[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:

------------------------------------------------------------------------
                      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]
BILLING CODE 4000-01-P