[Federal Register Volume 89, Number 96 (Thursday, May 16, 2024)]
[Rules and Regulations]
[Pages 42806-42808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10733]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION

34 CFR Part 75


Final Waiver and Extension of the Project Period for the Tribally 
Controlled Postsecondary Career and Technical Institutions Program

AGENCY:  Office of Career, Technical, and Adult Education, Department 
of Education.

ACTION: Final waiver and extension of the project period.

-----------------------------------------------------------------------

SUMMARY: The Secretary 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. Under the waiver 
and extension, for projects funded in fiscal year (FY) 2019 under the 
Tribally Controlled Postsecondary Career and Technical Institutions 
Program (TCPCTIP), Assistance Listing Number 84.245A, the project 
period is extended through FY 2027, if Congress continues to 
appropriate funds under the existing program authority.

DATES: The waiver and extension of the project periods are effective 
May 16, 2024.

FOR FURTHER INFORMATION CONTACT: Hugh Reid. Telephone: (202) 245-7491. 
Email: ed.gov">hugh.reid@ed.gov.
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION: 
    Background: On December 21, 2023, we published a document in the 
Federal Register (88 FR 88381) (December 2023 proposed waiver and 
extension) proposing to waive 34 CFR 75.250 and extend the project 
period under 34 CFR 75.261(c)(2) for TCPCTIP under the Carl D. Perkins 
Career and Technical Education Act of 2006 (Perkins V). These 
regulations generally limit project periods to 60 months and restrict 
project period extensions involving the obligation of additional 
Federal funds. In the December 2023 proposed waiver and extension, the 
Secretary also proposed to: (1) extend the project period for current 
TCPCTIP grantees through FY 2027, if Congress continues to appropriate 
funds under the existing program authority; and (2) not announce a new 
competition or make new awards until FY 2027.
    Public Comment: In the December 2023 proposed waiver and extension, 
we invited comments about the potential effect the proposed waiver and 
extension would have on TCPCTIP and on applicants that may be eligible 
to apply for grant awards under any new TCPCTIP notice inviting 
applications, should there be one. In response to our invitation in the 
December 2023 proposed waiver and extension, two parties provided 
responsive comments.
    Analysis of Comments and Changes: An analysis of the comments we 
received on the proposed waiver and extension follows. There are no 
substantive differences between the proposed waiver and extension and 
the final waiver and extension.
    Comment: The first commenter supported the waiver and extension of 
the comment period for TCPCTIP, pointing out that: (1) no entities 
other than Navajo Technical University (NTU) and United Tribes 
Technical College (UTTC) meet the definition of a ``tribally controlled 
postsecondary career and technical institution'' in section 3(52) of 
Perkins V (20 U.S.C. 2302(52)) and the criteria in section 117 of 
Perkins V (20 U.S.C. 2327(d)); and (2) there is no indication that 
another entity has ever applied for TCPCTIP. The commenter further 
noted that a Native American or Alaska Native Tribe will not take the 
steps necessary to establish and support a TCPCTIP because it is easier 
for a Tribe to establish a Tribally Controlled College or University 
that meets the requirements to receive funding under title I of the 
Tribally Controlled Colleges and Universities Assistance Act of 1978 
(TCCUAA; 25 U.S.C. 1801 et seq.), which requires at least one year of 
operation prior to making an application with a majority of students 
who are Indians (TCCUAA, section 103(3); 25 U.S.C. 1804(3)), as opposed 
to the three years of operation prior to making an application for 
participation in the TCPCTIP (Perkins V, section 3(52)(E); 20 U.S.C. 
2302(52)(E)).
    The commenter also recommended that in the event a Tribe expresses 
interest in establishing a TCPCTIP that meets the requirements of the 
program, the Department of Education (ED) should consult with Tribes, 
Tribal Colleges and Universities, and the Department of the Interior's 
(DOI's) Bureau of Indian Education (BIE) to ensure consistency in the 
application process, including ensuring the completion of a 
satisfactory feasibility study.
    In addition, for future competitions, the commenter proposed that 
ED should take steps to ensure that existing grantees are held harmless 
should a new institution be deemed fundable, specifically, urging ED to 
establish a ``hold-harmless provision,'' which would ensure that 
funding for existing grantees would not be reduced below the prior 
year's level.
    Discussion: We appreciate the commenter's support for the TCPCTIP 
waiver and extension. We will continue to work with Tribes, Tribal 
Colleges and Universities, and the DOI's BIE to ensure consistency in 
the TCPCTIP application process so that all applicants meet the same 
requirements. We note, however, that neither section

[[Page 42807]]

3(52) of Perkins V (20 U.S.C. 2302(52)), which defines ``tribally 
controlled postsecondary career and technical institution,'' nor 
section 117 of Perkins V (20 U.S.C. 2327), which authorizes funding for 
TCPCTIP, requires an applicant to complete a feasibility study. Also, 
neither section 3(52) or section 117 of Perkins V (20 U.S.C. 2302 (52), 
2327) includes a hold-harmless provision. Because a feasibility study 
and adding a hold-harmless provision are outside the scope of the 
proposed waiver and extension, we decline to make the suggested 
changes.
    Changes: None.
    Comment: The second commenter stated that deviation from standard 
grant making practice should only be considered where it is fully 
evident that no other organizations could apply for, and make use of, 
grant funds, and expressed concern that the proposed extension of the 
grant period would have the unintended consequence of limiting the 
ability of a new organization to access TCPCTIP funds. The commenter 
opposed the waiver and extension of the project period for the TCPCTIP 
through FY 2027 and proposed that a new competition should be held to 
provide the opportunity for new organizations to fairly compete for 
grant funds and that failing to hold a new competition only benefits 
the existing grantees.
    Discussion: There are no entities besides NTU and UTTC that meet 
the requirements in the definition of ``tribally controlled 
postsecondary career and technical institution'' in section 3(52)(E) of 
Perkins V (20 U.S.C. 2302(52)(E)) and the eligibility requirements in 
section 117(a) (20 U.S.C. 2327(a)), which specifies that an applicant 
may not receive Federal assistance under title I of the Tribally 
Controlled Colleges and Universities Assistance Act of 1978 (25 U.S.C. 
1801 et seq.) or the Navajo Community College Act (Pub. L. 92-189, as 
amended) to be eligible to apply for a TCPCTIP grant. On September 5, 
2023, the Department solicited Tribal input on the proposed waiver and 
extension for TCPCTIP, pursuant to Executive Order 13175, Consultation 
and Coordination With Indian Tribal Governments. We asked during that 
consultation whether participants were aware of any other entity that 
is or will be eligible to apply for TCPCTIP prior to FY 2025. 
Participants did not identify any other entities that are or will be 
eligible for TCPCTIP during the consultation or its written comment 
period that ended October 5, 2023. The Department also did not receive 
any comments from entities that are or seek to be eligible to apply for 
TCPCTIP grant funds during the 30-day public comment period for this 
waiver and extension.
    Moreover, as noted earlier, the definition of ``tribally controlled 
postsecondary career and technical institution'' requires an 
institution to have been in operation for three years (20 U.S.C. 
2302(52)(E)). Should a new entity that aspires to be a ``tribally 
controlled postsecondary career and technical institution'' emerge and 
begin operations in the next year or later, it would not be eligible to 
apply to TCPTIP until FY 2028 at the earliest.
    Changes: None.

Final Waiver and Extension of the Project Period

    Section 117 of Perkins V authorizes the Secretary to make grants to 
Tribally Controlled Postsecondary Career and Technical Institutions 
that do not receive Federal support under title I of the Tribally 
Controlled Colleges and Universities Assistance Act of 1978 (25 U.S.C. 
1801 et seq.) or the Navajo Community College Act (Pub. L. 92-189, as 
amended) for career and technical education programs for Native 
American students and for the institutional support costs of the grant.
    Current TCPCTIP grantees, selected based on the TCPCTIP notice 
inviting applications published in the Federal Register (84 FR 29854) 
on June 25, 2019 (NIA), operate career and technical education programs 
for Native American students as authorized by section 117 of Perkins V 
(20 U.S.C. 2327). The budget and project period for the two TCPCTIP 
grantees is scheduled to end with funds awarded in FY 2023.
    For these projects, the Secretary waives the requirements of 34 CFR 
75.250 and 75.261(c)(2), which limit project periods to 60 months and 
restrict project period extensions that involve the obligation of 
additional Federal funds. The Secretary makes these changes because 
section 117(i) of Perkins V authorizes appropriations for activities 
under section 117 of the Act, through FY 2024 (20 U.S.C. 2327(i)). The 
Secretary also extends the project period for the two current TCPCTIP 
grantees (Perkins V, section 117(a); 20 U.S.C. 2327(a)) through FY 
2027, if Congress continues to appropriate funds under the existing 
program authority. The waiver and extension enables the two current 
TCPCTIP grantees to request and continue to receive Federal funds 
beyond the 60-month limitation set by 34 CFR 75.250.
    Moreover, with the waiver and extension, the Department will not 
announce a new competition or make new awards until FY 2027, if 
Congress continues to authorize and appropriate funds under the 
existing program authority. Instead, current TCPCTIP projects funded 
under the NIA could be continued at least through the FY 2027 budget 
and project period if Congress continues to appropriate funds for 
TCPCTIP under the existing program authority.
    We believe that the waiver and extension is in the public interest, 
given that NTU and UTTC are the only two eligible entities for the 
TCPCTIP program, and those entities are the current grantees. Running 
another competition in which only the same very limited number of 
entities will be eligible to receive awards is not an effective use of 
Department and grantee resources. Further, allowing these grantees to 
continue their projects will provide continuity in the current projects 
and resources for the current beneficiaries of the grantees' programs.
    We will base our decisions regarding annual continuation awards on 
the program narratives, budgets, budget narratives, and program 
performance reports, submitted by current grantees, and the 
requirements in 34 CFR 75.253. Any activities to be carried out during 
the year or years of continuation awards must be consistent with, or be 
a logical extension of, the scope, goals, and objectives of each 
grantee's application, as approved following the 2019 TCPCTIP 
competition. We will award continuation grants based on information 
provided to us by each grantee, indicating that it is making 
substantial progress performing its TCPCTIP grant activities.
    The extension of the project period and waiver of 34 CFR 75.250 and 
75.261(c)(2) will not exempt the current TCPCTIP grantees from the 
appropriation account-closing provisions of 31 U.S.C. 1552(a), nor will 
they extend the availability of funds previously awarded to current 
TCPCTIP grantees. As a result of 31 U.S.C. 1552(a), appropriations 
available for a limited period may be used for payment of valid 
obligations for only five years after the expiration of their period of 
availability for Federal obligation. After that time, the unexpended 
balance of those funds will be canceled and returned to the U.S. 
Treasury Department and be unavailable for restoration for any purpose 
(31 U.S.C. 1552(b)).
    Tribal Consultation: On September 5, 2023, the Department solicited 
Tribal input \1\ on the proposed waiver and

[[Page 42808]]

extension, pursuant to Executive Order 13175, Consultation and 
Coordination With Indian Tribal Governments. Tribal members 
participated by a video conference platform. A total of 66 Tribal 
members and eight Tribal leaders participated. None of the participants 
raised objections to the proposed waiver and extension during the 
consultation or its written comment period that ended October 5, 2023.
---------------------------------------------------------------------------

    \1\ Tribal Consultation on TCPCTIP 
(TribalConsultationNotice_08172023.pdf (ed.gov)).
---------------------------------------------------------------------------

Regulatory Flexibility Act Certification

    The Secretary certifies that the waiver and extension will not have 
a significant economic impact on a substantial number of small 
entities.
    The only small entities affected by the waiver and extension are 
the two grantees selected based on the NIA currently receiving Federal 
funds. These are the only entities eligible to receive a grant under 
this program.
    The Secretary certifies that the waiver and extension will not have 
a significant economic impact on these entities because the waiver and 
extension will impose minimal compliance costs to extend projects 
already in existence, and the activities required to support the 
additional years of funding will not impose additional regulatory 
burdens or require unnecessary Federal supervision.

Paperwork Reduction Act of 1995

    The waiver and extension do not contain any information collection 
requirements.

Intergovernmental Review

    The TCPCTIP is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    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 Adobe 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.
    Program Authority: Perkins V, section 117; 20 U.S.C 2327.

Amy Loyd,
Assistant Secretary for Career, Technical, and Adult Education.
[FR Doc. 2024-10733 Filed 5-15-24; 8:45 am]
BILLING CODE 4000-01-P