19. In § 21.7045, paragraph (a)(1),

paragraph (b), introductory text, and the

authority citations for paragraphs (a)

and (b) are revised, to read as follows:

§ 21.7045 Eligibility based on involuntary

separation or voluntary separation.

* * * * *

(a) * * *

(1) The individual—

(i) If not a member of the Coast Guard,

must be on active duty or full-time

National Guard duty either on

September 30, 1990, or after November

29, 1993, or if a member of the Coast

Guard, must be on active duty after

September 30, 1994, and

(ii) After February 2, 1991, must be

involuntarily separated, as that term is

defined in 10 U.S.C. 1141, with an

honorable discharge; or

* * * * *

(Authority: 10 U.S.C. 1141; 38 U.S.C. 3018A)

(b) Additional requirements for those

individuals voluntarily separated after

October 23, 1992, or involuntarily

separated. An individual who meets the

requirements of paragraph (a)(1) of this

section; or an individual who meets the

requirements of paragraph (a)(2) of this

section and who either was not a

member of the Coast Guard and was

separated after October 22, 1992, or who

was a member of the Coast Guard and

was separated after September 30, 1994,

must meet the following additional

requirements in order to establish

eligibility for educational assistance:

* * * * *

(Authority: 38 U.S.C. 3018B)

* * * * *

§ 21.7120 [Amended]

20. In § 21.7120, paragraph

(c)(1)(ii)(D) is amended by removing

‘‘and before October 1, 1994’’.

[FR Doc. 96–14363 Filed 6–7–96; 8:45 am]

BILLING CODE 8320–01–P

DEPARTMENT OF DEFENSE

DEPARTMENT OF TRANSPORTATION

Coast Guard

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 21

RIN 2900–AE43

Educational Assistance for Members

of the Selected Reserve

AGENCIES: Department of Defense,

Department of Transportation (Coast

Guard), and Department of Veterans

Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

regulations for the Montgomery GI

Bill—Selected Reserve program to

reflect statutory changes by adding for

certain reservists new types of

permissible training such as

apprenticeship and other on-job

training, cooperative training, and flight

training; by liberalizing the eligibility

provisions; and by increasing the rates

of payment. The regulations are also

amended by adding additional

restatements of statute, interpretive

rules, and nonsubstantive changes.

DATES: Effective Date: This final rule is

effective June 10, 1996.

Applicability Dates: The restatements

of statute and VA’s statutory

interpretations contained in this final

rule will be applied retroactively from