[Federal Register Volume 85, Number 159 (Monday, August 17, 2020)]
[Rules and Regulations]
[Pages 49965-49967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18003]
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DEPARTMENT OF EDUCATION
34 CFR Part 75 and Chapter III
Final Waiver and Extension of the Project Periods for the
American Indian Vocational Rehabilitation Services Program
AGENCY: Office of Special Education and Rehabilitative Services
(OSERS), Department of Education.
ACTION: Final waiver and extension of project periods.
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SUMMARY: The U.S. Department of Education (Department) waives the
requirements in the Education Department General Administrative
Regulations that generally prohibit project periods exceeding five
years and project period extensions involving the obligation of
additional Federal funds. The waiver and extension enable 29 American
Indian Vocational Rehabilitation Services (AIVRS) projects under
Catalog of Federal Domestic Assistance (CFDA) number 84.250K to receive
funding for an additional period, not beyond September 30, 2021.
DATES: The waiver and extension of the project periods are effective
August 17, 2020.
FOR FURTHER INFORMATION CONTACT: August Martin, U.S. Department of
Education, 400 Maryland Avenue SW, Room 5064A, Potomac Center Plaza,
Washington, DC 20202-1800. Telephone: 202-245-7410. 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
Under section 121(a) of the Rehabilitation Act of 1973, as amended
(the Act), the purpose of the AIVRS program is to provide 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 (VR) services, including
culturally appropriate services, to American Indians with disabilities
who reside on or near Federal or State reservations, consistent with
each eligible individual's strengths, resources, priorities, concerns,
abilities, capabilities, interests, and informed choice, so that each
individual may prepare for, and engage in, high-quality employment that
will increase opportunities for economic self-sufficiency.
In fiscal year (FY) 2015, the Department published in the Federal
Register (80 FR 18606) a notice inviting applications (NIA) announcing
the grant competition for the AIVRS program under CFDA 84.250K. The
Department funded 29 applications for a 60-month period that will
expire as of September 30, 2020. Any AIVRS grantee seeking a new five-
year grant award would typically apply and compete in a new grant
competition during their fifth and final year of funding.
On March 9, 2020, the Department published in the Federal Register
(85 FR 13636) an NIA for the FY 2020 AIVRS competition, CFDA 84.250N
(2020 NIA). Any new Tribes seeking an AIVRS grant along with the
grantees whose grants are expiring on September 30, 2020 would need to
submit an application in response to the FY 2020 NIA in order to
receive an award that would start on October 1, 2020.
At roughly the same time as the Department published the FY 2020
NIA, in early spring 2020, the effects of the COVID-19 pandemic began
to be felt in the United States. American Indian reservations
experienced and continue to experience high rates of COVID-19
infections. Many of the entities eligible for AIVRS grants across the
country took actions to limit the spread of COVID-19 by requiring their
non-essential personnel to shelter at home. We have been informed that
many AIVRS personnel who continue to shelter-in-place at home to avoid
exposure to COVID-19 have limited access to the necessary technology to
telework, such as personal computers, Wi-Fi, or internet availability
to connect to workplace servers or workplace resources, and we assume
that would also be true of personnel who do not currently receive a
grant but would be eligible to apply. This limits their ability to
access the information needed to prepare a quality application for the
FY 2020 AIVRS competition. In addition, we have been notified that some
of the programs attempting to develop grant applications have had
difficulty acquiring the Tribal resolutions needed
[[Page 49966]]
to submit an application for Federal funding or working with the
Tribes' administration, including the authorized representatives needed
to approve, sign, and submit applications in Grants.gov.
On May 20, 2020, the Department published a notice in the Federal
Register (85 FR 30690) extending the application deadline for the AIVRS
program competition (84.250N) to June 26, 2020. However, given the
ongoing and, for some Tribes, escalating cases of COVID-19 and the
continuing challenges resulting from the pandemic, the situation for
the Tribes has not improved, and the 30-day extension has not been
sufficient to address these circumstances.
Therefore, in a notice published elsewhere in this issue of the
Federal Register, the Department is withdrawing the FY 2020 NIA and
cancelling the FY 2020 CFDA 84.250N competition. At the same time here,
under its authority to make certain AIVRS grants effective for more
than 60 months under section 121(b)(3) of the Act, the Department is
waiving the requirements in 34 CFR 75.250, which prohibit project
periods exceeding five years, and extending the project period, as well
as waiving the requirements in 34 CFR 75.261(a) and (c)(2), which allow
the extension of a project period only if the extension does not
involve the obligation of additional Federal funds. The waivers and
extension will enable the Department to provide additional funds to 29
projects under CFDA 84.250K for an additional period, not beyond
September 30, 2021.
This action allows the 29 AIVRS grantees to submit a request for
continuation funding in FY 2020 based on their prior fiscal year's
continuation award and certification from each grantee that they have
the capacity to continue activities and wish to continue to receive
additional funds. However, decisions regarding each grantee's annual
continuation award will be based on the program narrative, budget,
budget narrative, and prior program performance report submitted by
each of these 29 AIVRS grantees and on the requirements of 34 CFR
75.253. Any activities to be carried out during the year of
continuation award would have to be consistent with, or be a logical
extension of, the scope, goals, and objectives of each grantee's
application as approved following the 2015 AIVRS competition. The FY
2015 AIVRS NIA will continue to govern each grantee's project during
the extension year. These current AIVRS grantees may contact their RSA
project officer regarding their request for a continuation award in FY
2020 for a project period through FY 2021.
Final Waivers and Extensions
For these reasons, the Department does not believe that it is in
the public interest to run a new competition for the AIVRS program,
CFDA 84.250N, in FY 2020. Given the challenges in Indian country due to
the COVID-19 pandemic, extending the end dates of the 29 AIVRS projects
currently in their fifth year will allow for more efficient use of the
funding and avoid any interruption in services that might result from
waiting one year to hold a competition for new five-year AIVRS grant
projects in FY 2021. Through that competition the Department intends to
make funds available for all eligible applicants, including the 29
AIVRS grantees funded in FY 2015 and the 13 AIVRS grantees funded in FY
2016, whose grants will be expiring on September 30, 2021.
For these reasons, the Department waives the requirements in 34 CFR
75.250, which prohibit project periods exceeding five years, as well as
the requirements in 34 CFR 75.261(a) and (c)(2), which allow the
extension of a project period only if the extension does not involve
the obligation of additional Federal funds. This waiver allows the
Department to issue a one-time FY 2020 continuation award to each of
the 29 AIVRS projects currently funded under CFDA 84.250K estimated as
follows:
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Grantee name Amount
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Confederated Tribes and Bands of the Yakama Nation...... $453,200
Lower Muskogee Creek Nation............................. 405,200
The Cherokee Nation..................................... 605,000
Confederated Tribes of the Colville Reservation......... 464,144
Samish Indian Nation.................................... 310,206
Inupiat Community of the Arctic Slope................... 505,778
Confederated Tribes of the Umatilla Indian Reservation.. 392,956
Prairie Band of Potawatomi Nation....................... 300,000
Hopi Tribe.............................................. 484,469
Hannahville Indian Community............................ 397,270
Kawerak, Inc............................................ 424,496
Saint Regis Mohawk Tribe................................ 406,000
Confederated Salish and Kootenai Tribes................. 521,000
Chippewa Cree Tribe of the Rocky Boy Reservation........ 412,000
The Coeur D'alene Tribe................................. 444,109
Confederated Tribes of Siletz Indians................... 384,442
Cook Inlet Tribal Council, Inc.......................... 628,858
Stillaguamish Tribe of Indians of Washington............ 575,947
Moapa Band Paiute....................................... 365,000
Association of Village Council Presidents, Inc.......... 473,104
Cheyenne River Sioux Tribe.............................. 384,587
United Houma Nation, Inc................................ 499,086
Laguna Department of Education.......................... 450,000
Northern Cheyenne Tribe................................. 375,000
Eastern Shoshone Tribe.................................. 490,368
Tohono O'odham Nation................................... 450,723
Standing Rock Sioux Tribe............................... 521,823
Central Council of Tlingit and Haida Indian Tribes of 556,369
Alaska.................................................
Lower Elwha Tribal Community............................ 323,430
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[[Page 49967]]
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), 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 (5 U.S.C. 553(b)(B)).
Generally, the ``good cause'' exception to notice and comment
rulemaking under the APA, see 5 U.S.C. 553(b)(3)(B), is to be
``narrowly construed and only reluctantly countenanced.'' Tennessee Gas
Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir. 1992) (quoting New
Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980)). The exception
excuses notice and comment in emergency situations, Am. Fed'n of Gov't
Employees v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981), or where
delay could result in serious harm. See Hawaii Helicopter Operators
Ass'n v. FAA, 51 F.3d 212, 214 (9th Cir. 1995).
The COVID-19 pandemic struck during the second half of Federal FY
2020 and, as explained earlier, created a situation where the Tribes
were dealing with such overwhelmingly trying circumstances that the
Department determined that, with their resources and attention diverted
to addressing concerns created by the pandemic, it would be too
difficult for them to submit applications for the AIVRS grants
scheduled to be awarded this year in a timely manner. For this reason,
it became necessary for the Department to extend the grants awarded
under CFDA 84.250K for an additional year. There is insufficient time
left in FY 2020 to adopt these waivers and extensions of the project
periods through notice and comment rulemaking and to make the
continuation awards to the 29 expiring AIVRS grants. Failure to extend
the existing AIVRS grants under CFDA 84.250K for an additional year
would result in an interruption of essential services to the American
Indians with disabilities who rely on them. In addition, the Department
is unique among Federal agencies in that it must go through notice and
comment rulemaking under the APA to make its grants. The exception in
the APA exempting grants from notice and comment generally does not
apply to the Department. 5 U.S.C. 553(a)(2); 20 U.S.C. 1232(d). In
short, in the unusual circumstances here, notice and comment rulemaking
is both impracticable and not in the public interest.
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)). Given that it is not possible to
run an effective AIVRS competition this year, it is crucial that the
funded grantees under CFDA 84.250K continue to provide services through
all of FY 2021. A delayed effective date would be contrary to public
interest by prolonging uncertainty about the continuation of VR
services provided to American Indians with disabilities living on or
near a reservation. Therefore, the Department 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 rulemaking
under 5 U.S.C. 553.
Paperwork Reduction Act of 1995
This waiver and extension of the project periods does not contain
any information collection requirements.
Intergovernmental Review
These programs are not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
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.
Mark Schultz,
Commissioner, Rehabilitation Services Administration, Delegated the
authority to perform the functions and duties of the Assistant
Secretary for the Office of Special Education and Rehabilitative
Services.
[FR Doc. 2020-18003 Filed 8-13-20; 4:15 pm]
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