[Federal Register Volume 74, Number 154 (Wednesday, August 12, 2009)]
[Rules and Regulations]
[Pages 40495-40498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19335]



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DEPARTMENT OF EDUCATION

34 CFR Part 371

RIN 1820-AB63
[Docket ID ED-2009-OSERS-0008]


Vocational Rehabilitation Service Projects for American Indians 
With Disabilities

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Interim final rule; Request for Comments.

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SUMMARY: The Secretary amends the regulations for the American Indian 
Vocational Rehabilitation Services (AIVRS) program to permit a 
consortium of Indian Tribes to establish a separate legal entity to 
apply for a grant under this program. This change is needed to provide 
the flexibility required by the Department to make grants to Indian 
Tribes that choose to form a consortium and, rather than authorizing 
one of the Indian Tribes of the consortium to serve as the grantee, 
create a separate legal entity that serves as the grantee on behalf of 
the consortium and that is responsible for using the grant funds to 
provide services to all the Indian Tribes in the consortium.

DATES: These regulations are effective August 12, 2009. We must receive 
your comments by September 11, 2009.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by e-mail. Please submit your comments only 
one time, in order to ensure that we do not receive duplicate copies. 
In addition, please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to http://www.regulations.gov to submit your comments electronically. Information 
on using Regulations.gov, including instructions for accessing agency 
documents, submitting comments, and viewing the docket is available on 
the site under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about these interim final regulations, 
address them to Thomas E. Finch, U.S. Department of Education, 400 
Maryland Avenue, SW., room 5059, Potomac Center Plaza (PCP), 
Washington, DC 20006-8544.

    Privacy Note:
    The Department's policy for comments received from members of 
the public (including those comments submitted by mail, commercial 
delivery, or hand delivery) is to make these submissions available 
for public viewing in their entirety on the Federal eRulemaking 
Portal at http://www.regulations.gov. Therefore, commenters should 
be careful to include in their comments only information that they 
wish to make publicly available on the Internet.


FOR FURTHER INFORMATION CONTACT: Thomas E. Finch. Telephone: 202-245-
7343 or via the Internet: [email protected].
    If you use a telecommunications device for the deaf (TDD), call the 
Federal Relay Service (FRS), toll free, at 1-800-877-8339.
    Individuals with disabilities can obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation To Comment

    We invite you to submit comments regarding these interim final 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the interim final regulations that each 
of your comments address and to arrange your comments in the same order 
as the interim final regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these interim final 
regulations. Please let us know of any further opportunities we should 
take to reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period you may inspect all public 
comments about these interim final regulations by accessing 
Regulations.gov. You may also inspect the comments, in person, in room 
5059, PCP, 550 12th Street, SW., Washington, DC, between the hours of 
8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week 
except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these interim final regulations. If you want to 
schedule an appointment for this type of aid, please contact Thomas E. 
Finch. Telephone number (202) 245-7343 or e-mail: [email protected].

Executive Order 13175

    Executive Order 13175 (``Consultation and Coordination with Indian 
Tribal Governments'') provides that each Federal agency must have an 
accountable process to ensure regular and meaningful consultation and 
collaboration with Indian Tribal governments or their representative 
organizations in the development of regulatory policies that have 
Tribal implications. As part of this process, before publishing these 
interim final regulations, we have consulted through meetings, 
telephone calls, and correspondence with the Consortia of 
Administrators for Native American Rehabilitation that represents all 
the AIVRS projects across the country, several Indian Tribes, Alaskan 
Regional Corporations, Native Alaskan Villages, the Native Alaskan 
Associations, as well as interested parties in Congress. We are 
specifically inviting input from Indian Tribal officials concerning 
these interim final regulations as part of the process of consultation 
required by the Executive order.

Background

    The AIVRS program, authorized by section 121 of the Rehabilitation 
Act of 1973, as amended (29 U.S.C. 741), provides authority for the 
Commissioner of the Rehabilitation Services Administration (RSA) in the 
Office of Special Education and Rehabilitative Services of the 
Department of Education to make grants to the governing bodies of 
Indian Tribes located on Federal and State reservations (and consortia 
of such governing bodies) to pay 90 percent of the costs of vocational 
rehabilitation services for American Indians who are individuals with 
disabilities residing on or near such reservations. The term governing 
bodies of Indian Tribes is defined in the regulations at 34 CFR 371.4 
as ``those duly elected or appointed representatives of an Indian Tribe 
or of an Alaskan native village. These representatives must have the 
authority to enter into contracts, agreements, and grants on behalf of 
their constituency.'' Section 371.4 also defines the term consortium as 
``two or more eligible governing bodies of Indian Tribes that make 
application as a single applicant under an agreement whereby each 
governing body is legally responsible for carrying out all of the 
activities in the application.''

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    The regulatory definition of the term consortium permits groups of 
applicants to apply only if one member of the group applies for the 
grant on behalf of the consortium and serves as the grantee. In order 
to recognize that Indian Tribes may organize themselves by establishing 
separate legal entities to apply on their behalf for Federal program 
funds, the Department amends the definition of the term consortium to 
expressly allow the governing bodies of Indian Tribes in the consortium 
to create a separate legal entity to apply for a grant on behalf of the 
Tribes in the consortium. As the applicant, the separate legal entity 
would be governed by the regulations that apply to the AIVRS program 
pursuant to Sec.  371.3.
    On May 14, 2009, we published in the Federal Register (74 FR 22729) 
a notice inviting applications for new awards for fiscal year (FY) 2009 
for the AIVRS program. The original notice for the FY 2009 AIVRS 
program competition established a July 23, 2009, deadline date for 
eligible applicants to apply for funding under this program. To ensure 
that the change in the regulatory definition of the term consortium 
applies to entities applying for a FY 2009 grant, we are reopening the 
competition and establishing a new deadline for the submission of 
applications. Applicants that submitted applications by the July 23, 
2009, deadline date in accordance with the terms of the May 14, 2009 
notice inviting applications are not required to submit new 
applications. Only groups of Indian Tribes that seek to apply for 
funding under the AIVRS program using a separate legal entity as the 
applicant are permitted to submit a new application under the new 
deadline. The notice reopening the FY 2009 competition for the AIVRS 
program is published elsewhere in this issue of the Federal Register.

Waiver of Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the 
Department is generally required to publish a notice of proposed 
rulemaking and provide the public with an opportunity to comment on 
proposed regulations prior to establishing a final rule. However, we 
are waiving the notice-and-comment rulemaking requirements under the 
APA. Section 553(b) of the APA provides that an agency is not required 
to conduct notice-and-comment rulemaking when the agency for good cause 
finds that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. Although these 
regulations are subject to the APA's notice-and-comment requirements, 
the Secretary has determined that it would be contrary to the public 
interest and impracticable to conduct notice-and-comment rulemaking.
    It has come to the Department's attention that certain entities 
receiving AIVRS program grants do not meet the current definition of 
the term governing bodies of Indian Tribes or the term consortium, but 
rather are nonprofit associations created by the governing bodies of 
Indian Tribes to provide health, social, and welfare services 
(including vocational rehabilitation services) to the member Indian 
Tribes. Some of the Indian Tribes served by these nonprofit 
associations will be among the applicants in the FY 2009 AIVRS program 
competition and there are others who are due to receive continuation 
grants for FY 2009.
    For many small Indian Tribes and Alaskan native villages, the only 
effective and efficient way for their members to receive health, 
social, and welfare services is for the Tribes or villages to join 
together and create a separate legal entity to apply for and administer 
grants and contracts from the Federal and State governments. Other 
Department and Federal agency programs accept applications from groups 
of Indian Tribes submitted by these separate legal entities. If the 
Department had to conduct notice-and-comment rulemaking to implement 
the change in the definition of the term consortium for purposes of the 
AIVRS program, it could not do so in time to permit it to make new and 
continuation awards to eligible applicants that apply through these 
separate legal entities for FY 2009, which would result in the 
disruption of services to hundreds of American Indians with 
disabilities who currently receive services through grants provided to 
these entities. Such a denial of services to the intended beneficiaries 
of the AIVRS program would be contrary to the public interest; this 
harm to the public interest outweighs the value that would be gained 
from notice-and-comment rulemaking in this instance because the 
regulatory change sought merely adopts an accepted practice used by 
many Indian Tribes to apply for and administer Federal programs.
    In addition, even on an extremely expedited timeline, it is 
impracticable for the Department to conduct notice-and-comment 
rulemaking and then promulgate final regulations in time to make new 
and continuation awards to eligible applicants that apply through these 
separate legal entities for FY 2009 under the AIVRS program. Publishing 
a notice of proposed rulemaking, reviewing the public comments and 
issuing final regulations normally takes at least six months, and this 
could not be accomplished prior to September 30, 2009, the date by 
which FY 2009 funds have to be obligated under the AIVRS program. 
Issuing interim final regulations permits the Department to consider 
applications under the competition for new awards submitted by 
applicants affected by the change in the definition of the term 
consortium and to make continuation awards to certain applicants that 
will meet the changed definition and can then continue providing 
vocational rehabilitation services to American Indians with 
disabilities.
    Based upon this information, and in order to make timely grant 
awards for FY 2009, the Secretary is issuing these interim final 
regulations without first publishing proposed regulations for public 
comment.
    Although the Department is adopting these regulations on an interim 
final basis, the Department requests public comment on these 
regulations. After consideration of public comments, the Secretary will 
publish final regulations.
    The APA also requires that a substantive rule be published at least 
30 days before its effective date, except as otherwise provided for 
good cause (5 U.S.C. 553(d)(3)). For the reasons outlined in the 
preceding paragraphs, the Secretary has determined that a delayed 
effective date for these interim final regulations is unnecessary and 
contrary to the public interest, and that good cause exists to waive 
the requirement for a delayed effective date.

Significant Regulations

    We discuss substantive issues under the sections of the interim 
final regulations to which they pertain.
    Statute: Section 121(a) of the Rehabilitation Act of 1973, as 
amended, provides that the Commissioner of RSA may make grants to the 
governing bodies of Indian Tribes located on Federal and State 
reservations (and consortia of such governing bodies) to pay 90 percent 
of the costs of vocational rehabilitation services for American Indians 
who are individuals with disabilities residing on or near such 
reservations.
    Current Regulations: Current Sec.  371.4 defines the term 
consortium as two or more eligible governing bodies of Indian Tribes 
that make application as a single applicant under an agreement whereby 
each governing body is legally responsible for carrying out all of the 
activities in the application.

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    Regulations: We are amending the definition of the term consortium 
in section 371.4 to provide that a consortium means two or more 
eligible governing bodies of Indian Tribes that apply for an award 
under this program by either: (1) Designating one governing body to 
apply for the grant; or (2) establishing and designating a separate 
legal entity to apply for the grant.
    Reason: Although the regulations under the AIVRS program have not 
changed in several years, Indian Tribes have evolved in the ways that 
they have chosen to procure and deliver social services. Many Indian 
Tribes have found it more effective to join together and create one 
separate legal organization to apply for Federal funds on their behalf 
and to deliver services to the members of those Indian Tribes because 
they share the need for such services. This separate legal organization 
is generally a nonprofit association that provides health, social and 
welfare services (in this case, vocational rehabilitation services) to 
the members of the Indian Tribes that created this association. 
However, a nonprofit association does not meet the current definition 
of the term governing body of an Indian Tribe or the term consortium 
and, therefore, cannot serve as the grantee for a consortium of Indian 
Tribes under the AIVRS program.
    Many of the Indian Tribes that choose to form a consortium and 
establish a separate legal entity to apply for grants and administer 
health, social, and welfare services to its member Tribes would not, on 
their own, be able to assume responsibility for a AIVRS program grant 
because of their small size or isolated location, or because they lack 
the necessary infrastructure and internal controls to administer an 
AVRIS program grant. It has become apparent that the Department's 
current definition of the term consortium constrains the intended 
recipients of an AIVRS grant from applying for funds under the program 
and from delivering services to the intended beneficiaries of AIVRS 
program funding--the American Indians with disabilities. Therefore, the 
Department has determined that it is appropriate to revise the 
regulatory definition of the term consortium so that a group of 
governing bodies of Indian Tribes may establish a separate legal entity 
to serve as the applicant and grantee on behalf of eligible Indian 
Tribes applying for a grant as part of a consortium. The Department 
believes that this regulatory change is essential in order to keep pace 
with the practical realities of the Indian community, to respect how 
the sovereign Indian Tribes have decided to organize themselves to 
receive Federal program funds, and to provide for as much flexibility 
as possible within the statutory requirements of the program to award 
funds to intended recipients. These separate legal entities, 
established by consortia of Indian Tribes, already receive grants under 
certain Department programs as well as programs administered by other 
Federal agencies, and this change will align the AIVRS program with 
these other programs.

Other Changes

    Statute: None.
    Current Regulations: Part 371 currently identifies ``29 U.S.C. 
711(c) and 750, unless otherwise noted'' as the statutory authority for 
the regulations in this part.
    Regulations: We are updating the authority citation for 34 part 371 
to be 29 U.S.C. 709(c) and 741, unless otherwise noted.
    Reason: We are updating the authority citation for this part 
because it has not been updated since the 1992 amendments to the 
Rehabilitation Act of 1973.

Executive Order 12866

1. Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
the regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive order and subject to review by the Office 
of Management and Budget (OMB). Section 3(f) of Executive Order 12866 
defines a ``significant regulatory action'' as an action likely to 
result in a rule that may (1) have an annual effect on the economy of 
$100 million or more, or adversely affect a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local or Tribal governments or communities in a 
material way (also referred to as an ``economically significant'' 
rule); (2) create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency; (3) materially alter the 
budgetary impacts of entitlement 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. 
Pursuant to the terms of the Executive order, it has been determined 
that this regulatory action is not a significant regulatory action 
subject to OMB review under section 3(f) of Executive Order 12866.

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action and have determined that this 
rule will not impose additional costs to applicants, grantees, or the 
Federal government, as the Department is proposing only to expand how 
eligible applicants can apply for and administer grants under this 
program. The rule, changing the definition of the term consortium, is 
not expected to result in increased costs to Indian Tribes in applying 
for an AIVRS grant or in implementing an AIVRS project. Moreover, the 
benefits of this regulatory action far outweigh any unforeseen 
administrative costs to the Federal government in administering the 
program. Some Indian Tribes, particularly those for whom it would be 
difficult to assume responsibility for an AIVRS grant because of their 
small size, isolated location, or lack of the necessary infrastructure, 
have found it more effective to join together and create one separate 
legal organization to apply for Federal funds on their behalf and to 
deliver services to the members of those Indian Tribes. This regulatory 
change would benefit such Indian Tribes by providing them the 
flexibility to establish a separate legal entity to serve as the 
applicant and grantee on behalf of eligible Indian Tribes applying for 
a grant as part of a consortium, rather than requiring one of the 
Indian Tribes of the consortium to serve as the grantee.
    We have also determined that this regulatory action would not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions, alter the rights and 
obligations of recipients, or raise new legal or policy issues.

2. Clarity of the Regulations

    Executive Order 12866 and the Presidential memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these interim final 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the interim final regulations 
clearly stated?
     Do the interim final regulations contain technical terms 
or other wording that interferes with their clarity?
     Does the format of the interim final regulations (grouping 
and order of sections, use of headings, paragraphing, etc.) aid or 
reduce their clarity?

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     Would the interim final regulations be easier to 
understand if we divided them into more (but shorter) sections? (A 
``section'' is preceded by the symbol ``Sec.  '' and a numbered 
heading; for example, Sec.  371.4 What definitions apply to this 
program?)
     Could the description of the interim final regulations in 
the SUPPLEMENTARY INFORMATION section of this preamble be more helpful 
in making the interim final regulations easier to understand? If so, 
how?
     What else could we do to make the interim final 
regulations easier to understand?
    To send any comments that concern how the Department could make 
these interim final regulations easier to understand, see the 
instructions in the ADDRESSES section of this preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these interim final regulations will 
not have a significant economic impact on a substantial number of small 
entities. These interim final regulations affect Indian Tribal 
governments and nonprofit organizations. The U.S. Small Business 
Administration (SBA) Size Standards define these institutions as 
``small entities'' if they are for-profit or nonprofit institutions 
with total annual revenue below $5,000,000 or if they are institutions 
controlled by governmental entities with populations below 50,000.
    Although some Indian Tribal governments and nonprofit organizations 
may meet the definition of ``small entities,'' these interim final 
regulations do not impose new costs on these entities.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
http://www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.

    Note:
    The official version of this document is the document published 
in the Federal Register. Free Internet access to the official 
edition of the Federal Register and the Code of Federal Regulations 
is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.

(Catalog of Federal Domestic Assistance Number: 84.250A AIVRS 
Program)

List of Subjects in 34 CFR Part 371

    Grant programs--Indians, Grant programs--social programs, Indians 
vocational rehabilitation.

    Delegation of Authority: The Secretary of Education has delegated 
authority to Andrew J. Pepin, Executive Administrator for the Office of 
Special Education and Rehabilitative Services, to perform the functions 
of the Assistant Secretary for Special Education and Rehabilitative 
Services.

    Dated: August 6, 2009.
Andrew J. Pepin,
Executive Administrator for Special Education and Rehabilitative 
Services.


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For the reasons discussed in the preamble, the Secretary amends part 
371 of title 34 of the Code of Federal Regulations as follows:

PART 371--VOCATIONAL REHABILITATION SERVICE PROJECTS FOR AMERICAN 
INDIANS WITH DISABILITIES

0
1. The authority citation for part 371 is revised to read as follows:

    Authority: 29 U.S.C. 709(c) and 741, unless otherwise noted.

0
2. Section 371.4 is amended by revising the definition of 
``consortium'' in paragraph (b) to read as follows:


Sec.  371.4  What definitions apply to this program?

* * * * *
    (b) * * *
    Consortium means two or more eligible governing bodies of Indian 
Tribes that apply for an award under this program by either:
    (i) Designating one governing body to apply for the grant; or
    (ii) Establishing and designating a separate legal entity to apply 
for the grant.
* * * * *
[FR Doc. E9-19335 Filed 8-11-09; 8:45 am]
BILLING CODE 4000-01-P