02-19077. Tribally Controlled Postsecondary Vocational and Technical Institutions Program

AGENCY:

Office of Vocational and Adult Education, Department of Education.

ACTION:

Notice of extension of project period and waiver.

SUMMARY:

We waive the requirement in 34 CFR 75.261(c)(2) as it applies to projects funded under the Tribally Controlled Postsecondary Vocational and Technical Institutions Program (TCPVTIP) in fiscal year (FY) 2001. We waive this requirement in order to be able to extend the project periods for the two current FY 2001 grants awarded under the TCPVTIP. A waiver means that: (1) current grants may be continued at least through FY 2004 (depending on the availability of appropriations for TCPVTIP in subsequent fiscal years under the current statutory authority), instead of ending in FY 2002; and (2) we will not announce a new competition or make new awards in FY 2002, as previously planned.

DATES:

This notice is effective July 29, 2002.

FOR FURTHER INFORMATION CONTACT:

Sharon A. Jones, U.S. Department of Education, 400 Maryland Avenue, SW., room 4515, Mary E. Switzer Building, Washington, DC 20202-7242. Telephone [phone].

If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Individuals with disabilities may obtain this extension and waiver in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

On April 12, 2002 we published a notice in the Federal Register (67 FR 17976) proposing an extension and waiver in order to—

(1) Give the current grantees early notice of the possibility that additional years of funding may be available through continuation awards;

(2) Provide other eligible entities with notice that if the proposal for extension and waiver is published in final form, the Department will not be announcing a competition under this program in FY 2002; and

(3) Request comments on the proposed extension and waiver.

Analysis of Comments and Changes

In response to the Assistant Secretary's invitation in the notice of proposed extension and waiver, two parties submitted comments. The two commenters agreed with the proposal to extend the grants of the two current grantees. We did not receive any comments opposing the proposed extension and waiver. An analysis of comments and of changes in the notice since publication of the proposal follows. Generally, we do not address technical and other minor changes, as well as suggested changes the law does not authorize us to make. Moreover, we do not address comments that do not express views on the substance of the proposed notice.

Comments

One commenter thought that the proposed notice was silent regarding the applicability of certain sections of 34 CFR 75.253 in the Education Department General Administrative Regulations (EDGAR). Specifically, the commenter was not sure if we planned to apply § 75.253(a)(2)(i), which permits us to make a continuation award if the grantee makes substantial progress toward meeting the objectives of the approved application or § 75.253(a)(2)(ii), which permits us to make a continuation award if the grantee has obtained our approval of changes in the project that do not increase the cost of the grant and enable the recipient to meet those objectives in succeeding budget periods. The commenter thought only § 75.253(a)(2)(i) should be applied.

Discussion

The notice explained that decisions regarding continuation awards would be made based on Grant Performance Reports submitted by the two current grantees and the regulations in part 75 of EDGAR, most notably, 34 CFR 75.253. The process by which continuation decisions will be made this year is the same process by which those decisions have been made in the past in the TCPVTIP when multi-year project grants have been awarded. Consistent with 34 CFR 75.253, we would extend a grant if we determined, among other things, and based on information provided by the grantee, that it was making substantial progress performing grant activities. We said in our April 12th notice that “making substantial progress” would be considered “among the other things.” We did not intend to imply that we would apply only the EDGAR provisions specifically mentioned in the notice when making decisions regarding continuations.

We would also like to reiterate here for purposes of clarification, that decisions to continue a grant will also be based on information provided by each grantee. Since the FY 2001 grants were based on applications that described activities and budgets for one year, in accordance with § 75.253(c)(2), each grantee will necessarily have to send a written statement describing the activities it intends to carry out in FY 2002, FY 2003, and possibly FY 2004, if Congress appropriates funds under the current statutory authority. The activities described must be consistent with, or be a logical extension of, the scope, goals, and objectives of the grantee's approved FY 2001 application. (34 CFR 75.261(c)(3)). As also provided in EDGAR, each grantee must submit a budget and budget narrative for each year it requests a continuation award. (34 CFR 75.118 and 75.253(c)(2)(i)).

While these provisions are contained in part 75 of EDGAR, we have described them in this notice so that grantees may be clear about what is needed to request a continuation award.

Change

None.

Comments

A commenter suggested that the start dates for FY 2002 projects should be the same for all grantees under the TCPVTIP. The commenter thought this was necessary in order for the Department to be able to determine the award amounts, particularly whether the appropriation in a given year is sufficient to pay in full the amount that approved applicants are eligible to receive.

Discussion

We currently ask grantees to provide the information we need to make continuation awards at the same time so we can (1) simultaneously review the scope of work and budgets of each grantee and (2) determine whether the appropriation is sufficient to pay in full the amount that approved applicants are eligible to receive. We can make those determinations without grantees having the same start dates. In addition, we believe that a grantee's start date is best decided by the grantee, in cooperation with the Department.

Change

None.

Comments

One commenter thought continuation grants should include funding for only the eligible institutions and should not include what the commenter referred to as urban centers or other organizations that do not meet the eligibility criteria of the TCPVTIP or the Indian tribe or tribal organization.

Discussion

We will make continuation awards for only the two current FY 2001 grants awarded under the TCPVTIP and only for allowable costs. The two current grantees continue to meet the eligibility criteria in the Act.

Change

None.

Waiver of Delayed Effective Date

The Administrative Procedure Act requires that a substantive rule shall be published at least 30 days before its effective date, except as otherwise provided for good cause (20 U.S.C. 553(d)(3)). During the 30-day public comment period on this notice, no substantive comments or objections were received on the proposed extension and waiver, and no substantive changes have been made in this notice to the proposed project extension. For this reason, and in order to make timely continuation grants to the small number of entities affected, the Secretary has determined that a delayed effective date is not required.

Background

On March 28, 2001 (66 FR 17036), we issued a notice inviting applications for new awards under the TCPVTIP for FY 2001. In that notice, we announced that the project period would be three years for grants awarded under the competition. On May 16, 2001 (66 FR 27080), we issued a notice modifying the March 28th notice by reducing the project period from three years to one year and extending the application deadline. The one-year project period was intended to provide time for affected parties to confer with us and the Congress on the future implementation of the TCPVTIP. However, after the May 16th notice was published, Congress enacted the Supplemental Appropriations Act, 2001, Public Law 107-20. Section 2701 of Public Law 107-20 amended section 117 of the Carl D. Perkins Vocational and Technical Education Act of 1998 (Perkins Act), which authorizes the TCPVTIP, and clarified congressional intent with respect to the implementation of the TCPVTIP by—

(a) Limiting eligibility to tribally controlled postsecondary vocational and technical institutions that do not receive Federal support under the Tribally Controlled College or University Assistance Act of 1978 (25 U.S.C. 1801 et seq.) or the Navajo Community College Act (25 U.S.C. 640a et seq.); and

(b) Authorizing the use of funds under the TCPVTIP for institutional support.

In light of section 2701 of Public Law 107-20, and congressional action taken regarding eligibility and use of funds for institutional support, we believe that multi-year awards, rather than one-year awards, are now more appropriate for projects under this program and that they would result in a more effective use of Federal funds. Specifically, we believe that it is now in the best interest of the TCPVTIP for us to issue continuation awards to the existing FY 2001 grantees, rather than hold a new competition in FY 2002.

Moreover, the Perkins Act, which includes the TCPVTIP, expires at the end of FY 2003. With the uncertainties presented by the absence of authorizing legislation for the TCPVTIP beyond FY 2003, it does not appear to be appropriate to hold a competition in FY 2003 for projects that would operate in FY 2004. We are generally reluctant to announce a competition in which eligible entities would be expected to prepare and submit an application while they are lacking critical information about the future of the program, and we do not think that it would be in the public interest to do so in this case.

In addition, it is unlikely that the very limited group of eligible tribally controlled postsecondary vocational and technical institutions, other than the two current grantees, would undertake the effort and cost of applying for funding in FY 2002 or FY 2003 with the authorizing legislation expiring at the end of FY 2003. Further, as we indicated earlier in this notice, we received no comments objecting to this project extension for current grantees in lieu of a new competition. Thus, a new competition would be likely only to cause existing grantees to expend valuable time and resources applying for program funding under the existing authority, while not providing a meaningful funding opportunity for the limited group of other eligible applicants to apply for Federal funding.

EDGAR Requirement

In order to provide for multi-year awards, we must waive the requirement in 34 CFR 75.261(c)(2), which establishes the conditions for extending a project period, including prohibiting the extension of a program's project period if it involves the obligation of additional Federal funds.

This extension and waiver allows us to make continuation grants at least in FY 2002 and FY 2003 and perhaps beyond FY 2003 if Congress continues to appropriate funds for the TCPVTIP under the current statutory authority.

Programs Affected

The two FY 2001 grantees affected by this extension and waiver are Crownpoint Institute of Technology (CIT) and United Tribes Technical College (UTTC). This extension and waiver allow us to extend the current grantees' project periods for two years and for any additional years for which Congress appropriates funds under the current statutory authority. Decisions regarding continuation awards will be made based on Grant Performance Reports submitted by CIT and UTTC and the regulations at 34 CFR 75.253. Consistent with 34 CFR 75.253, we will extend each grant if we determine, among other things, and based on information provided by each grantee, that each grantee is making substantial progress performing grant activities. Under this extension and waiver, (1) the project period for the current grantees could be extended to FY 2004, and (2) additional continuation awards could be made for any additional year or years for which Congress appropriates funds under existing statutory authority.

We do not interpret the waiver as exempting the two current grantees from the account closing provisions of Pub. L. 101-510, or as extending the availability of FY 2001 funds awarded to the grantees. As a result of Pub. L. 101-510, appropriations available for a limited period may be used for payments 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 is canceled and returned to the Treasury Department and is unavailable for restoration for any purpose.

Instructions for Requesting a Continuation Award Under EDGAR Part 75

Under applicable EDGAR provisions, each grantee wishing to receive an annual continuation grant must submit a performance report providing the most current performance and financial expenditure information on its TCPVTIP project. (34 CFR 75.118)). Each grantee must also submit a program narrative that describes the activities it intends to carry out during FYs 2002, 2003, and 2004, of a continuation award. The activities described must be consistent with, or be a logical extension of, the scope, goals, and objectives of the grantee's approved application. (34 CFR 75.261(c)(3)). In addition, each grantee must also submit a budget and budget narrative for each year it requests a continuation award. (34 CFR 75.253(c)(2)).

Paperwork Reduction Act of 1995

This extension and waiver does not contain any information collection requirements.

Intergovernmental Review

The TCPVTIP is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

Assessment of Educational Impact

In the notice of proposed extension and waiver we requested comments on whether the proposed extension and waiver would require transmission of information that any other agency or authority of the United States gathers or makes available.

Based on the response to the notice of proposed extension and waiver and our own review, we have determined that this final notice of extension and waiver does not require transmission of information that any other agency or authority of the United States gathers or makes available.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: www.ed.gov/​legislation/​FedRegister.

To use PDF you must have Adobe Acrobat Reader, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC, area at [phone].

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available on GPO Access at: http://www.access.gpo.gov/​nara/​index.html.

(Catalog of Federal Domestic Assistance Number 84.245 Tribally Controlled Postsecondary Vocational and Technical Institutions Program)

Program Authority: 20 U.S.C. 2327.

Dated: July 23, 2002.

Carol D'Amico,

Assistant Secretary for Vocational and Adult Education.