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Office of Vocational and Adult Education, Department of Education; Notice of Waivers for the Native American Vocational Technical Education Program (NAVTEP) and the Tribally Controlled Postsecondary Vocational and Technical Institutions Program (TCPVTIP) and Funding of Continuation Grants

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The Secretary waives the requirements in 34 CFR 75.250 of the Education Department General Administrative Regulations (EDGAR) that generally prohibit project periods exceeding five years and announces the funding of continuation grants for current NAVTEP and TCPVTIP grantees. These waivers enable the 30 current eligible grantees under NAVTEP and the two current eligible grantees under TCPVTIP to apply for and continue to receive Federal funding beyond the five-year limitation contained in 34 CFR 75.250.


Effective Date: These waivers are effective June 8, 2006.

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Sharon A. Jones, U.S. Department of Education, 400 Maryland Avenue, SW., Room 11108, Potomac Center Plaza, Washington, DC 20202-7242. Telephone: (202) 245-7803 or by e-mail:

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

Individuals with disabilities may obtain this document 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.

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On April 6, 2006, we published a notice in the Federal Register (71 FR 17460) proposing waivers of 34 CFR 75.250 of EDGAR in order to give early notice of the possibility that additional years of funding under NAVTEP and TCPVTIP may be available for current grantees through continuation awards.

NAVTEP and TCPVTIP support grants to operate vocational and technical education programs, as authorized by sections 116(a) through (g) and 117, respectively, of the Carl D. Perkins Vocational and Technical Education Act of 1998 (Perkins Act) (20 U.S.C. 2326(a) through (g) and 2327). The Congress is now in the process of reauthorizing the Perkins Act, and we do not believe that it would be in the public interest to hold new competitions under either NAVTEP or TCPVTIP until after Congress has concluded that process.

We stated in the April 6, 2006, Federal Register notice that in order to avoid a lapse in the availability of vocational and technical education and training provided by current NAVTEP and TCPVTIP grantees, we wanted to waive the requirements in 34 CFR 75.250, which generally prohibit project periods exceeding five years. We also noted that we wanted to review requests for continuation awards from current NAVTEP and TCPVTIP grantees, rather than hold new competitions in fiscal year (FY) 2006. With these waivers we will continue to fund current, eligible NAVTEP and TCPVTIP grantees for as long as Congress continues to appropriate funds for the existing program authorities and possibly during a transition to any new statutory program authorities. Start Printed Page 33300

Analysis of Comments and Changes

In response to the Secretary's invitation in the notice of the proposed waivers, 515 parties submitted comments regarding the proposed waiver under NAVTEP. We received numerous letters making the same argument opposing the NAVTEP waiver, from commenters affiliated with two Indian tribes and one tribal organization, who are currently not funded under NAVTEP. We appreciate hearing their views. Numerous comments were also submitted in support of the NAVTEP waiver. No comments were submitted regarding TCPVTIP. An analysis of the comments follows.

Comments: Numerous commenters were opposed to the waiver that affects NAVTEP because the waiver would eliminate any opportunity for a new competition and possibly a chance for currently unfunded tribal entities to receive funding with which to provide vocational education for their tribal members.

Some of these commenters indicated that their tribe has been waiting many years for the Department to announce a new NAVTEP competition. These commenters stated that they believe the proposed waiver would be unreasonable and even harmful to their tribal members who cannot participate in the program because the Department has not held a new competition since 2001. One commenter indicated that for the past two years the Department's earlier waiver of 34 CFR 75.261(c)(2) for this program has made it impossible to submit new applications, and that the additional proposed waiver of 34 CFR 75.250 would have the effect of preventing the commenter's tribal organization from applying for NAVTEP funding for a third year. This commenter believed that NAVTEP is currently funding less than 10 percent of potentially eligible tribes and tribal organizations and that continuing to fund the current 30 grantees would be at the expense of other potential applicants.

Numerous commenters supported the proposed waiver of 34 CFR 75.250 for NAVTEP. Some supported the waiver because of the uncertainties associated with the pending Perkins Act reauthorization and were concerned that, without a waiver of 34 CFR 75.250, grantees would operate projects for only one year before having to retool their programs and write new applications to meet potentially different requirements under a reauthorized Perkins Act. These commenters stated that they did not believe it would be in the best interest of the program to have Indian tribes and tribal organizations expend valuable resources writing proposals for projects that may be approved for only one year. They stated that, under these circumstances, preparing an application for a new competition would be an unnecessary burden, would be disruptive, and would not be an efficient use of staff time and limited funding.

Some of the commenters who supported the proposed waiver also expressed concern that it would be too late in the year to expect eligible applicants to find the time and resources to prepare and submit new applications. These commenters thought it would be sensible for the Department to extend current NAVTEP projects while the legislation is still pending.

Many commenters supported the waiver because they believed it would enable current projects to build on their many accomplishments (e.g., by strengthening current programs, increasing student participation, and significantly increasing the number of students graduating). Other commenters believed that the continuation of current grants would allow grantees to provide uninterrupted services to hundreds of students whose certificate or degree programs might otherwise be stopped.

Several commenters supported the continuation of projects because they felt that it takes three to five years to fully develop effective programs and that multi-year projects are vitally necessary for Native American students to complete vocational and technical education programs that lead to associate degrees or certificates. These commenters expressed their support for the waiver for NAVTEP because they believe it would give their projects the additional time they needed to be fully developed.

Discussion: In the April 6, 2006, notice of proposed waivers, the Secretary expressed particular interest in hearing from potential applicants regarding the possible impact of the proposed waivers. We received many letters regarding NAVTEP from commenters who are affiliated with two Indian tribes and one tribal organization and appreciate hearing their views. We understand the commenters' desire for the Department to hold a new competition so that their particular tribe or tribal organization may have an opportunity to receive funding and provide services to their tribal members under NAVTEP. Indeed, the possibility of providing a new opportunity for new eligible applicants to apply for NAVTEP funding was one important consideration in our deliberations over whether to propose a waiver of 34 CFR 75.250. In reaching our decision to propose the waiver, we considered the best interests of all potential applicants and students served by NAVTEP under current circumstances. With a waiver of 34 CFR 75.250, current NAVTEP projects would be funded for a sixth year. Many program managers, including several commenters, believe multi-year projects are desirable because they provide the time needed to develop and implement highly effective programs. While extending current multi-year projects has the advantage of providing current grantees the opportunity to more fully develop their vocational education programs and may be more cost-effective programmatically, we recognize that it also serves to delay opportunities for unfunded eligible applicants to compete for funds and develop new projects.

While examining the possible effects of a waiver on potential applicants, we looked at the history of competitions under NAVTEP. We found that, while over 500 federally recognized Indian tribes are eligible to apply for NAVTEP competitions, on the average, only 78 tribes actually apply during a competition. Further, we found that during the last two competitions several of the then-current applicants submitted very strong applications, and, as a result, many of the same tribes or tribal organizations received an award under each competition. Based on the history of NAVTEP, therefore, although NAVTEP competitions are open to all eligible tribal entities, it is likely that only a limited group of new applicants would be selected and funded in any event.

Further, because Congress appears close to reauthorizing the Perkins Act, awarding multi-year projects under the existing NAVTEP statutory authority would likely result in grantees operating projects that are not fully aligned with provisions of the reauthorized Perkins Act (absent the Department holding a new NAVTEP competition following reauthorization). The Department plans to carry out the intent of Congress and implement all applicable provisions of any reauthorized legislation as quickly as possible following reauthorization of the Perkins Act. Therefore, we concluded that holding a new NAVTEP competition in 2006 would mean holding a competition for only one-year NAVTEP projects, and we do not believe that one-year projects would be programmatically appropriate for NAVTEP. One year is not enough time for grantees to establish and operate effective NAVTEP programs. Moreover, one-year projects would not be a cost-Start Printed Page 33301effective use of NAVTEP funds, and it would not be in the best interest of the program to require applicants to spend time and resources writing applications for one-year projects. Many of the commenters responding to the invitation to comment shared this view.

Having weighed these and other factors, we concluded that it would be contrary to the public interest to hold a 2006 NAVTEP competition, pending reauthorization of the Perkins Act. We believe that continuing to fund current grantees best serves the interests of NAVTEP and the population served under the program and is the best use of the available Federal resources.

Change: None.

Comments: A number of commenters reasoned that, because the current changes to NAVTEP in the House and Senate reauthorization bills are so minor, there was no reason for the Department to wait for reauthorization of the Perkins Act before holding a new competition under NAVTEP. One of these commenters stated that because changes in the two bills are minor, no changes could be expected in conference. This commenter added that committee staff have indicated that they are not aware of any proposal to suggest changes to NAVTEP in conference.

Discussion: In deciding whether to propose a waiver of 34 CFR 75.250 for NAVTEP, we considered the possible effects of the pending reauthorization and of the bills currently before the House and the Senate. At this time, the ultimate outcome of the legislative process is uncertain. In addition, to assess the impact of changes currently in the reauthorization bills, one has to look at the changes proposed throughout the entire bill, not just in the sections containing the NAVTEP authority. Other provisions of the House and Senate bills include substantive changes to vocational and technical education programs, including changes to provisions relating to allowable program activities, that may well affect the operation of projects under NAVTEP. Furthermore, because the Congress is still discussing the Perkins Act reauthorization, it is possible that additional changes could be made to the NAVTEP provision while the two bills are being reconciled in conference. Therefore, we continue to believe that it would not be prudent to hold a new competition prior to reauthorization of the Perkins Act and to fund new projects that, after a short period of time and considerable start-up costs, might have to be significantly changed in order to be brought into compliance with a newly reauthorized statute. We have concluded that such an action would be burdensome for tribes and tribal organizations, would not be the best use of available Federal resources, and, more importantly, would be unfair to student participants who may be prevented from participating in longer-term degree programs or completing multi-year programs of study.

Change: None.

Waiver of Delayed Effective Date

The Administrative Procedure Act requires that a substantive rule be published at least 30 days before its effective date, except as otherwise provided for good cause (5 U.S.C. 553(d)(3)). We provided affected entities an opportunity for comment on the Secretary's intent to waive 34 CFR 75.250 in order to continue current grants under NAVTEP and TCPVTIP. In order to make timely continuation grants before the authorities to expend these funds expire, the Secretary has determined that a delayed effective date is not required.

Waiver of 34 CFR 75.250 of the Education Department General Administrative Regulations

In order to provide for continuation awards, we waive the requirements in 34 CFR 75.250 that generally prohibit project periods exceeding five years and announce the funding of continuation grants for current NAVTEP and TCPVTIP grantees.

These waivers mean that—

(1) Current NAVTEP and TCPVTIP grantees are authorized to apply for continuation awards for as long as Congress continues to appropriate funds for the existing program authorities and possibly during a transition to any new program authorities;

(2) Current NAVTEP and TCPVTIP grants will be continued at least through FY 2006 and possibly beyond, if Congress continues to appropriate funds for NAVTEP and TCPVTIP under their current statutory authorities; and

(3) We will neither announce new competitions nor make new awards under NAVTEP or TCPVTIP in FY 2006.

Continuation of the Current Grantee Awards

The instructions for requesting a continuation award and the requirements applicable to continuation awards for current NAVTEP and TCPVTIP grantees that were established in our July 16, 2004, Federal Register notice for NAVTEP (69 FR 42701) and July 29, 2002, Federal Register notice for TCPVTIP (67 FR 49015) and the requirements in 34 CFR 75.118 and 75.253 apply to any continuation awards sought by eligible current grantees under these programs.

The waivers of 34 CFR 75.250 and 75.261(c)(2) neither exempt current NAVTEP and TCPVTIP grantees from the account closing provisions of 31 U.S.C. 1552(a) nor do they extend the availability of funds previously awarded to current NAVTEP and TCPVTIP 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 is canceled and returned to the U.S. Treasury Department and is unavailable for restoration for any purpose.

Regulatory Flexibility Act Certification

The Secretary certifies that the waivers will not have a significant economic impact on a substantial number of small entities.

The small entities that will be affected by these waivers are—

(a) The FY 2000 grantees currently receiving Federal funds and the following entities that are eligible for an award under NAVTEP:

(1) Federally recognized Indian tribes.

(2) Tribal organizations.

(3) Alaska Native entities.

(4) Bureau-funded schools (as defined in the notice inviting applications published in the Federal Register on January 3, 2001 (66 FR 560)), except for Bureau-funded schools proposing to use their award to support secondary school vocational and technical education programs; and

(b) The FY 2001 grantees currently receiving Federal funds and other 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 that are eligible for an award under TCPVTIP.

However, the Secretary certifies that these waivers are not likely to have a significant economic impact on these entities because the waivers and the activities required to support the additional years of funding will not impose excessive regulatory burdens or require unnecessary Federal supervision. The waivers will impose minimal requirements to ensure the proper expenditure of program funds, including requirements that are standard for continuation awards. Start Printed Page 33302

Paperwork Reduction Act of 1995

This notice of waivers does not contain any information collection requirements.

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(Catalog of Federal Domestic Assistance Number 84.101 Native American Vocational and Technical Education Program and 84.245 Tribally Controlled Postsecondary Vocational and Technical Institutions Program.)

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Program Authority: 20 U.S.C. 2326(a) through (g) and 20 U.S.C. 2327.

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Dated: June 5, 2006.

Richard T. La Pointe,

Acting Assistant Secretary for Vocational and Adult Education.

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[FR Doc. E6-8980 Filed 6-7-06; 8:45 am]