Tribally Controlled Postsecondary Vocational and Technical Institutions Programs; Notice of Extension of Project Period adn Waiver [OVAE]

[Federal Register: July 29, 2002 (Volume 67, Number 145)]
[Notices]
[Page 49015-49017]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jy02-25]

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DEPARTMENT OF EDUCATION

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.

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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 (202) 205-9870.
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 49016]]

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

[[Page 49017]]

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.

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(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.
[FR Doc. 02-19077 Filed 7-26-02; 8:45 am]
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