[Federal Register Volume 85, Number 152 (Thursday, August 6, 2020)]
[Rules and Regulations]
[Pages 47668-47670]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-17145]


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DEPARTMENT OF EDUCATION

34 CFR Chapter III


Final Waivers and Extension of the Project Period for the 
National Center for Information and Technical Support for Postsecondary 
Students With Disabilities Grant Program

AGENCY: Office of Postsecondary Education (OPE), Department of 
Education.

ACTION: Final waivers and extension of project period.

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SUMMARY: The Secretary waives the requirements in the Education 
Department General Administrative Regulations that generally prohibit 
project periods exceeding five years and

[[Page 47669]]

project period extensions involving the obligation of additional 
Federal funds. The waivers and extension would enable the project under 
Catalog of Federal Domestic Assistance (CFDA) number 84.116D to receive 
funding for an additional period, not to exceed September 25, 2021.

DATES: The waivers and extension of the project period are effective 
August 6, 2020.

FOR FURTHER INFORMATION CONTACT: Shedita Alston, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 260-24, Washington, DC 20202. 
Telephone: 202-453-7090. Email: [email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    On December 16, 2014, Congress passed the Further Consolidated 
Appropriations Act, 2015 (2015 Appropriations Act), Public Law 113-235. 
As noted in the explanatory statement (2015 Appropriations Act 
Explanatory Statement) submitted by the chairman of the Committee on 
Appropriations for the U.S. House of Representatives regarding the 2015 
Appropriations Act, the appropriations for the Department included 
$2,500,000 for a National Center for Information and Technical Support 
for Postsecondary Students with Disabilities (the Center), as 
authorized by section 777(a) of the of the Higher Education Act of 
1965, as amended (HEA). See 160 Cong. Rec. H9307-01, H9841 (Dec. 11, 
2014). Section 4 of the 2015 Appropriations Act provides that the 2015 
Appropriations Act Explanatory Statement shall have the same effect 
with respect to the allocation of funds as if it were a joint 
explanatory statement of a committee of conference.
    On June 19, 2015, the Department of Education (Department) 
published in the Federal Register (80 FR 35323) a notice inviting 
applications (2015 NIA) for projects for fiscal year (FY) 2015 under 
the National Center for Information and Technical Support for 
Postsecondary Students with Disabilities (NCITSPSD) competitive grant 
program. The purpose of the Center is to provide technical assistance 
and information on best and promising practices for students with 
disabilities as they transition to or attend postsecondary education.
    In September 2015, the Department made one 48-month award to the 
Association on Higher Education and Disability for their project 
entitled the ``National Center for College Students with 
Disabilities.''
    The Department granted the Center a no-cost extension in September 
2019, extending the current project period for this grantee through 
September 25, 2020.
    On December 20, 2019, Congress passed the Further Consolidated 
Appropriations Act, 2020 (2020 Appropriations Act), Public Law 116-94. 
As noted in the explanatory statement (2020 Appropriations Act 
Explanatory Statement) submitted by the chairwoman of the Committee on 
Appropriations for the U.S. House of Representatives regarding the 2020 
Consolidated Appropriations Act, the appropriations for the Department 
included $500,000 for the operation of the Center authorized under 
section 777(a) of the HEA. See 165 Cong. Rec. H11061-01, H11083 (Dec. 
17, 2019). Section 4 of the 2020 Appropriations Act provides that the 
2020 Appropriations Act Explanatory Statement shall have the same 
effect with respect to the allocation of funds as if it were a joint 
explanatory statement of a committee of conference.

Final Waivers and Extension

    The Department is waiving the requirements in 34 CFR 75.250, which 
prohibit project periods exceeding five years, and the requirements in 
34 CFR 75.261(c)(2), which limit the extension of a project period if 
the extension involves the obligation of additional Federal funds. The 
waivers and extension would enable the project under CFDA number 
84.116D to receive funding for an additional one year period, not to 
exceed September 25, 2021.
    We are waiving these requirements to provide the necessary time and 
funding for the current grantee to complete outstanding project 
activities, as outlined in its 2015 grant. Completion of these 
activities, including a required biannual report to Congress, is 
necessary to fulfill the purpose of the program as outlined in the HEA. 
With the awarding of a supplement, the Center will be able to continue 
to provide technical assistance and information on best and promising 
practices for students with disabilities as they transition to or 
attend postsecondary education.
    Additionally, the $500,000 amount that was appropriated under the 
2020 Appropriations Act is only 20 percent of the amount provided by 
Congress for the program in FY 2015 and is insufficient to support a 
new, multiyear grant project period. We do not believe that it is the 
intent of Congress that the Department run a new grant program 
competition for the one year of funding appropriated by the 2020 
Appropriations Act, as opposed to providing a supplement to the current 
grantee, because doing so would increase the burden on the potential 
applicants. Additionally, the comparatively nominal amount of funding 
that was appropriated for FY 2020 would create a great hardship for any 
newly funded applicant needing to bear responsibility for both start-up 
and operational costs, as well as other statutory requirements.
    Under these waivers and extension of the project period--
    (1) The current grantee is authorized to receive one continuation 
award.
    (2) The Department will not announce a new competition or make new 
awards under the NCITSPSD competitive grant program in FY 2020.
    (3) During the extension period, any activities carried out must be 
consistent with, or be a logical extension of, the scope, goals, and 
objectives of the grantee's approved application from the 2015 NCITSPSD 
competition.
    (4) The grantee must also continue to comply with the requirements 
established in the program regulations and the 2015 NIA.
    The waivers of 34 CFR 75.250(a) and 75.261(c)(2) do not affect the 
applicability of the requirements in 34 CFR 75.253 (continuation of a 
multiyear project after the first budget period) to the current grantee 
receiving a continuation award as a result of the waivers.
    In addition, these waivers do not exempt the current grantee from 
the account-closing provisions in 31 U.S.C. 1552(a), nor do they extend 
the availability of funds previously awarded to the current grantee.

Waiver of Notice and Comment Rulemaking and Delayed Effective Date 
Under the Administrative Procedure Act

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553 et seq.) 
the Department generally offers interested parties the opportunity to 
comment on proposed regulations. However, 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 comment thereon 
are impracticable, unnecessary, or contrary to the public interest. See 
5 U.S.C. 553(b)(B).

[[Page 47670]]

    As the Court found in Metzenbaum v. Federal Energy Regulatory 
Commission, 675 F.2d 1282, 1291 (D.C. Cir. 1982), the opportunity for 
notice and comment where there is no discretion is ``unnecessary.'' Id. 
(quoting 5 U.S.C. 553(b)(B)). The Court further stated that notice and 
comment for such a nondiscretionary action ``might even have been 
`contrary to the public interest,' given the expense that would have 
been involved in a futile gesture.'' Id. See also Lake Carriers' Ass'n 
v. E.P.A., 652 F.3d 1, 10 (D.C. Cir. 2011) (notice and comment 
rulemaking ``would have served no purpose'' where agency lacked the 
authority to amend or reject the conditions at issue). As this waiver 
and extension fulfills our understanding of congressional intent for 
the $500,000 appropriated in FY 2020 for the NCITSPSD grant program to 
go to the current grantee to fulfill the program's objectives during 
this fiscal year, the Department finds that there is similarly good 
cause to waive notice and comment rulemaking. The goals of the NCITSPSD 
grant program cannot be met by other potential applicants with the 
small amount of funding available for the NCITSPSD program in FY 2020.
    The APA also requires that a substantive rule must be published at 
least 30 days before its effective date, except as otherwise provided 
for good cause (5 U.S.C. 553(d)(3)). In addition to the reasons stated 
above, a delayed effective date would be contrary to the public 
interest because it might prevent the waivers and extension from taking 
effect prior to the expiration of the current project period. 
Therefore, the Secretary waives the delayed effective date provision 
for good cause.

Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act does not apply to this rulemaking 
because there is good cause to waive notice and comment under 5 U.S.C. 
553.

Paperwork Reduction Act of 1995

    This notice of waivers and extension of project period does not 
contain any information collection requirements.

Intergovernmental Review

    This program is subject to Executive Order 12372 and the 
regulations in 34 CFR part 79. One of the objectives of the Executive 
order is to foster an intergovernmental partnership and a strengthened 
federalism. The Executive order relies on processes developed by State 
and local governments for coordination and review of proposed Federal 
financial assistance. This document provides early notification of our 
specific plans and actions for this program.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the contact person listed 
under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at www.govinfo.gov. At this site you can view this 
document, as well as all other documents of this Department published 
in the Federal Register, in text or Portable Document Format (PDF). To 
use PDF you must have Adobe Acrobat Reader, which is available free at 
the site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

Robert L. King,
Assistant Secretary for Postsecondary Education.
[FR Doc. 2020-17145 Filed 8-4-20; 11:15 am]
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