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[Federal Register Volume 80, Number 24 (Thursday, February 5, 2015)]
[Rules and Regulations]
[Pages 6452-6455]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-02306]

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DEPARTMENT OF EDUCATION

34 CFR Parts 369 and 371

[Docket ID ED-2013-OSERS-0083]
RIN 1820-AB66

Vocational Rehabilitation Services Projects for American Indians 
With Disabilities

AGENCY: Rehabilitation Services Administration (RSA), Office of Special 
Education and Rehabilitative Services, Department of Education.

ACTION: Final rule.

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SUMMARY: The Secretary amends the definition of ``reservation'' under 
the regulations governing the American Indian Vocational Rehabilitation 
Services (AIVRS) program to conform to the Department's current 
interpretation and practices. ``Reservation'' means Federal or State 
Indian reservations; public domain Indian allotments; former Indian 
reservations in Oklahoma; land held by incorporated Native groups, 
regional corporations, and village corporations under the provisions of 
the Alaska Native Claims Settlement Act; and defined areas of land 
recognized by a State or the Federal Government where there is a 
concentration of tribal members and on which the tribal government is 
providing structured activities and services.

DATES: These regulations are effective March 9, 2015.

FOR FURTHER INFORMATION CONTACT: Thomas 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 by 
email: Tom.Finch@ed.gov.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: On June 23, 2014, the Secretary published a 
notice of proposed rulemaking (NPRM) for this program in the Federal 
Register (79 FR 35502). The NPRM followed a process of consultation 
under E.O. 13175 that began with a request for tribal input that we 
published in the Federal Register on July 5, 2013 (78 FR 40458) and 
continued with tribal consultation listening sessions in August and 
September 2013 in Smith River, California, and Scottsdale, Arizona, 
respectively. In the NPRM, we discussed this process in detail (79 FR 
35506).
    In the NPRM, we sought comment on two alternative definitions of 
``reservation'' as the term is used in section 121(d) of the 
Rehabilitation Act of 1973, as amended (the Rehabilitation Act) (29 
U.S.C. 741(d)).\1\ Only the governing bodies of Indian tribes and 
consortia of those governing bodies located on a Federal or State 
reservation are eligible for grants under the AIVRS program.
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    \1\ Previously, we have referred to section 121(c) but 
subsection (c) was redesignated as subsection (d), without 
substantive change to the definition, by the amendments to the 
Rehabilitation Act made by the Workforce Innovation and Opportunity 
Act (WIOA), P.L. 113-128.
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    ``Alternative A'' proposed to amend Sec. Sec.  369.4(b) and 
371.4(b) to reflect the Department's current interpretation and 
practices. The Department currently interprets the statutory definition 
of ``reservation,'' which uses the term ``includes'' before listing 
areas identified as ``reservations'' as non-exhaustive, and the 
Department's practice has been to include other land areas that it 
views as equivalent to those listed in the statutory definition. Under 
this interpretation, tribes eligible for AIVRS grants are those located 
on land specifically identified in the statute--Federal or State Indian 
reservations; public domain Indian allotments; former Indian 
reservations in Oklahoma; and land held by incorporated Native groups, 
regional corporations, and village corporations under the provisions of 
the Alaska Native Claims Settlement Act--and those located on a defined 
area of land recognized by a State or the Federal Government where 
there is a concentration of tribal members and on which the tribal 
government is providing structured activities and services. This 
definition includes lands identified in the U.S. Census as a State-
designated tribal statistical area or a tribal-designated statistical 
area or are defined areas of land designated by statute, judicial 
decision, or administrative determination as areas where members of a 
particular State or federally recognized tribe reside.
    Proposed ``Alternative B'' proposed to amend Sec. Sec.  369.4(b) 
and 371.4(b) to define ``reservation'' more narrowly as only those land 
areas specifically identified in the statutory definition of 
``reservation'': Federal or State Indian reservations; public domain 
Indian allotments; former Indian reservations in Oklahoma; and land 
held by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims 
Settlement Act.
    We adopt Alternative A. There are no differences between 
Alternative A in the NPRM and these final regulations.
    Public Comment: In response to our invitation in the NPRM, 56 
parties submitted comments on the proposed alternatives. Fifty 
commenters wrote in support of Alternative A, one wrote in support of 
Alternative B, and five suggested other alternatives. We organize our 
discussion of substantive issues by the proposed alternative 
definitions.
    Analysis of Comments and Changes: An analysis of the comments 
follows.

Proposed Alternative A

    Comments: Nearly all of the commenters supported proposed 
Alternative A. They gave a number of reasons for doing so. Many 
commenters stated that their tribes would lose eligibility under 
Alternative B, that they wished to keep the services they currently 
have, and that the loss of services would unnecessarily harm hundreds 
of individuals. Without access to services, some of these commenters 
stated, many individuals would return to prison, relapse into 
addiction, or be unemployed, dependent on welfare, or homeless. Others 
related their personal experiences with their tribal vocational 
rehabilitation (VR) programs and stated how the programs helped them 
complete necessary education or training, find or keep jobs, start 
small businesses, and be productive citizens.
    Some tribal entities, regardless of their eligibility under 
Alternative B, stated that the Department should adopt Alternative A 
because broader eligibility means that more disabled Indians, who are 
among the neediest Americans and are already underserved, could receive 
necessary VR services. These commenters also noted that tribes operate 
their VR programs well, even often serving nearby members of other 
tribes in addition to their own, and that the current standard for 
eligibility under the AIVRS program works well. Still other commenters 
noted that members of tribes who would lose eligibility under 
Alternative B would not receive equivalent services from State VR

[[Page 6453]]

agencies. This is so, they stated, because State VR agencies are 
sometimes too far away to be accessible. Even if they were closer by, 
State VR agencies have limited experience providing vocational 
rehabilitation services in a culturally relevant manner, so tribal 
members would be less likely to have successful outcomes or to seek 
services in the first place. Other commenters said that, given current 
funding levels, State VR agencies are not able to provide services to 
many more individuals than they currently serve. As a result, if some 
tribes could no longer provide VR services, many of their members would 
not receive services from the State VR agency either.
    Finally, one commenter noted that Alternative A would further the 
purpose of the AIVRS program, namely to provide culturally appropriate 
VR services to as many tribal members as possible. Two other commenters 
noted that the broader definition of ``reservation'' in Alternative A 
is consistent with many other Federal programs under which tribes 
deliver services to their members in federally defined service areas.
    Discussion: We thank the commenters who shared their personal 
thoughts and experiences. The Department is aware of the hardships that 
removing VR services could cause some tribal members. We received 
comments to this effect not only in response to the NPRM but also 
during our tribal consultation process: The request for tribal input 
that we published on July 5, 2013 (78 FR 40458), and the tribal 
consultation listening sessions that we held in August and September 
2013 in Smith River, California, and Scottsdale, Arizona, respectively. 
We are similarly aware of how tribal members have benefitted from 
tribal VR services and of the good work that tribal VR agencies do.
    We agree that the broader interpretation of ``reservation'' in the 
Department's current practice and under the definition in Alternative A 
would maintain a larger pool of eligible tribes than would the 
definition in Alternative B. Our experience does not, however, support 
the assertion that Alternative A would result in tribal VR agencies 
actually serving more tribal members overall or placing more total 
tribal members overall in employment than would Alternative B. Nor do 
we see that Alternative B would result in services being provided to 
any more or any fewer tribal members than Alternative A. As we stated 
in the NPRM, we expect to fund future grantees at the same level as we 
fund current grantees, depending on appropriations, and the number of 
tribal members served nationwide would remain essentially the same 
whether we adopt Alternative A or Alternative B (79 FR 35505). 
Alternative B would just result in a shift of resources from one 
applicant pool of tribes to another.
    We agree with the comment that, if tribal VR agencies lost 
eligibility under Alternative B, their members would most likely go 
unserved because State VR agencies would not be able to provide 
services to any more, or many more, individuals than they already do. 
Again as we noted in the NPRM, our own inquiries to State VR agencies 
resulted in similar concerns. While the Washington State VR agency 
would be able to serve some of the tribal members served by the two 
tribal VR agencies in that State, the North Carolina and Louisiana VR 
agencies did not expect to be able to serve any additional consumers. 
We noted also that Louisiana is under an order of selection whereby it 
serves only individuals with the most severe or significant 
disabilities. Therefore, it is unlikely that the current consumers who 
do not have the most significant disabilities would be able to receive 
VR services under an order of selection. (79 FR 35505).
    We disagree with the commenter's statement that the purpose of the 
AIVRS program is to provide services to as many tribal members as 
possible. The purpose of the program is to enable the tribes themselves 
to provide culturally relevant VR services to their members with 
disabilities.
    While we do agree with the commenter who noted that Alternative A 
is consistent with other Federal programs that allow tribes to provide 
services to their members in designated services areas, we note that 
having a service area under another Federal program does not, in and of 
itself, qualify that service area as a ``reservation'' under this 
definition. For example, a service area can be created for a particular 
program as part of a tribe's program application. This self-
identification does not reflect any formal decision-making or 
considered recognition by a State or the Federal Government about the 
status of the service area for any other purposes.
    By contrast, a State or Federal administrative determination not 
tied to funding a specific program application would qualify as ``land 
recognized by a State or the Federal Government'' under this 
definition. These administrative determinations might include an 
executive order issued by a Governor to provide formal State 
recognition of a tribe or the Department of the Interior's recognition 
of a service area a part of the Federal acknowledgement process.
    Finally, we agree with the general viewpoint of these comments, 
namely that we should favor the broader interpretation of 
``reservation'' in Alternative A over the narrower interpretation of 
Alternative B. We need not repeat any of the legal analysis we set out 
in the NPRM (78 FR 35504). It is well established that the 
Rehabilitation Act has a remedial purpose, namely to promote and expand 
employment opportunities for individuals with disabilities, Consol. 
Rail Corp. v. Darrone, 465 U.S. 624, 634 (1984), and that a remedial 
statute should be interpreted broadly to effect its purposes. 
Tcherepnin v. Knight, 389 U.S. 332, 336 (1967). As we stated in the 
NPRM, we believe that the definition of ``reservation'' in section 121 
of the Rehabilitation Act is subject to different interpretations and 
that Alternative A is a reasonable interpretation (79 FR 35504).
    Given all of this, we decline to change our current practice or our 
current interpretation of ``reservation'' as the term is used in 
section 121(d) of the Rehabilitation Act (29 U.S.C. 741(d)). Choosing 
the narrow definition in Alternative B and limiting eligibility under 
AIVRS to only those tribes located on areas of land explicitly 
identified in the statute would not improve the AIVRS program. There 
would be no net gain in the number of VR consumers served nationwide. 
Instead, some consumers would lose the VR services they now receive. 
Though a similar number of other consumers elsewhere in the country 
would begin to receive VR services, the consumers who would lose 
services would not likely receive equivalent VR services elsewhere, and 
many would suffer hardship as a result.
    Alternative A would likewise result in no change in the number of 
consumers served under AIVRS. However, this alternative has allowed 
grantees in the program to serve their consumers well for more than two 
decades and would not cause the disruption and harm to individual 
consumers that Alternative B would cause. Therefore, we believe that 
the best approach to achieve the statute's purpose is to continue to 
interpret a reservation as a defined area of land recognized by a State 
or the Federal Government where there is a concentration of tribal 
members and on which the tribal government is providing structured 
activities and services, making tribes with those areas of land 
eligible for a grant under the AIVRS program.
    Change: None. We adopt Alternative A unchanged from the NPRM.

[[Page 6454]]

Proposed Alternative B

    Comment: One commenter supported the adoption of Alternative B. 
This commenter acknowledged that Alternative B might cause some tribes 
that are currently funded to lose eligibility under the AIVRS program. 
The commenter stated, however, that the narrower interpretation was 
more consistent with the trust relationship between the United States 
and the Indian tribes, which, by definition, exists only with federally 
recognized tribes, many but not all of which have a reservation. 
According to the commenter, Alternative B would therefore better ensure 
that tribes with whom the United States has a trust relationship would 
have access to the funds available under the AIVRS program.
    Discussion: By authorizing the Department to make grants to tribes 
``located on Federal and State reservations'' the Rehabilitation Act 
makes both federally and State-recognized tribes eligible under AIVRS. 
By including State-recognized tribes as eligible applicants under the 
AIVRS program, Congress has already concluded that the benefits of the 
AIVRS program may be shared with those tribes that are not federally 
recognized and thus, do not have the trust relationship with the United 
States as described by the commenter. Additionally, Congress has 
already concluded that having land associated with the tribe (i.e. a 
Federal or State reservation), as opposed to having the trust 
relationship referred to by the commenter, is a necessary condition for 
eligibility. It is consistent with this broad intent to include in the 
definition of ``reservation'' land that has characteristics similar in 
all important and practical respects to a traditional reservation, 
thereby providing an opportunity to a greater number of tribes to 
participate in the AIVRS program. Finally, we note that nothing 
precludes federally recognized tribes from establishing VR programs and 
applying to be AIVRS grantees.
    Change: We adopt Alternative A unchanged from the NPRM.

Other Alternatives

    Comments: Other commenters suggested four alternative 
interpretations of ``reservation.'' One commenter suggested that 
``reservation'' should be defined to mean any territory where 
indigenous people of the United States are located and observe 
traditional practices, religions, or culture. Another commenter 
suggested that we expand the reference to ``incorporated Native groups 
. . . under the provisions of the Alaska Native Claims Settlement Act'' 
to any incorporated group anywhere because 78 percent of Indians do not 
live on reservations. Two commenters stated that any federally or 
State-recognized tribe should be eligible, regardless of whether the 
tribe is landless. And one commenter suggested limiting eligibility to 
federally recognized tribes.
    Discussion: All of these suggestions would require a change in the 
statutory definition of ``reservation.'' This requires congressional 
action; the Department does not have the authority to make any of these 
changes by regulation.
    Change: None.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, the Secretary must determine whether 
this 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 stated in the 
Executive order.
    This final regulatory action is a significant regulatory action 
subject to review by OMB under section 3(f)(4) of Executive Order 
12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits would justify their costs. In 
choosing among alternative regulatory approaches, we selected those 
approaches that maximize net benefits. Based on the analysis that 
follows, the Department believes that these final regulations are 
consistent with the principles in Executive Order 13563.
    The amendment to the regulatory definition of ``reservation'' we 
adopt, Alternative A, should produce no change in costs or benefits as 
it conforms the definition to the Department's current interpretation 
and practices.

Paperwork Reduction Act of 1995

    These regulations do not contain any information collection 
requirements.

Assessment of Education Impact

    Based on the response to the NPRM and on our review, we have 
determined that these final regulations do not require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.

[[Page 6455]]

    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the person listed under FOR 
FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: 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 via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site 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). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department. Catalog of Federal Domestic Assistance Number 
84.250.

List of Subjects

34 CFR Part 369

    Grant programs--social programs, Reporting and recordkeeping 
requirements, Vocational rehabilitation.

34 CFR Part 371

    Grant programs-Indians, Grant programs-social programs Indians, 
Vocational rehabilitation.

    Dated: February 2, 2015.
Michael K. Yudin,
Acting Assistant Secretary for Special Education and Rehabilitative 
Services.
    For the reasons discussed in the preamble, the Secretary amends 
parts 369 and 371 of title 34 of the Code of Federal Regulations as 
follows:

PART 369--VOCATIONAL REHABILITATION SERVICE PROJECTS

0
1. The authority citation for part 369 is revised to read as follows:

    Authority:  29 U.S.C. 709(c), 741, 773, unless otherwise noted.

0
2. Section 369.4(b) is amended by revising the definition of 
``Reservation'' to read as follows:

Sec.  369.4  What definitions apply to these programs?

* * * * *
    (b) * * *
    Reservation means a Federal or State Indian reservation; public 
domain Indian allotment; former Indian reservation in Oklahoma; land 
held by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims 
Settlement Act; or a defined area of land recognized by a State or the 
Federal Government where there is a concentration of tribal members and 
on which the tribal government is providing structured activities and 
services.

(Authority: Sections 12(c) and 121(e) of the Act; 29 U.S.C. 709(c) 
and 741(e))

* * * * *

PART 371--VOCATIONAL REHABILITATION SERVICES PROJECTS FOR AMERICAN 
INDIANS WITH DISABILITIES

0
3. The authority citation for part 371 continues to read as follows:

    Authority:  29 U.S.C. 709(c) and 741, unless otherwise noted.

0
4. Section 371.4(b) is amended by revising the definition of 
``Reservation'' to read as follows:

Sec.  371.4  What definitions apply to this program?

* * * * *
    (b) * * *
    Reservation means a Federal or State Indian reservation; public 
domain Indian allotment; former Indian reservation in Oklahoma; land 
held by incorporated Native groups, regional corporations, and village 
corporations under the provisions of the Alaska Native Claims 
Settlement Act; or a defined area of land recognized by a State or the 
Federal Government where there is a concentration of tribal members and 
on which the tribal government is providing structured activities and 
services.

(Authority: Sections 12(c) and 121(e) of the Act; 29 U.S.C. 709(c) 
and 741(e))

* * * * *
[FR Doc. 2015-02306 Filed 2-4-15; 8:45 am]
BILLING CODE 4000-01-P
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