[Federal Register Volume 85, Number 167 (Thursday, August 27, 2020)]
[Rules and Regulations]
[Pages 52921-52923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-19004]



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DEPARTMENT OF EDUCATION

34 CFR Chapter III


Final Waivers and Extensions of the Project Periods for the 
American Indian Vocational Rehabilitation Services Training and 
Technical Assistance Center and the Vocational Rehabilitation Training 
Institute for the Preparation of Personnel in American Indian 
Vocational Rehabilitation Services

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

ACTION: Final waivers and extensions 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 waivers and extensions enable the current 
grantees under Catalog of Federal Domestic Assistance (CFDA) numbers 
84.250Z and 84.315C to receive funding for an additional budget period, 
not to exceed September 30, 2021.

DATES: The waivers and extensions of the project periods are effective 
August 27, 2020.

FOR FURTHER INFORMATION CONTACT: Jerry Elliott, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 5091, Potomac Center Plaza, 
Washington, DC 20202-1800. Telephone: 202-245-7335. 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

    The purpose of the American Indian Vocational Rehabilitation 
Services Training and Technical Assistance Center (Center) is to 
provide training and technical assistance (TA) to governing bodies of 
Indian Tribes, or consortia of those governing bodies, that have 
received an American Indian Vocational Rehabilitation Services (AIVRS) 
grant under section 121(a) of the Rehabilitation Act of 1973, as 
amended (Rehabilitation Act), to improve the delivery of vocational 
rehabilitation (VR) services to American Indians with disabilities.
    The purpose of the Vocational Rehabilitation Training Institute for 
the Preparation of Personnel in American Indian Vocational 
Rehabilitation Services (Institute) is to prepare AIVRS project 
personnel in VR, specifically the development of a structured program 
of training for AIVRS personnel with limited knowledge or experience in 
the VR field to improve the delivery of VR services to American Indians 
with disabilities.
    Taken together, the Center and the Institute comprise the total 
resources for the provision of training and TA to the AIVRS projects. 
In practice, the foundational academic training provided by the 
Institute compliments and provides a knowledge base for the more 
focused training and TA provided by the Center. For this reason, the 
Department has decided to combine the waivers and extensions for both 
programs into this single document.
    In fiscal year (FY) 2015, the Department published in the Federal 
Register notices inviting applications (NIAs) announcing the grant 
competition for the Center under CFDA 84.250Z and the Institute under 
CFDA 84.315C. The Department funded one cooperative agreement for each 
program for a 60-month period that will expire September 30, 2020.
    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 a high rate of COVID-19 infections and have 
limited medical resources to treat those infected. Many of the AIVRS 
grantees across the country took actions to limit the spread of COVID-
19 by requiring their nonessential personnel to work from home. AIVRS 
projects were confronted with the need to continue to provide VR 
services in a virtual environment and to continue to work with AIVRS 
project participants, service providers, educational and training 
resources, and employers in the new virtual environment.
    While there are some technology challenges on and near the 
reservations, the Center and the Institute responded to the challenge 
of assisting AIVRS projects in several ways. The Center surveyed AIVRS 
project needs and responded by providing to AIVRS project staff 
training in use of virtual platforms (including use of social media) 
for communication with VR participants, external service providers, and 
training institutions, and for internal AIVRS project purposes. The 
Center partnered with the Institute and the Workforce Innovation 
Technical Assistance Center to continue to develop training and TA 
content for virtual delivery. An important area of training and TA 
content was how to work virtually with AIVRS participants to proceed 
through the VR process in a virtual environment. The Center's technical 
staff maintained ``office hours'' to provide one-on-one technical 
support to AIVRS projects trying to deliver VR services to applicants 
and eligible AIVRS project participants. The Institute conducted three 
virtual ``coffee breaks'' so far during COVID-19. The purpose of the 
coffee breaks is for AIVRS participants to learn more about a topic 
area or issue identified by AIVRS project staff that is relevant to 
providing VR services to American Indians with disabilities. Most 
recently, the Center provided training and TA to the AIVRS projects on 
safe ways to reopen, including the use of social distancing and 
continued use of virtual communication methods. Both the Institute and 
the Center have maintained or adapted their methods of training and TA 
provision to continue to provide virtual services to AIVRS project 
staff in all content areas. Recent increases in COVID-19 activity 
suggest that protective and safety measures will be required for some 
time and that maintenance of some of the new virtual ways of doing 
business will likely continue to be necessary.
    Upon award of a new grant, typically there is a period in which 
grantees are hiring new staff and developing their own resources and 
content capacities, which may take several months. Due to the impact of 
COVID-19 and the immediate needs of the beneficiaries of the Center and 
the Institute, the Department has decided to extend the existing Center 
and Institute programs. These existing grantees are providing direct 
training and TA related to operating in the current environment and, 
therefore, the Department has decided not to hold a new competition 
that could create a temporary reduction in the availability of the 
training and TA support at a time when such assistance is most needed.
    The Department is waiving the requirements in 34 CFR 75.250, which 
prohibit project periods exceeding five years, 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 and extending the project 
periods of the grants. The waivers and extensions will enable the 
Department to provide additional funds to the Center under CFDA 84.250Z 
and to the Institute under CFDA 84.315C for an additional budget 
period, not to exceed September 30, 2021.

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    This action allows the Center and the Institute to request FY 2020 
continuation funding. The funds for the Center will come from funds 
allotted under section 121(c)(2) of the Rehabilitation Act. Funds for 
the Institute will be provided from the funds allotted under section 21 
of the Rehabilitation Act as in previous years. Decisions regarding 
continuation awards will be based on the program narratives, budgets, 
budget narratives, and program performance reports submitted by the 
grantees. Any activities to be carried out during the year of 
continuation awards 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 FY 2015 CFDA 84.250Z and CFDA 
84.315C competitions. The FY 2015 NIAs will continue to govern the 
projects during the extension year. The current Center and Institute 
grantees may request continuation awards in FY 2020 for budget periods 
through FY 2021.

Final Waivers and Extensions

    For these reasons, the Department does not believe that it is in 
the public interest to hold a new competition for the Center, CFDA 
84.250Z, or the Institute, CFDA 84.315C, in FY 2020. Extending the 
project period of the Center and the Institute, currently in their 
fifth year, will allow for more efficient use of the funding and avoid 
any interruption in services that might result from holding a new 
competition. The Department intends to hold a competition for a new 
Center under CFDA 84.250Z and a new project under 84.315C in FY 2021.
    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 continuation award in FY 2020 to the 
Center and the Institute, currently funded under CFDA 84.250Z and CFDA 
84.315C, estimated as follows:

------------------------------------------------------------------------
                Grantee name                            Amount
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University of Northern Arizona (Center,      $774,000 (section 121(c)(2)
 Project Number: 250Z150002).                 funds).
Northwest Indian College (Institute,         $166,000 (section 21
 Project Number: H315C150002).                funds).
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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 (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 FY 2020 and, 
as explained above, created a situation where the Tribes were dealing 
with overwhelmingly challenging circumstances. The Department 
determined that, with Tribal resources and attention devoted to 
addressing concerns created by the pandemic, the Tribes were in need of 
the training and TA resources available from the Center and the 
Institute, without interruption, in order for the Tribal AIVRS projects 
to continue to deliver services to Tribal members with disabilities. 
For this reason, it is necessary for the Department to extend the 
grants awarded under CFDA 84.250Z and CFDA 84.315C 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 two expiring 
grants. The failure to extend the existing grants for an additional 
year would result in an interruption of essential services to the AIVRS 
projects and the American Indians with disabilities who rely upon 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)). It is crucial that the funded 
grantees under CFDA 84.250Z and CFDA 84.315C 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 training and TA to AIVRS projects that provide VR 
services 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

    These waivers and extensions of the project periods do 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

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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. 2020-19004 Filed 8-25-20; 4:15 pm]
BILLING CODE 4000-01-P