Proposed Rule2022-28222
Proposed Priorities, Requirements, and Definitions-State Tribal Education Partnership Program
Primary source
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Published
December 28, 2022
Issuing agencies
Education Department
Abstract
The Department of Education (Department) proposes priorities, requirements, and definitions under the State Tribal Education Partnership (STEP) program, Assistance Listing Number (ALN) 84.415A. The Department may use one or more of these priorities, requirements, and definitions for competitions in fiscal year (FY) 2023 and later years. The Department is taking this action to support the development of partnerships among Tribal education agencies (TEAs), State educational agencies (SEAs), and local educational agencies (LEAs) to support the creation or expansion of TEAs to directly administer education programs, including formula grant programs under the Elementary and Secondary Education Act of 1965, as amended (ESEA), consistent with State law and under a written agreement among the parties.
Full Text
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<title>Federal Register, Volume 87 Issue 248 (Wednesday, December 28, 2022)</title>
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[Federal Register Volume 87, Number 248 (Wednesday, December 28, 2022)]
[Proposed Rules]
[Pages 79824-79830]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28222]
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DEPARTMENT OF EDUCATION
34 CFR Chapter II
[Docket ID ED-2022-OESE-0151]
Proposed Priorities, Requirements, and Definitions--State Tribal
Education Partnership Program
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Proposed priorities, requirements, and definitions.
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SUMMARY: The Department of Education (Department) proposes priorities,
requirements, and definitions under the State Tribal Education
Partnership (STEP) program, Assistance Listing Number (ALN) 84.415A.
The Department may use one or more of these priorities, requirements,
and definitions for competitions in fiscal year (FY) 2023 and later
years. The Department is taking this action to support the development
of partnerships among Tribal education agencies (TEAs), State
educational agencies (SEAs), and local educational agencies (LEAs) to
support the creation or expansion of TEAs to directly administer
education programs, including formula grant programs under the
Elementary and Secondary Education Act of 1965, as amended (ESEA),
consistent with State law and under a written agreement among the
parties.
DATES: We must receive your comments on or before January 27, 2023.
ADDRESSES: Comments must be submitted via the Federal eRulemaking
Portal at <a href="http://regulations.gov">regulations.gov</a>. However, if you require an accommodation or
cannot otherwise submit your comments via <a href="http://regulations.gov">regulations.gov</a>, please
contact the program contact person listed under FOR FURTHER INFORMATION
CONTACT. The Department will not accept comments by fax or by email, or
comments submitted after the comment period closes. To ensure that the
Department does not receive duplicate copies, please submit your
comments only once. Additionally, please include the Docket ID at the
top of your comments.
Federal eRulemaking Portal: Go to Regulations.gov to submit your
comments electronically. Information on using Regulations.gov,
including instructions for accessing agency documents, submitting
comments, and viewing the docket, is available on the site under
``FAQ.''
Privacy Note: The Department's policy is to generally make all
comments received from members of the public available for public
viewing in their entirety on the Federal eRulemaking Portal at
Regulations.gov. Therefore, commenters should be careful to include in
their comments only information that they wish to make publicly
available.
FOR FURTHER INFORMATION CONTACT: Donna Bussell, U.S. Department of
Education, 400 Maryland Avenue SW, Room 3W207, Washington, DC 20202-
6450. Telephone (202) 987-0204. Email: <a href="/cdn-cgi/l/email-protection#ee8a8180808fc08c9b9d9d8b8282ae8b8ac0898198"><span class="__cf_email__" data-cfemail="dabeb5b4b4bbf4b8afa9a9bfb6b69abfbef4bdb5ac">[email protected]</span></a>.
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:
Invitation to Comment: We invite you to submit comments regarding
the proposed priorities, requirements, and definitions. To ensure that
your comments have maximum effect in developing the final priorities,
requirements, and definitions, we urge you to clearly identify the
specific section of the proposed priority, requirement, or definition
that each comment addresses.
We invite you to assist us in complying with the specific
requirements of Executive Orders 12866 and 13563 and their overall
requirement of reducing regulatory burden that might result from these
proposed priorities, requirements, and definitions. Please let us know
of any further ways we could reduce potential costs or increase
potential benefits while preserving the effective and efficient
administration of the program.
During and after the comment period, you may inspect public
comments about the proposed priorities, requirements, and definitions
by accessing Regulations.gov. To inspect comments in person, please
contact the person listed under FOR FURTHER INFORMATION CONTACT.
Assistance to Individuals With Disabilities in Reviewing the
Rulemaking Record: On request, we will provide an appropriate
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for this document. If you want to schedule an
appointment for this type of accommodation or auxiliary aid, please
contact the person listed under FOR FURTHER INFORMATION CONTACT.
Purpose of Program: The purpose of the STEP program is to: promote
Tribal self-determination in education; improve the academic
achievement of Indian children and youth; and promote the coordination
and collaboration of TEAs with SEAs and LEAs to meet the unique
educational and culturally related academic needs of Indian students.
Program Authority: Section 6132 of the ESEA (20 U.S.C. 7452).
Tribal Consultation: The following proposed priorities,
requirements, and definitions were informed by Tribal consultation with
elected Tribal leaders or their officially designated proxies. The
Department held virtual Tribal consultations on April 26, 2021 and June
30, 2022, and announced the opportunities through various external
community listservs. The Department sought feedback from elected Tribal
leaders on a series of topics and 12 questions to inform the design of
future STEP competitions. They are as follows:
First, the Department requested input on the length of grant
performance periods, specifically if Tribal Nations were interested in
longer grant performance periods (e.g., one year versus three years).
The majority of Tribal leaders who provided input were in favor of
three-year grants and provided written comments expressing the need for
additional time to complete grants to create TEAs. Tribal leaders were
also in favor of the Department awarding more grants to expand TEAs.
The Department will factor in this Tribal leader input during the
development of future notices inviting applications. The grant period
is specified in statute, subject to amendment by congressional
appropriation and is not directly addressed by this document.
Second, the Department requested input on whether Tribal Nations
are more interested in working partnerships with SEAs or LEAs. The
majority of Tribal leader comments expressed the perspective that those
partnerships should include both SEAs and LEAs and should be rooted in
Tribal consultation at the local level. Tribal leaders also supported
the need for partnerships to include both entities. In response to the
comments, the Department is proposing Priority 3 to enhance Tribal
consultation at the local level and encourage trilateral working
relationships among TEAs, SEAs, and LEAs.
Third, the Department requested input from Tribal Nations on
whether resources should be targeted toward coordinating staff,
curriculum, or other existing grant opportunities. The majority of
Tribal leader input expressed the need to coordinate curriculum
development and existing grant opportunities. Other participants
supported targeting grant resources to
[[Page 79825]]
funding the hiring of TEA staff. In response to the comments, the
Department is proposing Priority 2 to increase coordination with ESEA
title VI, part A formula programs. Coordinating with title VI, part A
formula programs will help ensure TEAs have a proactive role in
contributing to determining the best use of educational resources and
can help strengthen the ability of TEAs and LEAs to train and retain
respective program staff.
Fourth, the Department requested Tribal Nations to identify the
supports needed to create a new TEA. The majority of Tribal leader
input expressed the need to identify and expand Tribal services and to
identify off-reservation students. Other participants expressed that
all Tribal Nations need to finance a new TEA with Tribal funding and
consolidate education-related services into one agency. In response to
the comments, the Department is proposing Priority 1 to improve
visibility and identification of Indian children and youth in public
education data.
Fifth, the Department requested input from Tribal Nations on
whether developing Tribal education regulatory codes is necessary for
creating a TEA. The majority of Tribal leader input expressed that
Tribal education codes are not necessary to create a new TEA. Other
participants expressed interest in seeing examples of Tribal education
codes. In response to the comments, the Department is proposing to not
include Tribal education codes for the creation of a ``new TEA''.
Education codes are still included in the definition of an
``established TEA'' in this document. Examples of Tribal education
codes may be shared during pre-application technical assistance
webinars.
Sixth, the Department requested input from Tribal Nations on
whether creating a new TEA required more than a one-year performance
period. The majority of Tribal leader input expressed that creating a
new TEA requires more than one year and may take anywhere from two to
three years. In response to the comments, the Department will factor in
this Tribal leader input during the development of future notices
inviting applications to the degree permissible by law.
Seventh, the Department requested input from Tribal Nations on
whether there should be requirements, in addition to those in past
competitions, for future STEP grants to create a TEA. The majority of
Tribal leaders expressed the need for projects to include a
comprehensive plan to implement non-direct services. The plan should
align with Tribal needs and priorities. Other participants expressed
that applicants or grantees, as appropriate, should be required to
assess educational infrastructure needs, evaluate SEA and LEA training
and other services provided to the TEA, and improve access to
professional development opportunities for TEA leaders. In response to
the comments, the Department will factor in this Tribal leader input
during the development of future competitions to the degree permissible
by law.
Eighth, the Department requested input from Tribal Nations on how
to define ``capacity building'' as it relates to expanding or creating
a TEA. The majority of Tribal leaders expressed that the definition
needs to be specified in the final agreement with the SEA and LEA.
Other participants recommended that the Department define ``capacity
building'' as the ability to authorize teaching certifications. The
Department has addressed the input on capacity building by including
authorization of teaching certifications as one of the criteria within
the definition of ``established TEA'' in this document.
Ninth, the Department requested input from Tribal Nations on
whether they are interested in collaborating with SEAs to develop,
monitor, and evaluate effective culturally responsive practices. No
Tribal leaders or other participants provided input on the question.
Tenth, the Department requested input from Tribal Nations on
whether they are interested in collaborating with LEAs to develop,
monitor, and evaluate effective culturally responsive practices. The
majority of Tribal leader input and other participants were in favor of
TEAs and LEAs working together in this way. Tribal leader input
expressed that TEAs should work with at least three LEAs that are
required to engage in local Tribal consultation as described in section
8538(a) of the ESEA. In response to the comments, the Department is
proposing Priority 3 to encourage more frequent consultation between an
affected LEA and TEA. The Department is not requiring consultation with
at least three LEAs due to the likelihood that a TEA may not have the
capacity to maintain an ongoing relationship with three LEAs who meet
the definition of ``Affected LEA'' in this document.
Eleventh, the Department requested input from Tribal Nations on
whether training from the SEA to the TEA should be targeted toward data
collection and analysis; grants management and monitoring; fiscal
accountability; and/or other training needs. Tribal leaders were asked
to prioritize by rank order. The majority of Tribal leader input
expressed the need for focused training on data collection, data
analysis, grants management, and monitoring, in that order. Other
participants were in favor of more training regarding fiscal
accountability. In response to the comments, the Department will factor
in the need for training regarding data collection and analysis, grants
management, and monitoring. In addition, proposed Priority 1, which is
designed to address the under-identification of Indian students in
public education data, reflects the importance of data collection and
analysis for STEP projects. Through projects that address proposed
Priority 1, Tribal Nations that want to exercise more self-
determination in public education could assist LEAs in the improvement
of data collection and analysis with a specific focus on improved
identification of Indian students.
Twelfth, the Department requested input from Tribal Nations
regarding which priorities should be considered in the next
competition. Tribal leaders expressed that STEP grants should advance
and support local Tribal consultation practices, especially for TEAs
that have at least three LEAs required to conduct local Tribal
consultation under ESEA section 8538(a). Other participants indicated
that future priorities should include support for Tribal Nations to
authorize Tribal schools. In response to the comments, the Department
does not propose a priority specifically for authorizing tribal
schools, however, it does continue to support the creation of new TEAs
which may include Tribal schools. The Department proposes Priority 4
for Tribal Nations that have not received a STEP grant from the
Department. Additionally, the Department proposes Priority 3 to have
STEP grants support local Tribal consultation practices.
Proposed Priorities:
This document contains the following seven proposed priorities:
Proposed Priority 1--Improve Identification of Native Students in
Public Education Data.
Proposed Priority 2--Increase Coordination of Indian Education
Programs.
Proposed Priority 3--Enhance Tribal Consultation.
Proposed Priority 4--New STEP Grantees.
Proposed Priority 5--Create TEA.
Proposed Priority 6--Expand Early TEA.
Proposed Priority 7--Expand Established TEA.
[[Page 79826]]
Background: In FY 2012, the Department piloted the first cohort of
STEP grants to TEAs to promote increased collaboration between TEAs and
SEAs in the administration of certain State-administered ESEA formula
grant programs and build the capacity of TEAs to conduct certain State-
level administrative functions under those programs for eligible
schools located on a reservation. By the beginning of the second year
of their 3-year projects, all four STEP pilot grantees had assumed at
least one State-level function, with two grantees assuming two
functions, for a total of six State-level functions. In FY 2015, the
Department awarded another cohort of STEP grants to TEAs to promote
increased collaboration between TEAs and the SEAs and LEAs that serve
students from the affected Tribes, and to build the capacity of TEAs to
conduct certain administrative functions under certain ESEA formula
grant programs for eligible schools, as determined by the TEA, SEA, and
LEA. By the beginning of the second year of their projects, all five
STEP grantees assumed SEA- or LEA-level functions, as described in
their final agreements. STEP was included specifically in the 2015
reauthorization of the ESEA, and by statute includes two types of
grants: grants that support establishing new TEAs and grants for
expanding TEA capacity. The ESEA set out grant periods for each type of
grant: one year for establishing new TEAs and three years for expanding
TEA capacity. In FY 2019, the Department awarded one-year STEP grants
to Tribes to support Tribes' creation of TEAs so that they would be
eligible to apply for a three-year STEP grant in future fiscal years.
That competition included an invitational priority, ``Promoting
Sustainability through Community Engagement.'' In FY 2020, the
Department awarded three-year STEP grants to TEAs to directly
administer education programs, build capacity to administer and
coordinate education programs, and receive training and support from
and provide training and support to SEAs and LEAs. The Department
established three absolute priorities via a waiver of rulemaking for
the FY 2020 competition. Absolute Priority 1 supported projects to
build TEA capacity to administer and coordinate education programs;
Absolute Priority 2 was for established TEAs; and Absolute Priority 3
was for TEAs with limited prior experience. All applicants were
required to address Absolute Priority 1. Absolute Priorities 2 and 3
allowed the Department to consider applications from TEAs with limited
prior experience separately from applications from TEAs with more
experience. In FY 2021, the Department conducted Tribal consultation
with elected Tribal leaders and their proxies to discuss priorities,
requirements, and definitions for future STEP competitions. For FY
2022, Congress authorized awards for up to five years for STEP grants
through the appropriations process.
Additionally, under section 6132(c)(1) and (2) of the ESEA, the
Department has authority to give priority to applicants that propose to
create a new TEA or that propose to expand an existing TEA. Under
proposed Priorities 5, 6, and 7, the Department prioritizes projects
that create ``new TEAs,'' expand capacity of ``early TEAs,'' and expand
capacity of ``established TEAs'' to help ensure Tribal Nations have
options to equitably advance Tribal self-determination.
Proposed Priority 1--Improve Identification of Native Students in
Public Education Data.
Background: The Department proposes this priority to assist Tribal
Nations interested in expanding TEA capacity through coordinating TEA
and LEA enrollment data. The priority would advance Tribal self-
determination in education by creating a condition for partner SEAs or
LEAs to better coordinate services and identify students who are
eligible for other Indian education programs but might not be receiving
services. Under section 6132(a)(3) of the ESEA, one purpose of the STEP
program is to ``meet the unique educational and culturally related
academic needs'' of Indian students. To do so, it is critical that
Indian students are accurately identified as Indian by the LEA. Limited
access to meaningful, quality data continues to be a challenge that
adversely impacts Tribal communities related to the issue of under-
identification of Indian students and subsequently under-resourcing.
Data are essential for developing effective policies and initiatives to
generate improved health and other outcomes.\1\ By partnering with
LEAs, a TEA may disclose a list of students who are tribally enrolled
and/or affiliated to the LEA and the LEA can match and notify the
parents regarding Indian education program opportunities, without
disclosing the identity of eligible students to a TEA. In addition to
improving delivery of equitable supports for Indian children and youth,
we believe a collaboration focused on better identification of Indian
students will build TEA capacity in collecting and analyzing data,
consistent with Tribal consultation input, and help advance Tribal
self-determination in public education.
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\1\ <a href="http://www.ncai.org/DataDisaggregationAIAN-report_5_2018.pdf">www.ncai.org/DataDisaggregationAIAN-report_5_2018.pdf</a>.
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Note: The Family Educational Rights and Privacy Act (FERPA) does
not permit an LEA to disclose personally identifiable information (PII)
from students' education records to a TEA without parental consent
unless the disclosure meets one of FERPA's exceptions to the general
consent requirement. The most relevant exceptions to FERPA's general
consent requirement that may apply if certain conditions are met are
the ``school official,'' ``studies,'' and ``audit/evaluation''
exceptions. For further information on FERPA, contact the Department's
Student Privacy Policy Office at <a href="https://studentprivacy.ed.gov/">https://studentprivacy.ed.gov/</a>.
Proposed Priority:
To meet this priority, an applicant must propose to partner with an
LEA to develop and maintain effective and culturally responsive methods
to better identify, and support the identification of, Indian students
who may be undercounted or under-identified as eligible for an ESEA
title VI formula grant program consistent with section 6112 of the
ESEA. This includes identifying Indian students who are not enrolled in
a Tribal Nation but who have affiliation with or descendance from a
Tribal Nation as described in ESEA section 6117(d).
Proposed Priority 2--Increase Coordination of Indian Education
Programs.
Background: The Department proposes this priority to assist Tribal
Nations in ensuring that services under existing Indian education
programs are coordinated as part of a comprehensive approach to serving
Indian students. TEAs do not have purview over all Indian education
programs in a given LEA, especially if TEA personnel are not identified
as the authorized representative of a particular grant award. However,
TEAs have direct access to cultural resources, methods, and knowledge
and can provide expertise regarding culturally appropriate ways to
educate and teach Indian students. One example of how a STEP grantee
could meet this priority would be for the grantee to coordinate with a
partner LEA that receives both a Johnson-O'Malley and an ESEA title VI
Indian Education formula grant on strategies and professional
development opportunities to further a culturally-appropriate education
approach that benefits Indian students, TEA, and LEA staff. (Note:
Consistent with ESEA section 6132(e)(2), STEP grants may not be used
for direct services.) This
[[Page 79827]]
proposed priority would also help ensure TEAs are working in
collaboration with LEAs, consistent with section 6132(a) of the ESEA.
Proposed Priority:
To meet this priority, an applicant must submit a high-quality plan
that describes how it will strengthen its partnership with the LEA and/
or SEA, to strengthen coordination among all existing federally funded
Indian education grants that impact the partner LEA and/or SEA to
support the academic achievement of Indian students. The plan must
include goals, milestones, and timelines for coordination, and must
identify which existing federally funded programs they are
coordinating.
Proposed Priority 3--Enhance Tribal Consultation.
Background: The Department proposes this priority to assist Tribal
Nations to expand their capacity to participate in, and strengthen,
local Tribal consultation practices. For example, to address this
proposed priority, applicants could propose a plan to assist LEAs in
the effort to obtain consultation affirmations that are meaningful,
data-driven, and timely. The proposed priority would advance Tribal
self-determination in education by supporting TEAs to convene
collaborative meetings with SEAs and LEAs to promote meaningful
consultation that produces ongoing and timely feedback on federally
funded education programs that impact Indian students, not just
programs that serve only Indian students. This proposed priority would
address Tribal leader interest in seeing a priority that furthers
collaboration and consultation with affected LEAs that are subject to
ESEA section 8538 consultation requirements. Affected LEAs subject to
section 8538 must consult Tribal Nations annually regarding multiple
Federal programs, and TEAs can help drive more meaningful collaboration
to support Federal program implementation. The goal of the proposed
priority is for TEAs to increase the frequency of consultations,
develop meaningful consultation procedures, and meet goals as defined
in the respective ESEA Consolidated State and Local Plans.
Proposed Priority:
Projects to improve upon existing local Tribal consultation efforts
with at least one LEA. To meet this priority, applicants must provide a
high-quality plan that describes how the project will increase the
frequency of consultations with affected LEAs, meaningfully develop
consultation procedures with LEAs, and meet SEA goals as defined in the
respective ESEA Consolidated State and Local Plans.
Proposed Priority 4--New STEP Grantee.
Background: In Tribal Consultations held on April 26, 2021 and June
30, 2022, Tribal leaders requested that the Department move away from
determining grants on a competitive basis because all Tribes could
benefit from the STEP program, but some Tribes are not as well
positioned to compete for the STEP program. However, under 2 CFR
200.205, the Department must award STEP program grants on a competitive
basis. The Department proposes this priority to help applicants who
have not previously received a STEP grant. The proposed priority would
advance Tribal self-determination in education by assisting TEAs with
less capacity to be competitive among their peer TEAs.
Proposed Priority:
To meet this priority, an applicant must be a new TEA or early TEA
and must not have previously received a STEP award from the Department.
Proposed Priority 5--Create a TEA.
Background: Under section 6132(c)(1) of the ESEA, the Department is
authorized to make awards to applicants who plan and develop a TEA, if
the Indian Tribe or organization has no current TEA.
Proposed Priority:
To meet this priority, an applicant must not be an early TEA or
established TEA.
Proposed Priority 6--Expand Capacity of Early TEAs.
Background: Under section 6132(c)(2) of the ESEA, the Department is
authorized to make awards to TEAs to expand their existing capacity.
Proposed Priority:
To meet this priority, an applicant must be an early TEA.
Proposed Priority 7--Expand Capacity of Established TEAs.
Background: Under section 6132(c)(2) of the ESEA, the Department is
authorized to make awards to TEAs to expand their existing capacity.
Proposed Priority:
To meet this priority, an applicant must be an established TEA.
Types of Priorities:
When inviting applications for a competition using one or more
priorities, we designate the type of each priority as absolute,
competitive preference, or invitational through a notice in the Federal
Register. The effect of each type of priority follows:
Absolute priority: Under an absolute priority, we consider only
applications that meet the priority (34 CFR 75.105(c)(3)).
Competitive preference priority: Under a competitive preference
priority, we give competitive preference to an application by (1)
awarding additional points, depending on the extent to which the
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2)
selecting an application that meets the priority over an application of
comparable merit that does not meet the priority (34 CFR
75.105(c)(2)(ii)).
Invitational priority: Under an invitational priority, we are
particularly interested in applications that meet the priority.
However, we do not give an application that meets the priority a
preference over other applications (34 CFR 75.105(c)(1)).
Proposed Application Requirement:
Background: The Department proposes the following application
requirement. Under section 6132(d)(2)(C)(i) of the ESEA, a preliminary
agreement with the appropriate SEA, one or more LEAs, or both the SEA
and LEA must be an application requirement. In any competition, the
Department could use additional statutory application requirements
consistent with section 6132(d) of the ESEA.
Proposed Application Requirement 1--Draft Written Agreement with
Partners.
An applicant must provide a Draft Written Agreement (DWA), with the
appropriate SEA and/or LEA partner(s). For applicants creating a new
TEA, a DWA is only required with an LEA. For applicants expanding
capacity for an early TEA or established TEA, a DWA with both an SEA
and LEA is required.
Proposed Program Requirements:
Background: The Department proposes three program requirements. The
first proposed program requirement, which would require grantees to
hire a project director within 60 days of the grant award notification,
would help ensure staffing capacity is promptly developed so that the
project objectives can be timely met and addressed with fidelity. The
second proposed program requirement, which would require grantees to
have a finalized written agreement with partners, is intended to ensure
that the parties joining the project are committed to fulfilling the
purpose of the STEP program by either creating a new TEA or expanding
an existing TEA. Both proposed program requirements would advance
Tribal self-determination and help the TEA eventually administer an
education program, or prepare to administer an education program, on
behalf of an LEA or SEA.
The second program requirement is to ensure the applicant and its
SEA and
[[Page 79828]]
LEA partners, as applicable, have a demonstrated commitment to either
create a new, or expand an existing, TEA and have considered the
allocation of roles and responsibilities necessary to carry out the
project. In addition, this program requirement would ensure a
commitment to deliverables that advance the project goals and timeline.
This proposed program requirement would advance Tribal self-
determination and would help the TEA eventually administer an education
program, or prepare to administer an education program, on behalf of an
LEA or SEA. The draft agreement would allow applicants to be eligible
for the program even though agreements may not be finalized in time for
application submission.
In any competition, the Department could use one or more of the
proposed program requirements in addition to statutory program
requirements under section 6132 of the ESEA. The proposed program
requirements are:
Proposed Program Requirement 1--Hire Project Director within 60
Days.
Grantees must hire a project director as soon as practicable, but
no later than 60 days after the beginning of the performance period.
Proposed Program Requirement 2--Final Written Agreement with
Partners.
Grantees must submit a final written agreement signed by all
parties entering into the agreement within 120 days after receiving the
grant award notification.
Proposed Definitions:
Background: The Department proposes to define the following terms
for use in its STEP program competitions. Each of the defined terms is
intended to provide clarity to applicants, grantees, and their partners
with respect to the priorities and both the statutory and proposed
application and program requirements, which we believe will help
advance the ability of TEAs to exercise Tribal self-determination in
public education.
Specifically, the Department is proposing the definition of
``directly administer,'' which is based on the definition in section
8538 of the ESEA, to advance the ability of TEAs to exercise Tribal
self-determination in public education. Section 6132(c)(2)(A) of the
ESEA requires directly administering education programs including
formula grant programs under the ESEA consistent with State law and
written agreements between parties but does not define this term. To
clarify responsibilities under this statutory program requirement, the
Department proposes to define ``directly administer.'' Direct
administration enables TEAs to become the fiscal agents and
subsequently become financially responsible for the administration of
project objectives, funds, and reporting.
The Department derived its proposed definition of TEA from ESEA
section 6132. However, we propose to expand the definition of TEA to
include a TEA that includes an agency, department, or instrumentality
of more than one Tribe if the Tribes are in close geographic proximity
or have cultural connections to each other and agree through joint
Tribal government resolution to have a combined TEA. The proposed
change is responding to the request from Tribal leaders to award grants
through a non-competitive process. This will allow Tribes with minimal
capacity to advance common interests and promote Tribal self-
determination in public education.
The Department proposes to further define ``established TEA'' and
``early TEA'' to meaningfully differentiate between STEP projects that
propose to create a new TEA versus expanding an early TEA or expanding
an established TEA. The rationale behind the cutoffs were to
quantifiably differentiate while making grants more accessible to TEAs
in early stages of development. The definitions are intended to help
applicants better identify the priority that applies to their proposed
project.
The Department proposes to define ``Tribal consultation'' to
clarify the purpose of the consultation, the roles and responsibilities
of all parties, and the need to acquire Tribal affirmation that the
consultation has been conducted in accordance with the requirements.
The written affirmation would ensure that the appropriate Tribal
Nations were participating partners. The Department proposes to define
``Affected LEA,'' which is based on the definition in section 8538 of
the ESEA.
In any competition, the Department could use one or more of these
proposed definitions in addition to any statutory definitions. The
proposed definitions are:
Affected LEA means a local educational agency--
(1) With an enrollment of American Indian or Alaska Native students
that is not less than 50 percent of the total enrollment of the local
educational agency; or
(2) For any fiscal year following fiscal year 2017, that received a
grant in the previous fiscal year under subpart 1 of part A of title VI
that exceeded $40,000.
Directly administer means conducting, as the fiscal agent, SEA
functions or LEA functions for education programs, including ESEA
formula grant programs, consistent with State law and the FWA.
Draft written agreement (DWA) means an unsigned written agreement
with an attached letter of support from each LEA or SEA partner
indicating each has reviewed the project plan and will finalize the DWA
into an FWA within 120 days of grant award notification. The DWA must
include the following:
(1) The roles and responsibilities for each partner.
(2) An agreed-upon list of deliverables (Note: deliverables cannot
be direct services to Indian students).
(3) Identification of at least one point of contact for each
partner.
(4) A description of the resources each partner will contribute to
the project (Note: resources do not need to be monetary or matching
funds).
Early TEA means a TEA that meets one or two of the criteria in the
definition of established TEA.
Established TEA means a TEA that meets three or more of the
following criteria:
(1) Has received a STEP grant in 2012 or subsequent years, or has
an existing prior relationship with an SEA or LEA as evidenced by an
FWA between the TEA and SEA or LEA.
(2) Has an existing Tribal education code.
(3) Has directly administered at least one education program within
the past five years.
(4) Has administered at least one Federal, State, local, or private
grant within the past five years.
(5) Has authorized teaching certifications.
Final written agreement (FWA) means a signed written agreement
between the TEA and the LEA or SEA; the TEA and one or more LEAs; or
the TEA and both an SEA and one or more LEAs, that documents the
commitment and timeline of the agreeing partners to implement the terms
and conditions specified in the DWA.
New TEA means a Tribal entity that does not meet the definition of
``early TEA'' or ``established TEA.''
Tribal consultation means that--
(1) The SEA or LEA provides Tribes the opportunity for input;
(2) The SEA or LEA consider and respond to the input from Tribal
leaders or their officially designated proxies regarding an education
program that affects the Tribal Nation or TEA; and
(3) The partner Tribal Nation provides written confirmation that
the consultation was meaningful and in good faith.
Tribal educational agency (TEA) means the agency, department, or
instrumentality of an Indian Tribe that
[[Page 79829]]
is primarily responsible for supporting Tribal students' elementary and
secondary education. This term also includes an agency, department, or
instrumentality of more than one Tribe if the Tribes are in close
geographic proximity or have cultural connections to each other and
agree through joint Tribal government resolution to have a combined
TEA.
Note: This document does not solicit applications. In any year in
which we choose to use any of the final priorities, requirements, and
definitions, we invite applications through a notice in the Federal
Register.
Final Priorities, Requirements, and Definitions: The Department
will announce the final priorities, requirements, and definitions in a
document in the Federal Register. We will determine the final
priorities, requirements, and definitions after considering responses
to the proposed priorities, requirements, and definitions and other
information available to the Department. This document does not
preclude us from proposing additional priorities, requirements, or
definitions, subject to meeting applicable rulemaking requirements.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Office of Management and Budget
(OMB) determines whether this regulatory action is ``significant'' and,
therefore, subject to the requirements of the Executive order and
subject to review by 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 proposed regulatory action is not a significant regulatory
action subject to review by OMB under section 3(f) of Executive Order
12866.
We have also reviewed this proposed regulatory action 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 the proposed priorities, requirements, and
definitions only on a reasoned determination that their benefits would
justify their costs. In choosing among alternative regulatory
approaches, we selected those approaches that would maximize net
benefits. Based on the analysis that follows, the Department believes
that this regulatory action is consistent with the principles in
Executive Order 13563.
We also have determined that this regulatory action would not
unduly interfere with State, local, and Tribal governments in the
exercise of their governmental functions.
In accordance with both Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential benefits of this
regulatory action are the increased specificity of application
requirements, program requirements, and definitions that will support
effective program implementation that advances Tribal self-
determination between TEAs, SEAs, and LEAs. The potential costs are
those resulting from statutory requirements and those we have
determined as necessary for administering the Department's programs and
activities. The proposed priorities, requirements, and definitions
would impose minimal costs on entities that would receive assistance
through the STEP program. Application submission and participation in
the STEP program is voluntary. The Secretary believes that the costs
imposed on applicants by the proposed priorities, requirements, and
definitions would be limited to paperwork burden related to preparing
an application for the STEP program. Because the costs of carrying out
activities would be paid for with STEP program funds, the costs of
implementation would not be a burden for any eligible applicants,
including small entities.
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand. The Secretary invites comments
on how to make these proposed priorities, requirements, and
definitions, easier to understand, including answers to questions such
as the following:
<bullet> Are the requirements in the proposed regulations clearly
stated?
<bullet> Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
<bullet> Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
<bullet> Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections?
<bullet> Could the description of the proposed regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the proposed regulations easier to understand? If so, how?
<bullet> What else could we do to make the proposed regulations
easier to understand?
To send any comments that concern how the Department could make
these proposed regulations easier to understand, see the instructions
in the ADDRESSES section.
[[Page 79830]]
Paperwork Reduction Act
The proposed priorities, requirements, and definitions contain
information collection requirements that are approved by OMB under OMB
control number 1894-0006; the proposed priorities, requirements, and
definitions do not affect the currently approved data collection.
Regulatory Flexibility Act Certification
The Secretary certifies that this proposed regulatory action would
not have a substantial economic impact on a substantial number of small
entities. The U.S. Small Business Administration Size Standards define
proprietary institutions as small businesses if they are independently
owned and operated, are not dominant in their field of operation, and
have total annual revenue below $7,000,000. Nonprofit institutions are
defined as small entities if they are independently owned and operated
and not dominant in their field of operation. Public institutions are
defined as small organizations if they are operated by a government
overseeing a population below 50,000.
Although some of the Alaska Native Organizations, LEAs, and other
entities that receive STEP program funds qualify as small entities
under this definition, the proposed priorities, definitions, and
requirements would not have a significant economic impact on these
small entities. The Department believes that the costs imposed on an
applicant by the proposed priorities, requirements, and definitions
would be limited to the costs related to providing the documentation
outlined in the proposed priorities, definitions, and requirements when
preparing an application and that those costs would not be significant.
Participation in the STEP program is voluntary. We expect that in
determining whether to apply for STEP funds, an eligible entity would
evaluate the requirements of preparing an application and any
associated costs and weigh them against the benefits likely to be
achieved by receiving a STEP grant. An eligible entity will probably
apply only if it determines that the likely benefits exceed the costs
of preparing an application.
We invite comments from small entities as to whether they believe
the proposed priorities, requirements, and definitions would have a
significant economic impact on them and, if so, we request evidence to
support that belief.
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.
Accessible Format: On request to the program contact person listed
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities
can obtain this document in an accessible format. The Department will
provide the requestor with an accessible format that may include Rich
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file,
braille, large print, audiotape, or compact disc, or another accessible
format.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at <a href="http://www.govinfo.gov">www.govinfo.gov</a>. 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 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
<a href="http://www.federalregister.gov">www.federalregister.gov</a>. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
James F. Lane,
Senior Advisor, Office of the Secretary, Delegated the Authority to
Perform the Functions and Duties of the Assistant Secretary, Office of
Elementary and Secondary Education.
[FR Doc. 2022-28222 Filed 12-27-22; 8:45 am]
BILLING CODE 4000-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.