[Federal Register Volume 75, Number 115 (Wednesday, June 16, 2010)]
[Rules and Regulations]
[Pages 34295-34297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14407]

[[Page 34295]]


Part V

Department of Education


34 CFR Part 371

Vocational Rehabilitation Service Projects for American Indians With 
Disabilities; Final Rule and Notice

Federal Register / Vol. 75, No. 115 / Wednesday, June 16, 2010 / 
Rules and Regulations

[[Page 34296]]



34 CFR Part 371

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

Vocational Rehabilitation Service Projects for American Indians 
With Disabilities

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

ACTION: Final regulations.


SUMMARY: The Secretary is adopting as final, without changes, interim 
final 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. These final regulations are needed to enable 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 

DATES: These regulations are effective June 16, 2010.

FOR FURTHER INFORMATION CONTACT: Thomas E. Finch, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 5147, Potomac Center Plaza 
(PCP), Washington, DC 20202-2800. 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 

    On August 12, 2009, the Secretary published interim final 
regulations for the AIVRS program in the Federal Register (74 FR 
40495). The interim final regulations became effective August 12, 2009. 
At the time the interim final regulations were published, the Secretary 
requested public comment on whether changes to the regulations were 
warranted. Pursuant to Executive Order 13175 (``Consultation and 
Coordination with Indian Tribal Governments''), the Secretary 
specifically invited input from Indian tribal officials concerning the 
changes made in the interim final regulations.
    In the interim final regulations, the Secretary amended the 
definition of the term consortium in Sec.  371.4 to provide that a 
consortium means two or more eligible governing bodies of Indian Tribes 
that apply for an award under the AIVRS 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 
    As explained in the preamble to the interim final regulations, the 
Secretary made this change to the definition of the term consortium 
because Indian Tribes have evolved in the ways that they have chosen to 
procure and deliver social services. Specifically, 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.
    Because the former definition of the term consortium did not permit 
a nonprofit organization to serve as the grantee for a consortium of 
Indian Tribes under the AIVRS program, the Secretary determined that it 
was essential to amend 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.
    There are no differences between the interim final regulations and 
these final regulations.
    Public Comment: In response to our invitation in the interim final 
rule, one commenter submitted comments.
    Generally we do not address technical and other minor changes, or 
suggested changes the law does not authorize us to make under the 
applicable statutory authority. In addition we do not address general 
comments that raised concerns not directly related to the proposed 
    Analysis of Comments and Changes:
    Comment: The commenter recommended that we revise the part of the 
new definition of consortium that provides for establishing and 
designating a separate legal entity to apply for the grant. 
Specifically, the commenter requested that the definition be revised to 
provide that the governing bodies of Indian Tribes may create, work 
with, or delegate to a separate legal entity the authority to apply for 
a grant under the AIVRS program. The commenter suggested that this 
change would clarify that consortia may partner with an entity 
currently in existence to apply for funds and deliver agreed upon 
    Discussion: The Department does not believe that the specific 
change proposed by the commenter is consistent with the control over 
the separate legal entity that is required by the consortium's 
establishment of that entity. Because section 121 of the Rehabilitation 
Act of 1973, as amended (the Rehabilitation Act), provides that grants 
may only be awarded to ``the governing bodies of Indian tribes located 
on Federal and State reservations (and consortia of such governing 
bodies),'' the governing bodies of the Indian tribes must have some 
control over any separate legal entity they establish to apply for the 
grant. Therefore, a separate legal entity that applies on behalf of a 
consortium of tribes under the AIVRS program must be controlled, 
sanctioned, or chartered by the tribes. It is not sufficient for the 
tribes to merely work with or delegate to a separate legal entity the 
authority to apply for and oversee an AIVRS grant, because the tribes 
would not have the requisite control over the management of that 
entity. Grantee tribes or consortia of such tribes are already 
permitted to contract with or otherwise enter into an agreement with 
another agency to assist in the implementation of the AIVRS program in 
accordance with 34 CFR 371.42(a). However, in order to be eligible to 
apply for and receive a grant under the AIVRS program, the separate 
legal entity must have a relationship with the tribes wherein the 
tribes have administrative control over the entity rather than merely 
working with or delegating authority to it to implement the program. It 
is the establishment of these entities within the control of the tribes 
and the tribes designating these entities to apply under the AIVRS 
program that makes the separate legal entities eligible applicants for 
a grant under the program.
    While the separate legal entity can already exist and does not have 
to be established solely for the purpose of applying for an AIVRS 
grant, its application for the grant must be consistent with the 
purpose for which the entity was established by the tribes. For 
example, a nonprofit association of tribes is established by its member 

[[Page 34297]]

when all the tribes it serves are represented on the board and have 
been a part of its formation and administration, and its purpose, among 
others, is to apply for and administer social welfare programs, such as 
the AIVRS, on behalf of, and to benefit, its member tribes. On the 
other hand, we would most likely not view a tribal college, for 
example, as a separate legal entity established by the tribes because 
the tribes would not have control over all aspects of the tribal 
college's administration and programs, and application for social 
welfare programs, such as the AIVRS program, is not the purpose for 
which a tribal college is established.
    Changes: None.

Executive Order 12866

    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.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.
    We summarized the potential costs and benefits of these final 
regulations in the interim final regulations at 74 FR 40495, 40497.

Paperwork Reduction Act of 1995

    These regulations do not contain any information collection 

Electronic Access to This Document

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    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: 84.250 AIVRS 

List of Subjects in 34 CFR Part 371

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

    Dated: June 9, 2010.
Alexa Posny,
Assistant Secretary for Special Education and Rehabilitative Services.


For the reasons discussed in the preamble, the interim final 
regulations amending part 371 of title 34 of the Code of Federal 
Regulations that were published in the Federal Register on August 12, 
2009 (74 FR 40495) are adopted as final.

[FR Doc. 2010-14407 Filed 6-15-10; 8:45 am]