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: 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 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

S ection 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 on the proposed waiver and 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.

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.

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Program Authority: Perkins V, section 117; 20 U.S.C 2327.