Wednesday, 

June 16, 2010 

Part V 

Department of 

Education 

34 CFR Part 371 

Vocational Rehabilitation Service Projects 

for American Indians With Disabilities; 

Final Rule and Notice 


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34296 Federal Register / Vol. 75, No. 115 / Wednesday, June 16, 2010 / Rules and Regulations 

DEPARTMENT OF EDUCATION 

34 CFR Part 371 

[Docket ID ED–2009–OSERS–0008] 

RIN 1820–AB63 

Vocational Rehabilitation Service 

Projects for American Indians With 

Disabilities 

AGENCY: Office of Special Education and 

Rehabilitative Services, Department of 

Education. 

ACTION: Final regulations. 

SUMMARY: The Secretary is adopting as 

final, without changes, interim final 

regulations for the American Indian 

Vocational Rehabilitation Services 

(AIVRS) program to permit a consortium 

of Indian tribes to establish a separate 

legal entity to apply for a grant under 

this program. These final regulations are 

needed to enable the Department to 

make grants to Indian tribes that choose 

to form a consortium and, rather than 

authorizing one of the Indian tribes of 

the consortium to serve as the grantee, 

create a separate legal entity that serves 

as the grantee on behalf of the 

consortium and that is responsible for 

using the grant funds to provide services 

to all the Indian tribes in the 

consortium. 

DATES: These regulations are effective 

June 16, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Thomas E. Finch, U.S. Department of 

Education, 400 Maryland Avenue, SW., 

room 5147, Potomac Center Plaza (PCP), 

Washington, DC 20202–2800. 

Telephone: 202–245–7343 or via the 

Internet: tom.finch@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 this document in an accessible 

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 August 12, 2009, the Secretary 

published interim final regulations for 

the AIVRS program in the Federal 

Register (74 FR 40495). The interim 

final regulations became effective 

August 12, 2009. At the time the interim 

final regulations were published, the 

Secretary requested public comment on 

whether changes to the regulations were 

warranted. Pursuant to Executive Order 

13175 (‘‘Consultation and Coordination 

with Indian Tribal Governments’’), the 

Secretary specifically invited input from 

Indian tribal officials concerning the 

changes made in the interim final 

regulations. 

In the interim final regulations, the 

Secretary amended the definition of the 

term consortium in § 371.4 to provide 

that a consortium means two or more 

eligible governing bodies of Indian 

Tribes that apply for an award under the 

AIVRS program by either: (1) 

Designating one governing body to 

apply for the grant; or (2) establishing 

and designating a separate legal entity to 

apply for the grant. 

As explained in the preamble to the 

interim final regulations, the Secretary 

made this change to the definition of the 

term consortium because Indian Tribes 

have evolved in the ways that they have 

chosen to procure and deliver social 

services. Specifically, many Indian 

Tribes have found it more effective to 

join together and create one separate 

legal organization to apply for Federal 

funds on their behalf and to deliver 

services to the members of those Indian 

Tribes because they share the need for 

such services. This separate legal 

organization is generally a nonprofit 

association that provides health, social 

and welfare services (in this case, 

vocational rehabilitation services) to the 

members of the Indian Tribes that 

created this association. 

Because the former definition of the 

term consortium did not permit a 

nonprofit organization to serve as the 

grantee for a consortium of Indian 

Tribes under the AIVRS program, the 

Secretary determined that it was 

essential to amend the regulatory 

definition of the term consortium so that 

a group of governing bodies of Indian 

Tribes may establish a separate legal 

entity to serve as the applicant and 

grantee on behalf of eligible Indian 

Tribes applying for a grant as part of a 

consortium. 

There are no differences between the 

interim final regulations and these final 

regulations. 

Public Comment: In response to our 

invitation in the interim final rule, one 

commenter submitted comments. 

Generally we do not address technical 

and other minor changes, or suggested 

changes the law does not authorize us 

to make under the applicable statutory 

authority. In addition we do not address 

general comments that raised concerns 

not directly related to the proposed 

priority. 

Analysis of Comments and Changes: 

Comment: The commenter 

recommended that we revise the part of 

the new definition of consortium that 

provides for establishing and 

designating a separate legal entity to 

apply for the grant. Specifically, the 

commenter requested that the definition 

be revised to provide that the governing 

bodies of Indian Tribes may create, 

work with, or delegate to a separate 

legal entity the authority to apply for a 

grant under the AIVRS program. The 

commenter suggested that this change 

would clarify that consortia may partner 

with an entity currently in existence to 

apply for funds and deliver agreed upon 

services. 

Discussion: The Department does not 

believe that the specific change 

proposed by the commenter is 

consistent with the control over the 

separate legal entity that is required by 

the consortium’s establishment of that 

entity. Because section 121 of the 

Rehabilitation Act of 1973, as amended 

(the Rehabilitation Act), provides that 

grants may only be awarded to ‘‘the 

governing bodies of Indian tribes 

located on Federal and State 

reservations (and consortia of such 

governing bodies),’’ the governing bodies 

of the Indian tribes must have some 

control over any separate legal entity 

they establish to apply for the grant. 

Therefore, a separate legal entity that 

applies on behalf of a consortium of 

tribes under the AIVRS program must be 

controlled, sanctioned, or chartered by 

the tribes. It is not sufficient for the 

tribes to merely work with or delegate 

to a separate legal entity the authority to 

apply for and oversee an AIVRS grant, 

because the tribes would not have the 

requisite control over the management 

of that entity. Grantee tribes or consortia 

of such tribes are already permitted to 

contract with or otherwise enter into an 

agreement with another agency to assist 

in the implementation of the AIVRS 

program in accordance with 34 CFR 

371.42(a). However, in order to be 

eligible to apply for and receive a grant 

under the AIVRS program, the separate 

legal entity must have a relationship 

with the tribes wherein the tribes have 

administrative control over the entity 

rather than merely working with or 

delegating authority to it to implement 

the program. It is the establishment of 

these entities within the control of the 

tribes and the tribes designating these 

entities to apply under the AIVRS 

program that makes the separate legal 

entities eligible applicants for a grant 

under the program. 

While the separate legal entity can 

already exist and does not have to be 

established solely for the purpose of 

applying for an AIVRS grant, its 

application for the grant must be 

consistent with the purpose for which 

the entity was established by the tribes. 

For example, a nonprofit association of 

tribes is established by its member tribes 


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Federal Register / Vol. 75, No. 115 / Wednesday, June 16, 2010 / Rules and Regulations 34297 

when all the tribes it serves are 

represented on the board and have been 

a part of its formation and 

administration, and its purpose, among 

others, is to apply for and administer 

social welfare programs, such as the 

AIVRS, on behalf of, and to benefit, its 

member tribes. On the other hand, we 

would most likely not view a tribal 

college, for example, as a separate legal 

entity established by the tribes because 

the tribes would not have control over 

all aspects of the tribal college’s 

administration and programs, and 

application for social welfare programs, 

such as the AIVRS program, is not the 

purpose for which a tribal college is 

established. 

Changes: None. 

Executive Order 12866 

Under Executive Order 12866, the 

Secretary must determine whether the 

regulatory action is ‘‘significant’’ and 

therefore subject to the requirements of 

the Executive order and subject to 

review by the Office of Management and 

Budget (OMB). Section 3(f) of Executive 

Order 12866 defines a ‘‘significant 

regulatory action’’ as an action likely to 

result in a rule that may (1) Have an 

annual effect on the economy of $100 

million or more, or adversely affect a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities in a 

material way (also referred to as an 

‘‘economically significant’’ rule); (2) 

create serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; (3) 

materially alter the budgetary impacts of 

entitlement grants, user fees, or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise novel 

legal or policy issues arising out of legal 

mandates, the President’s priorities, or 

the principles set forth in the Executive 

order. Pursuant to the terms of the 

Executive order, it has been determined 

that this regulatory action is not a 

significant regulatory action subject to 

OMB review under section 3(f) of 

Executive Order 12866. 

We have also determined that this 

regulatory action does not unduly 

interfere with State, local, and tribal 

governments in the exercise of their 

governmental functions. 

We summarized the potential costs 

and benefits of these final regulations in 

the interim final regulations at 74 FR 

40495, 40497. 

Paperwork Reduction Act of 1995 

These regulations do not contain any 

information collection requirements. 

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. 

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: 84.250 AIVRS Program.) 

List of Subjects in 34 CFR Part 371 

Grant programs—Indians, Grant 

programs—social programs, Indians 

vocational rehabilitation. 

Dated: June 9, 2010. 

Alexa Posny, 

Assistant Secretary for Special Education and 

Rehabilitative Services. 

PART 371—VOCATIONAL 

REHABILITATION SERVICE 

PROJECTS FOR AMERICAN INDIANS 

WITH DISABILITIES 

■ For the reasons discussed in the 

preamble, the interim final regulations 

amending part 371 of title 34 of the 

Code of Federal Regulations that were 

published in the Federal Register on 

August 12, 2009 (74 FR 40495) are 

adopted as final. 

[FR Doc. 2010–14407 Filed 6–15–10; 8:45 am] 

BILLING CODE 4000–01–P 


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