[Federal Register Volume 84, Number 107 (Tuesday, June 4, 2019)]
[Rules and Regulations]
[Pages 25682-25685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11525]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID: ED-2018-OESE-0122; CFDA Number: 84.356A]


Final Definitions and Requirements--Alaska Native Education (ANE) 
Program

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Final definitions and requirements.

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SUMMARY: The Assistant Secretary for Elementary and Secondary Education 
(Assistant Secretary) announces definitions and requirements under the 
ANE program. The Assistant Secretary may use one or more of these 
definitions and requirements for competitions in fiscal year (FY) 2019 
and later years. We are establishing these definitions and requirements 
to clarify the eligibility requirements for the program, based upon 
changes that the Every Student Succeeds Act (ESSA) made to the 
Elementary and Secondary Act of 1965 (ESEA).

DATES: These definitions and requirements are effective July 5, 2019.

FOR FURTHER INFORMATION CONTACT: Almita Reed, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 3E222, Washington, DC 20202. 
Telephone: (202) 260-1979. Email: [email protected].
    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: 
    Purpose of Program: The purpose of the ANE program is to support 
innovative projects that recognize and address the unique education 
needs of Alaska Natives. These projects must include activities 
authorized under section 6304(a)(2) of the ESEA, and may include one or 
more activities authorized under section 6304(a)(3) of the ESEA.
    Program Authority: Title VI, part C of the ESEA (20 U.S.C. 7541-
7546).
    We published a notice of proposed definitions and requirements for 
this program (NPP) in the Federal Register on December 27, 2018 (83 FR 
66655). That document contained background information and our reasons 
for proposing the particular definitions and requirements.
    There is one change to the proposed definitions and requirements in 
the final definitions and requirements. We are allowing ``experience 
operating programs that fulfill the purposes of this part'' to include 
experience operating either Federal or non-Federal grants serving 
Alaska Natives. In addition, we have clarified the definition of 
``official charter or sanction,'' the Group Application Requirement, 
and the definition of ``experience operating programs that fulfill the 
purposes of the ANE program.''
    Public Comment: In response to our invitation in the NPP, two 
parties submitted comments on the proposed definitions and 
requirements.

[[Page 25683]]

    Analysis of Comments: An analysis of the comments and of any 
changes in the proposed definitions and requirements since publication 
of the NPP follows.
    Comment: One commenter noted that education service agencies (ESAs) 
play an important role in the implementation of the ESEA. Specifically, 
this commenter appeared to request that ESEA section 6304(a)(1)(B)(i) 
be modified to include ESAs as one of the entities that could serve as 
a required partner for Alaska Native Organizations (ANOs) without 
experience operating ANE programs. The commenter recommended a 
corresponding change to the Group Application Documentation 
requirement, asking that ESAs be added to the list of entities with 
whom an ANO may partner.
    Discussion: While the Department agrees that ESAs can play an 
important role in the implementation of ESEA programs, the Department 
cannot modify statutory language. Such a change would require a 
legislative change. Similarly, because the Group Application 
Documentation requirement is based directly on the statutory list of 
required partners, we decline to modify that requirement to add ESAs to 
the list of partner entities.
    Changes: None.
    Comment: None.
    Discussion: Upon further review, we realized that language in the 
definition of ``official charter or sanction'' and in the Group 
Application Requirement was unclear. Both provisions referred to 
agreements that must be signed and dated ``within 120 days of the date 
of submission of the application.'' This language did not specify 
whether the agreements needed to be signed and dated before the 
submission of the application or could be signed and dated after the 
submission of the application.
    Changes: We have changed both the definition of ``official charter 
or sanction'' and the Group Application Requirement to provide that the 
agreements must be signed and dated within 120 days prior to the date 
of submission of the application.
    Comment: One commenter proposed that we revise the definition of 
``experience operating programs that fulfill the purposes of the ANE 
program'' to include programs that are not funded with Federal grants.
    Discussion: The Department agrees that recipients of non-Federal 
grants operating programs that fulfill the purposes of the ANE program 
may have expertise that is relevant to Alaska Native education 
programs. The Department acknowledges that the knowledge and skills 
required to manage ANE program grants can also be demonstrated with 
experience managing non-Department grants. We also believe this change 
will result in more diversity among applicants, including novice 
applicants.
    Changes: We have changed the definition to include eligibility for 
entities that have experience managing either Federal or non-Federal 
grants.
    Comment: None.
    Discussion: Upon further review, we realized the definition of 
``experience operating programs that fulfill the purposes of the ANE 
program'' did not make clear whether the four-year timeframe in the 
definition applies to ANE grants or only to other grants that fulfill 
the purposes of the ANE program.
    Changes: We have modified the definition to clarify that the four-
year timeframe applies to both ANE grants and to other grants focused 
on meeting the unique education needs of Alaska Native children and 
families in Alaska.

Final Definitions

    The Assistant Secretary establishes the following definitions for 
the purposes of the ANE program. We may apply one or more of these 
definitions in any year in which this program is in effect.
    Experience operating programs that fulfill the purposes of the ANE 
program means that, within the past four years, the entity has received 
and satisfactorily administered, in compliance with applicable terms 
and conditions, a grant under the ANE program or another Federal or 
non-Federal program that focused on meeting the unique education needs 
of Alaska Native children and families in Alaska.
    Official charter or sanction means a signed letter or written 
agreement from an Alaska Native Tribe or Alaska Native Organization 
(ANO) that is dated within 120 days prior to the date of the submission 
of the application and expressly (1) authorizes the applicant to 
conduct activities authorized under the ANE program and (2) describes 
the nature of those activities.
    Predominately governed by Alaska Natives means that at least 80 
percent of the individuals on the entity's governing board (i.e., the 
board elected or appointed to direct the policies of the organization) 
are Alaska Natives.

Final Requirements

    The Assistant Secretary establishes the following requirements for 
the purposes of the ANE program. We may apply one or both of these 
requirements in any year in which this program is in effect.
    Requirement 1--Group Application Requirement.
    An applicant that applies as part of a partnership must meet this 
requirement.
    (1) An ANO that applies for a grant in partnership with a State 
educational agency (SEA) or local educational agency (LEA) must serve 
as the fiscal agent for the project.
    (2) Group applications under the ANE program must include a 
partnership agreement that includes a Memorandum of Understanding or a 
Memorandum of Agreement (MOU/MOA) between the members of the 
partnership identified and discussed in the grant application. Each 
MOU/MOA must--
    (i) Be signed by all partners, and dated within 120 days prior to 
the date of the submission of the application;
    (ii) Clearly outline the work to be completed by each partner that 
will participate in the grant in order to accomplish the goals and 
objectives of the project; and
    (iii) Demonstrate an alignment between the activities, roles, and 
responsibilities described in the grant application for each of the 
partners in the partnership agreement.
    Requirement 2--Applicants Establishing Eligibility through a 
Charter or Sanction from an Alaska Native Tribe or ANO.
    For an entity that does not meet the eligibility requirements for 
an ANO, established in sections 6304-(a)(1) and 6306(2) of the ESEA and 
the definitions in this notice, and that seeks to establish eligibility 
through a charter or sanction provided by an Alaska Native Tribe or ANO 
as required under section 6304(a)(1)(C)(ii) of the ESEA, the following 
documentation is required:
    (1) Written documentation demonstrating that the entity is 
physically located in the State of Alaska.
    (2) Written documentation demonstrating that the entity has 
experience operating programs that fulfill the purposes of the ANE 
program.
    (3) Written documentation demonstrating that the entity is 
predominately governed by Alaska Natives, including the total number, 
names, and Tribal affiliations of members of the governing board.
    (4) A copy of the official charter or sanction provided to the 
entity by an Alaska Native Tribe or ANO.
    This notice does not preclude us from proposing additional 
priorities, requirements, definitions, or selection criteria, subject 
to meeting applicable rulemaking requirements.

    Note: This notice does not solicit applications. In any year in 
which we choose

[[Page 25684]]

to use one or more of these definitions and requirements, we invite 
applications through a notice in the Federal Register.

Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis

    Under Executive Order 12866, it must be determined 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 not a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    Under Executive Order 13771, for each new regulation that the 
Department proposes for notice and comment, or otherwise promulgates, 
that is a significant regulatory action under Executive Order 12866 and 
that imposes total costs greater than zero, it must identify two 
deregulatory actions. For FY 2019, any new incremental costs associated 
with a new regulation must be fully offset by the elimination of 
existing costs through deregulatory actions. Because the final 
regulatory action is not significant, the requirements of Executive 
Order 13771 do not apply.
    We have also reviewed this final 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 these final definitions and requirements 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 final regulatory action would not 
unduly interfere with State, local, and Tribal governments in the 
exercise of their governmental functions.
    In accordance with these Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.

Discussion of Costs and Benefits

    We have determined that these final definitions and requirements 
will impose minimal costs on eligible applicants. Program participation 
is voluntary, and the costs imposed on applicants by these definitions 
and requirements are limited to paperwork burden related to preparing 
an application. The potential benefits of implementing the program 
outweighs any costs incurred by applicants, and the costs of actually 
carrying out activities associated with the application would be paid 
for with program funds. For these reasons, we have determined that the 
costs of implementation are not excessively burdensome for eligible 
applicants, including small entities.
    Paperwork Reduction Act of 1995: These final definitions and 
requirements do not contain any information collection requirements.
    Regulatory Flexibility Act: The Secretary certifies that this final 
regulatory action will not have a significant economic impact on a 
substantial number of small entities. The U.S. Small Business 
Administration Size Standards define ``small entities'' as for-profit 
or nonprofit institutions with total annual revenue below $7,000,000 
or, if they are institutions controlled by small governmental 
jurisdictions (that are comprised of cities, counties, towns, 
townships, villages, school districts, or special districts), with a 
population of less than 50,000.
    Although some of the ANOs, LEAs, and other entities that receive 
ANE program funds qualify as small entities under this definition, the 
final definitions and requirements will not have a significant economic 
impact on these small entities. The Department believes that the costs 
imposed on an applicant by the final definitions and requirements is 
limited to the costs related to providing the documentation outlined in 
the final definitions and requirements when preparing an application 
and that those costs will not be significant. Participation in the ANE 
program is voluntary.
    Intergovernmental Review: This program is not subject to Executive 
Order 12372 and the regulations in 34 CFR part 79.
    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 program contact 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. You may 
access the official edition of the Federal Register and the Code of 
Federal Regulations at:

[[Page 25685]]

www.govinfo.gov. 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.

Frank T. Brogan,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2019-11525 Filed 6-3-19; 8:45 am]
BILLING CODE 4000-01-P