Notice of Waiver for the Adult Education and Family Literacy Act to Certain Outlying Areas

AGENCY:

Office of Vocational and Adult Education, Department of Education.

ACTION:

Notice of Waiver for the Adult Education and Family Literacy Act to Certain Outlying Areas.

SUMMARY:

The Secretary waives the requirements in 34 CFR 75.250 and 34 CFR 75.261(c)(2) of the Education Department General Administrative Regulations (EDGAR) to enable the funding of continuation grants for certain outlying areas under section 211(e) of the Adult Education and Family Literacy Act (AEFLA). This waiver enables the current eligible grantees to continue to receive Federal funding beyond the five-year limitation contained in 34 CFR 75.250.

DATES:

This notice is effective August 12, 2008.

FOR FURTHER INFORMATION CONTACT:

Sarah Newcomb, U.S. Department of Education, 400 Maryland Avenue, SW., Room 11007, Potomac Center Plaza, Washington, DC 20202-7240. Telephone (202) 245-7754 or e-mail: sarah.newcomb@ed.gov.

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

Individuals with disabilities can obtain a copy of this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) by contacting the program contact person listed in this section.

SUPPLEMENTARY INFORMATION:

Background: The Office of Vocational and Adult Education awarded a discretionary grant on September 1, 2003, under the provisions of section 211(e) of the AEFLA to a group of applicants that included American Samoa, Guam, Northern Marianas, and Palau. Each member of the group could have applied for, and competed with, the other members of the group for section 211(e) funds. However, the applicants decided to file a joint application naming the Northern Marianas College (NMC) as the designated grantee on behalf of the group so that all parties could benefit under a common application. Joint applications of this type are authorized in 34 CFR 75.127 through 129 of EDGAR. AEFLA funds under the grant are targeted to the training of adult educators from all members of the group. No entities other than those in the group are eligible to receive funding under section 211(e).

The project period for the current award to the group ends on August 31, 2008. Congress has appropriated funding for AEFLA, including section 211(e), for both fiscal year 2007 and fiscal year 2008. The Department normally would conduct a new competition because the funding for the current grant, obtained from the fiscal year 2002 through 2006 appropriations, was available to the group beginning in 2003, and under 34 CFR 75.250 the project period generally lasts no longer than 60 months.

On July 7, 2008, in accordance with section 553(b) of the Administrative Procedure Act (APA), the Department gave actual notice to all current eligible grantees of our proposal to waive 34 CFR 75.250 and 34 CFR 75.261(c)(2) and to fund continuation grants instead of holding a new grant competition, and invited their comments on our proposal. The notice also provided the current designated grantee with an opportunity to submit specific information regarding the grant and any plans to improve its current implementation. This waiver will enable the Secretary to provide additional funds to all current, eligible grantees for additional periods for as long Congress continues to appropriate funds under the current legal authority in section 211(e) of AEFLA and possibly during a transition to any new program authorities Congress might create if and when it chooses to reauthorize AEFLA. There is no substantive difference between the actual notice of our proposal and this notice of funding of continuation grants and waiver. Therefore, all affected parties were provided actual notice of the Department's proposal and an opportunity to comment in lieu of publication of a notice of proposed rulemaking in the Federal Register.

Comment

In response to the actual notice of proposed funding of continuation grants and waiver, and our invitation to comment, five parties submitted comments supporting the proposed waiver and the proposal to continue funding for all current, eligible grantees. During this period, the current designated grantee also submitted a written agreement, including a program narrative, signed by all the outlying areas eligible for funding, that describes the activities that NMC intends to carry out with funds under a continuation grant. In light of these positive comments and the additional information, we have not made any substantive changes to our proposal.

Waiver of Delayed Effective Date

The APA 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 all affected entities an opportunity to submit comments on the Secretary's proposal to waive 34 CFR 75.250 in order to continue the current grant. All of the comments that we received support our proposal. In addition, given that the current grant ends on August 31, 2008, and in order to avoid any lapse in funding under this program, the Secretary has determined that a delayed effective date is unnecessary and contrary to the public interest.

Waiver of 34 CFR 75.250 and 75.261(c)(2)

In determining how to implement section 211(e) this year, the Department considered the relatively small amount of funds appropriated under section 211(e) for fiscal years (FYs) 2007 and 2008 ($61,257 and $65,131, respectively), the burden on group members in having to file either new competitive applications or a new group application, and the commitment of time and resources a new competition would require of the Department and Pacific Resources for Education and Learning (PREL) in Honolulu, which would be required by section 211(e)(2) of AEFLA to make recommendations in a new competition. The Department also has considered the fact that all the entities eligible for funding under section 211(e) are members of the group and receive services through the current grant.

In light of these factors, the Department waives the 60-month limit on the project period established by 34 CFR 75.250 for the existing grant award. The Department plans to continue funding the current grant, rather than conducting a new competition, if the designated grantee submits further satisfactory information regarding its performance under the current grant and its plans to improve implementation of the grant. The Department also waives 34 CFR 75.261(c)(2), which limits the extension of a project period. The Department is waiving this additional regulation in order to be able to continue the current grant with FY 2007 and 2008 funds.

The Department's waiver of the regulations and continued funding of the current grant would extend as long as Congress continues to appropriate funds under the current legal authority in section 211(e), and possibly during a transition to any new program authorities Congress might create with respect to members of the group if and when it reauthorizes AEFLA. However, the continuation would initially only be from FY 2007 funds. The waiver would not affect any other legal provisions governing the grant to group members, including the requirement that continuation of the grant would depend on the group's meeting the requirements of 34 CFR 75.253. Among other things, § 75.253 conditions continuation of a grant on the grantee's having made substantial progress toward meeting the objectives in its approved application. The grantee also would have to comply with any special conditions of the grant established by the Department in order to receive further continuation funding from the FY 2008 or any future appropriation.

The waivers of 34 CFR 75.250 and 75.261(c)(2) do not exempt the group from the account closing provisions of 31 U.S.C. 1552(a), nor would they extend the availability of funds previously awarded the group. Under 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 will be unavailable for restoration for any purpose.

The Department believes that its waiver of regulations and continued funding of the group application is in the best interests of the members of the group application and the public interest.

Instructions for Requesting a Continuation Award Under EDGAR Part 75

Under applicable EDGAR provisions, a grantee wishing to receive an annual continuation grant must submit a performance report providing the most current performance and financial expenditure information on its project. A grantee must also submit a budget and budget narrative each year it requests a continuation award. (34 CFR 75.253(c)(2)). In addition, a grantee must submit a program narrative that describes the activities it intends to carry out with 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)). The Department will award a continuation grant each year only if the grantee submits a satisfactory performance report, budget and budget narrative, and program narrative.

Regulatory Flexibility Act Certification

The Secretary certifies that this notice of waiver will not have a significant economic impact on a substantial number of small entities. The only entities that would be affected are American Samoa Community College; Guam Community College; Northern Marianas College, the grantee of the group; Ministry of Education Republic of Palau; and PREL.

Paperwork Reduction Act of 1995

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

Intergovernmental Review

This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism. The Executive Order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Assessment of Educational Impact

Based on our own review, we have determined that this notice of 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 can view this document, as well as all other documents of this Department published in the Federal Register, in text or Adobe Portable Document Format (PDF) on the Internet at the following site: http://www.ed.gov/news/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 (202) 512-1530.

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.gpoaccess.gov/nara/index.html .

(Catalog of Federal Domestic Assistance Number: 84.002A Outlying Area portion of the State Grant Program)

Program Authority: 20 U.S.C. 9211(e).