FR Doc E6-8980
[Federal Register: June 8, 2006 (Volume 71, Number 110)]
[Page 33299-33302]
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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

SUMMARY: 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.

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

FOR FURTHER INFORMATION CONTACT: 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 

SUPPLEMENTARY INFORMATION: 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.

[[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 
    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 
    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-

[[Page 33301]]

effective 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 
    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.

[[Page 33302]]

Paperwork Reduction Act of 1995

    This notice of waivers does not contain any information collection 

Electronic Access to This Document

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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.)

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

    Dated: June 5, 2006.
Richard T. La Pointe,
Acting Assistant Secretary for Vocational and Adult Education.
 [FR Doc. E6-8980 Filed 6-7-06; 8:45 am]